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Full text of "Revised statutes of the state of Illinois : adopted by the General Assembly of said state, at its regular session, held in the years, A.D., 1844-5 : together with an appendix"

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EVISED STATUTES 



OF THE 



STATE OF ILLINOIS. 



EEVISED STATUTES 



STATE OF ILLINOIS, 



ADOPTED BY 

GENERAL ASSEMBLY OF SAID STATE, AT ITS REGULAR 
SESSION- HELD IN THE YEARS, A. D., 1844-'5. 

TOGETHER WITH 

AN APPENDIX, 

CONTAINING 



ACTS PASSED AT THE SAME AND PREVIOUS SESSIONS, NOT INCORPORATE!/ 

IN THE REVISED STATUTES, BUT WHICH 

REMAIN IN FORCE. 



REVISED AND PREPARED FOR PUBLICATION, WITH NOTES, 
INDEX, &c. BY M. BRAYMAN. 



PUBLISHED BY AUTHORITY OF THK GEISERAL ASSEMBLY. 



SPRINGFIELD: 
William Walters, printer, for Walters & Weber, public printers 

1845. 



PREFACE. 



While all that relates to the general history of a State — its early settlement — its 
struggles for existence — its wars — its spreading population — its rising institutions 
— its advances in political power and social improvement, readily find a place in 
the chronicles of the times, the history of its Jurisprudence is seldom written. 

To trace that history through even the limited period of time which marks the 
distinct political existence of what is now the State of Illinois, would present 
an ample field, as well as a gratifying reward, to the philosophic legal inquirer. 

It were to be expected, that the early enactments which proceeded, first from 
the Territorial, then from the State Government, would be crude, imperfect and 
inharmonious. They were not adopted together, as a distinct body of statute law, 
nor with any view to their connexion or consistency with each other ; but hastily 
produced, at different times and places, in obedience to the ever-varying wants and 
circumstances of an unsettled, scattered and heterogeneous population. And if 
we recur to the days during which those hardy pioneers of civilization were con- 
tending with the difficulties of an untried soil and climate — when, to acquire the 
means of subsistence and defence, were objects of daily toil and nightly solicitude — 
when the rifle, and the plough, and the woodman's axe, proved better friends than 
the pen and the musty volume, — and the strong arm afforded more efficient protec- 
tion than any law, we may readily conclude, that they found little leisure for the 
business of legislation, and that they made their laws, as they made their log cabins, 
their roads and bridges — as they needed them, for their shelter and convenience, 
from time to time. 

Many of those laws, enacted under circumstances so disadvantageous, during the 
early history of our legislation, particularly those concerning rights to real estate? 
and the administration of the penal code, stand almost untouched by the hand of 
innovation, as monuments of the sagacity, legal ability, and just views of those 
who framed them. Amidst the vicious superabundance of legislation in more re- 
cent times, some respect has been paid to the stern wisdom of the past; and it may 
be said, without offence, that greater progress has been made in manufacturing than 
in perfecting, laws for the government of the State. 

It evidently does not appear that the improvements which so strongly mark 
every other feature in the history of our State, have extended, with the same ben- 
eficial effects, to our legislation. The same habit of passing laws to meet special 
cases, and to obviate present inconveniences, which obtained at first, through neces- 
sity, has never been wholly shaken off ; and one cannot but feel surprise at the 
great number of acts which are forced through at every session, at the suggestion 



x PREFACE. 

of individual interest, or to subserve purposes of temporary expediency, without 
reference to, and often to the sacrifice of, the public good. 

Laws which, when adopted, were complete, and covered the entire subject mat- 
ter to which they related, have become buried beneath an accumulated mass of 
distinct amendatory acts, by which they have been partially repealed, some of their 
provisions superceded, changed and subjected to new constructions. The same 
identical matters have been passed upon in laws enacted at different times, until, 
comparing one with another, sections have become interwoven, involved and contra- 
dictory, rendering it impossible to ascertain, without judicial construction, the real 
intention of the legislature. Scarcely a single act, as originally passed, remained 
untouched; and to ascertain what was really the law upon any particular point, it 
became indispensable for the legal inquirer to travel through the whole labyrinth 
of past legislation, without even the aid, in most cases, of intelligible indexes to 
the volumes in which the laws were to be found. 

Such a state of things could not but be productive of serious confusion and em- 
barrassment. Magistrates and others, charged with the administration of justice, 
found it difficult to extract the existing lav) from the mass of rubbish with which it 
was incumbered, and were often led into erroneous judgments, requiring vexatious 
delays, and a round of expensive litigation for their correction. Each succeeding 
Legislature seems to have proceeded to the enactment of its assigned number and 
quantity of acts, upon the topics usually presented for its action, without refer- 
ence to what its predecessors had done upon the same subjects; until, at the pres- 
ent time, the laws by which we are governed, lie in broken and unseemly fragments 
along the course of our legislative history, no more resembling that uniform, har- 
monious and energetic system of statute law, which should stand prominent among 
the institutions of a civilized State, than do the collections of fugitive shells which 
the successive waves of the ocean have cast upon its shore, the most perfect speci- 
men of architectural symmetry and strength. 

The necessity of a revision and re-publication of the laws, in a form more Consis- 
tent with the public wants, and the advanced state of legal science, has long been 
conceded. No authorized publication had been made since 1833. The population 
of the State had vastly augmented in the intervening time. Whole counties had 
been settled and organized, and the number of officers requiring copies of the 
laws, greatly increased. They could not be supplied, and magistrates and others, 
frequently found it almost impossible to procure copies even for occasional refer- 
ence in cases of emergency. It is not surprising, under these circumstances, that 
the demand for a publication and dissemination of the laws, in some form, was 
urgent and continued. Even a re-publication, in their imperfect and almost unin- 
telligible state, would have been preferred to the general destitution. 

Efforts to remedy the evil, have been made at various sessions of the General 
Assembly. At its session of 1840-1, the duty of revising the laws upon a plan 
similar to the present, was imposed upon the Secretary of State and Attorney Gen- 
eral, who were required to report the result of their labors at the succeeding ses- 



PREFACE. xi 

sion. Nothing, however, was done, and at the session of 1842-3, an act passed 
both Houses, authorizing a re-publication of all the existing laws of a general na- 
ture, without revision or amendment ; but that act, not being approved by the Coun- 
cil of Revision, failed to become a law, and no farther action was had upon the sub- 
ject. 

So much time having been lost, and the necessity of a speedy accomplishment of 
the work becoming every day more apparent, the undersigned, at the suggestion of 
His Excellency, Governor Ford, commenced in April, 1844, the compilation of the 
chapters comprised in this volume. 

On the meeting of the Legislature, the subject was brought to its notice by the 
Executive; and, in answer to a call of the House of Representatives, a communica- 
tion explanatory of the nature, extent, and progress of the work, was submitted to 
that body. After much delay, the following preamble and resolutions, having pas- 
sed the House, were, on the 18th of January, 1845, concurred in by the Senate: — 

"Whereas, a revision and re-publication of such laws of this State of a general 
nature, as are now in force, together with such laws of a general nature as may be 
passed at the present session of the General Assembly, are indispensably necessary, 
both to supply the public wants and to render the law more plain and intelligible: — 
And whereas, information has been received from the Executive, that such revision 
or compilation has been commenced by M. Brayman, and is so near its completion 
that the same can be presented to the Legislature, and acted upon at its present 
session : Therefore, 

"1 . Resolved, by the House of Representatives, the Senate concurring herein, That the 
said M. Brayman be appointed and authorized to proceed and complete his said 
revision and compilation of the laws of this State as speedily as possible, upon the 
plan adopted, as specified in his communication to the Governor. 

"2. Resolved, That said work shall be done under the joint direction and super- 
vision of the judiciary committees of the Senate and House of Representatives, to 
whom it shall be submitted as rapidly as the chapters thereof are in readiness. 

"3. Resolved, That said joint committee, or a sub-committee which such joint 
committee may appoint from their own number, shall diligently examine and com- 
pare the same, and cause to be made such corrections and alterations as they shall 
deem necessary to render such laws full, perfect and consistent; and so as to re- 
duce the statute laws of this State of a general nature, to a compact code, conven- 
iently divided into chapters and sections, and arranged in alphabetical order. And 
it shall be the duty of the reviser, to insert appropriately in the work, such altera- 
tions and amendments as such committee shall suggest, not inconsistent with the 
spirit and meaning of the law. 

"4. Resolved, That all acts of a general nature, passed or to be passed, at the pre- 
sent session of the General Assembly, shall be incorporated in such revision, to be 
inserted in the several parts and chapters thereof, to which such acts, or their sev- 
eral parts, appropriately belong, 



xii PREFACE. 

"5. Resolved, That the said M. Brayman be required to submit to said commit- 
tee, such portion of said work as is already completed ; and to prepare and submit 
the remainder thereof, as speedily as the same shall be needed by said joint commit- 
tee for examination ; and that the whole shall be completed, and the last chapter 
thereof ready for the action of said committee, by the tenth day of February next. 
And the said committee shall report said work in chapters, as soon as the same are 
examined and approved, and in sufficient time to be acted upon by the General As- 
sembly at its present session — the manner of reporting said work to the two Houses 
to be as follows : The first chapter to the Senate, the second to the House, and 
and so on alternately, that loss of time may be avoided." 

In accordance with the foregoing resolutions, the work was submitted to the joint 
committee designated, consisting of the following gentlemen: — Messrs. Cavarly, 
Dougherty, Davis, Foeman, Webb, Allen, and Constable, of the Senate, and 
Messrs. Manning, Benedict, Logan, Janney, Strong, Yates, Botakin, Lott, 
and Denning, cf the House of Representatives. When it is considered, that the 
joint committee was not charged with this weighty addition to its duties, until a 
late period of an exciting session — that it was composed of leading and active 
members of the two Houses, who had their full share of the burden of ordinary 
legislation to sustain, and scarcely any leisure to devote to the subject, it cannot but 
be highly creditable to their energy and zeal for the attainment of a public good, 
that they made an examination of the entire work, and submitted it to the General 
Assembly, in time for its adoption, in the form in which it is now presented to the 
public. 

The chapters were presented to the Houses, and by them passed, separately, at 
different times ; but received the approval of the Council of Revision, at one 
time, as one entire act ; and were intended to be contemporaneous in their opera- 
tion. The only exception, is in the case of chapter 54, title "Interest," which 
took effect on the first of May, and such sections of chapter 90 as related to the 
publication of the work. In connexion with these, it may be well to mention, that 
chapters 89 and 98, entitled "Revenue" and "Schools," were passed as acts of 
the session, and are, by a special provision, incorporated as chapters in their proper 
order, (see pages 473-4.) Section 80, in chapter 98, was repealed after the 
passage of the act, and is omitted from the present compilation. 

Owing to the fact, that most of the acts of a general nature were not finally acted 
upon until near the close of the session, and after the chapters had mostly gone 
beyond the reach of revision, but few of them are incorporated in those chapters, 
according to the original design. Such as were so incorporated, are repealed in 
chapter 90, and not published in the appendix, while such as were not incorpora- 
ted, remain in force, and are published in the appendix. Such other laws of a 
general nature, passed at previous sessions, as were not incorporated, and are 
essential to a proper understanding of the matters comprised in the chapters and 
acts, are also published in the appendix. Sundry laws of the United States, on 
subjects of general interest and daily reference, and a tabular statement of the 



PREFACE. xiii 

times and places of holding courts in the several judicial circuits, are given. They 
will be found convenient to all, especially to members of the bar, and others con- 
cerned in the administration of justice. The analytical notes at the heads of the 
chapters, have been prepared with some care, and will be found a useful aid in the 
examination of their contents. The index involved a greater amount of labor and 
research, than one (as in the present case) destitute of experience, could anticipate. 
It will be found sufficiently voluminous, though less perfect than desired, owing to 
want of time to correct its arrangement, and to classify its various references, in a 
more natural order under their appropriate heads. It is believed that no errors 
have occured in the execution of the work, which change or obscure the meaning of 
the text. Those of a merely typographical" character, which, in the most carefully 
corrected publications, escape detection, will, when discovered, suggest their own 
correction to the mind of the observing reader. 

That none may be disappointed, from having expected too much from this work, 
it is proper to say here, that it is by no means, such a full and radical revision, or 
even compilation, of our laws, as was desired, or at first intended. At its com- 
mencement, a wider range was taken — alterations, additions, and innovations, when 
deemed expedient, were freely made, having in view the construction of a full 
code of statute law, corresponding with those adopted by neighboring States. But 
when the subject was acted upon by the Legislature, and presented to the joint 
committee, full two-thirds of the session had already passed away — the ordinary 
business of legislation remained to be perfected, and it became impossible to compress 
a work requiring months for its accomplishment, into the space of a few days. The 
original design was therefore contracted, and the only object possible of attainment 
was sought — 'that of collating and arranging the laws of the State, in accordance with 
their true spirit and intention, making them plain and intelligible, and relieving them 
from that smothering load of useless verbiage, contradictions and doubts, which had 
been accumulating through so many years of changing legislation. The object be- 
came, not so much to make new laws, or to depart materially from the spirit and 
meaning of those already existing, as to prune away excrescences, reconcile contra- 
dictions, and condense and arrange in convenient order, all that remained in force at 
the time. Every thing that had been repealed or superseded, was omitted con- 
flicting provisions were reconciled, and sections which were obscure, involved or 
doubtful in their meaning, were re-written, so as to express the evident intention 
of the Legislature, and conform to constructions fixed by the Supreme Court. These 
desired ends, it is apprehended, have not been fully attained, more particularly in 
some of the later chapters, which were thrown together with such haste as to pre- 
clude elaborate examination, and to prevent that attention to grammatical accuracy 
and correctness of style, wdfich are so necessary to the usefulness, to say nothing of 
the literary merit, of a work of this character. As far as possible and consistent 
with duty, errors thus occurring have been carefully corrected, durino- the progress 
of the several chapters through the press. 



XIV PREFACE. 

It will be apparent that some of the chapters contain provisions of law enacted 
in early times, but which have no application to our present circumstances, and 
which, if presented as separate propositions, would not have been approved. With 
regard to such, it is sufficient to say, that their incorporation was acquiesced in, 
because they were a part of the existing law, and because time was not at the com- 
mand of the Legislature, to discuss and settle every objection which might well 
have been raised. 

If, after much labor and research on the part of those engaged in bringing this 
compilation to its present shape, performed in haste, and amidst circumstances so 
unfavorable to calm and deliberate investigation, it shall be found to promote the 
public good, satisfy the wants of the people for the time, and aid in establishing the 
jurisprudence of the State upon a more firm and well-defined basis, surely none 

will regret that the effort has been made. 

M. BRAYMAN. 
Springfield, September 25, 1845. 



TABLE OF CONTENTS. 



DECLARATION OF INDEPENDENCE, 

ARTICLES OF CONFEDERATION, 

ORDINANCE OF 1787, 

CONSTITUTION OF THE UNITED STATES, 

ORDINANCE OF THE ILLINOIS CONVENTION, 1818, 

CONSTITUTION OF ILLINOIS, 

RESOLUTION OF CONGRESS DECLARING THE ADMISSION 

OF ILLINOIS INTO THE UNION, DECEMBER 3, 1818, 
ACT FOR REVISING THE LAWS OF ILLINOIS, 



Page 1 

4 

11 

16 

27 
29 

42 
43 



Chap. Titles of Chapters. Page. | Chap. 

1. Abatement, 

2. Account, 

3. Advertisements, 

4. Aliens, 

5. Amendments and Jeofails, 
6'. Apprentices, 

7. Arbitrations and Awards, 

8. Attachments before Justices, 

9. Attachments in Circuit Court, 

10. Attachments of Boats and 

Vessels, 

11. Attorneys and Counsellors 

at law, 

12. Attorney General and Circuit 

Attorneys, 

13. Auditor and Treasurer, 

14. Bail, 

15. Bank notes, 

16. Bastardy, 

17. Births and Deaths, 

18. Castor Beans, 

19. Census, 

20. Chattel Mortgages, 

21. Chancery, 

22. Charitable Uses, 

23. Congress, 



Titles of Chapters. 



43 


24. 


45 


25. 


47 


26. 


47 


27. 


48 




51 


28. 


56 




58 


29. 


62 


30. 




31. 


71 


32. 




33. 


72 


34. 




35. 


75 


36. 


77 


37. 


80 


38. 


84 


39. 


85 


40. 


87 


41. 


88 


42. 


89 


43. 


91 


44. 


92 


45. 


99 


46. 


101 


47. 



Page. 

102 
111 
125 



Conveyances, 
Corporations, 
Costs, 

Counties and County Com- 
missioners' Courts, 129 
County Treasuries and Coun- 
ty Funds, 137 
Courts, 141 
Criminal Jurisprudence, 151 
Cumberland Road, 194 
Detinue, 195 
Divorces, 196 
Dower, 198 
Drovers, 203 
Ejectment, 204 
Elections, 213 
Escheats, 225 
Estrays, 227 
Evidence and Depositions, 232 
Fees and Salaries, 237 
Ferries and Toll Bridges, 251 
Forcible Entry and Detainer, 256 
Frauds and Perjuries, 258 
Fugitives from Justice, 261 
Gaming, 263 
Guardian and Ward, 265 



TABLE OF CONTENTS. 



Chap. 


Titles to Chapters. 


Page. 


Chap. 


Titles to Chapters. 


Page. 


48. 


Habeas Corpus, 


269 


79. 


Partitions, 


399 


49. 


Horses, 


274 


80. 


Paupers, 


402 


50. 


Idiots and Lunatics, 


276 


81. 


Penitentiary, 


405 


51. 


Inclosures and Fences, 


277 


82. 


Petitions, 


411 


52. 


Insolvent Debtors, 


282 


83. 


Practice, 


412 


53. 


Inspections, 


286 


84. 


Printing and Binding, 


422 


54. 


Interest, 


294 


85. 


Probate Court, 


426 


55. 


Jails and Jailers, 


296 


86. 


Quo Warranto, 


429 


56. 


Joint Rights and Obligations, 


299 


87. 


Records and Recorders, 


431 


57. 


Judgments and Executions, 


300 


88. 


Replevin, 


433 


58. 


Jurors, 


308 


89. 


Revenue, 


435 


59. 


Justices of the Peace and 




90. 


Revised Statutes, 


454 




Constables, 


312 


91. 


Right of Property, 


474 


60. 


Landlord and Tenant, 


333 


92. 


Right of Way, 


477 


61. 


Lands, 


336 


93. 


Roads, 


479 


62. 


Laws, 


337 


94. 


Saltpetre Caves, 


490 


63. 


Library, State, 


339 


95. 


Seat of Government, 


490 


64. 


Licenses, 


341 


96. 


Secretary of State, 


491 


65. 


Liens, 


345 


97. 


Securities, 


493 


66. 


Limitations, 


348 


98. 


Schools, 


495 


67. 


Mandamus, 


351 


99. 


Sheriffs and Coroners, 


514 


68. 


Marks and Brands, 


352 


100. 


Shows and Jugglers, 


520 


69. 


Marriages, 


353 


101. 


Slander, 


521 


70. 


Militia, 


355 


102. 


Steamboats, 


521 


71. 


Mills and Millers, 


378 


103. 


Surveyors, 


523 


72. 


Ne Exeat and Injunctions, 


381 


104. 


Trespass, 


525 


73. 


Negotiable Instruments, 


384 


105. 


Venue, 


527 


74. 


Negroes, Mulattoes, &c, 


387 


106. 


Warehouses, 


530 


75. 


Notaries Public, 


391 


107. 


Warrants of cities and towns, 531 


76. 


Oaths and Affirmations, 


393 


108. 


Weights and Measures, 


532 


77. 


Officers, 


394 


109. 


Wills, 


534 


78. 


Official Bonds, 


396 


110. 


Wolves, 


566 



APPENDIX. 



ACTS of the General Assembly, 1844-5 ; not incorporated in the 
body of the chapters, nor affected thereby, but which, in some 
respects amend and modify the same, 569 to 608 

ACTS passed at sessions of the General Assembly, previous to 
that of 1844-'5, and which are not incorporated in the Re- 
vised Statutes, nor repealed thereby, 608 to 617 



Certificate of authentication, 

ABSTRACT of the Naturalization Laws of the United States, 

LAWS of the United States respecting Fugitives from Labor and 
Justice, 

LAWS of the United States respecting the Authentication of Stat- 
utes, Records, &c, 

TABULAR STATEMENT of the times and places of holding 
Courts in the several judicial circuits, as now prescribed by 
law, 

GENERAL INDEX, 



618 
619 

623 

624 



627 
633 



DECLARATION OF INDEPENDENCE. 

IN CONGRESS, JULY 4, 1776. 



The unanimous declaration of the thirteen United States of America. 

When, in the course of human events, it becomes necessary for one people 
to dissolve the political bands which have connected them with another, and to as- 
sume among the powers of the earth the separate and equal station to which the 
laws of nature and of nature's God entitle them, a decent respect to the opinions of 
mankind requires, that they should declare the causes which impel them to the se- 
paration. 

We hold these truths to be self-evident : that all men are created equal : that 
they are endowed by their Creator with certain inalienable rights; that among these 
are life, liberty and the pursuit of happiness. That, to secure these lights, gov- 
ernments are instituted among men, deriving their just powers from the consent of 
the governed; that, whenever any form of government becomes destructive of these 
ends, it is the right of the people to alter or to abolish it, and to institute a new gov- 
ernment, laying its foundation on such principles, and organizing its powers in such 
form, as to them shall seem most likely to effect their safety and happiness. Pru- 
dence, indeed, will dictate, that governments long established should not be changed 
for light and transient causes ; and accordingly all experience hath shown, that 
mankind are more disposed to suffer, while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are accustomed. But when a long 
train of abuses and usurpations pursuing invariably the same object, evinces a 
design to reduce them under absolute despotism, it is their right, it is their duty to 
throw off such government, and to provide new guards for their future secu- 
rity. Such has been the patient sufferance of these colonies ; and such is now the 
necessity which constrains them to alter their former systems of government. The 
history of the present king of Great Britain is a history of repeated injuries and 
usurpations, all having in direct object the establishment of an absolute tyranny over 
these States. To prove this let facts be submitted to a candid world. 

He has refused his assent to laws the most wholesome and necessary for the pub- 
lic good. 

He has forbidden his governors to pass laws of immediate and pressing impor- 
tance, unless suspended in their operation till his assent should be obtained, and, 
when so suspended, he has utterly neglected to attend to the:u. 

He has refused to pass other laws for the accommodation of large districts of peo- 
ple, unless those people would relinquish the right of representation in the legisla- 
ture — a right inestimable to them, and formidable to tyrants only. 

He has called together legislative bodies, at places unusual, uncomfortable, and 
distant from the repository of their public records, for the sole purpose of fatiguing 
them into compliance with his measures. 

He has dissolved representative houses repeatedly, for opposing with manly firm- 
ness his invasions on the rights of the people. 



2 DECLARATION OF INDEPENDENCE. 

He has refused for a long time after such dissolutions to cause others to be elec- 
ted; whereby the legislative powers, incapable of annihilation, have returned to 
the people at large for their exercise ; the state remaining, in the mean time, ex- 
posed to all the dangers of invasion from without and convulsions within. 

He has endeavored to prevent the population of these States ; for that purpose ob- 
structing the laws for naturalization of foreigners; refusing to pass others to encour- 
age their migration hither, and raising the conditions of new appropriations of lands. 

He has obstructed the administration of justice, by refusing his assent to laws 
for establishing judiciary powers. 

He has made judges dependent on his will alone for the tenure of their offices, 
and the amount and payment of their salaries. 

He has erected a multitude of new offices, and sent hither swarms of officers to 
harrass our people and eat out their substance. 

He has kept among us, in times of peace, standing armies, without the consent 
of our legislatures. 

He has affected to render the military independent of, and superior to, the civil 
power. 

He has' combined with others to subject us to a jurisdiction foreign to our con- 
stitutions, and unacknowledged by our laws ; giving his assent to their acts of pre- 
tended legislation : 

For quartering large bodies of armed troops among us : 

For protecting them by a mock trial from punishment for any murders which 
they should commit on the inhabitants of these States : * 

For cutting off our trade with all parts of the world : 

For imposing taxes on us, without our consent : 

For depriving us, in many cases, of the benefits of trial by jury: 

For transporting us beyond seas, to be tried for pretended offences : 

For abolishing the free system of English laws in a neighboring province, estab- 
lishing therein an arbitrary government, and enlarging its boundaries so as to render 
it at once an example and fit instrument for introducing the same absolute rule into 
these colonies : 

For taking away our charters, abolishing our most valuable laws, and altering 
fundamentally the forms of our governments : 

For suspending our own legislatures, and declaring themselves invested with 
power to legislate for us in all cases Avhatsoever. 

He has abdicated government here, by declaring us out of his protection, and 
waging; war against us. 

He has plundered our seas, ravaged our coasts, burnt our tow T ns and destroyed 
the lives of our people. 

He is, at this time, transporting large armies of foreign mercenaries to complete 
the works of death, desolation, and tyranny, already begun, with circumstances of 
cruelty and perfidy, scarcely paralleled in the most barbarous ages, and totally un- 
worthy the head of a civilized nation. 

He has constrained our fellow-citizens, taken captive on the high seas, to bear 
arms against their country, to become the executioners of their friends and brethren, 
or to fall themselves by their hands. 

He has excited domestic insurrections amongst us, and has endeavored to bring 
on the inhabitants of our frontiers the merciless Indian savages, whose known rule 
of warfare is an undistinguished destruction of all ages, sexes, and conditions. 

In every stage of these oppressions we have petitioned for redress, in the most 
humble terms ; our repeated petitions have been answered only by repeated injury. 
A prince, whose character is thus marked by every act which may define a tyrant, 
is unfit to be the ruler of a free people. 

Nor have we been wanting in attention to our British brethren. We have 
warned them, from time to time, of attempts, by their legislature, to extend an un- 
warrantable jurisdiction over us. We have reminded them of the circumstances of 
our emigration and settlement here. We have appealed to their native justice and 



DECLARATION OF INDEPENDENCE. 



3 



magnanimity; and we have conjured them by the ties of our common kindred to 
disavow these usurpations, which would inevitably interrupt our connexion and 
correspondence. They, too, have been deaf to the voice of justice and of consan- 
guinity. We must, therefore, acquiesce in the necessity which denounces our 
separation, and hold them as we hold the rest of mankind, enemies in war, in 
peace, friends. 

We, therefore, the representatives of the United States of America, in general 
Congress assembled, appealing to the Supreme Judge of the world, for the recitude 
of our intentions, do, in the name and by the authority of the good people of these 
colonies, solemnly publish and declare, that these united colonies are, and of 
right ought to be, free and independent States ; that they are absolved from all 
allegiance to the British crown, and that all political connexion between them and 
the state of Great Britain is, and ought to be, totally dissolved; and that as free and 
independent States they have full power to levy war, conclude peace, contract alli- 
ances, establish commerce, and to do all other acts and things which independent 
States may of right do. And for the support of this declaration, with a firm reli- 
ance on the protection of Divine Providence, we mutually pledge to each other our 
lives, our fortunes, and our sacred honor. 

The foregoing declaration was, by order of Congress, engrossed, and signed by the 
following members : 

JOHN HANCOCK. 



New Hampshire, 

JOSIAH BARTLETT, 
WILLIAM WHIPPLE, 
MATTHEW THORNTON. 

Massachusetts Bay, 

SAMUEL ADAMS, 
JOHN ADAMS, 
ROBERT TREAT PAINE, 
ELBRIDGE GERRY. 

Rhode Island, Sfc, 

STEPHEN HOPKINS, 
WILLIAM ELLERY. 

Connecticut, 

ROGER SHERMAN, 
SAMUEL HUNTINGTON, 
WILLIAM WILLIAMS, 
OLIVER WOLCOTT. 



New York, 



WILLIAM FLOYD, 
PHILIP LIVINGSTON, 
FRANCIS LEWIS, 
LEWIS MORRIS. 



New Jersey, 



RICHARD STOCKTON, 
JOHN WITHERSPOON, 
FRANCIS HOPKINSON, 
JOHN HART, 
ABRAHAM CLARK. 



Pennsylvania, 



ROBERT MORRIS, 
BENJAMIN RUSH, 
BENJAMIN FRANKLIN, 
JOHN MORTON, 
GEORGE CLYMER, 



JAMES SMITH, 
GEORGE TAYLOR, 
JAMES WILSON, 
GEORGE ROSS. 



Delaware^ 



CjESAR RODNEY, 
GEORGE READ, 
THOMAS M'KEAN. 



Maryland, 

SAMUEL CHASE, 
WILLIAM PACA, 
THOMAS STONE, 
CHARLES CARROLL, of Carrollton. 

Virginia, 

GEORGE WYTHE, 
RICHARD HENRY LEE, 
THOMAS JEFFERSON, 
BENJAMIN HARRISON, 
THOMAS NELSON, Jr. 
FRANCIS LIGHTFOOT LEE, 
CARTER BRAXTON. 

North Carolina, 

WILLIAM HOOPER, 
JOSEPH HEWES, 
JOHN PENN. 

South Carolina, 

EDWARD RUTLEDGE, 
THOMAS HEY WARD, Jr. 
THOMAS LYNCH, Jr. 
ARTHUR MIDDLETON. 



Georgia, 



BUTTON GWINNETT, 
LYMAN HALL, 
GEORGE WALTON. 



ARTICLES OE CONFEDERATION 



AND PERPETUAL UNION, 



Between the States of Mew Hampshire, Massachusetts Bay, Rhode Island and 
Providence Plantations, Connecticut, Mew York, Mevj Jersey, Pennsylvania, 
Delaware, Maryland, Virginia, Morth Carolina, South Carolina, and Georgia. 



ARTICLE I. 
Style of Confederacy. 

ARTICLE II. 



State sovereignty. 



League, &c. 



ARTICLE IIL 



ARTICLE IV. 



Rights of citizenship ; privileges of trade ; duties 
and restrictions; fugitives from justice; credit to 
acts of States. 

ARTICLE V. 

Delegates in Congress ; their number ; term ; how 
paid; manner of voting; freedom of speech; pri- 
vileges of members. 

ARTICLE VI. 

States may not make treaties ; officers not to accept 
of presents ; titles of nobility not to be granted ; 
States not to make treaties with each other with- 
out consent of Congress ; States not to levy duties 
in contravention of treaties ; States not to keep 
ships or armies without consent of Congress ; 
shall organize militia, keep arms, &c. ; shall not 
engage in war, unless invaded; nor grant com- 
missions, except in time of war, unless to sup- 
press piracy. 

ARTICLE VII. 

When forces raised by a State, what officers to be 
commissioned by State. 



ARTICLE VIII. 

Expenses of Government to be defrayed by a land 
tax, to be laid and levied by the States. 

ARTICLE IX. 

Powers of Congress ; war ; peace ; treaties ; prohibi- 
tions ; powers of States not to be abridged ; State 
courts. 

Mode of appealing to Congress, in differences be- 
tween States ; mode of adjudication ; controver- 
sies concerning private rights ; coin ; weights and 
measures ; trade ; Indian affairs ; post offices ; ap- 
pointment of officers of army and navy ; rufes for 
army and navy ; committee of the States ; its du- 
ties and powers. 

Power of United States to engage in war, &c, regu. 
lated ; adjournment of Congress ; publication of 
its proceedings. 

ARTICLE X. 

Power of the committee of States in recess of Con- 
gress. 

ARTICLE XL 
Admission of Canada. 

ARTICLE XIL 
Existing debts assumed. 

ARTICLE XIII. 

States to abide by acts of Confederation; union 
pe/petual ; alterations ; ratification. 



ARTICLES OF CONFEDERATION. 5 

ARTICLE I. 

The style of this confederacy shall be, " the united states of amekica." 

ARTICLE II. 

Each State retains its sovereignty, freedom, and independence, and every power, 
jurisdiction, and right which is not by this confederation expressly delegated to the 
United States in Congress assembled. 

ARTICLE III. 

The said States hereby severally enter into a firm league of friendship with each 
other for their common defence, the security of their liberties, and their mutual and 
general welfare ; binding themselves to assist each other against all force offered to, 
or attacks made upon them, or any of them, on account of religion, sovereignty^ 
trade or any other pretence whatever. 

ARTICLE IV. 

The better to secure and perpetuate mutual friendship and intercourse among 
the people of the different States in this Union, the free inhabitants of each of these 
States, (paupers, vagabonds, and fugitives from justice excepted,) shall be entitled 
to all privileges and immunities of free citizens in the several States ; and the people 
of each State shall have free ingress and regress to and from any other State, and 
shall enjoy therein all the privileges of trade and commerce, subject to the same 
duties, impositions and restrictions, as the inhabitants thereof respectively : Provided, 
That such restriction shall not extend so far as to prevent the removal of property im- 
ported into any State to any other State of which the owner is an inhabitant: 
Provided also, that no imposition, duties or restriction shall be laid by any State 
on the property of the United States, or either of them. 

If any person, guilty of or charged with treason, felony, or other high misde- 
meanor, in any State, shall flee from justice, and be found in any of the United 
States, he shall, upon demand of the Governor, or executive power of the State 
from which he fled, be delivered up, and removed to the State having jurisdiction 
of his offence. 

Full faith and credit shall be given in each of these States to the records, acts, 
and judicial proceedings of the courts and magistrates of every other State. 

ARTICLE V. 

For the more convenient management of the general interests of the United States, 
delegates shall be annually appointed, in such manner as the Legislature of each 
State shall direct, to meet in Congress on the first Monday in November, in every 
year, with a power reserved to each State to recall its delegates, or any of them, at 
any time within the year, and to send others in their stead, for the remainder of the 
year. 

No State shall be represented in Congress by less than two, nor by more than 
seven members ; and no person shall be capable of being a delegate for more than 
three years in any term of six years ; nor shall any person, being a delegate, be capable 
of holding any office under the United States, for which he, or another for his benefit* 
receives any salary, fees, or emoluments of any kind. 

Each State shall maintain its own delegates in a meeting of the States, and while 
they act as members of the committee of the States. 

In determining questions in the United States in Congress assembled, each State 
shall have one vote. 



6 ARTICLES OF CONFEDERATION. 

Freedom of speech, and debate in Congress, shall not be impeached or questioned 
in any other court or place out of Congress ; and the members of Congress shall be 
protected in their persons from arrests and imprisonments during the time of their 
o-oin^ to and from, and attendance on Congress, except for treason, felony, or breach 
of the peace. 

ARTICLE VI. 

No State, without the consent of the United States in Congress assembled, shall 
send an embassy to, or receive an embassy from, or enter into any conference, agree- 
ment, alliance or treaty with any king, prince or State ; nor shall any person, hold- 
ino- any office of profit or trust under the United States, or any of them, accept of 
any present, emolument, office, or title of any kind whatever, from any king, prince 
of foreign State ; nor shall the United States in Congress assembled, or any of them, 
grant any title of nobility. 

No two or more States shall enter into any treaty, confederation, or alliance 
whatever between them, without the consent of the United States in Congress 
assembled, specifying accurately the purposes for which the same is to be entered 
into, and how long it shall continue. 

No State shall lay any imposts or duties, which may interfere with any stipula- 
tions in treaties entered into by the United States in Congress assembled, with any 
king, prince or State, in pursuance of any treaties already proposed by Congress 
to the Courts of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, except such 
number only as shall be deemed necessary by the United States in Congress assem- 
bled, for the defence of such State or its trade ; nor shall any body of forces be kept 
up by any State in time of peace, except such number only, as in the judgment of the 
United States in Congress assembled, shall be deemed requisite to garrison the forts 
necessary for the defence of such State; but every State shall always keep up a 
well regulated and disciplined militia, sufficiently armed and accoutred, and shall 
provide, and have constantly ready for use, in public stores, a due number of field 
pieces and tents, and a proper quantity of arms, ammunition and camp equipage. 

No State shall engage in any war without the consent of the United States in 
Congress assembled, unless such State be actually invaded by enemies, or shall 
have received certain advice of a resolution being formed by some nation of Indians 
to invade such State, and the danger is so imminent as not to admit of a delay till 
the United States in Congress assembled can be consulted; nor shall any State grant 
commissions to any ships or vessels of war, nor letters of marque or reprisal, 
except it be after a declaration of war by the United States in Congress assembled; 
and then only against the kingdom or State, and the subjects thereof, against which 
war has been so declared, and under such regulations as shall be established by the 
United States in Congress assembled; unless such State be infested by pirates; in 
which case vessels of war may be fitted out for that occasion, and kept so long as 
file danger shall continue, or until the United States in Congress assembled shall 
determine otherwise. 

ARTICLE VIL 

When land forces are raised by any State for the common defence, all officers of T 
or under the rank of colonel, shall be appointed by the Legislature of each State 
respectively, by whom such forces shall be raised, or in such manner as such State 
shall direct ; and all vacancies shall be filled up by the State which first made the 
appointment. 

ARTICLE VIII. 

All charges of war and all other expenses that shall be incurred for the common 
defence or general welfare, and allowed by the United States in Congress assembled, 



ARTICLES OF CONFEDERATION. 7 

shall be defrayed out of a common treasury, which shall be supplied by the several 
States, in proportion to the value of all land within each State granted to, or 
surveyed for, any person, as such land, and the buildings and improvements thereon, 
shall be estimated according to such mode as the United States in Congress 
assembled shall from time to time direct and appoint. 

The taxes for paying that proportion shall be laid and levied by the authority and 
direction of the Legislatures of the several States, within the time agreed upon by 
the United States in Congress assembled. 

ARTICLE IX. 

The United States in Congress assembled, shall have the sole and exclusive right 
and power of determining on peace and war, except in the cases mentioned in the 
sixth article — of sending and receiving ambassadors — entering into treaties and 
alliances: Provided, That no treaty of commerce shall be made, whereby the 
legislative power of the respective States shall be restrained from imposing 
such imposts and duties on foreigners as their own people are subjected to, or from 
prohibiting the exportation or importation of any species of goods or commodities 
whatsoever — of establishing rules for deciding, in all cases, what captures on land or 
water shall be legal, and in what manner prizes taken by land or naval forces in 
the service of the United States shall be divided or appropriated — of granting letters 
of marque and reprisal in times of peace — appointing courts for the trial of piracies 
and felonies committed on the high seas, and establishing courts for receiving and 
determining finally, appeals in all cases of captures: Provided, That no member of 
Congress shall be appointed a judge of any of the said courts. 

The United States in Congress assembled, shall also be the last resort on appeal 
in all disputes and differences now subsisting, or that hereafter may arise between 
two or more States, concerning boundary, jurisdiction, or any other cause whatever ; 
which authority shall always be exercised in the manner following: — Whenever 
the legislative or executive authority, or lawful agent of any State in controversy 
with another, shall present a petition to Congress, stating the matter in question, 
and praying for a hearing, notice thereof shall be given by order of Congress to 
the legislative or executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents, who shall then 
be directed to appoint, by joint consent, commissioners or judges to constitute a 
court for hearing and determining the matter in question ; but if they cannot agree, 
Congress shall name three persons out of each of the United States, and from the 
list of such persons each party shall alternately strike out one, the petitioners 
beginning, until the number shall be reduced to thirteen ; and from that number not 
less than seven nor more than nine names, as Congress shall direct, shall in the 
presence of Congress be drawn out by lot; and the persons whose names shall be 
so drawn, or any five of them, shall be commissioners or judges to hear, and finally 
determine the controversy, so always as a major part of the judges, who shall hear 
the cause, shall agree in the determination ; and if either party shall neglect to 
attend at the day appointed, without showing reasons which Congress shall judge 
sufficient, or, being present, shall refuse to strike, the Congress shall proceed to 
nominate three persons out of each State, and the Secretary of Congress shall strike 
in behalf of such party absent or refusing; and the judgment and sentence of the 
court to be appointed in the manner before prescribed, shall be final and conclusive. 
And if any of the parties shall refuse to submit to the authority of such court, or to 
appear or defend their claim or cause, the court shall nevertheless proceed to 
pronounce sentence or judgment, which shall, in like manner, be final and decisive, 
the judgment or sentence and other proceedings being in either case transmitted 
to Congress, and lodged among the acts of Congress, for the security of the 
parties concerned: Provided, That every commissioner, before he sits in judgment, 
shall take an oath, to be administered by one of the Judges of the Supreme or 
Superior court of the State where the cause shall be tried, "well and truly to hear 



8 ARTICLES OF CONFEDERATION. 

and determine the matter in question, according to the best of his judgment, 
without favor, affection or hope of reward: " Provided also, That no State shall be 
deprived of territory for the benefit of the United States. 

All controversies concerning the private right of soil, claimed under different 
grants of two or more States, whose jurisdiction, as they may respect such lands 
and the States which passed such grants, are adjusted, the said grants, or either 
of them, being at the same time claimed to have originated antecedent to such set- 
tlement of jurisdiction, shall, on the petition of either party to the Congress of the 
United States, be finally determined, as near as may be, in the same manner as is 
before prescribed for deciding disputes respecting territorial jurisdiction between 
different States. 

The United States in Congress assembled, shall also have the sole and exclusive 
right and power of regulating the alloy and value of coin struck by their own 
authority, or by that of the respective States ; fixing the standard of weights and 
measures throughout the United States ; regulating the trade, and managing all 
affairs with the Indians, not members of any of the States: Provided, That the 
legislative right of any State within its own limits be not infringed or violated — 
establishing and regulating post-offices from one State to another, throughout all 
the United States, and exacting such postage on the papers passing through the 
same as may be requisite to defray the expenses of the said office — appointing all 
officers of the land forces in the service of the United States, excepting regimental 
officers — appointing all the officers of the naval forces, and commissioning all 
officers whatever in the service of the United States — making rules for the gov- 
ernment and regulation of the said land and naval forces, and directing their 
operations. 

The United States in Congress assembled, shall have authority to appoint a 
committee to sit in the recess of Congress, to be denominated "A Committee of the 
States, " and to consist of one delegate from each State ; and to appoint such ether 
committees and civil officers as may be necessary for managing the general affairs 
of the United States, under their direction — to appoint one of their number to 
preside : Provided, That no person be allowed to serve in the office of President 
more than one year in any term of three years; to ascertain the necessary sums of 
money to be raised for the service of the United States, and to appropriate and 
apply the same for defraying the public expenses — to borrow money, or emit bills 
on the credit of the United States, transmitting every half year to the respective 
States, an account of the sums of money so borrowed or emitted — to build and 
equip a navy — to agree upon the number of land forces, and to make requisitions 
from each State for its quota, in proportion to the number of white inhabitants in 
such State ; which requisitions shall be binding, and thereupon the Legislature of each 
State shall appoint the regimental officers, raise the men, and clothe, arm and equip 
them in a soldier-like manner, at the expense of the United States ; and the officers 
and men so clothed, armed and equipped, shall march to the place appointed, and 
within the time agreed on by the United States in Congress assembled, but if the 
United States in Congress assembled shall, on consideration of circumstances, judge 
proper that any State should not raise men, or should raise a smaller number than its 
quota, and that any other State should raise a greater number of men than the quota 
thereof, such extra number shall be raised, officered, clothed, armed and equipped, 
in the same manner as the quota of such State, unless the Legislature of such State 
shall judge that such extra number cannot be safely spared out of the same; in 
which case, they shall raise, officer, clothe, arm and equip as many of such extra 
number as they judge can be safely spared; and the officers and men, so clothed, 
armed and equipped, shall march to the place appointed, and within the time agreed 
on by the United States in Congress assembled. 

The United States in Congress assembled, shall never engage in a war, nor grant 
letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, 
nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses 
necessary for the defence and welfare of the United States, or any of them, nor 



ARTICLES OF CONFEDERATION. 9 

emit bills, nor borrow money on the credit of the United States, nor appropriate 
money, nor agree upon the number of vessels of war to be built or purchased, or 
the number of land or sea forces to be raised, nor appoint a commander-in-chief of 
the army or navy, unless nine States assent to the same; nor shall a question on any 
other point, except for adjourning from day to day, be determined, unless by the 
votes of a majority of the United States in Congress assembled. 

The Congress of the United States shall have power to adjourn to any time 
within the year, and to any place within the United Slates, so that no period of 
adjournment be for a longer duration than the space of six months ; and shall 
publish the journal of their proceedings monthly, except such parts thereof, 
relating to treaties, alliances, or military operations, as in their judgment require 
secrecy ; and the yeas and nays of the delegates of each State on any question shall 
be entered on the journal, when it is desired by any delegate; and the delegates 
of a State, or any of them, at his or their request, shall be furnished with a trans- 
cript of the said journal, except such parts as are above excepted, to lay before 
the Legislatures of the several States. 

ARTICLE X. 

The committee of the States, or any nine of them, shall be authorized to execute, 
in the recess of Congress, such of the powers of Congress as the United States in 
Congress assembled, by the consent of nine States, shall from time to time think 
expedient to vest them with: Provided, That no power be delegated to the said 
Committee, for the exercise of which, by the articles of confederation, the voice of 
nine States in the Congress of the United States assembled, is requisite. 

ARTICLE XI. 

Canada, acceding to this confederation, and joining in the measures of the United 
States, shall be admitted into, and entitled to, all the advantages of this Union ; but 
no other colony shall be admitted into the same, unless such admission be agreed to 
by nine States. 

ARTICLE XII. 

All bills of credit emitted, moneys borrowed, and debts contracted, by or under 
the authority of Congie»s, before the assembling of the United States, in pursu- 
ance of the present confederation, shall be deemed and considered as a charge 
against the United States, for payment and satisfaction whereof the said United 
States and the public faith are hereby solemnly pledged. 

ARTICLE XIII. 

Every State shall abide by the determination of the United States in Congress 
assembled, on all questions which, by this confederation, are submitted to them. 
And the articles of this confederation shall be inviolably observed by every State, 
and the union shall be perpetual ; nor shall any alteration at any time hereafter be 
made in any of them, unless such alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the Legislature of every State. 

And whereas, it has pleased the Great Governor of the world to incline the 
hearts of the Legislatures we respectively represent in Congress, to approve of, 
and to authorize us to ratify the said articles of confederation, and perpetual union: 
Know ye, That we, the undersigned delegates, by virtue of the power and 
authority to us given for that purpose, do, by these presents, in the name and in 
behalf of our respective constituents, fully and entirely ratify and confirm each 
and every of the said articles of confederation and perpetual union, and all and 
singular the matters and things therein contained ; and we do further solemly plight 



10 



ARTICLES OF CONFEDERATION. 



and eri"-ag;e the faith of our respective constituents, that they shall abide by the 
determinations of the United States in Congress assembled, on all questions which, 
by the said confederation, are submitted to them ; and that the articles thereof shall 
be inviolably observed by the States we respectively represent; and that the union 
shall be perpetual. 

In witness whereof, we have hereunto set our hands, in Congress, done at 
Philadelphia, in the State of Pennsylvania, the ninth day of July, in the 
year of our Lord one thousand seven hundred and seventy-eight, and in the 
third year of the Independence of America. 



On the part and behalf of the State of New 
Hampshire, 

JOSIAH BARTLETT, 

JOHN WENTWORTH, Jr., Aug. 8, 1778. 

On the part and behalf of the State of Massa- 
chusetts Bay, 

JOHN HANCOCK, 
SAMUEL ADAMS, 
ELBRIDGE GERRY, 
FRANCIS DANA, 
JAMES LOVELL, 
SAMUEL HOLTEN. 

On the part and behalf of the State of Rhode 
Island and Providence Plantations, 

WILLIAM ELLERY, 
HENRY MARCHANT, 
JOHN COLLINS. 

On the part and behalf of the State of Connec- 
ticut, 

ROGER SHERMAN, 
SAMUEL HUNTINGTON, 
OLIVER WOLCOTT, 
TITUS HOSMER, 
ANDREW ADAMS. 

On the part and behalf of the State of New 
York, 

JAS. DUANE, 
FRA. LEWIS, 
WM. DUER, 
GOUV. MORRIS. 

On the part and behalf of the State of New 
Jersey, 

JNO. WITHERSPOON, 

NATH. SCUDDER, Nov. 26, 1778. 



On the part and behalf of the State of Penn- 
sylvania, 

ROBT. MORRIS, 
DANIEL ROBERDEAU, 
JONA. BAYARD SMITH, 
WILLIAM CLINGAN, 
JOSEPH REED, 22d July, 1778. 

On the part and behalf of the Slate of Delaware, 

THOMAS McKEAN, Feb. 13, 1779. 
JOHN DICKINSON, May 5th, 1779. 
NICHOLAS VAN DYKE. 

On the part and behalf of the State of Maryland, 

JOHN HANSON, March 1, 1781, 
DANIEL CARROLL, do. 

On the part and behalf of the State of Virginia, 

RICHARD HENRY LEE, 

JOHN BANISTER, 

THOMAS ADAMS, 

JNO. HARVIE, 

FRANCIS LIGHTFOOT LEE. 

On the part and behalf of the State of North 
Carolina, 

JOHN PENN, July 21st, 1778, 
CORNS. HARNETT, 
JNO. WILLIAMS. 

On the part and behalf of the State of South 
Carolina, 

HENRY LAURENS, 
WILLIAM HENRY DRAYTON, 
JNO. MATTHEW?, 
RICHARD HUTSON, 
THOMAS HEYWARD, jr. 

On the part and behalf of the State of Georgia, 

JNO. WALTON, 24th July, 1778. 
EDWD. TELFAIR, 
EDWD. LANGWORTHY. 



ORDINANCE OF 1787: 



FOR THE GOVERNMENT OF THE TERRITORY OF THE UNITED 
STATES NORTH-WEST OF THE RIVER OHIO. 



1. Temporary government. 

2. Rules of descent and of inheritance ; wills and 

devices, customs, &c. 

3. Governor of Territory; his term, and qualifica- 

tions. 

4. Secretary, his term, duties, residence and quali- 

fications ; court, its jurisdiction ; residence, 
qualifications and terms of Judges. 

5. Mode of adopting laws for Territory. 

6. Governor to be commander-in-chief; inferior 

officers how appointed. 

7. Magistrates, how appointed. 

8. Laws to prevent crimes ; divisions of territory. 

9. Representatives in General Assembly how 

elected ; their qualifications. 

1 0. Their term ; vacancies how filled. 

11. General Assembly, how constituted; legislative 

council how chosen ; term of members ; pow- 
ers and duties of Governor and Assembly. 

12. Oath of office ; General Assembly to elect a del- 

egate to Congress. 

13. Objects of this ordinance. 

14. Declaratory clause. 

ARTICLE I. 

Religious freedom guaranteed. 

ARTICLE II. 

Rights sscursd of habeas corpus ; trial by jury; rep- 
resentation; bail; fines; ex post facto laws. 



ARTICLE III. 

Education to be encouraged; faith with the Indian 
tribes preserved. 

ARTICLE IV. 

States formed in this territory to be part of confede- 
racy; to pay their portion of national debts and 
taxes ; Legislatures not to interfere with title of 
U. S. to soil; nor tax public lands ; nor non-resi- 
dents higher than residents ; navigable waters to 
be free. 

ARTICLE V. 



Not less than three, nor more than five States to 
be formed in the territory ; Illinois, how bounded ; 
Indiana; Ohio; Michigan; having 60,000 free in- 
habitants, to be admitted into the Union ; form 
constitutions ; form of Government to be repub- 
lican; may be admitted before they shall have 
60,000, if Congress consents. 

ARTICLE VI. 

Slavery and involuntary servitude not allowed, ex- 
cept as a punishment for crime ; fugitives to be 
.restored; resolution of 23d April, 17S4, re- 
pealed. 



1. Be it ordained, by the United States in Congress assembled, That the said 
territory, for the purposes of temporary Government, be one district; subject, how- 
ever, to be divided into two districts, as future circumstances may in the opinion 
of Congress, make it expedient. 

2. Be it ordained by the authority aforesaid, That the estates both of resident 
and non-resident proprietors in the said territory, dying intestate, shall descend to, 
and be distributed among their children, and the decendants of a deceased child in 
equal parts, the decendants of a deceased child or grand child to take the share of 
their deceased parent in equal parts among them : and where there shall be no 
children or decendants, then in equal parts to the next of kin, in equal degree; and 
among collaterals, the children of a deceased brother or sister of the intestate shall 
have, in equal parts among them, their deceased parent's share ; and there shall, 
in no case, be a distinction between kindred of the whole and half blood ; saving in 
all cases to the widow of the intestate, her third part of the real estate for life, and 
one-third part of the personal estate ; and this law relative to descents and dower ? 



12 ORDINANCE. 

shall remain in full force until altered by the legislature of the district. And until 
the governor and judges shall adopt laws as hereinafter mentioned, estates in the 
said territory may be devised or bequeathed by wills in writing, signed and sealed 
by him or her, in whom the estate may be, (being of full age,) and attested by 
three witnesses ; and real estates may be conveyed by lease and release, or bargain 
and sale, signed, sealed and delivered, by the person, being of full age, in whom the 
estate may be, and attested by two witnesses, provided such wills be duly proved, 
and such conveyances be acknowledged, or the execution thereof duly proved, and 
be recorded within one year after proper magistrates, courts and registers, shall be 
appointed for that purpose ; and personal property may be transferred by delivery ; 
saving, however, to the French and Canadian inhabitants, and other settlers of the 
Kaskaskies, Saint Vincents and the neighboring villages, who have heretofore pro- 
fessed themselves citizens of Virginia, their laws and customs now in force among 
them, relative to the descent and conveyance of property. 

3. Be it ordained by the authority aforesaid, That there shall be appointed, from 
time to time, by Congress, a governor, whose commission shall continue in force 
for the term of three years, unless sooner revoked by Congress : he shall reside 
in the district, and have a freehold estate therein, in one thousand acres of land, 
while in the exercise of his office. 

4. There shall be appointed, from time to time, by Congress, a secretary, whose 
commission shall continue in force for four years, unless sooner revoked; he shall 
reside in the district, and have a freehold estate therein, in five hundred acres of 
land, while in the exercise of his office ; it shall be his duty to keep and preserve 
the acts and laws passed by the legislature, and the public records of the district, 
and the proceedings of the governor in his executive department; and transmit 
authentic copies of such acts and proceedings, every six months, to the secretary 
of Congress: There shall also be appointed a court, to consist of three judges, any 
two of whom to form a court, who shall have a common law jurisdiction, and reside 
in the district, and have each therein a freehold estate, in five hundred acres of 
land, while in the exercise of their offices^ and their commissions shall continue in 
force during good behaviour. 

5. The governor and judges, or a majority of them, shall adopt and publish in 
the district, such laws of the original States, criminal and civil, as may be neces- 
sary, and best suited to the circumstances of the district, and report them to 
Congress, from time to time ; which laws shall be in force in the district until 
the organization of the general assembly therein, unless disapproved of by Con- 
gress ; but afterwards the legislature shall have authority to alter them as they shall 
think fit. 

6. The governor for the time being, shall be commander-in-chief of the militia, 
appoint and commission all officers in the same, below the rank of general officers ; 
all general officers shall be appointed and commissioned by Congress. 

7., Previous to the organization of the general assembly, the governor shall ap- 
point such magistrates and other civil officers, in each county or township, as he 
shall find necessary for the preservation of the peace and good order in the same. 
After the general assembly shall be organized, the powers and duties of magistrates 
and other civil officers shall be regulated and defined by the said assembly ; but all 
magistrates and other civil officers, not herein otherwise directed, shall, during the 
continuance of this temporary government, be appointed by the governor. 

8. For the prevention of crimes and injuries, the laws to be adopted or made, 
shall have force in all parts of the district, and for the execution of process, crimi- 
nal and civil, the governor shall make proper divisions thereof; and he shall 
proceed from time to time, as circumstances may require, to lay out the parts of 
the district in which the Indian titles shall have been extinguished, into counties 
and townships, subject, however, to such alterations as may thereafter be made by 
the legislature. 

9. So soon as there shall be five thousand free male inhabitants, of full age, in 
the district, upon giving proof thereof to the governor, they shall receive authority, 



ORDINANCE. ' 13 

with time and place, to elect representatives from their counties or townships, to 
represent them in the general assembly : Provided, That, for every five hundred 
free male inhabitants, there shall be one representative, and so on, progressively, 
with the number of free male inhabitants, shall the right of representation increase, 
until the number of representatives shall amount to twenty-five ; after which the 
number and proportion of representatives shall be regulated by the legislature : 
Provided, That no person be eligible or qualified to act as a representative, unless 
he shall have been a citizen of one of the United States three years, and be a re- 
sident in the district, or unless he shall have resided in the district three years ; 
and in either case, shall likewise hold in his own right, in fee simple, two hundred 
acres of land within the same : Provided also, That a freehold in fifty acres of land 
in the district, having been a citizen of one of the States, and being a resident in 
the district, or the like freehold and two year's residence in the district, shall be 
necessary to qualify a man as an elector of a representative. 

10. The representatives thus elected shall serve for the term of two years ; and in 
case of the death of a representative, or removal from office, the governor shall 
issue a writ to the county or township, for which he was a member, to elect 
another in his stead, to serve for the residue of the term. 

11. The general assembly, or legislature, shall consist of the governor, legisla- 
tive council, and a House of representatives. The legislative council shall consist 
of five members, to continue in office five years, unless sooner removed by Con- 
gress ; any three of whom to be a quorum ; and the members of the council shall 
be nominated and appointed in the following manner, to wit: As soon as represen- 
tatives shall be elected, the governor shall appoint a time and place for them to meet 
together, and when met, they shall nominate ten persons, residents in the district, 
and each possessed of a freehold in five hundred acres of land, and return their 
names to Congress ; five of whom Congress shall appoint and commission to serve 
as aforesaid: and whenever a vacancy shall happen in the council, by death or 
removal from office, the House of representatives shall nominate two persons, quali- 
fied as aforesaid, for each vacancy, and return their names to Congress ; one of 
whom Congress shall appoint and commission for the residue of the term : and 
every five years, four months at least before the expiration of the time of service 
of the members of council, the said House shall nominate ten persons, qualified as 
aforesaid, and return their names to Congress ; five of whom Congress shall ap- 
point and commission to serve as members of the council five years, unless sooner 
removed. And the governor, legislative council and House of representatives, 
shall have authority to make laws, in all cases for the good government of 
the district, not repugnant to the principles and articles in this ordinance establish- 
ed and declared. And all bills, having passed by a majority in the House, and by 
a majority in the council, shall be referred to the governor for his assent ; but no 
bill or legislative act whatever, shall be of any force without his assent. The 
governor shall have power to convene, prorogue, and dissolve, the general assem- 
bly, when in his opinion it shall be expedient. 

12. The governor, judges, legislative council, secretary, and such other officers 
as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, 
and of office; the governor before the president of Congress, and all other officers 
before the governor. As soon as the legislature shall be formed in the district, 
the council and House assembled, in one room, shall have authority, by joint ballot, 
to elect a delegate to Congress, who shall have a seat in Congress, with a right of 
debating, but not of voting during this temporary government. 

13. And for extending the fundamental principles of civil and religious liberty, 
which form the basis whereon these republics, their laws, and constitution, are 
erected; to fix and establish those principles as the basis of all laws, constitutions 
and governments, which forever hereafter shall be formed in the said territory ; to 
provide, also, for the establishment of States, and permanent government therein, 
and for their admission to a share in the federal councils on an equal footing with 
the original States, at as early periods as may be consistent with the general interest: 



14 ORDINANCE. 

14. It is hereby ordained and declared, by the authority aforesaid, That the 
following articles shall be considered as articles of compact, between the original 
States and the people and States in the said territory, and forever remain unaltera- 
ble, unless by common consent, to wit: 

ARTICLE I. 

No person, demeaning himself in a peaceable and orderly manner, shall ever 
be molested on account of his mode of worship or religious sentiments, in the 
said territory. 

ARTICLE II. 

The inhabitants of the said territory shall always be entitled to the benefits of 
the writs of habeas corpus, and of the trial by jury ; of a proportionate represen- 
tation of the people in the legislature, and of judicial proceedings according to the 
course of the common law. All persons shall be bailable, unless for capital 
offences, where the proof shall be evident or the presumption great. All fines 
shall be moderate ; and no cruel or unusual punishments shall be inflicted. No 
man shall be deprived of his liberty or property, but by the judgment of his peers, 
or the law of the land, and should the public exigencies make it necessary, for 
the common preservation, to take any person's property, or to demand his particu- 
lar services, full compensation shall be made for the same. And, in the just pre- 
servation of rights and property, it is understood and declared, that no law ought 
ever to be made, or have force in the said territory, that shall, in any manner 
whatever, interfere with, or affect private contracts or engagements, bona fide, and 
without fraud previously formed. 

ARTICLE III. 

Religion, morality and knowledge, being necessary to good government and the 
happiness of mankind, schools and the means of education shall forever be 
encouraged. The utmost good faith shall always be observed towards the Indians ; 
their lands and property shall never be taken from them without their consent; and 
in their property, rights and liberty they never shall be invaded or disturbed, unless 
in just and lawful wars authorised by Congress ; but laws founded in justice and 
humanity shall, from time to time, be made, for preventing wrongs being done to 
them, and for preserving peace and friendship with them. 

ARTICLE IV. 

The said territory, and the States which may be formed therein, shall forever 
remain a part of this confederacy of the United States of America, subject to the 
articles of confederation, and to such alterations therein as shall be constitutionally 
made ; and to all the acts and ordinances of the United States in Congress assembled, 
conformable thereto. The inhabitants and settlers in the said territory shall be 
subject to pay a part of the federal debts, contracted or to be contracted, and a 
proportional part of the expenses of government, to be apportioned on them by 
Congress, according to the same common rule and measure by which apportion- 
ments thereof shall be made on the other States ; and the taxes for paying their 
proportion, shall be laid and levied by the authority and direction of the Legisla- 
tures of the district or districts, or new States, as in the original States, within 
the time agreed upon by the United States in Congress assembled. The Legisla- 
tures of those districts, or new States, shall never interfere with the primary 
disposal of the soil by the United States in Congress assembled, nor with any 
regulations Congress may find necessary, for securing the title in such soil, to 
the bona fide purchasers. No tax shall be imposed on lands the property of the 



ORDINANCE. 1 5 

United States ; and in no case shall non-resident proprietors be taxed higher than 
residents. The navigable waters leading into the Mississippi and St. Lawrence, 
and the carrying places between the same, shall be common highways, and forever 
free, as well to the inhabitants of tbe said territory, as to the citizens of the 
United States, and those of any other States that may be admitted into the 
confederacy, without any tax, impost, or duty therefor. 

ARTICLE V. 

There shall be formed in the said territory, not less than three, nor more than 
five States 5 and the boundaries of the States, as soon as Virginia shall alter her 
act of cession, and consent to the same, shall become, fixed and established as 
follows, to wit: The western State in the said territory, shall be bounded by 
the Mississippi, the Ohio, and the Wabash rivers ; a direct line drawn from 
the Wabash and Post Vincents, due north, to the territorial line between the 
United States and Canada ; and by the said territorial line to the Lake of the Woods 
and Mississippi. The middle State shall be bounded by the said direct line, the 
Wabash from Post Vincents to the Ohio, by the Ohio, by a direct line drawn due 
north from the mouth of the Great Miami to the said territorial line, and by the 
said territorial line. The eastern State shall be bounded by the last mentionel 
direct line, the Ohio, Pennsylvania, and the said territorial line : Provided however, 
And it is further understood and declared, that the boundaries of these three 
States shall be subject so far to be altered, that, if Congress shall hereafter find 
it expedient, they shall have authority to form one or two States in that part of 
the said territory which lies north of an east and west line drawn through the 
southerly bend or extreme of Lake Michigan. And whenever any of the said 
States shall have sixty thousand free inhabitants therein, such State shall be 
admitted, by its delegates, into the Congress of the United States, on an equal 
footing with the original States, in all respects whatever ; and shall be at liberty to 
form a permanent constitution and State government : Provided, The constitution and 
government, so to be formed, shall be republican, and in conformity to the 
principles contained in these articles, and, so far as it can be consistent with the 
general interest of the confederacy, such admission shall be allowed at an earlier 
period, and when there may be a less number of free inhabitants in the State than 
sixty thousand. 

ARTICLE VI. 

There shall be neither slavery nor involuntary servitude in the said territory, 
otherwise than in the punishment of crimes, whereof the party shall have been 
duly convicted : Provided always, That any person escaping into the same, from 
whom labor or service is lawfully claimed in any one of the original States, such 
fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her 
labor or service as aforesaid. 

Be it ordained by the authority aforesaid, That the resolutions of the twenty- 
third of April, one thousand seven hundred and eight-four, relative to the subject 
of this ordinance, be, and the same are hereby repealed, and declared null and 
void. 

Done by the United States, in Congress assembled, the thirteenth day of July, 
in the year of our Lord one thousand seven hundred and eighty-seven, and of 
their sovereignty and independence the twelfth. 

WILLIAM GRAYSON, Chairman. 

Charles Thompson, Secretary. 



CONSTITUTION OP THE UNITED STATES. 



Preamble. 

ARTICLE I. 
Section 

1 . Legislative powers, in whom vested. 

2. House of Representatives, how and by whom 

chosen ; qualification of members ; represen- 
tatives and direct taxes how apportioned; cen- 
sus ; filling vacancies ; power of choosing offi- 
cers and of impeachment. 

3. Senators, how and by whom chosen; how clas- 

sified; qualifications; President of Senate, his 
right to vote ; officers of Senate, how chosen ; 
power to try impeachments ; when President 
is tried, Cliief Justice to preside; extent of 
judgment. 

4. Time, place and manner of holding elections for 

Senators and Representatives ; one session of 
Congress in each year. 

5. Membership ; quorum ; adjournments ; power to 

punish or expel; journal; times of adjourn- 
ment limited. 

6. Compensation; privileges; disqualification in 

certain cases. 

1. House to originate bills relating to revenue; 
veto; passage by two-thirds; bill retained by 
President ten days ; orders, resolutions, &,c, 
presented to President, except questions of 
adjournment. 

6. Powers of Congress; general enumeration of. 

0. Congress may not forbid the emigration or im- 
portation of certain persons; may impose tax; 
writ of habeas corpus ; bills of attainder, or ex 
post facto laws forbidden ; taxes, how assessed; 
export duties, or duties on commerce, from 
State to State ; regulating expenditures ; titles of 
nobility not granted ; officers not to receive 
presents, &c. 
to. Enumeration of powers relinquished by the States. 



ARTICLE II. 



1. The President and Vice President, their official 
term ; electors of President and Vice Presi- 
dent, how appointed ; how to vote; who inel- 
igible for President ; if vacancy, Vice Presi- 
dent to act ; President's compensation : his 
oath. 

«. President to be Commander-in-chief; his power 
to grant reprieves and pardons; may make 
treaties ; power to nominate, &c. ; to fill va- 
cancies, during recess of Senate. 

3. President shall communicate to Congress ; may 

convene and adjourn Congress in certain ca- 
ses ; shall receive ambassadors ; execute the 
laws, and commission officers. 

4. Removal of President, Vice President and other 

civil officers removed on impeachment for 
crime. > 



ARTICLE III. 



Section 



1 . Judicial power ; tenure ; compensation. 

2. Jurisdiction of Supreme Court; original; appel- 

late; trial by jury; when. 

3. Treason defined ; proof of; punishment of; no 

attainder, &c. except during life of offender. 

ARTICLE IV. 

1. States to give credit to acts, records of each 

other ; mode of proof. 

2. Privileges of citizenship ; fugitives from justice 

or from service, to be delivered np. 

3. Admission of States ; power of Congress over 

territory and other property. 

4. Republican form of Government guaranteed to 

the States ; and protection against invasion 
and domestic violence. 

ARTICLE V. 

1. Constitution, how amended; proviso. 

ARTICLE VI. 

1. Debts of Confederation assumed; Constitution 
the supreme law ; binding State Judges ; oath 
to support the Constitution to be taken by of- 
ficers ; no religious test to be required. 

ARTICLE VII. 

1. What ratifications shall establish Constitution. 

AMENDMENTS. 



1. No religious establishment; freedom of speech; 

of the press ; right of petition. 

2. Right of people to keep arms. 

3. Soldiers not to be quartered in houses without 

consent, &c. 

4. Rights of persons and property secured from 

search and seizure. 
6. Prosecution, trial and punishment of crime j 
rights of accused guaranteed ; private property 
not to be taken, &c. 

6. Further provisions securing rights of accused per- 

sons. 

7. Right of trial by jury. 

8. Excessive bail, fines and unusual punishments 

proliibited. 

9. Construction of Constitution. 

10. Reservation of powers. 

11. Judicial construction of Constitution. 

12. Manner of choc jing President and Vice Presi- 

dent; qualification for Vice President. 



CONSTITUTION OF THE UNITED STATES. 17 

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 defence, 
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 I. 

SECTION I. 

1. All legislative powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and House of Representatives. 

SECTION II. 

1. The House of Representatives shall be composed of members chosen every 
second year, by the people of the several States ; and the electors in each State 
shall have the qualifications requisite for electors of the most numerous branch of 
the State Legislature. 

2. No person shall be a representative, who shall not have attained to the age 
of twenty-five years, and been seven years a citizen of the United States, and 
who shall not, when elected, be an inhabitant of that State in which he shall be 
chosen. 

3. Representatives and direct taxes shall be apportioned among the several 
States which may be included within this Union, 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 Mew Hampshire shall be entitled 
to choose three ; Massachusetts, eight ; Rhode Island and Providence Plantations, one ; 
Connecticut, five ; Mew York, six; Mew Jersey, four; Pennsylvania, eight; Delaware, 
one ; Maryland, six ; Virginia, ten ; Morth Carolina, five ; South Carolina, five ; 
and Georgia, three. 

4. When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies. 

5. The House of Representatives shall choose their speaker and other officers, 
and shall have the sole power of impeachment. 

SECTION III. 

1. The Senate of the United States shall be composed of two Senators from each 
State, chosen by the legislature thereof, for six years ; and each Senator shall have 
one vote. 

2. Immediately after they shall be assembled in consequence 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 second class, at the expiration of the fourth year ; and of the third class, at the 
expiration of the sixth year; so that one-third may be chosen every second year; 
and if vacancies happen by resignation 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. 

2 



18 CONSTITUTION OF THE UNITED STATES. 

S. No person shall be a Senator, who shall not have attained to the age of thirty- 
years, and been nine years a citizen of the United States, and who shall not, when 
elected, be an inhabitant of that State for which he shall be chosen. 

4. The Vice President of the United States shall be president of the Senate ; 
but shall have no vote, unless they be equally divided. 

5. The Senate shall choose their other officers, and also a president, pro tempore, 
in the absence of the Vice President, or when he shall exercise the office of 
President of the United States. 

6. The Senate shall have the sole power to try all impeachments. When 
sittino- 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. 

7. Judgment, in cases of impeachment, shall not extend further than to removal 
from office, and disqualification to hold 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 IV. 

1. The times, places and manner of holding elections for Senators 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 legulations, except as 
to the places of choosing Senators. 

2. The Congress shall assemble at least once in every year, and such meeting 
shall be on the first Monday in December, unless they shall by law appoint a 
different day. 

section v. 

1. Each House shall be the judge of the elections, returns and qualifications of 
its own members ; and a majority of each shall constitute a quorum to do business ; 
but a smaller number may adjourn from day to day, and may be authorized to 
compel the attendance of absent members, in such manner, and under such penal- 
ties, as each House may provide. 

2. Each House may determine the rules of its proceedings, punish its members 
for disorderly behavior, and, with the concurrence of two-thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, and from time to time 
publish the same, excepting such parts as may, in their judgment, require secrecy; 
and the yeas and nays of the members of either House, on any question, shall, at 
the desire of one-fifth of those present, be entered on the journal. 

4. Neither House, during the session of Congress, 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 VI. 

1. The Senators and Representatives shall receive a 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 privileged from arrest, during their attendance at the session of their respective 
Houses, and in going to or returning from the same ; and for any speech or debate 
in either House, they shall not be questioned in any other place. 

2. No Senator or Representative shall, during the time for which he was 
elected, be appointed to any civil office under the 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. 



CONSTITUTION OF THE UNITED STATES. 19 

SECTION VII. 

1. All bills for raising a revenue shall originate in the House of Representatives ; 
but the Senate may propose or concur with amendments as on other bills. 

2. Every bill, which shall have passed the House of Representatives and the 
Senate, shall, before it becomes 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 approved 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 (Sundays excepted) after it shall have 
been presented to him, the same shall be a law, 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. 

3. Every order, resolution or vote, to which the concurrence of the Senate 
and House of Representatives may be necessary, (except on a question of adjourn- 
ment) shall be presented to the President of the United States ; and before the 
same shall take effect, shall be approved by him, or being disapproved 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. 

The Congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises ; to pay the debts, and 
provide for the common defence and general welfare of the United States ; but all 
duties, imposts, and excises, shall be uniform throughout the United States : 

2. To borrow money on the credit of the United States : 

3. To regulate commerce with foreign nations, and among the several States, 
and with the Indian tribes : 

4. To establish an uniform rule of naturalization, and uniform laws on the 
subject of bankruptcies throughout the United States : 

5. To coin money, regulate the value thereof, and of foreign coin, and fix the 
standard of weights and measures : 

6. To provide for the punishment of counterfeiting the securities and current 
coin of the United States : 

7. To establish post offices and post roads : 

8. To promote the progress of science and useful arts, by securing for limited 
times, to authors and inventors, the exclusive right to their respective writings and 
discoveries : 

9. To constitute tribunals inferior to the Supreme Court: To define and punish 
piracies and felonies committed on the high seas, and offences against the law of 
nations : 

10. To declare war, grant letters of marque and reprisal, and make rules con- 
cerning captures on land and water : 

11. To raise and support armies; but no appropriation of money to that use, 
shall be for a longer term than two years : 

12. To provide and maintain a navy: 

13. To make rules for the government and regulation of the land and naval 
forces : 

14. To provide for calling forth the militia to execute the laws of the Union, 
suppress insurrections, and repel invasions : 



20 CONSTITUTION OF THE UNITED STATES. 

15. To provide for organizing, arming and disciplining the militia, and for 
governing such part of them as may be employed in the service of the United 
States, reserving to the States respectively, the appointment of the officers, and 
the authority of training the militia according to the discipline prescribed by Congress: 

16. To exercise exclusive legislation in all cases whatsoever over such district 
(not exceeding ten miles square) as may, by cession of particular States, and the 
acceptance of Congress, become the seat of government of the United States, and 
to exercise like authority over all places purchased, by the consent of the legisla- 
ture of the State in which the same shall be, for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings : — and 

17. To make all laws which shall be necessary and proper for carrying into 
execution the foregoing powers and all other powers vested by this constitution in 
the o-overnment of the United States, or in any department or officer thereof. 

SECTION IX. 

1. The migration or importation of such persons as any of the States now 
existing shall think proper to admit, shall not be prohibited by the Congress prior 
to the year one thousand eight hundred and eight, but a tax or duty may be 
imposed on such importation, not exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be suspended, unless 
when, in cases of rebellion or invasion, the public safety may require it. 

3. No bill of attainder or ex post facto law, shall be passed. 

4. No capitation or other direct tax shall be laid, unless in proportion to the 
census or enumeration herein before directed to be taken. 

5. No tax or duty shall be laid on articles exported from any State. No prefer- 
ence 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. 

6. No money shall be drawn from the treasury, but in consequence of appro- 
priations made by law : and a regular statement and account of the receipts and 
expenditures of all public money shall be published from time to time. 

7. No title of nobility shall be granted by the United States, and no person 
holding any office of profit or trust under them, shall, without the consent of the 
Cono-ress, accept of any present, emolument, office or title of any kind whatever, 
from any king, prince, or foreign State. 

section x. 

1 . No State shall enter into any treaty, alliance or confederation ; grant letters 
of marque and reprisal ; coin money ; emit bills of credit ; make any thing but gold 
and. silver coin a 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. 

2. No State shall, without the consent of the Congress, lay any imposts or duties 
on imports or exports except what may be absolutely necessary for executing its 
inspection laws ; and the nett produce of all duties and imposts, laid by any State 
on imports 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 control 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 war, unless actually invaded, 
or in such imminent danger as will not admit of delay. 

ARTICLE II. 

SECTION I. 

] . The executive power shall be vested in a President of the United States of 
America. He shall hold his office during the term of four years, and together 
with the Vice President, chosen for the same term, be elected as follows : 



CONSTITUTION OF THE UNITED STATES. 21 

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 Repre- 
sentatives to which the State may be entitled in the Congress ; but no Senator or 
Representative, or person holding an office of trust or profit under the United 
States, shall be appointed an elector. 

3. [*The electors shall meet in their respective States, and vote by ballot for two 
persons, of whom one at least shall not be an inhabitant of the same State with 
themselves. And they shall make a list of all the persons voted for, and of the 
number of votes for each ; which list they shall sign and certify, and transmit 
sealed to the seat of government of the United States, directed to the President of 
the Senate. The President of the Senate shall in the 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 shall be the President, 
if such number be a majority of the whole number of electors appointed ; and if 
there be more than one who have such majority, and have an equal number of votes, 
then the House of Representatives shall immediately choose, by ballot, one of 
them for President ; and if no person have a majority, then from the five highest on 
the list, the said House shall, in like manner choose 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 majority of all the States shall be 
necessary to a choice. In every case, after the choice of the President, the person 
having the greatest number of votes of the electors, shall be the Vice President. 
But if there should remain two or more who have equal votes, the Senate shall 
choose from them, by ballot, the Vice President.] 

4. 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. 

5. No person except a natural born citizen, or a citizen of the United States at 
the time of the adoption of this constitution, 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." 

6. In case of the removal of the President from office, or of his death, resigna- 
tion, or inability to discharge the powers and duties of the said office, the same 
shall devolve on the Vice President, and the Congress may, 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 President, and such officer shall 
act accordingly, until the disability be removed, or a President shall be elected. 

7. The President shall, at stated times, receive for his services a compensation, 
which shall neither be increased nor diminished 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. 

8. Before he enters on the execution of his office, he shall take the following 
oath or affirmation: 

9. "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 II. 

1. The President shall be commander-in-chief of the army and navy of the 
United States, and of the militia of the 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 relating to 

♦Amended: — See amendments to the Constitution, Article XII. 



-22 CONSTITUTION OF THE UNITED STATES. 

the duties of their respective offices ; and he shall have power to grant reprieves 
and pardons, for offences against the United States, except in cases of impeachment. 

2. He shall have power, by and with the advice and consent of the Senate, to 
make treaties, provided, two-thirds of the Senators present concur : and he shall 
nominate, and by and with the advice and consent of the Senate, shall appoint 
ambassadors, other public ministers and consuls, judges of the supreme court, 
and all other officers of the United States, whose appointments 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 shall think pro- 
per, in the President alone, in the courts of law, or in the heads of departments. 

3. The President shall have power to fill up all vacancies that may happen 
during the recess of the Senate, by granting commissions, which shall expire at the 
end of their next session. 

SECTION III. 

1. He shall from time to time, give to the Congress information of the state of 
the Union ; and recommend to their consideration such measures as he shall judge 
necessary and expedient. He may, on extraordinary occasions, convene both 
Houses, or eithe'r 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 faithfully executed; and shall commission all officers of the 
United States. 

SECTION IV. 

1. The President, Vice President, and all civil officers of the United States, shall 
be removed from office, on impeachment for, and conviction of treason, bribery, or 
other high crimes and misdemeanors. 

ARTICLE III. 

SECTION I. 

L The judicial power of the United States shall be vested in one supreme court, 
and in such inferior courts, as the Congress may, from time to time, ordain and 
establish. The 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. 

1. The judicial power shall extend to all cases, in law and equity, arising under 
this constitution, the laws of the United States, and treaties made, or which shall 
be made, under their authority; to all cases, affecting ambassadors, other public 
ministers, and consuls; to all cases of admiralty and maritime jurisdiction; 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, claiming lands under 
grants of different States ; and between a State or the citizens thereof, and foreign 
States, citizens or subjects. 

2. In all cases, affecting ambassadors, other public ministers, and consuls, and 
those in which a State shall be a 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 exceptions, and under 
such regulations as the Congress shall make. 

3. The trial of all crimes, except incases of impeachment, shall be by jury ; 
and such trials shall be held in the State where the said crimes shall have been 
committed ; but when not committed within any State, the trial shall be at such 
place or places, as the Congress may by law have directed. 



CONSTITUTION OF THE UNITED STATES. 23 



SECTION III. 



1. Treason against the United States shall consist only 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. 

2. The Congress shall have power to declare the punishment of treason; but no 
attainder of treason shall work corruption of blood, or forfeiture except during 
the life of the person attainted. 

ARTICLE IV. 



SECTION I. 



1. Full faith and credit shall be given, in each State, to the public acts, records, 
and judicial proceedings of every other 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. 



1. The citizens of each State shall be entitled to all privileges and immunities of 
citizens in the several States. 

2. A person charged in any State with treason, felony, or other crime, who 
shall flee from justice, and be found in another State, shall, on demand of the exec- 
utive authority of the State from which he fled, be delivered up, to be removed to 
the State having jurisdiction of the crime. 

3. No person held to service or labor in one State under 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. 



1. New States may be admitted by the Congress into this Union ; 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 legislatures of the States concerned, as well as of the Congress. 

2. The Congress shall have power to dispose of, and make all needful rules 
and regulations respecting the territory or 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. 

1. The United States shall guaranty to every State in this Union a republican 
form of government, and shall protect each of them against invasion; and on appli- 
cation of the legislature, or of the executive (when the legislature cannot be 
convened) against domestic violence. 

ARTICLE V. 

1. The Congress, whenever two-thirds of both Houses shall deem it necessary, 
shall propose amendments to this constitution ; or, on the application of the legis- 
latures of two-thirds of the several States, shall call a convention for proposing 
amendments, which, in either case, shall be valid to all intents and purposes, as 
part of this constitution, when ratified by the legislatures 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 one thousand eight hundred and eight, shall 
in any manner affect 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. 



24 



CONSTITUTION OF THE UNITED STATES. 
ARTICLE VI. 



1. All debts contracted, and engagements entered into, before the adoption of 
this constitution, shall be as valid against the United States under this constitution, 
as under the confederation. 

2. This constitution, and the laws of the United States which shall be made in 
pursuance thereof, and all treaties made, or which shall be made under the author- 
ity of the United States, shall be the supreme law of the land; and the judges in 
every State shall be bound thereby ; any thing in the constitution or laws of any 
State to the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and the members of the 
several State Legislatures, and all executive 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 a qualifica- 
tion to any office or public trust under the United States. 

ARTICLE VII. 



1. The ratification of the conventions of nine States, shall be sufficient for the 
establishment of this constitution between the States so ratifying the same. 

Done in convention, by the unanimous consent of the States present, the seven- 
teenth day of September, in the year of our Lord, one thousand seven 
hundred and eighty-seven, and of the Independence of the United States of 
America, the twelfth. In witness whereof, we have hereunto subscribed 
our names. 

GEORGE WASHINGTON, President, 

and deputy from Virginia. 



New Hampshire, 



JOHN LANGDON, 
NICHOLAS GILMAN. 

Massachusetts, 

NATHANIEL GORHAM, 
RUFUS KING. 

Connecticut, 

WILLIAM SAMUEL JOHNSON, 
ROGER SHERMAN. 

New York, 

ALEXANDER HAMILTON. 



New Jersey, 



WILLIAM LIVINGSTON, 
DAVID BREARLY, 
WILLIAM PATTERSON, 
JONATHAN DAYTON. 



Pennsylvania, 



BENJAMIN FRANKLIN, 
THOMAS MIFFLIN, 
ROBERT MORRIS, 
GEORGE CLYMER, 
THOMAS FITZSIMONS, 
JARED INGERSOLL, 
JAMES WILSON, 
GOVERNEUR MORRIS. 



Attest : 



Delaware, 

GEORGE READ, 
GUNNING BEDFORD, Jr., 
JOHN DICKINSON, 
RICHARD BASSETT, 
JACOB BROOM. 



Maryland, 



JAMES M'HENRY, 

DANIEL OF ST. THOMAS JENIFER, 

DANIEL CARROLL. 



Virginia, 

JOHN BLAIR, 
JAMES MADISON, Jr. 

North Carolina, 

WILLIAM BLOUNT, 
RICHARD DOBBS SPAIGH1, 
HUGH WILLIAMSON. 

South Carolina, 

J. RUTLEDGE, 

CHAS. COTESWORTH PINCKNEY, 

CHAS. PINCKNEY, 

PIERCE BUTLER. 



Georgia, 



WILLIAM FEW, 
AB'M. BALDWIN, 



William Jackson, Secretary. 



AMENDMENTS TO THE CONSTITUTION. 



ARTICLE I. 

Congress shall make no law respecting an establishment of religion, or prohibit- 
ing the free exercise thereof; or abridging the freedom of speech, or of the press ; 
or the right of the people peaceably to assemble, and to petition the government 
for a redress of grievances. 

ARTICLE II. 

A well regulated militia being necessary to the security of a free State, the right 
of the people to keep and bear arms shall not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house without the consent 
of the owner ; nor in time of war, but in a manner to be prescribed by law. 

ARTICLE IV. 

The right of the people to be secure in their persons, houses, papers and effects, 
against unreasonable searches and seizures, shall net be violated : and no warrants 
shall issue, but upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched, and the persons or things to be 
seized. 

ARTICLE V. x 

No person shall be held to answer for a capital, or otherwise infamous crime, 
unless on a presentment or indictment by 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 offence 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. 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and 
public trial, by an impartial jury of the State and district wherein the crime shall 
have been committed, which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation ; to be confronted 
with the witnesses against him ; to have compulsory process for obtaining wit- 
nesses in his favor ; and to have the assistance of counsel for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall exceed twenty 
dollars, the right of trial by jury shall be preserved; and no fact tried by a jury 
shall be otherwise re-examined in any court of the United States, than according 
to the rules of the common law. 



26 CONSTITUTION OF THE UNITED STATES. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and 
unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the constitution, of certain rights, shall not be construed to 
deny or disparage others retained by the people. 

ARTICLE X. 

The powers not delegated to the United States by the constitution, nor prohibited 
by it to the States, are reserved to the States respectively, or to the people. 

ARTICLE XL 

The judicial power of the United States shall not be construed to extend to any 
suit in law or equity, commenced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects of any foreign State. 

ARTICLE XII. 

1. The electors shall meet in their respective States, and vote by ballot for 
President and Vice President, one of whom at least, shall not be an inhabitant of 
the same State with themselves ; they shall name in their ballots the person 
voted for as President, and in distinct ballots the person voted for as Vice Presi- 
dent ; and they shall make distinct lists of all persons voted for as President, and 
of all persons voted for as Vice President, and of the number of votes for each,' 
which lists they shall sign and certify, and transmit sealed to the seat of the 
government of the United States, directed to the president of the Senate ; the 
president of the Senate shall, in the presence of the Senate and House of Repre- 
sentatives, 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 Repre- 
sentatives shall choose immediately, 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 majority 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 disability of the President. 

2. The person having the greatest number of votes as Vice President, shall be 
the Vice President, if such number be a majority of the whole number of electors 
appointed ; and if- no person have a majority, then from the two highest numbers 
on the list, the Senate shall choose the Vice President : a quorum for the pur- 
pose shall consist of two-thirds of the whole number of Senators, and a majority of 
the whole number shall be necessary to a choice. 

3. But. no person constitutionally ineligible to the office of President shall be 
eligible to that of Vice President of the United States. 

7 • 

[Note. — In former editions of the laws of Illinois, there is an amendment printed as article thirteen, pro- 
hibiting citizens from accepting titles of nobility, &c.. from foreign governments. But by a message of the Presi- 
dent of the United States of February 4, 1818, in answer to a resolution of the House of Representatives, it 
appears that this amendment had been ratified by only twelve States, and therefore had not been adopted. 
See vol. 4, of the printed papers of the first session of the 15th Congress, No. 76.] 



AN ORDINANCE, 



ACCEPTING CERTAIN PROPOSITIONS MADE BY CONGRESS, 
APRIL 18, 1818. 



Preamble. 

Propositions of Congress : sixteenth section gran- 
ted for schools : 
Salt springs granted to the State : 
Also, 5 per cent, on sales of public lands : 



One township granted for seminary. 

Lands sold to be exempt from taxation for five 
years, bounty lands for three years ; non-resi- 
dent lands not taxed higher than others. 

Proposition of Congress accepted. 



Whereas, the Congress of the United States, in the act entitled 'An act to 
enable the people of the Illinois Territory to form a Constitution and State govern- 
ment, and for the admission of such State into the Union on an equal footing with 
the original States, passed the 18th of April, 1818," have offered to this Conven- 
tion for their free acceptance or rejection, the following propositions, which, if 
accepted by the Convention are to be obligatory upon the United States, viz: 

1st. That section numbered sixteen in every township, and when such section 
has been sold, or otherwise disposed of, other lands equivalent thereto, and as 
contiguous as may be, shall be granted to the State for the use of the inhabitants 
of such township for the use of schools : 

2d. That all salt springs within such State, and the lands reserved for the use of 
the same, shall be granted to the said State for the use of the said State, and the same 
to be used under such terms and conditions and regulations as the Legislature of 
said State shall direct : Provided, The legislature shall never sell nor lease the same 
for a longer period than ten years at any one time : 

3d. That five per cent, of the nett proceeds of the lands lying within such State, 
and which shall be sold by Congress from and after the first day of January, one 
thousand eight hundred and nineteen, after deducting all expenses incident to the 
same, shall be reserved for the purposes following, viz: Two-fifths to be disbursed 
under the direction of Congress, in making roads leading to the State ; the residue 
to be appropriated by the Legislature of the State for the encouragement of learning, 
of which one-sixth part shall be exclusively bestowed on a college or university: 

4th. That thirty-six sections or one entire township, which shall be designated by 
the President of the United States, together with the one heretofore reserved for 
that purpose, shall be reserved for the use of a seminary of learning, and vested in 
the Legislature of the said State, to be appropriated solely to the use of such semi- 
nary by the said Legislature. 

And whereas, the four foregoing propositions are offered on the condition that 
this convention shall provide by ordinance, irrevocable without the consent of the 
United States, that every and each tract of land sold by the United States, from and 
after the first day of January, 1819, shall remain exempt from any tax laid by 
order, or under the authority of the State, whether for State, county or township, 
or any other purpose whatever, for the term of five years, from and after the day 
of sale. And further, that the bounty lands granted, or hereafter to be granted for 
military services during the late war, shall, while they continue to be held by the 
patentees or their heirs, remain exempt as aforesaid from all taxes for the term of 
three years from and after the date of the patents respectively ; and that all the 
lands belonging to the citizens of the United States, residing without the said State 
shall never be taxed higher than lands belonging to persons residing therein. 



28 ORDINANCE. 

Therefore, this convention, on behalf of, and by the authority of the people of 
the State, do accept of the foregoing propositions ; and do further ordain and 
declare, that every and each tract of land sold by the United States, from and after 
the first day of January, 1819, shall remain exempt from any tax laid by order, or 
under any authority of the State, whether for State, county, or township, or any 
purpose whatever, for the term of five years from and after the day of sale. And 
that the bounty lands granted, or hereafter to be granted, for military services 
during the late war, shall, while they continue to be held by the patentees or their 
heirs, remain exempt, as aforesaid, from all taxes for the term of three years from 
and after the date of the patents respectively ; and that all the lands belonging to 
the citizens of the United States, residing without the said State, shall never be 
taxed higher than lands belonging to persons residing therein. And this convention 
do further ordain and declare, that the foregoing ordinance shall not be revoked 
without the consent of the United States. 

Done in convention at Kaskaskia, the twenty-sixth day of August, in the year of 
our Lord, one thousand eight hundred and eighteen, and of the Independence 
of the United States of America, the forty-third. 

JESSE B. THOMAS, 
President of the Convention. 

ATTEST : 

WM. C. GREENUP, 

Secretary of the Convention. 



CONSTITUTION OP ILLINOIS. 



Preamble. 
Boundaries of the State. 

ARTICLE I. 
Section 

1 . Distribution of powers. 

2. Limitation of powers of each department. 

ARTICLE II. 

1. Legislative power vested in a General Assem- 

bly; elective. 

2. First election when to be held, and thereafter. 

3. Qualifications of representatives. 

4. Senators, how elected. 

5. Number and apportionment of senators and rep- 

resentatives. 

6. Qualifications of senators. 

7. The Houses to choose their officers ; to judge 

of the qualifications of members ; adjourn- 
ments ; quorum ; compel attendance of mem. 
bers. 

8. To keep and publish journals ; yeas and nays. 

9. Dissent and protest of members. 

10. Rules of proceeding; punishment and expul- 

sion of members. 

1 1 . Vacancies, writs of election to fill. 

12. Privileges of members. 

13. Power of Houses to punish for contempt. 

14. Houses to sit with open doors, except, &c; 

separate adjournments regulated. 

15. Bills may originate in either House. 

16. Bills to be read on three different days, unless 

rule suspended; when passed, to be signed by 
Speakers. 

17. Enacting clause. 

IS. Salaries limited ; of Governor, of Secretary of 
State. 

19. Members not eligible to offices created during 

their term of membership. 

20. No money drawn unless appropriated. 

21. Publication of receipts and expenditures. 

22. House of Representatives to impeach ; Senate 

to try ; members sworn ; two-thirds must con- 
cur to convict. 

23. Officers liable to impeachment; extent of judg- 

ment. 

24. First session, when to be held, and thereafter. 

25. Certain officers of this State and of United States 

ineligible to a seat in either House. 

26. Oaths of office ; and to support constitution. 

27. Qualifications of voters. 

28. Manner of voting. 

29. Voters privileged from arrest vvliile at elections, 

except, &c. 

30. Power of General Assembly to exclude from 

electoral privileges, for bribery, &c. 

31. Census to be taken every fifth year after 1S20. 

32. Revenue bills to originate in the House. 

ARTICLE III. 

1. Executive power vested in Governor. 

2. First election, and thereafter ; Governor, how 

chosen ; returns, how compared and published ; 
if no choice, assembly to elect; contested 
elections. 



Section 

3. Qualifications, and official term of Governor. 

4. To communicate to General Assembly. 
6. Power to pardon, &c. 

6. His salary. 

7. May call for information ; shall see laws exe- 

cuted. 

8. He may fill vacancies. 

9. May convene General Assembly. 

10. Shall be commander-in-chief of army, &c. 

11. Sheriffs and coronors ; their qualifications and 

terms of office. 

12. If Houses of General Assembly disagree, Gov- 

ernor may adjourn them. 

13. Lieutenant Governor, how chosen ; his term and 

Qualifications ; manner of voting for. 

14. Shalt be Speaker of the Senate; may debate; 

vote ; casting vote. 

15. When he fills vacancy of Governor, Senate may 

elect a Speaker who, if Lieutenant Governor is 
disqualified, shall administer the Government. 

16. Compensation of Lieutenant Governor. 

17. Senate to be convened, if Lieutenant die or re- 

move while acting as Governor. 

18. If Governor is disqualified, Lieutenant Governor 

to act, until next general election. 
1 9. Council of Revision ; to revise bills ; if they 
return bills without approval, they may be 
passed by majority of all members elected. 

20. Secretary of State, how appointed; his duties. 

21. Treasurer and public printer, how elected. 

22. Governor to appoint officers, &c. 

ARTICLE IV. 

1 . Judicial power ; how vested. 

2. Supreme Court; where held; its jurisdiction. 

3. How constituted. 

4. Judges, how appointed; term of office; their 

duties. 

5. Judges of inferior courts ; term of office ; how 

removed ; proviso ; salary. 

6. Clerks of courts, how appointed. 

7. Style and conclusion of process and prosecu- 

tions. 

8. Justices of the peace, how commissioned. 

ARTICLE V. 

1 . Militia, of what persons composed, &c. 

2. Conscientious scruples, equivalent for exemp- 

tion on account of. 

3. Officers, how elected. 

4. Brigadier and major generals, how elected. 

5. Militia officers, how commissioned; term of 

office. 

6. Militia privileged from arrest in certain cases. 

ARTICLE VI. 

1 . Slavery and servitude ; provisions concerning. 

2. Persons bound to labor in other States, not to be 

hired in tliis State, except, &c. ; emancipation 
effected by violation of this article. 

3. Provisions concerning persons held by contract 

or indentures, and their children. 



30 



CONSTITUTION OF ILLINOIS. 



ARTICLE VII. 
Section 
1. Mode of amending this constitution, defined. 
ARTICLE VIII. 
Preamble. 

1. Declaration of rights. 

2. Power; government; its objects. 

3. Religious freedom ; liberty of conscience. 

4. No religious tests. 

5. Elections to be free. 

6. Trial by jury. 

7. Security of persons and property from searches 

and seizures. 

8. Security of liberty and property; common lands; 

proviso. 

9. Criminal prosecutions ; rights of accused. 

10. Proceedings by information not allowed, except, 

&c. 

11. No person twice tried for same offence; private 

property not to be taken, except, &c. 

12. Remedies; rights. 

13. Bail; habeas corpus. 

14. Penalties proportioned to offence. 

15. Concerning imprisonment for debt. 

16. Ex post facto law; contracts; corruption of 

blood ; forfeiture of estate. 



Section 

17. Transportation forbidden. 

18. Recurrence to fundamental principles necessary. 

19. Right of people to instruct, petition, &c. 

20. Mode of levying taxes. 

21. Banks. 

22. Freedom of the press, and of speech. 

23. Truth may be given in evidence ; jury to de- 

termine law and fact. 

SCHEDULE. 

1 . Change of government. 

2. Fines, &c, due the Territory, belong to the State. 

3. Defaulting sheriffs and collectors ineligible to 

re-election. 

4. County commissioners. 

5. Oiticers of Territory to hold office until super- 

ceded. 

6. State seal. 

7. Justice may administer official oaths. 

8. Apportionment of Senators and Representatives. 

9. First election, how conducted. 

10. Auditor, Attorney General, &c, how appointed. 

1 1 . Duelling. 

12. Qualification of voters at first election. 

13. Seat of Government. 

14. Qualifications of Lieutenant Governor. 



The people of the Illinois Territory, having the right of admission into the 
General Government as a member of the Union, consistent with the Constitution of 
the United States, the ordinance of Congress of 1787, and the law of Congress 
approved, April 18th, 1818, entitled " An act to enable the people of the Illinois 
Territory to form a constitution and State Government, and for the admission of 
such State into the Union, on an equal footing with the original States, and for other 
purposes ;" in order to establish justice, promote the welfare and secure the bles- 
sings of liberty to themselves and their posterity, do by their representatives in 
convention, ordain and establish the following Constitution or form of government ; 
and do mutually agree with each other to form themselves into a free and inde- 
pendent State by the name of the State of Illinois. And they do hereby ratify 
the boundaries assigned to such State by the act of Congress aforesaid, which are as 
follows, to wit: Beginning at the mouth of the Wabash river, thence up the same, 
and with the line of Indiana to the north-west corner of said State ; thence east 
with the line of the same State to the middle of Lake Michigan ; thence north 
along the middle of said lake, to the north latitude forty-two degrees and thirty 
minutes ; thence west to the middle of the Mississippi river ; and thence down 
along the middle of that river to its confluence with the Ohio river ; and thence up 
the latter river along its north-western shore to the beginning. 

ARTICLE I. 

CONCERNING THE DISTRIBUTION OF THE POWERS OF GOVERNMENT. 

Sec 1. The powers of the government of the State of Illinois, shall be divided 
into three distinct departments, and each of them be confided to a separate body of 
magistracy, to wit: Those which are legislative, to one ; those which are executive, 
to another ; and those which are judiciary, to another. 

Sec 2. No person or collection of persons, being one of those departments, 
shall exercise any power properly belonging to either of the others, except as 
hereinafter expressly directed or permitted. 

ARTICLE II. 



Sec 1. The legislative authority of this State, shall be vested in a General Assem- 
bly which shall consist in a Senate and House of Representatives, both to be elected 
by the people. 



CONSTITUTION OF ILLINOIS. 31 

Sec. 2. The first election for Senators and Representatives, shall commence on 
the third Thursday of September next, and continue for that and the two succeeding 
days ; and the next election shall be held on the first Monday in August, one thou- 
sand eight hundred and twenty ; and forever after, elections shall be held once in 
two years, on the first Monday of August, in each and every county, at such places 
therein as may be provided by law. 

Sec. 3. No person shall be a Representative who shall not have attained the age 
of twenty-one years, who shall not be a citizen of the United States, and an inhab- 
itant of this State : who shall not have resided within the limits of the county or 
district in which he shall be chosen, twelve months next preceding his election, if 
such county or district shall have been so long erected; but if not, then within the 
limits of the county or counties, district or districts out of which the same shall 
have been taken, unless he shall have been absent on the public business of the 
United States or of this State ; and who moreover shall not have paid a State or 
county tax. 

Sec 4. The Senators at their first session herein provided for, shall be divided 
by lot from their respective counties or districts, as near as can be, into two classes. 
The seats of the Senators of the first class shall be vacated at the expiration of the 
second year ; and those of the second class at the expiration of the fourth year, so 
that one-half thereof, as near as possible, may be biennially chosen forever thereafter. 
Sec 5. The number of Senators and Representatives shall, at the first session 
of the General Assembly, holden after the returns herein provided for are made 
be fixed by the General Assembly, and apportioned among the several counties or 
districts to be established by law, according to the number of white inhabitants. 
The number of Representatives shall not be less than twenty-seven, nor more than 
thirty-six, until the number of inhabitants within this State shall amount to one 
hundred thousand ; and the number of Senators shall never be less than one-third 
nor more than one-half of the number of Representatives. 

Sec 6. No person shall be a Senator who has not arrived at the age of twenty- 
five years, who shall not be a citizen of the United States, and who shall not have 
resided one year in the county or district in which he shall be chosen immediately 
preceding his election, if such county or district shall have been so long erected ; 
but if not, then within the limits of the county or counties, district or districts out of 
which the same shall have been taken ; unless he shall have been absent on the 
public business of the United States or of this State, and shall not moreover have 
paid a State or county tax. 

Sec 7. The Senate and House of Representatives, when assembled, shall each 
choose a speaker and other officers : (the speaker of the Senate excepted:) each 
House shall judge of the qualifications and elections of its members, and sit upon 
its own adjournments. Two-thirds of each House shall constitute a quorum, but a 
smaller number may adjourn from day to day, and compel the attendance of absent 
members. 

Sec 8. Each House shall keep a journal of its proceedings, and publish them : 
the yeas and nays of the members, on any question, shall, at the desire of any two 
of them, be entered on the journals. 

Sec 9. Any two members of either House, shall have liberty to dissent and 
protest against any act or resolution which they may think injurious to the public, 
or to any individual, and have the reasons of their dissent entered on the journals. 
Sec 10. Each House may determine the rules of its proceedings, punish its 
members for disorderly behavior ; and with the concurrence of two-thirds, expel 
a member, but not a second time for the same cause. 

Sec 11. When vacancies happen in either House, the Governor, or the person 
exercising the powers of Governor, shall issue writs of election to fill such 
vacancies. 

Sec 12. Senators and Representatives shall, in all cases, except treason, felony, 
or breach of the peace, be privileged from arrest, during the session of the General 
Assembly, 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. 



32 CONSTITUTION OF ILLINOIS. 

Sec. 13. Each House may punish by imprisonment during its session, any 
person not a member, who shall be guilty of disrespect to the House, by any dis- 
orderly or contemptuous behavior in their presence ; provided such imprisonment 
shall not at any one time exceed twenty -four hours. 

Sec. 14. The doors of each House, and of committees of the whole, shall be 
kept open, except in such cases as in the opinion of the House, require secrecy. 
Neither House shall, without the consent of the other, adjourn for more than two 
days, nor to any other place than that in which the two Houses shall be sitting. 

Sec. 15. Bills may originate in either House, but may be altered, amended, or 
rejected by the other. 

Sec 16. Every bill shall be read on three different days in each House, unless 
in case of urgency, three-fourths of the House where such bill is so depending 
shall deem it expedient to dispense with this rule ; and every bill having passed 
both Houses shall be signed by the Speakers of the respective Houses. 

Sec. 17. The style of the laws of this State shall be, " Be it enacted by the 
people of the State of Elinois, represented in the General Assembly. " 

Sec. 18. The General Assembly of this State shall not allow the following 
officers of government greater or smaller annual salaries than as follows, until the 
year one thousand eight hundred and twenty-four : The Governor, one thousand 
dollars ; and the Secretary of State, six hundred dollars. 

Sec 19. No Senator or Representative shall, during the time for which he shall 
have been elected, be appointed to any civil office under this State, which shall have 
been created, or the emoluments of which shall have been increased during such 
time. 

Sec 20. No money shall be drawn from the treasury but in consequence of 
appropriations made by law. 

Sec 21. An accurate statement of the receipts and expenditures of the public 
money, shall be attached to, and published with, the laws, at the rising of each 
session of the General Assembly. 

Sec 22. The House of Representatives shall have the sole power of impeaching, 
but a majority of all the members present must concur in an impeachment; all 
impeachments shall be tried by the Senate ; and when sitting for that purpose, the 
Senators shall be upon oath or affirmation, to do justice according to law and 
evidence. No person shall be convicted without the concurrence of two-thirds of 
all the Senators present. 

Sec 23. The Governor, and all other civil officers under this State, shall be 
liable to impeachment for any misdemeanor in office; but judgment in such 
cases shall not extend further than to removal from office, and disqualifica- 
tion to hold any office of honor, profit or trust under this State. The party, 
whether convicted or acquitted, shall nevertheless be liable to indictment, trial, 
judgment and punishment according to law. 

Sec 24. The first session of the General Assembly shall commence on the first 
Monday of October next, and forever after, the General Assembly shall meet on 
the first Monday in December next ensuing the election of the members thereof, 
and at no other period, unless as provided by this Constitution. 

Sec 25. No judge of any court of law or equity, Secretary of State, attorney 
general, attorney for the State, register, clerk of any court of record, sheriff or 
collector, member of either House of Congress, or person holding any lucrative 
office under the United States or this State, (provided that appointments in the 
militia, postmasters or justices of the peace shall not be considered lucrative offices) 
shall have a seat in the General Assembly: nor shall any person holding any office 
of honor or profit under the government of the United States, hold any office of 
honor or profit under the authority of this State. 

Sec 26. Every person who shall be chosen or appointed to any office of trust 
or profit shall, before entering upon the duties thereof, take an oath to support the 
constitution of the United States and of this State, and also an oath of office. 



CONSTITUTION OF ILLINOIS. 33 

Sec. 27. In all elections, all white male inhabitants above the age of twenty-one 
years, having resided in the State six months next preceding the election, shall enjoy 
the right of an elector ; but no person shall be entitled to vote except in the county 
or district in which he shall actually reside at the time of the election. 

Sec. 28. All votes shall be given viva voce until altered by the General 
Assembly. 

Sec 29. Electors shall, in all cases, except treason, felony, or breach of the 
peace, be privileged from arrest during their attendance at elections, and in going to 
and returning from the same. 

Sec 30. The General Assembly shall have full power to exclude from the 
privilege of electing or being elected any person convicted of bribery, perjury or 
any other infamous crime. 

Sec 31. In the year one thousand eight hundred and twenty, and every fifth year 
thereafter, an enumeration of all the white inhabitants of the State shall be made in 
such manner as shall be directed by law. 

Sec 32. All bills for raising a revenue shall originate in the House of Repre- 
sentatives, subject, however, to amendment, or rejection as in other cases. 

ARTICLE III. 

Sec 1. The executive power of the State shall be vested in a Governor. 

Sec 2. The first election of Governor shall commence on the third Thursday of 
September next, and continue for that and the two succeeding days ; and the next, 
election shall be held on the first Monday of August, in the year of our Lord one 
thousand eight hundred and twenty -two. And forever after, elections for Governor 
shall be held once in four years, on the first Monday of August. The Governor 
shall be chosen by the electors of the members of the General Assembly, at the 
same places and in the same manner that they shall respectively vote for members 
thereof. The returns for every election of Governor shall be sealed up and trans- 
mitted to the seat of government by the returning officers, directed to the Speaker 
of the House of Representatives, who shall open and publish them in the presence 
of a majority of the members of each House of the General Assembly. The person 
having the highest number of votes shall be Governor ; but if two or more be equal 
and highest in votes, then one of them shall be chosen Governor by joint ballot of 
both Houses of the General Assembly. Contested elections shall be determined bv 
both Houses of the General Assembly in such manner as shall be prescribed by law. 

Sec 3. The first Governor shall hold his office until the first Monday of 
December, in the year of our Lord one thousand eight hundred and twenty-two, 
and until another Governor shall be elected and qualified to office : and forever 
after, the Governor shall hold his office for the term of four years, and until 
another Governor shall be elected and qualified ; but he shall not be eligible for 
more than four years in any term of eight years. He shall be at least thirty years 
of age, and have been a citizen of the United States thirty years ; two years of 
which next preceding his election he shall have resided within the limits of this 
State. 

Sec 4. He shall, from time to time, give the General Assembly information of 
the state of the government, and recommend to their consideration such measures 
as he shall deem expedient. 

Sec 5. He shall have power to grant reprieves and pardons after conviction, 
except in cases of impeachment. 

Sec 6. The Governor shall, at stated times, receive a sahry for his services, 
which shall neither be increased nor diminished during the term for which he shall 
have been elected. 

Sec 7. He may require information in writing from the officers in the executive 
department, upon any subject relating to the duties of their respective offices, and 
shall take care that the laws be faithfully executed. 

Sec 8. When any officer, the right of whose appointment is, I y this constitution, 
vested in the General Assembly, or in the Governor and Senate, shall, during the 
o 



34 CONSTITUTION OF ILLINOIS. 

recess, die, or his office by any means become vacant, the Governor shall have 
power to till such vacancy, by granting a commission, which shall expire at the end 
of the next session of the General Assembly. 

Sec. 9. He may, on extraordinary occasions, convene the General Assembly 
by proclamation, and shall state to them when assembled, the purpose for which 
they shall have been convened. 

Sec 10. He shall be commander-in-chief of the army and navy of this State, 
and of the militia, except when they shall be called into the service of the United 
States. 

Sec 11. There shall be elected in each and every county in the said State, by 
those who are qualified to vote for members of the General Assembly, and at the 
same times and places where the election for such members shall be held, one 
sheriff and one coroner, whose election shall be subject to such rules and regula- 
tions as shall be prescribed by law. The said sheriffs and coroners respectively, 
when elected, shall continue in office two years, be subject to removal and disqual- 
(ication, and such other rules and regulations as may be, from time to time pre- 
scribed by law. 

Sec 12. In case of disagreement between the two Houses with respect to the 
time of adjournment, the Governor shall have power to adjourn the General 
Assembly, to such time as he thinks proper, provided it be not a period beyond the 
next constitutional meeting of the same. 

Sec 13. A Lieutenant Governor shall be chosen at every election for Governor, 
in the same manner, continue in office for the same time, and possess the same 
qualifications. In voting for Governor and Lieutenant Governor, the electors shall 
distinguish whom they vote for as Governor, and whom as Lieutenant Governor. 

Sec 14. He shall by virtue of his office be speaker of the Senate, have a right, 
when in committee of the whole, to debate and vote on all subjects ; and whenever 
the Senate are equally divided, to give the casting vote. 

Sec 15. Whenever the government shall be administered by the Lieutenant 
Governor, or he shall be unable to attend as speaker of the Senate, the Senators 
shall elect one of their own members as speaker for that occasion ; and if, during 
the vacancy of the office of Governor, the Lieutenant Governor shall be impeached, 
removed from office, refuse to qualify, or resign, or die, or be absent from the State, 
the speaker of the Senate shall in like manner administer the government. 

Sec 16. The Lieutenant Governor, while he acts as speaker of the Senate, 
shall receive for his services, the same compensation, which shall, for the same 
period be allowed to the speaker of the House of Representatives and no more ; 
and during the time he administers the government as Governor, he shall receive 
the same compensation which the Governor would have received had he been 
employed in the duties of his office. 

Sec 17. If the Lieutenant Governor shall be called upon to administer the 
government, and shall, while in such administration resign, die or be absent from 
the State during the recess of the General Assembly, it shall be the duty of the 
Secretary for the time being, to convene the Senate for the purpose of choosing a 
speaker. 

Sec 18. In case of an impeachment of the Governor, his removal from office, 
death, refusal to qualify, resignation or absence from the State, the Lieutenant 
Governor shall exercise all the power and authority appertaining to the office of 
Governor, until the time pointed out by this constitution for the election of Gover- 
nor shall arrive, unless the General Assembly shall provide by law for the election 
of a Governor to fill such vacancy. 

Sec 19. The Governor, for the time being, and the Judges of the Supreme 
Court or a major part of them, together with the Governor, shall be and are hereby 
constituted a council to revise all bills about to be passed into laws by the General 
Assembly ; and for that purpose shall assemble themselves from time to time when 
the General Assembly shall be convened; for which nevertheless they shall not 
receive any salary or consideration under any pretence whatever ; and all bills 



CONSTITUTION OF ILLINOIS. 35 

which have passed the Senate and House of Representatives shall, before they 
become laws, be presented to the said council for their revisal and consideration: 
and if, upon such revisal and consideration, it should appear improper to the said 
council or a majority of them, that the bill should become a law of this State, they 
shall return the same, together with their objections thereto in writing to the 
Senate or House of Representatives (in whichsoever the same shall have ori°-m- 
ated) who shall enter the objections set down by the Council at large in their 
minutes, and proceed to re-consider the said bill. But if, after such re-considera- 
tion, the said Senate or House of Representatives shall, notwithstanding the said 
objections, agree to pass the same by a majority of the whole number of members 
elected, it shall, together with the said objections, be sent to the other branch of 
the General Assembly, where it shall also be reconsidered; and if approved by a 
majority of all the members elected, it shall become a law. If any bill shall not be 
returned within ten days after it shall have been presented, the same shall be a law, 
unless the General Assembly shall, by their adjournment, render a return of the 
said bill in ten days impracticable ; in which case, the said bill shall be returned on 
the first day of the meeting of the General Assembly, after the expiration of the 
said ten days, or be a law. 

Sec. 20. The Governor shall nominate, and by and with the advice and consent 
of the Senate, appoint a Secretary of State, who shall keep a fair register of the 
official acts of the Governor, and when required, shall lay the same and all papers, 
minutes and vouchers relative thereto, before either branch of the General Assemblv. 
and shall perform such other duties as shall be assigned him by law. 

Sec 21. The State Treasurer and Public Printer or Printers for the State shall 
be appointed biennially by the joint vote of both branches of the General Assembly : 
Provided, That during the recess of the same, the Governor shall have power to 
fill such vacancies as may happen in either of said offices. 

Sec. 22. The Governor shall nominate, and by and with the advice and consent of 
the Senate, appoint all officers whose offices are established by this constitution, or 
shall be established by law, and whose appointments are not herein otherwise pro- 
vided for : Provided however, That inspectors, collectors and their deputies, sur- 
veyors of the highways, constables, jailers and such inferior officers whose 
jurisdiction may be confined within the limits of the county, shall be appointed in 
such manner as the General Assembly shall prescribe. 

ARTICLE IV. 

Sec. 1. The judicial power of this State shall be vested in one Supreme Court, 
and such inferior courts as the General Assembly shall, from time to time, ordain 
and establish. 

Sec 2. The Supreme Court shall be holden at the Seat of Government, and 
shall have an appellate jurisdiction only, except in cases relating to the revenue, in 
cases of mandamus, and in such cases of impeachment as may be required to be 
tried before it. 

Sec 3. The Supreme Court shall consist in a Chief Justice and three associates 
any two of whom shall form a quorum. The number of justices may, however, 
be increased by the General Assembly after the year one thousand eight hundred 
and twenty-four. 

Sec 4. The Justices of the Supreme Court and the judges of the inferior courts 
shall be appointed by joint ballot of both branches of the General Assembly, and 
commissioned by the Governor, and shall hold their offices during good behavior 
until the end of the first session of the General Assembly, which shall be begun 
and held after the first day of January, in the year of our Lord one thousand eight 
hundred and twenty-four, at which time their commissions shall expire : and until 
the expiration of which time, the said justices, respectively, shall hold circuit courts 
in the several counties, in such manner and at such times, and shall have and 



36 CONSTITUTION OF ILLINOIS. 

exercise such jurisdiction as the General Assembly shall by law prescribe. But 
ever after the aforesaid period, the Justices of the Supreme Court shall be com- 
missioned during good behavior, and the justices thereof shall not hold circuit 
courts unless required by law. 

Sec. 5. The judges of the inferior courts shall hold their offices during good 
behavior, but for any reasonable cause, which shall not be sufficient ground for 
impeachment, both the judges of the supreme and inferior courts, shall be removed 
from office on the address of two-thirds of each branch of the General Assembly : 
Provided always, That no member of either House of the General Assembly, nor 
any person connected with a member by consanguinity, or affinity, shall be appointed 
to fill the vacancy occasioned by such removal. The said Justices of the Supreme 
Court, during their temporary appointments, shall receive an annual salary of one 
thousand dollars, payable quarter-yearly out of the public treasury. The judges 
of the inferior courts, and the justices of the Supreme Court who may be appointed 
after the end of the first session of the General Assembly, which shall be begun 
and held after the first day of January, in the year of our Lord one thousand eight 
hundred and twenty -four, shall have adequate and competent salaries, which shall 
not be diminished during their continuance in office. 

Sec 6. The Supreme Court, or a majority of the justices thereof, the circuit 
courts, or the justices thereof, shall, respectively, appoint their own clerks. 

Sec. 7. All process, writs and other proceedings shall run in the name of " The 
People of the State of Illinois.'''' All prosecutions shall be carried on " In the name 
and by the authority of the People of the State of Illinois, " and conclude, " against 
the peace and dignity of the same. " 

Sec 8. A competent number of justices of the peace shall be appointed in each 
county in such manner as the General Assembly may direct, whose time of service, 
power, and duties shall be regulated and defined by law. And justices of the 
peace, when so appointed, shall be commissioned by the Governor. 

ARTICLE V. 

Sec 1. The militia of the State of Illinois shall consist of all free male able- 
bodied persons, negroes, mulattoes and Indians excepted, resident of the State, 
between the ages of eighteen and forty-five years, except such persons as now are, 
or hereafter may be exempted by the laws of the United States or of this State, 
and shall be armed, equipped, and trained as the General Assembly may provide 
by law. 

Sec 2. No person or persons, conscientiously scrupulous of bearing arms shall 
be compelled to do militia duty in time of peace, provided such person or persons 
shall pay an equivalent for such exemption. 

Sec 3. Company, battalion and regimental officers, staff officers excepted, shall 
be elected by the persons composing their several companies, battalions and 
regiments. 

Sec 4. Brigadier and Major Generals shall be elected by the officers of their 
brigades and divisions respectively. 

Sec 5. All militia officers shall be commissioned by the Governor, and may 
hold their commissions during good behavior, or until they arrive at the age of 
sixty years. 

Sec 6. The militia shall, in all cases, except treason, felony or breach of the 
peace, be privileged from arrest during their attendance at musters and elections of 
officers, and in going to and returning from the same. 



CONSTITUTION OF ILLINOIS. 37 

ARTICLE VI. 

Sec. 1. Neither slavery nor involuntary servitude shall hereafter be introduced 
into this State, otherwise than for the punishment of crimes, whereof the party 
shall have been duly convicted ; nor shall any male person, arrived at the age of 
twenty-one years, nor female person, arrived at the age of eighteen years, be held 
to serve any person as a servant, under any indenture hereafter made, unless such 
person shall enter into such indenture while in a state of perfect freedom, and on 
condition of a bona fide consideration received or to be received for their service. 
Nor shall any indenture of any negroe or mulatto hereafter made and executed out 
of this State, or if made in this State,- where the term of service exceeds one year, 
be of the least validity, except those given in cases of apprenticeship. 

Sec. 2. No person bound to labor in any other State, shall be hired to labor in 
this State, except within the tract reserved for the salt works near Shawneetown ; 
nor even at that place for a longer period than one year at any one time ; nor shall 
it be allowed there after the year one thousand eight hundred and twenty-five : 
any violation of this article shall effect the emancipation of such person from his 
obligation to service. 

Sec 3. Each and every person who has been bound to service by contract or 
indenture in virtue of the laws of the Illinois territory heretofore existing, and in 
conformity to the provisions of the same, without fraud or collusion, shall be held 
to a specific performance of their contracts or indentures ; and such negroes and 
mulattoes as have been registered in conformity with the aforesaid laws, shall serve 
out the time appointed by said laws : Provided however. That the children hereafter 
born of such person, negroes or mulattoes, shall become free, the males at the age 
of twenty-one years, the females at the age of eighteen years. Each and every 
child born of indentured parents, shall be entered with the clerk of the county in 
which they reside, by their owners, within six months after the birth of said child. 

ARTICLE VII. 

Sec 1. Whenever two-thirds of the General Assembly shall think it necessary 
to alter or amend this constitution, they shall recommend to the electors at the next 
election of members to the General Assembly, to vote for or against a convention; 
and if it shall appear that a majority of all the citizens of the State voting for 
representatives have voted for a convention, the General Assembly shall, at their 
next session, call a convention, to consist of as many members as there may be in 
the General Assembly; to be chosen in the same manner, at the same place and 
by the same electors that choose the General Assembly, and which convention shall 
meet within three months after the said election, for the purpose of revising, alter- 
ing or amending this constitution. 

ARTICLE VIII. 

That the general, great and essential principles of liberty and free government 
may be recognized and unalterably established, we declare : 
Sec 1. That all men are born equally free and independent, and have certain 
inherent and indefeasible rights ; among which are those of enjoying and defending 
life and liberty, and of acquiring, possessing and protecting property and reputation, 
and of pursuing their own happiness. 

Sec 2. That all power is inherent in the people, and all free governments are 
founded on their authority and instituted for their peace, safety, and happiness. 

Sec 3. That all men have a natural and indefeasible right to worship Almighty 
God according to the dictates of their own consciences ; that no man can of right 
be compelled to attend, erect or support any place of worship, or to maintain any 
ministry against his consent ; that no human authority can in any case whatever 



38 CONSTITUTION OF ILLINOIS. 

control or interfere with the rights of conscience ; and that no preference shall 
ever be o-iven by law to any religious establishments or modes of worship. 

Sec. 4. That no religious test shall ever be required as a qualification to any 
office or public trust under this State. 

Sec 5. That elections shall be free and equal. 
Sec. 6. That the right of the trial by jury shall remain inviolate. 
Sec. 7. That the people shall be secure in their persons, houses, papers, and 
possessions, from unreasonable searches and seizures ; and that general warrants 
whereby an officer may be commanded to search suspected places without evidence 
of the fact committed, or to seize any person or persons not named, whose 
offences are not particularly described and supported by evidence, are dangerous 
to liberty, and ought not to be granted. 

Sec. 8. That no freeman shall be imprisoned or disseized of his freehold, 
liberties or privileges, or outlawed or exiled, or in any manner deprived of his 
life, liberty or property, but by the judgment of his peers or the law of the land. 
And all lands which have been granted as a common to the inhabitants of any 
town, hamlet, village or corporation, by any person, body politic or corporate, or . 
by any government having power to make such grant, shall forever remain common 
to the inhabitants of such town, hamlet, village or corporation : and the said 
commons shall not be leased, sold or divided under any pretence whatever: 
Provided, however, That, nothing in this section shall be so construed as to affect 
the commons of Cahokia or Prairie du Pont : Provided, also, That the General 
Assembly shall have power and authority to grant the same privileges to the in- 
habitants of the said villages of Cahokia and Prairie du Pont as are hereby 
granted to the inhabitants of other towns, hamlets and villages. 

Sec 9. That in all criminal prosecutions, the accused hath a right to be heard 
by himself and counsel ; to demand the nature and cause of the accusation against 
him ; to meet the witnesses face to face ; to have compulsory process to compel the 
attendance of witnesses in his favor. And in prosecutions by indictment or infor- 
mation, a speedy public trial by an impartial jury of the vicinage: and that he shall 
not be compelled to give evidence against himself. 

Sec 10. That no person shall, for any indictable offence, be proceeded against 
criminally by information, except in cases arising in the land or naval forces, or 
the militia when in actual service, in time of war or public danger, by leave of the 
courts, for oppression or misdemeanor in office. 

Sec 11. No person shall, for the same offence, be twice put in jeopardy of his 
life or limb; nor shall any man's property be taken or applied to public use, 
without the consent of his representatives in the General Assembly, nor without 
just compensation being made to him. 

Sec 12. Every person within this State ought to find a certain remedy in the 
laws, for all injuries or wrongs which he may receive in his person, property or 
character ; he ouo-ht to obtain right and justice freely, and without being obliged to 
purchase it, completely and without denial, promptly and without delay, comforma- 
biy to the laws. 

• Sec 13. That all persons shall be bailable by sufficient sureties, unless for 
capital offences, where the proof is evident or the presumption great ; and the 
privilege of the writ of habeas corpus shall not be suspended, unless when in 
cases of rebellion or invasion, the public safety may require it. 

Sec 14. All penalties shall be proportioned to the nature of the offence, the 
true design of all punishment being to reform, not to exterminate mankind. 

Sec 15. No person shall be imprisoned for debt, unless upon refusal to deliver 
up his estate for the benefit of his creditors, in such manner as shall be pres- 
cribed by law, or in cases where there is strong presumption cf fraud. 

Sec 16. No ex post facio law, nor any law impairing the validity of contracts 
shall ever be made ; and no conviction shall work corruption of blood or for- 
feiture of estate. 



SCHEDULE. 3«j 

Sec. 17. That no person shall be liable to be transported out this of State for 
any offence committed within the same. 

Sec. 18. That a frequent recurrence of the fundamental principles of civil 
government is absolutely necessary to preserve the blessings of liberty. 

Sec. 19. That the people have a right to assemble together in a peaceable man- 
ner to consult for their common good, to instruct their representatives, and to 
apply to the General Assembly for redress of grievances. 

Sec 20. That the mode of levying a tax shall be by valuation, so that every 
person shall pay a tax in proportion to the value of the property he or she has in 
his or her possession. 

Sec 21. That there shall be no other banks or monied institutions in this State 
but those already provided by law, except a State bank and its branches, which 
may be established and regulated by the General Assembly of the State as they 
may think proper. 

Sec 22. The printing presses shall be free to every person, who undertakes to 
examine the proceedings of the General Assembly or of any branch of government; 
and no law shall ever be made to restrain the right thereof. The free communi- 
cation of thoughts and opinions is one of the invaluable rights of man, and every 
citizen may freely speak, write, and print on any subject, being responsible for the 
abuse of that liberty. 

Sec 23. In prosecutions for the publication of papers investigating the official 
conduct of officers, or of men acting in a public capacity, or where the matter 
published is proper for public information, the truth thereof may be given in 
evidence. And in all indictments for libels the jury shall have the right of de- 
termining both the law and the fact, under the direction of the court as in other 
cases. 



SCHEDULE. 



Sec 1. That no inconveniences may arise from the change of a territorial to 
a permanent State government, it is declared by the convention, that all rights, 
suits, actions, prosecutions, claims and contracts, both as it respects individuals 
and bodies corporate, shall continue as if no change had taken place in this govern- 
ment in virtue of the laws now in force. 

Sec 2. All fines, penalties and forfeitures due and owing to the territory of 
Illinois shall enure to the use of the State. All bonds executed to the Governor, 
or to any other officer in his official capacity in the territory, shall pass over to the 
Governor or to the officers of the State, and their successors in office, for the use 
of the State by him or by them to be respectively assigned over to the use of those 
concerned, as the case may be. 

Sec 3. No sheriff or collector of public moneys, shall be eligible to any office 
in this State, until they have paid over according to law, all moneys which they 
may have collected by virtue of their respective offices. 

Sec 4. There shall be elected in each county three county commissioners for 
the purpose of transacting all county business, whose time of service, power and 
duties shall be regulated and defined by law. 

Sec 5. The Governor, Secretary, and judges, and all other officers under the 
territorial government shall continue in the exercise of the duties of their respec- 
tive departments until the said officers are superseded under the authority of this 
constitution. 

Sec 6. The Governor of this State shall make use of his private seal, until a 
State seal shall be provided. 



40 SCHEDULE. 

Sec. 7. The oaths of office herein directed to be taken, may be administered by 
any justice of the peace until the General Assembly shall otherwise direct. 

Sec. 8. Until the first census shall be taken as directed by this constitution, the 
county of Madison shall be entitled to one Senator and three Representatives ; 
the county of St. Clair, to one Senator and three Representatives ; the county of 
Bond, to one Senator and one Representative; the county of Washington, to one 
Senator and one Representative ; the county of Monroe, to one Senator and one 
Representative ; the county of Randolph, to one Senator and two Representatives ; 
the county of Jackson, to one Senator and one Representative ; the counties of 
Johnson and Franklin, to form one Senatorial district, and to be entitled to one 
Senator, and each county to one Representative ; the county of Union, to one 
Senator, and two Representatives ; the county of Pope, to one Senator and two 
Representatives ; the county of Gallatin, to one Senator and three Representatives; 
the county of White, to one Senator and three Representatives ; the county of 
Edwards, to one Senator and two Representatives ; and the county of Crawford, to 
one Senator and two Representatives. 

Sec 9. The President of the convention shall issue writs of election, directed 
to the several sheriffs of the several counties, or in case of the absence or disa- 
bility of any sheriff, then to the deputy sheriff, and in case of the absence or 
disability of the deputy sheriff, then such writ to be directed to the coroner, 
requiring them to cause an election to be held for Governor, Lieutenant Governor, 
representative to the present Congress of the United States, and members to the 
General Assembly, and sheriffs and coroners in the respective counties ; such 
election to commence on the third Thursday of September next, and to continue for 
that and the two succeeding 1 days ; and which election shall be conducted in the 
manner prescribed by the existing election laws of the Illinois territory ; and the 
said Governor, Lieutenant Governor, members of the General Assembly, sheriffs 
and coroners, then duly elected, shall continue to exercise the duties of their res- 
pective offices for the time prescribed by this constitution, and until their successor 
or successors are qualified, and no longer. 

Sec 10. An auditor of public accounts, an attorney general, and such other 
officers for the State as may be necessary, may be appointed by the General 
Assembly, whose duties may be regulated by law. 

Sec 11. It shall be the duty of the General Assembly to enact such laws as 
may be necessary and proper to prevent the practice of duelling. 

Sec 12. All white male inhabitants above the age of twenty-one years, who 
shall be actual residents of this State, at the signing of this constitution, shall have 
a right to a vote at the election to be held on the third Thursday and the two 
following days of September next. 

Sec 13. The seat of government for the State shall be at Kaskaskia until the 
General Assembly shall otherwise provide. The General Assembly, at their first 
session holden under the authority of this constitution, shall petition the Congress 
of the United States, to grant to this State a quantity of land, to consist of not 
more than four, nor less than one section, or to give to this State the right of pre- 
emption in the purchase of the said quantity of land. The said land to be situate 
on the Kaskaskia river, and as near as may be, east of the third principal meridian 
on said river. Should the prayer of such petition be granted, the General Assem- 
bly, at their next session thereafter, shall provide for the appointment of five 
commissioners to make the selection of said land so granted ; and shall further 
provide for laying out a town upon the land so selected; which town, so laid out, 
shall be the seat of Government of this State for the term of twenty years. Should 
however, the prayer of said petition not be granted, the General Assembly shall 
have power to make such provisions for a permanent seat of government as may 
be necessary, and shall fix the same where they may think best. 

Sec 14. Any person of thirty years of age who is a citizen of the United 
States and has resided within the limits of this State two years next preceding his 
election, shall be eligible to the office of Lieutenant Governor — any thing in the 



SCHEDULE. 



41 



thirteenth section of the third article of this constitution contained to the contrary 
notwithstanding. 

o 

Done in convention at Kaskaskia, the twenty-sixth day of August, in the year 
of our Lord, one thousand eight hundred and eighteen, and of the Indepen- 
dence of the United States of America, the forty-third. 

In testimony whereof, we have hereunto subscribed our names. 

JESSE B. THOMAS, 

President of the Convention, 

and representative from the county of St. Clair. 



St. Clair county, 



JOHN MESSINGER, 
JAMES LEMEN, Jit. 



Randolph county, 



GEORGE FISHER, 
ELIAS KENT KANE. 



Madison county, 

B. STEPHENSON, 
JOSEPH BOROUGH, 
ABRAHAM PRICKETT. 

Gallatin county, 

MICHAEL JONES, 

LEONARD WHITE, 

ADOLPHUS FREDERICK HUBBARD. 

Johnson county, 

HEZEKIAH WEST, 
WILLIAM M'FATRIDGE. 

Edwards county, 

SETH GARD, 
LEVI COMPTON. 



White county, 



WILLIS HARGRAVE, 
WILLIAM M' HENRY. 



Monroe county, 



CALDWELL CARNS, 
ENOCH MOORE. 



Pope county, 



SAMUEL OMELVENY, 

HAMLET FERGUSON. 



Jackson county, 



CONRAD WILL, 
JAMES HALL, Jr. 



Crawford county, 

JOSEPH KITCHELL, 
ED. N. CULLOM. 

Bond county, 

THOMAS KIRKPATRICK, 
SAMUEL G. MORSE. 

Union county, 

WILLIAM ECHOLS, 
JOHN WHITEAKER. 

Washington county, 

ANDREW BANKSON. 

Franklin county, 

ISHAM HARRISON, 
THOMAS ROBERTS. 



ATTEST : 

WM. C. GREENUP, 



Secretary to the Convention. 



RESOLUTION, 

DECLARING THE ADMISSION OF THE STATE OF ILLINOIS INTO 

THE UNION. 

Resolved by the Senate and House of Representatives of the United States of 
America in Congress assembled, That whereas, in pursuance of an act of Congress, 
passed on the eighteenth day of April, one thousand eight hundred and eighteen, 
entitled "An act to enable the people of the Illinois Territory to form a constitution 
and State government, and for the admission of such State into the Union, on an 
equal footing with th^e original States," the people of said Territory did, on the 
twenty-sixth day of August, in the present year, by a convention called for that 
purpose, form for themselves a constitution and State government, which constitu- 
tion and State government, so formed, is republican, and in conformity to the prin- 
ciples of the articles of compact between the original States and the people and 
States in the territory north-west of the river Ohio, passed on the thirteenth day 
of July, one thousand seven hundred and eighty-seven : Resolved by the Senate and 
House of Representatives of the United States of America in Congress assembled, 
That the State of Illinois shall be one, and is hereby declared to be one, of the 
United States of America, and admitted into the Union on an equal footing with 
the original States, in all respects whatever. 

Approved: December 3, 1818. 



REVISED STATUTES. 



AN ACT 

For revising and consolidating the general statutes of the State of Illinois. 

Whereas, it is expedient that the general statutes of this State should be con- 
solidated, and arranged in appropriate chapters and sections ; that omissions should 
be supplied, and defects amended ; and that the whole should be rendered plain, 
concise and intelligible : Therefore, 

Be it enacted by the People of the State of Illinois, represented in the General 
Assembly, in manner following, that is to say: 



CHAPTER I. 

ABATEMENT. 



Section 

1 . Pleas in abatement to be sworn to. 

2. Full costs on overruling plea in. 

8. Non-joinder of one of a company, &c, not to 
abate suit ; but defendant brought in by sum- 
mons. 

4. What proceedings, when defendant not found ; 

no other plea in abatement allowed. 

5. Marriage of feme sole plaintiff not to abate suit, 

but husband made a party. 

6. Marriage of feme sole defendant. 

T. Death of sole plaintiff, not to abate action; 
when and how to proceed. 

8. Death of sole defendant; how to proceed in 

case of. 

9. Death of co-plaintiff or co-defendant, not to 

abate action; how to proceed in case of. 



Section 

10. When plaintiff or defendant, who is executor ot 

administrator, shall die, how to proceed. 

1 1 . When plaintiff, being a public officer or trustee, 

shall die, &.c, how to proceed. 

12. Proceedings for partition of lands not to abate 

by death of parties — proceedings in such 
cases. 

13. Suit in the name of one, for another's use, not 

to abate by death, &c; proceedings in such 
cases. 

14. The provisions of this chapter to extend to pro- 

ceedings in equity, to appeals, &c. 

15. Orders of court to bring in or substitute parties, 

how to be made ; and writs of scire facias , 
how issued; within what time such writs 
shall be sued out. 



Section 1. No plea in abatement, other than a plea to the jurisdiction of the 
court, or when the matters relied upon to establish the truth of such plea appear of 
record, shall be admitted or received, by any court of this State, unless the party 
offering the same, or some other person for him, file an affidavit of the truth 
thereof. 

Sec. 2. When a plea in abatement shall be adjudged insufficient, by the courts 
the plaintiff shall recover full costs, to the time of overruling such plea. 

Sec 3. When one or more of the persons composing any company or association' 
of individuals, shall be sued, and the person or persons so sued, shall plead in 
abatement, that all the persons who should have been made defendants, are not 
joined in the suit, such suit shall not for that cause, abate, if the plaintiff or plain- 
tiffs forthwith sue out a scire facias against the persons named in such plea ; and 



44 ABATEMENT. 

on the return of such scire facias, the names of the persons named in such plea 
may be inserted in the declaration, and the suit shall proceed in all respects there- 
after, as if the persons named in such plea, had been named in the original suit. 

Sec. 4. If the persons named in such plea cannot be served with process, the 
plaintiff or plaintiffs, on the return of such summons, may suggest on the record the 
names of those not served, and proceed as in other cases in which service is made on 
part of the defendants only : and no other plea in abatement for non-joinder of 
defendants, shall be allowed in the same case. 

Sec. 5. No action or complaint, in law or equity, commenced by a feme sole, 
shall abate on account of her intermarriage before final judgment : Provided, The 
husband shall appear and cause such marriage to be suggested on the record, and 
himself made a party in the suit ; after which the suit may proceed in the same 
manner as if commenced after such marriage. 

Sec. 6. If a feme sole defendant intermarry before final judgment or decree, the 
action shall not thereby abate, but the husband, on his own application, or on that 
of the plaintiff, and due notice thereof given, may, by order of the court be made a 
party to the suit ; and the suit shall then proceed as in other cases. 

Sec 7. When there is but one plaintiff in an action, and he shall die before final 
judgment, such action shall not thereby abate, if the cause of action survive to 
the heirs, devisees, executors or administrators of such plaintiff, but any of such, 
to whom the cause of action shall survive, may, by suggesting such death on the 
record, be substituted as plaintiff or plaintiffs therein, and prosecute the same as 
in other cases. 

Sec. 8. When there is but one defendant in an action, and he shall die before 
final judgment, such action shall not thereby abate, if it might be originally prose- 
cuted against the heirs, devisees, executors or administrators of such defendant ; but 
the plaintiff may suggest such death on the record, and shall, by order of the court, 
have summons against such person or persons, requiring him or them to appear 
and defend the action, after which such suit shall proceed to final judgment accord- 
ing to law. 

Sec 9. If there are two or more plaintiffs in any action, and one or more of 
them die before final judgment, the action shall not thereby abate, if the cause of 
action survive to the surviving plaintiff or plaintiffs ; and if there are two or more 
defendants in any action, and one or more of them shall die before final judgment, ' 
such action shall not be abated thereby ; but in either of said cases, such death or 
deaths shall be suggested on the record, and the action may proceed at the suit of the 
surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, as 
the case may require, in all respects as if such persons had been originally, sole 
parties to the suit. 

Sec 10. When any executor or administrator shall be plaintiff or defendant in 
any suit, and shall, before final judgment, die, or cease to be such executor or 
administrator, the suit shall not thereby abate ; but the same may be continued by, 
or against, the successor of such executor or administrator, by an order of court 
substituting such successor as defendant therein. 

I Sec 11. When an action is authorized or directed by law, to be brought by or 
'in the name of any public officer, or by any trustee appointed by virtue of any 
statute, and such officer or trustee shall, before final judgment, die, or cease to be 
such officer or trustee, the suit shall not thereby abate, if the cause of such suit 
survive to his successor ; but the same may be continued by such successor, who 



ACCOUNT. 45 

shall be substituted for that purpose by order of the court, on a suggestion of such 
death being made upon the record. 

Sec. 12. Proceedings for the partition of lands shall not abate by the death of any 
party thereto, but shall continue in the names of the survivors, if the interest of 
such deceased person in the lands shall survive to them ; and if such interest shall 
pass to other persons, they may, by rule of court, be made parties, and the same 
proceedings shall be had as though they had been made parties originally. 

Sec 13. No suit instituted in the name of one for the use of another shall abate 
by reason of the death of the person whose name is used ; but may be continued 
by the real plaintiff in interest in his own name on his suggesting such death on the 
record and an order of the court being made, substituting his name for that of the 
deceased plaintiff. 

Sec 14. The provisions of this chapter shall extend as well to proceedings in equity 
as at law, and the provisions of sections five, six, seven, eight, nine, ten, eleven, 
twelve and thirteen, shall be applicable to all appeals, writs of error, and of 
certiorari. 

Sec 15. All orders authorized by this chapter to be made, for the purpose of intro- 
ducing into a suit a new person as a co-defendant with the original party, or for the 
purpose of substituting a person as defendant in place of the original party, shall be 
made either upon the voluntary appearance of such person, or by order of the 
court, after the party to be made such defendant, shall have been served with a scire 
facias ; and all such writs of scire facias may be sued out either in term time or 
in vacation, and may be directed to any county, and shall correspond, as nearly as 
practicable, to the original writ, and may be executed and returned in the same 
manner ; but no scire facias for the purpose of substituting another person in place 
of the original defendant, shall be sued out after the second day of the second term 
of the court, next after the term at which the death or disability of the original 
party shall be suggested on the record. 

• Approved : March 3, 1845. 



CHAPTER II. 

ACCOUNT. 



Section j Section 

1. What persons shall account, and to whom. 7. Auditors to be appointed. 

2. Who may maintain action of, and against whom, i 8. Powers and duties of auditors if defendant fail 



3. Executor being a residuary legatee, may main- 

tain action of, and against whom. 

4. When t>y and against executors and administra- 

tors. 

5. Process in, service and return of. 

6. Defendant summoned and not appearing, may be 

attached. 



to appear. 

9. Powers and duties of auditors, if defendant ap- 
pear. 

10. Auditors to report, and action of the court. 

11. Parties may appeal. 

12. Chancery jurisdiction saved. 



Section 1. When one or more joint tenants, tenants in common, or co-parce- 
ners in real estate, or any interest therein, shall take and use the profits or benefits ' 
thereof, in greater proportion than his, her or their interest, such person or persons, 
his, her or their executors and administrators, shall account therefor to his or their 
co-tenant jointly or severally. 



4(5 ACCOUNT. 

Sec. 2. Joint tenants, tenants in common, and co-parceners in any estate real or 
personal, may maintain actions of account against their co-tenants, who receive as 
bailiffs more than their due proportion of the profits and benefits of such estate. 

Sec 3. Any executor, being a residuary legatee, may bring and maintain an 
action of account against his co-executor ; and any other residuary legatee shall 
have the same remedy against executors and administrators. 

Sec 4. Actions of account may be maintained by and against executors and 
administrators in all cases in which the same might have been maintained by and 
against their testator or intestate. 

Sec 5. The original process in actions of account, shall be the same as is pro- 
vided by law for other personal actions, and shall be served and returned in the 

same manner. 

Sec 6. When any person is or shall be liable to account, as guardian, bailiff or 
receiver, or otherwise, to another, and will not give an account willingly, the party 
to whom such an account ought to be made, may bring his action of account, and if 
the person, against whom such action may be brought, being summoned, does not 
appear at the return of the writ, then the defendant shall be attached by his body 
to appear and render his account. 

Sec 7. Whenever a judgment shall be rendered against any defendant, that he 
account, the court shall appoint not more than five, nor less than three able, disin- 
terested and judicious men as auditors, to take the account, who shall, before they 
enter on their duties, be sworn faithfully and impartially to take and state the 
account between the parties,, and make report to the court. 

Sec 8. Such auditors, or a majority of them, shall have power to appoint the 
time and place for the hearing, and shall give reasonable notice to the parties ; and 
if the defendant shall neglect or refuse to attend at the time and place appointed 
and render his account, or appearing shall not render an account, the auditors shall 
receive a statement of the account from the plaintiff, and award to him the whole sum 
he claims to be due. 

Sec 9. If the parties appear, and produce their books and accounts before the 
said auditors, such auditors, or a majority of them, shall proceed to take and state 
the accounts, and may take the testimony of witnesses, and examine either or both 
of the parties on oath, respecting their accounts; and may administer all necessary 
oaths to witnesses and parties. If either party shall refuse to be sworn, or answer 
proper questions respecting his account, the auditors, or a majority of them, may 
commit him to jail, there to remain until he consent to be sworn, or answer 
the interrogatories. 

Sec 10. The auditors, or a majority of them, shall liquidate and adjust the ac- 
counts, and state the balance, and to whom due. They, or a majority of those 
present, shall report to the court by whom they were appointed, at the next term 
thereof; and if such report shall be approved by the court, the court shall render 
judgment for the amount ascertained to be due, with costs ; and the party in whose 
favor the report is made, shall pay the auditors their fees, which shall be taxed 
as costs. 

Sec 11. Either party may appeal or prosecute a writ of error, from the final 
judgment upon the report of the auditors, in the same manner, and upon the same 
conditions, as provided by law in other cases. 

Sec 12. Nothing in this chapter contained, shall be so construed as to deprive 
courts of chancery of their jurisdiction in matters of account. 

Approved : March 3, 1845. 



CHAPTER III. 

ADVERTISEMENTS. 



Section 

1. Publication of, how proved. 

2. By whom paid for, and how allowed hy court. 

3. By public officers, how allowed and paid for. 



Section 
4. How often published, when number of inser 
tions are not specified. 



Section ] . When any notice or advertisement shall be required by law, or the 
order of any court, to be published in any newspaper, the certificate of the printer 
or publisher, with a written or printed copy of such notice or advertisement 
annexed, stating the number of times which the same shall have been published, 
and the dates of the first and last papers containing the same, shall be sufficient 
evidence of the publication therein set forth. 

Sec. 2. When any notice or advertisement relating to any cause, matter or thing 
depending in any court of record, shall have been duly published, the same may 
be paid for by the party at whose instance the same was published, who may pre- 
sent his account therefor to the proper court, which account, or so much thereof as 
shall be deemed reasonable, may be taxed as costs, or otherwise allowed in the 
course of the proceedings to which such notice or advertisement shall relate. 

Sec. 3. When any notice or advertisement shall be published by a public officer, 
in pursuance of law, the reasonable expense thereof shall be allowed and paid out 
of the State or county treasury, as the case may require. 

Sec. 4. In all cases, in which by law, or order of court, any advertisement 
shall be directed to be published, and the number of publications shall not be 
specified, it shall be taken and intended, that such advertisement shall be published 
three times for three successive weeks. 

Approved : March 3, 1845. 



CHAPTER IV. 
ALIENS. 



Section 
1. Rights of aliens to acquire, hold and transmit 
real estate. 



Section 
2. Personal estate of aliens may pass to heirs 
though aliens. 



Sec. 1. All aliens, residing in this State, may take, by deed, will or other- 
wise, lands and tenements and any interest therein, and alienate, sell, assign and 
transmit the same, to their heirs, or any other persons, whether such heirs or 



48 



AMENDMENTS AND JEOFAILS. 



other persons be citizens of the United States or not, in the same manner as natural 
born citizens of the United States or of this State might do ; and upon the decease 
of any alien having title to, or interest in, any lands or tenements, such lands and 
tenements shall pass and descend in the same maner as if such alien were a citizen of 
the United States, and it shall be no objection to any persons having an interest 
in such estate that they are not citizens of the United States ; but all such 
persons shall have the same rights and remedies, and in all things be placed on the 
same footing as natural born citizens and actual residents of the United States. 

Sec. 2. The personal estate of an alien dying intestate, who at the time of his 
death shall reside in this State, shall be distributed in the same manner as the 
estates of natural born citizens, and all persons interested in such estate, shall be 
entitled to their proper distributive shares thereof, under the laws of this State, 
whether they are aliens or not. 

Approved : March 3, 1845. 



CHAPTER V- 

AMENDMENTS AND JEOFAILS. 



Section 

1. Misprison of clerk not to vitiate process or re- 

cord; amendment after judgment. 

2. General power of court to amend pleadings. 

3. Courts may correct misprisons of sheriffs and 

others. 

4. Judgments not to be reversed for erasures and 

interlineations. 

5. New entries, &c. 

6. Effect of errors after judgment. 

7. Judgment not to be reversed for want of form. 

8. Judgment not to be reversed for variance or lack 

of certain averments. 

9. Judgment not to be reversed for want of certain 

allegations. 



11. 



12. 



Section 
10. How far court to proceed on demurrer; certain 
defects not cause of demurrer, except when 
specially set forth. 
Extent of provisions of this chapter ; in cases 

when defect is cured by verdict. 
Shall extend to debts due the State ; to cases for 
recovery of revenue ; to writs of mandamus, 
informations in nature of quo warranto. 

13. To writs of error in which there is variance, 

may be amended. 

1 4. This chapter not to extend to indictments, in- 

formations, nor to proceedings upon penal stat- 
utes. 



Section 1. By the misprison of any clerk in anyplace wheresoever it be, no 
record or process shall be annulled or discontinued, by mistaking in writing, one 
syllable or one letter too much or too little ; but as soon as the thing is perceived, 
by challenge of the party, or in other manner, it shall be immediately amended in 
due form, without giving advantage to the party that challenges the same, because 
of such misprison ; and the court before whom such plea or record is made, or shall be 
depending, as well by adjournment, as by way of appeal, or error, or otherwise, 
shall have power and authority, to amend such record and process as aforesaid, as 
well after judgment, in any suit, plea, record or process given, as before judgment, 
as long as the same record and process is before them. 

Sec. 2. The court in which any record, process, declaration, count, plea, war- 
rant of attorney, writ, pannel or return is or may be, while the same remains before 
them, shall have power to examine such records, processes, declarations, counts, 
pleas, warrants of attorney, writs, pannels and returns, by them and their clerks, 



AMENDMENTS AND JEOFAILS. 49 

and amend (in affirmance of judgments of such records and processes) all that 
which, to them in their discretion, seemeth to be misprison of the clerks, therein ; 
so that by such misprison of the clerks, no judgment shall be reversed or annulled. 
And if any record, process, declaration, count, plea, warrant of attorney, writ, 
pannel or return be certified defective, otherwise than according to the writing 
which thereof remaineth in the offices, courts or places from whence they are 
certified, the parties, in affirmance of the judgments of such records and processes, 
shall have advantage to allege that the same writing is variant from the said certi- 
ficates : and that being found and certified, the same variance shall be, by the said 
court, reformed and amended acccording to the first writing. 

Sec. 3. The courts before whom any misprison or default is, or shall be found, in 

ny recorder process, which is, or hereafter shall be depending before them, as well 
by way of appeal or error, as otherwise, or in the returns, (the same made or to be 
made by sheriffs, coroners, or any other,) by misprison of the clerk of any of the 
said courts, or by misprison of the sheriffs, under-sheriffs or deputies, coroners or 
their clerks, or other officers, clerks, or other ministers whatsoever, shall have 
power to amend such defaults or misprisons according to their discretion, and, by 
examination thereof by the said courts, to be taken when they shall think needful; 
and all such amendments may be made as well after a judgment given upon verdict, 
confession, nihil dicit, or non sum informatus, as upon matter of law pleaded. 

Sec 4. For errors assigned, or to be assigned, in any record, process, warrant 
of attorney, writ, original or judicial, pannel or return, or that in any places of the 
same there be erasures or interlineations, or that there be any addition, subtraction 
or diminution of words, letters or titles, or parcels of letters, found in any such 
record, process, warrant of attorney, writ, pannel or return, no judgment, or 
record, or decree, shall be reversed or annulled. 

Sec 5. Record and process, real, or personal, or mixed, whereof judgment or 
decree shall be given and enrolled, or things touching such pleas, shall in nowise 
be amended or impaired by new entering of the clerks, either by the record of things 
certified, in no term subsequent to that in which such judgment or decree is or shall 
be given and enrolled. 

Sec 6. If any issue hath been, or shall be tried by any court or jury, and be 
found for either party, in any court of record, then the court by whom judgment 
ought to be given, shall proceed and give judgment in the same, any mispleading, 
lack of color, insufficient pleading, or jeofail, or any miscontinuance, discontinuance,' 
misconceiving of process, misjoining of the issue, lack of warrant of attorney, or 
any other default or negligence of any of the parties, their counsellors or attorneys 
to the contrary notwithstanding; and the said judgments thereof, so to be had and 
given, shall stand in full strength and force, to all intents and purposes, according 
to the said verdict or finding, without any undoing the same by appeal, writ of 
error or false judgment, in like form as though no such default or negligence had 
ever been had or committed. 

Sec 7. If a verdict of a court or jury shall hereafter be given, for either party in 
any court of record, the judgment thereupon shall not be stayed or reversed by any 
default of form, or lack of form in any writ, original or judicial, count, declaration, 
plaint, bill, suit or demand, for want of any writ, or by reason of any imperfect or 
insufficient return of any sheriff or other officer, or for want of any warrant of 
attorney, or by reason of any manner of default in process, upon, or after any aid- 
4 



50 AMENDMENTS AND JEOFAILS. 

prayer or voucher; nor shall any such record or judgment after verdict, to be given 
hereafter, be reversed for any of the defects or causes aforesaid. 

Sec. 8. If any verdict be rendered by the court or jury, for either party, in any 
court of record, the judgment thereupon shall not be stayed or reversed by reason of 
any variance inform only, between the original writ or process, and the declaration, 
petition, plaint or demand, or for lack of an averment of any life or lives of any per- 
son or persons, so as upon examination, the said person be found to be in life, or by 
reason that any of the persons in whose favor the verdict is rendered is an infant 
and appeared by attorney. 

Sec. 9. If any verdict shall hereafter be given by a court or jury for either party, 
in any court of record, judgment thereon shall not be stayed or reversed for any 
default in form, or lack of form, or by reason that there are not pledges or but one 
pledge to prosecute, returned upon the original writ, or because the name of the 
sheriff is not returned upon the original writ or process, or for default of entering 
pledges upon any petition, or declaration, or for default of alleging the bringing into 
court, any bond, bill, indenture, or other deed or writing mentioned in the declara- 
tion or other pleading, for default of allegation of bringing into court letters testa- 
mentary or of administration, or by reason of the omission of the words "with force 
and arms," or "against the peace ," or for, or by reason of mistaking the christian 
or surname of the plaintiff or defendant, demandant or tenant, sum or sums of money, 
day, month, or year, by the clerk, in any bill, petition, declaration or pleading, 
where the right name, surname, sum, day, month or year, in any writ, record or 
proceeding, or on the same record where the mistake is committed, is, or are once 
truly and rightly alleged, whereunto the party might have demurred and shown the 
same for cause, nor for want of the averment or words "and this heis ready to verify," 
or "and this he is ready to verify by the record" or for not alleging, "as appears by 
the record" or that there was no right venue, so as the cause was tried by a jury 
of the proper county, or place where the action is laid, nor shall any judgment after 
verdict be reversed, for want of entering that the person against whom such judg- 
ment is given, "be in mercy," or "be taken" or by reason that the words "be taken," 
are entered for "be in mercy ," or that the words "be in mercy" for "be taken ," nor 
for that in the judgment "it is granted" are entered for "it is considered," nor for 
that the increase of costs, after the verdict in any action, are not entered at the 
request of the party for whom judgment is given, nor by reason that the costs on 
any judgment are not entered to be by consent of the plaintiff; but all such omissions, 
variance, defects and all other matters of the like nature, not being against the right 
of the matters of the suit, nor whereby the issue or trial is altered, shall be amended 
by the courts, where such judgments are or shall be given, or whereunto the record 
is or shall be removed by appeal or writ of error. 

Sec 10. When any demurrer shall be joined, and entered in any action or suit, 
in any court of record, the judges shall proceed and give judgment according as the 
very right of the cause and matter in law shall appear unto them, without regarding 
any imperfection, omission or defect for want of form in any writ, return, plaint, 
declaration or other pleading, process or course of proceeding whatsoever, except 
those only which the party demurring shall specially and particularly set down and 
express, together with his demurrer, as cause of the same, notwithstanding that such 
imperfection, omission or defect might heretofore have been taken to be matter of 
substance, so as sufficient matter appear on the said pleadings upon which the court 
may give judgment according to the very right of the cause ; and therefore no ad- 
vantage or exception shall be taken of or for an immaterial traverse, of or for default 



APPRENTICES. 



51 



of entering pledge upon any petition or declaration, or for the default of alleging 
the bringing into court any bond, bill, indenture or writing mentioned in the decla- 
ration or other pleadings, or of, or for the default of alleging the bringing into court 
of letters testamentary or of administration, or of, or for the omission of the words 
"with force and arms" and "against the peace" or either of them, or of, or for want 
of the averment or words, "and this he is ready to verify,'''' or, "and this he is ready 
to verify by the record," or of, or for not alleging "as appears by the record," but the 
court shall give judgment according to the very right of the cause as aforesaid, 
without regarding any such imperfection, omissions and defects, or other matter of 
like nature, except the same shall be specially and particularly set down and shown 
for cause of demurrer : and no judgment shall be reversed for any such imperfec- 
tion, omission, defect or want of form, except such only as are before excepted. 
And after demurrer joined, the court before whom the same shall be pending may, 
from time to time, amend all and every such imperfection, omission, defect and want 
of form as are before mentioned, other than those only which the party demurring 
shall specially and particularly set down, together with his demurrer as aforesaid. 

Sec. 11. Every thing herein before contained shall extend to all judgments which 
shall be entered upon confession, "nil dicit," or, t'non sum informatus," in any 
court of record; and no such judgment shall be reversed; nor any judgment upon 
any writ of enquiry of damages executed thereon shall be stayed or reversed for, 
or by reason of any imperfection, omission, defect, matter or thing which would 
have been aided and cured by this chapter in case a verdict had been given in such 
action or suit, so there be an original writ, duly issued according to law. 

Sec. 12. This chapter shall extend to all suits in any court of record for the recovery 
of any debt due the State, or any duty or revenue thereto belonging, and also to all 
writs of mandamus and informations of the nature of quo warranto and proceedings 
thereon. 

Sec. 13. All writs of error, wherein there shall be any variance from the origi- 
nal record, or any other defect, may and shall be amended, and made agreeable to 
such record by the respective courts where such writs of error are or shall be made 
returnable. 

Sec 14. No part of this chapter shall extend to any indictment or presentment for 
any criminal matter or process upon the same ; nor to any writ, action, or informa- 
tion upon any popular or penal statute ; nor to any outlaw, or process thereupon in 
order thereunto. 

Approved: March 3, 1845. 



CHAPTER VI. 
APPRENTICES. 



Section 

1. Minors may be bound ; at what age. 

2. Who may bind them ; father or mother if father 

be incapacitated. 

3. If mother be dead or incompetent, guardian may 

bind. 

4. If there be no guardian, probate justice may 

bind, or two justices of the peace, with mi- 
nor's consent. 



Section 
6. Executor may bind in certain cases. 

6. When minor shall beg, or become a public charge, 

who may bind. 

7. Compulsoryprocess in certain cases. 

8. Mayor or aldermen may bind in certain cases. 

9. Indentures to be of two parts ; to be signed and 

sealed. 



52 APPRENTICES. 

Section i Section 

10. Age and term of service to be inserted in inden- 16. Proceedings in case of misconduct of apprentice. 



ture. 

11. Apprentice to be taught reading, writing, arith- 

metic ; to have bible, wearing apparel. Ex- 
ception as to negroes, &c. 

12. Amount of compensation to be inserted, and 



Appeals in such cases. 

17. Penalty for enticing away apprentices. 

18. Penalty for concealing apprentices. 

19. Apprentices not to be removed out of this 

State. 



held for use of apprentice. 20. Duty of master on removing or quilting busi- 



13. Copy of indentures to be filed in certain cases 

with probate justice. Duty of probate jus- 
tice. 

14. What indentures are void. 

15. Remedy and mode of redress in case of improper 

treatment of apprentice. 



ness. 

21. Proceedings in case of death of master, &c. 

22. Apprentices leaving service, how liable. 



Section 1. All children under the age of fourteen years may be bound by in- 
denture or covenant of service, clerks, apprentices or servants, until they arrive 
at that age, with or without their consent ; and all minors above that age, may be so 
bound, with their consent; males, until they arrive at the age of twenty-one, and 
females, until they arrive at the age of eighteen years, or for a shorter term as here- 
in provided. 

Sec 2. Any such minor may be bound, by and with the consent of, his or her 
father. If the father be dead, or if he shall have wilfully abandoned and neglected 
to provide for his family for the space of six months ; or shall have become an ha- 
bitual drunkard ; or from any other cause shall not have legal capacity to consent, 
then the mother shall have the same power to give such consent as if the father 
were dead. The fact of such desertion, drunkenness or legal incapacity, shall be 
tried and found in the court of probate by a jury empannelled for that purpose ; and 
an endorsement on such indenture, under the seal of the court, certifying the facts 
found by such jury, together with the approval of the court of the terms of such 
indenture, shall be deemed sufficient evidence of the power of the mother to give 
such consent as aforesaid. And in all cases of illegitimate children, the mother 
shall be deemed the proper person to give the consent herein required. 

Sec. 3. If the mother be dead, or shall have abandoned and neglected to provide 
for her family for the space of six months, or shall have become an habitual drunk- 
ard, or a prostitute, or shall not, from any other cause, have legal capacity to con- 
sent ; which fact shall be ascertained and certified as provided in the foregoing sec- 
tion ; then the guardian of such minor, duly appointed, shall have power to give 
such consent. If there be no guardian, such minor may be bound as hereinafter 
provided. 

Sec. 4. Any minor who shall have no parent or guardian living in this State, 
may, by and with the approbation of the judge of probate, or of any two justices of 
the peace of the county in which such minor shall reside, bind himself or herself 
as aforesaid, which approbation shall be endorsed on the said indenture. 

Sec 5. The executor or executors who are, or shall be, by the last will and tes- 
tament of a father, directed to bring up his child or children to some trade or calling, 
shall have power to bind such child or children by indenture, in like manner as the 
father, if living, might have done; or shall raise such child or children according 
to such directions. 

Sec 6. Whenever any minor shall habitually beg for alms, or shall become 
chargeable to the county, or shall be likely to become so, by reason of being an or- 
phan without means of support, or by reason of the inability, refusal or neglect of 
the parent or parents of such minor to support him or her, such minor may be bound 
as aforesaid by the county commissioners' court, or by any two overseers of the 
poor, or by any two justices of the peace of the county in which such minor may 






APPRENTICES. 53 

reside, by the approval and consent of the judge of probate ; and such indenture shall 
be as valid and binding as though such minor had bound himself or herself with the 
consent of his or her father ; but this section shall not apply to females over the age 
of fifteen years. 

Sec. 7. The persons authorized in the foregoing section to bind the minors there- 
in specified, may, respectively, as the case may require, issue their order, directing 
the sheriff or any constable of their county, to bring such minors before them. 

Sec. 8. The mayor, or any two aldermen of any city or incorporated town, 
which, by its charter, is charged with the custody and maintenance of the poor 
within its limits, may bind minors as provided in the two foregoing sections. 

Sec 9. The indenture or covenant of service, shall be of two parts, and in all 
cases shall be signed and sealed by all the parties whose consent is herein made ne- 
cessary thereto : Provided, That in cases requiring the consent and approval of the 
judge of probate, such consent and approval shall be endorsed on said indenture, 
attested by his seal of office. 

Sec 10. The age and time of service of every apprentice or servant, shall be in- 
serted in his or her indentures ; but if such age shall be unknown, then it shall be 
inserted according to the best information, which age shall, in relation to the term 
of service, be deemed and taken as the true age of such minor. 

Sec 11. In all indentures it shall be provided that the master or mistress shall 
cause such clerk, apprentice or servant, to be taught to read and write, and the 
ground rules of arithmetic ; and shall also, at the expiration of such term of service, 
give to such apprentice a new bible, and two complete suits of new wearing appar- 
el, suitable to his or her condition in life : Provided, That if such minor be a negro 
or mullatto, it shall not be necessary to require that he or she shall be taught to 
write, or the knowledge of arithmetic. 

Sec 12. Every sum of money paid or agreed for, with, or in relation to the bind- 
ing of any clerk, apprentice or servant, as a compensation for his or her services, 
shall be inserted in the indentures ; and all money or property so paid or agreed to 
be paid, shall be secured to, and for the sole use and benefit of the minor. 

Sec 13. Whenever any minor shall be bound by other than his or her parent or 
guardian, one copy of the indentures shall be filed in the office of the judge of 
probate for safe keeping; and it shall be the duty of the officers or persons binding 
such minors, and of the judge of probate to see that the terms of such indentures 
are complied with, and that such minor is not ill used. 

Sec 14. All indentures, covenants, promises and bargains, for taking, binding 
or keeping any apprentice, clerk or servant, not in conformity with the provisions 
and requirements of this chapter shall be utterly void in law, as against such clerk, 
apprentice or servant. 

Sec 15. The judge of probate, or any two justices of the peace, excepting the 
justices who may have bound the apprentice complaining, shall at all times receive 
the complaints of clerks, apprentices and servants, who reside within the jurisdic- 
tion of such judge or justices, against their , masters or mistresses, alleging unde- 
served or immoderate correction, unwholesome food, insufficient allowance of food, 
raiment or lodging, want of sufficient care or physic in sickness, want of instruc- 
tion in their trade or profession, or the violation of any of the agreements or cove- 
nants in the indentures of apprenticeship contained, or that he or she is in danger of 
being removed out of the jurisdiction of this State ; and shall cause such masters or 
mistresses to be summoned before them, and shall on the return of the summons, 



54 APPRENTICES. 

whether such master or mistress appear or not, hear and determine such cases, in a 
summary way, and make such order thereon, as in the judgment of the said judge 
of probate, or two justices of the peace, will relieve the party injured in future ; an3 
shall have authority, if said judge or two justices think proper, to discharge such 
clerk, apprentice or servant from his or her apprenticeship or service. And in case 
any money or other thing, shall have been paid, given, or contracted or agreed for 
by either party in relation to the said apprenticeship or service, shall make such order 
concerning the same, as the said judge or justices of the peace shall deem just and 
reasonable. And if the said apprentice so discharged shall have been bound ori- 
ginally, as provided in the sixth, seventh and eighth sections of this chapter, it shall 
be the duty of the court granting the discharge, again to bind him or her, if said court 
shall judge proper. 

Sec 16. The said judge of probate or any two justices of the peace shall, on the 
complaint of masters or mistresses, issue a warrant against any clerk, apprentice 
or servant for desertion, without good cause, or for any misdemeanor, miscarriage 
or ill behavior, and may punish such clerk, apprentice or servant according to the 
nature and aggravation of his or her offence, by imprisonment not exceeding ten 
days ; and in addition to theabc^ve punishment, where the offence shall be desertion 
without good cause, the court may order the said clerk, apprentice or servant guilty 
thereof, to make restitution by the payment of a sum not exceeding eight dollars for 
each and every month he or she may be so absent, to be collected as other debts, 
after such clerk, servant or apprentice shall become of full age. The awarding of 
costs on proceedings under this and the preceding sections, shall be in the discre- 
tion of the court. An appeal to the circuit court from any decisions made under 
this or the preceding sections shall be allowed to either party, upon the party ap- 
pealing, entering into a bond, with good and sufficient security, in the penalty of 
one hundred dollars, conditioned to prosecute such appeal to effect, and to abide by 
and perform the decision of the circuit court in the premises : which court shall 
hear and decide such appeal upon the same principles as the said judge of probate 
or justices ought to have heard and decided the original complaint. The decision 
of the circuit court shall be final and conclusive in the premises, and shall not be 
subject to appeal or writ of error. The bond above mentioned, shall be entered 
into before the clerk of the circuit court, who shall thereupon proceed in said ap»- 
peal as is directed by law, in cases of appeal from the decisions of justices of the 
peace in other cases. 

Sec 17. Every person who shall counsel, persuade, entice, aid or assist any 
clerk, apprentice or servant, to run away or absent himself or herself from the ser- 
vice of his or her master or mistress, or to rebel against, or assault his or her 
master or mistress, shall forfeit and pay a sum not less than twenty, nor more than 
five hundred dollars, to be sued for and recovered by action on the case, with costs, 
by such master or mistress, in any court having jurisdiction thereof. 

Sec 18. Every person who shall conceal any clerk, apprentice or servant^ 
knowing such clerk, apprentice or servant to have run away, or to have absented 
himself or herself from the service of his or her master or mistress without leave, 
shall forfeit and pay one dollar for every day's concealing as aforesaid; to be sued 
for and recovered by action of debt with costs, by such master or mistress, in 
any court having jurisdiction thereof. 

Sec 19. It shall not be lawful for any master or mistress, to remove any clerk, 
apprentice or servant bound to him or her as aforesaid out of this State ; and if at 



APPRENTICES. 55 

any time it shall appear to any judge, or justice of the peace, upon the oath of any 
competent person, that any master or mistress is about to remove, or cause to be 
removed, any such clerk, apprentice or servant out of this State, it shall be lawful 
for such judge or justice, to issue his warrant, and to cause such master or mistress 
to be brought before him, and if upon examination, it appear that such apprentice, 
clerk or servant is in danger of being removed without the jurisdiction of this State, 
the judge or justice may require the master or mistress to enter into recognizance, 
with sufficient security, in the sum of one thousand dollars, conditioned that such 
apprentice, clerk or servant, shall not be removed without the jurisdiction of this 
State, and that the said master or mistress will appear with the apprentice, clerk 
or servant before the circuit court, at the next term thereof, and abide the decision 
of the court therein ; which recognizance shall be returned to the circuit court, 
and the said court shall proceed therein, in a summary manner, and may discharge 
or continue the recognizance, or may require a new recognizance, and otherwise 
proceed according to law and justice. But if the master or mistress, when 
brought before any judge or justice, according to the provisions of this section, will 
not enter into a recognizance as aforesaid, if required so to do, it shall be lawful 
for such court or justice to discharge such clerk, apprentice or servant from such 
apprenticeship or service, and to award judgment against such master or mistress 
for costs, and for such sum as, considering the terms of the indentures and the con- 
dition of the parties, may be deemed just and reasonable. 

Sec 20. Whenever any master or mistress of any clerk, apprentice or servant, 
bound by the court as aforesaid, shall wish to remove out of this State, or to quit his 
or her trade or business, it shall and may be lawful for him or her, to appear with 
his or her clerk, apprentice or servant before the probate court of the proper coun- 
ty ; and such court shall have power if deemed expedient, to discharge such clerk, 
apprentice or servant from the service of such master or mistress. 

Sec. 21. When any person shall become bound as clerk, apprentice or servant, 
according to the provisions of this chapter, to two or more persons, and one or more of 
them die before the expiration of the term of service, the indentures and contracts 
shall survive to, and against such survivor or survivors ; and in case of the death 
of all the masters or mistresses in any such indenture or contract named, before 
the expiration of the term of service, such clerk, apprentice or servant shall be 
thereby discharged from such service. 

Sec. 22. Any clerk, apprentice or servant, bound according to the provisions of 
this chapter, who shall absent himself or herself from the service of his or her mas- 
ter or mistress, without leave first obtained, or who shall run away, so that the 
master or mistress shall be deprived of his or her service, during the remainder of 
the term, or any part thereof, for which he or she was bound to serve, then and in 
that case, it shall and may be lawful for the master or mistress of such clerk, 
apprentice or servant, to have an action on the case, in any court of competent juris- 
diction, against such clerk, apprentice or servant, after he or she arrives at full age, 
for the damage that such master or mistress may have sustained, by reason of the 
absence of such clerk, apprentice or servant : Provided, That such action shall be 
brought within six years, after such clerk, apprentice or servant, shall arrive at 
full age. 

Approved : March 3, 1845. 



CHAPTER VII. 

ARBITRATIONS AND AWABDS 



Section 

8 . Aggrieved party may have judgment at next term, 

for amount of award and costs. 

9. Proceedings when award is other than for the 

payment of money. 

10. In v/hat cases court may set aside the award. 

11. Court may modify or correct award in case of 
mistake, etc. 

Applications to set aside or correct awards; 
when to be made; chancery jurisdiction re- 
served. 

13. Writs of error and appeals allowed. 

14. Fees of arbitrators ; witnesses and officers. 

15. Arbitrators may be compelled to report. 

16. When matter in suit is referred, cause con- 

tinued. 



12. 



Section 

1. Persons competent, may arbitrate matters not in 

suit; judgment of proper court maybe render- 
ed on the award. 

2. When parties to suits agree to arbitrate, order of 

court may be entered; arbitrators, how se- 
lected. 

3. Duty of arbitrators ; to appoint time and place 

of meeting; may adjourn for good cause. 

4. Arbitrators shall be sworn ; by whom oath may 

be administered. 
6. Who may issue subpoenas ; attendance of wit- 
nesses compelled. Arbitrators may administer 
oaths, punish contempts, admit depositions to 
be read. 

6. Award shall be in writing ; shall be signed and 

copies delivered to parties. 

7. Either party not complying, right of the other to 

file papers in court. 

Section 1. All persons having the requisite legal capacity, may, by an instru- 
ment in writing, to be signed and sealed by them, and attested by at least one wit- 
ness, submit to one or more arbitrators, any controversy existing between them, 
not in suit; and may in such submission agree that a judgment of any court of 
record competent to have jurisdiction of the subject matter, to be named in such in- 
strument, shall be rendered upon the award made pursuant to such submission. 

Sec 2. Whenever the parties to any suit pending in any court of record, shall 
be desirous and willing to submit the matters involved in such suit to the decision 

o 

of arbitrators, an order shall be entered directing such submission to three impartial 
and competent persons, to be named in such order ; such arbitrators to be agreed 
upon and named by the parties. But if the parties are unable to agree, each shall 
name one, and the court the third. 

Sec. 3. The arbitrators appointed in pursuance of the foregoing provisions, or a 
majority of them, shall proceed with diligence to hear and determine the matters in 
controversy. They shall appoint a place and time for hearing, and adjourn the 
same from time to time, as may be necessary. And on the application of either 
party, and for good cause, they may postpone such hearing from time to time, not 
extending beyond the next term of the court in which the said suit is pending, if 
the subject matter be in suit. 

Sec 4. Before proceeding to hear any testimony in the cause, the arbitrators shall 
be sworn, faithfully and fairly to hear, examine and determine the cause, according 
to the principles of equity and justice; and to make a just and true award according 
to the best of their understanding, which oath may be administered by any justice 
of the peace, or clerk of the circuit court, in which the suit is pending. 

Sec 5. The several clerks of the circuit courts, and the justices of the peace in 
their several counties, may issue subpoenas for the attendance of witnesses before ar- 
bitrators : If any witness, alter being duly summoned, shall fail to attend, the arbi- 
trators may issue an attachment to compel his attendance, and the said witness shall 
moreover be liable to the party for refusing to attend the same as in trials at law. 



ARBITRATIONS AND AWARDS. 57 

Any one of the arbitrators may administer oaths and affirmations to witnesses ; they 
may punish contempts committed in their presence during the hearing of a cause, 
the same as a court of record, and may admit depositions to be read in ev- 
idence, the same as in trials at law. 

Sec. b\ The award of the arbitrators, or a majority of them, shall be drawn up 
in writing, and signed by such arbitrators, or a majority of them, and a true copy of 
such award shall, without delay, be delivered to each of the parties thereto. 

Sec. 7. If either of the parties shall neglect to comply with said award, the other 
party may, at any time within one year from the time of such failure, file such award, 
together with the submission or arbitration bond, in the court named in the submission. 

Sec 8. The party filing such award may, at the next term after such filing, by 
giving four days' notice of his intention, to the opposite party, and if no legal ex- 
ceptions are taken to such award or other proceedings, have final judgment thereon, as 
on the verdict of a jury, for the sum specified in said award to be due, together with the 
costs of arbitration and of the court; and execution may issue therefor as in other cases. 

Sec. 9. When the award requires the performance of any act other than the pay- 
ment of money, the court rendering such judgment shall enforce the same by rule, 
and the party refusing or neglecting to comply with such rule, may be proceeded 
against by attachment or otherwise, as for a contempt. 

Sec 10. If any legal defects appear in the award, or other proceedings, or if it 
shall be made to appear on oath or affirmation, that said award was obtained by 
fraud, corruption or other undue means, or that such arbitrators misbehaved, said 
court may set aside such award. 

Sec 11. If there be any evident miscalculation or misdescription, or if the arbitra- 
tors shall appear to have awarded upon matters not submitted to them, not affectino- 
the merits of the decision upon the matters submitted, or where the award shall be im- 
perfect in some matter of form, not affecting the merits of the controversy ; and where 
such errors and defects, if in a verdict, could have been lawfully amended or disre- 
garded by the court, any party aggrieved may move the court to modify or correct 
such award. 

Sec 12. Application to set aside, modify or amend such award, as provided in 
the two preceding sections, must be made before the entry of final judgment on 
such award : Provided, Nothing herein contained shall be so construed as to deprive 
courts of chancery of their jurisdiction as in other cases. 

Sec 13. Writs of error and appeals may be taken from any decision of the 
court, by the party deeming himself aggrieved, as in other cases ; and if the Su- 
preme Court shall remand the case, such further proceedings shall be had as the 
nature of the case may require. 

Sec 14. Each arbitrator shall be allowed for every day's attendance to the busi- 
ness of his appointment, one dollar, to be paid in the first instance by the party in 
whose favor the award shall be made, but to be recovered of the other party with 
the other costs of suit, if the award or final decision shall entitle the prevailing party 
to recover costs. Witnesses shall receive the same fees for attendance at arbitra- 
tions, as shall be allowed them.in the circuit courts. Sheriffs, constables, clerks 
and justices of the peace, shall be entitled to the same fees for services performed 
in relation to any arbitration, as shall be allowed by law for the like services in 
their respective courts. 

Sec 15. Arbitrators may be compelled by order of the court in which any 
cause submitted to them shall be pending, to proceed to a hearing thereof, and to 
make report without unnecessary delay. 



58 



ATTACHMENTS BEFORE JUSTICES. 



Sec. 16. When any cause pending in any court, shall be referred, as herein 
provided, an entry of such reference shall be made on the record, and day shall be 
given to the parties, from time to time, until the arbitrators report, or they be there- 
of discharged, on filing such report. 

Approved : March 3, 1845. 



CHAPTER VIII. 

ATTACHMENTS BEFORE JUSTICES. 



Section 

1. Affidavit to be filed by creditor; what facts it 

shall contain ; writ of attachment may issue; 
against what property ; when writ returnable. 

2. Form of writ. 

3. Bond to be taken ; its penalty; condition. 

4. Form of condition of bond. 

6. Duty of constable; writ how served; return ; 
property may be pursued to any county. 

6. "Want of form, how amended; when attachment 

may be quashed. 

7. Duty of justice in case of service or appear- 

ance; if there be no service or appearance, 
case continued, and ten days' notice given; 
substance and proof of notice. 
Duty of justice in such case, to try, render judg- 
ment and order sale; continuance. 
9. Garnishees to be summoned to answer; return 
to such summons. 

10. Justice to make entry; continue as to garni- 

shee : try as to defendant. 

11. If judgment be against defendant, garnishees 

summoned to appear, &c.j judgment and exe- 
cution against them. 



8. 



Section 

12. If garnishee appear, trial tobehad; itsincidents' 

judgment therein. 

13. Effect of judgment in attachment; executionnot 

to issue until property is sold. 

14. If defendant is not personally served, what prop- 

erty may be sold; defendant may retain prop- 
erty by giving bond; its conditions; duty of 
constable ; right of plaintiff. 

1 5. Several j udgments of equal date, equally binding ; 

proviso as to property re-captured out of county. 

16. Rights of garnishees as to their defence. 

17. Execution not to issue against garnishee until 

debt be due. 

18. Garnishee may deliver up effects of defendant. 

19. Proceedings against non-resident joint debtors, 

how instituted, and conducted ; what property 
liable in such cases. 

20. Right of property may be tried. 

21. Affidavit, how sworn to. 

22. Construction of this chapter. 

23. Abatement of suits in attachment. 



Section 1. If any creditor, his agent or attorney, shall file an affidavit with any 
justice of the peace in this State, setting forth that any person is indebted to such 
creditor, in a sum not exceeding one hundred dollars, and that such debtor has 
departed, or is about to depart from this State, with the intention of having his 
effects removed from this State ; or is about removing his property from this State, 
to the injury of such creditor ; or that such debtor conceals himself, or stands in 
defiance of an officer, so that process can not be served upon him j or that such 
debtor is not a resident of this State, it shall by lawful for the justice to grant a 
writ of attachment against the personal estate, goods, chattels, rights, moneys and 
effects of the debtor, directed to any constable of his county, and returnable within 
thirty days from the date thereof. 

Sec 2. The writ of attachment required in the preceding section, shall be, sub- 
stantially in the following form : 
State op Illinois, > Set. 

County, \ The people of the State of Illinois, to any constable 

of said county, greeting: Whereas, A. B., (or agent or attorney of A. B., as the 
case may be,) hath complained on oath (or affirmation) before C. P., a justice of 
the peace in and for said county, that E. F. is justly indebted to the said A. B., 
in the amount of dollars, and oath (or affirmation) having been also made 



ATTACHMENTS BEFORE JUSTICES. 59 

that the said E. F. so absconds or conceals himself, or stands in defiance of a peace 
officer, authorized to arrest him or her, with civil process, so that the ordinary 
process of law can not be served on him (or her as the case may be,) and the said 
A. B., having given bond and security according to the directions of the act in such 
cases made and provided ; We therefore, command you that you attach so much of 
the personal estate of the said E. F. to be found in your county as shall be of value 
sufficient to satisfy the said debt and costs, according to the complaint, and such 
personal estate so attached, in your hands to secure, or so to provide that the same 
may be liable to further proceedings thereon, according to law, before the under- 
signed justice of the peace. And in case personal property of value sufficient 
can not be found, that you summon all persons whom the plaintiff or his agent shall 
direct, to appear before said justice, on the day of next, then and 

there to answer what may be objected against him or them, when and where you 
shall make known how you have executed this writ ; and have you then and there 
this writ. Given under my hand and seal, this day of 18 . 

C. D., Justice of the Peace. Seal. 

Sec. 3. Upon the issuing of any such writ of attachment, the justice shall take 
from the creditor, his agent or attorney, a bond to the defendant with good security, 
to be approved by said justice', in a penalty of at least double the amount of the 
plaintiff's claim, conditioned that said creditor will pay to the defendant, and to all 
others interested in such attachment, or the proceedings to grow out of it, all 
damages and costs which may be sustained by reason of the wrongful sueing out of 
said attachment. 

Sec. 4. The condition of the bond required in the preceding section, shall be 
substantially as follows : 

The condition of the ab ove obligation is such that, whereas the above bounden 
hath, on the day of the date hereof, prayed an attachment at the suit of 
against the personal estate of the above named for the sum of and 

the same being about to be sued out, returnable on the day of before (said 

Justice.) Now if the said shall prosecute his suit with effect, or in case of 

failure therein, shall well and truly pay and satisfy the said all such costs in 

such suit, and such damages as the said may sustain, by reason of wrongfully 

sueing out the said attachment, then the above obligation to be void, else to remain 
in full force and virtue. 

Witness our hands and seals, this day of 18 . 

Seal. 
Seal. 

Sec 5. The constable to whom any attachment may be delivered, shall without 
delay execute the same, by levying on the personal property of the defendant, of 
value sufficient to satisfy the debt or damages claimed to be due, and all costs 
attending the collection of the same ; he shall also read the same to the defendant, 
if the defendant can be found in the county, and make return thereof stating how 
he has executed the same. If the defendant, or any other person for him shall be 
in the act of removing such personal property, the officer may pursue and take the 
same, in any county in this State, and convey the same to the county from which 
such attachment issued. 

Sec 6. No attachment shall be abated or dismissed for want of form, if the 
essential matters required in this chapter be substantially set forth : and justices of 
the peace shall allow any amendment to be made, of any affidavit, writ, return or 



60 ATTACHMENTS BEFORE JUSTICES. 

bond, or allow a new affidavit or bond to be filed, which may be necessary to 
obviate objections to the same ; and in cases of appeals to the circuit courts, the 
courts shall allow amendments as aforesaid. And in case a plea in abatement, 
traversing the facts set forth in the affidavit, shall be filed, and if, on a trial to be 
had thereon, the issue be found for the defendant the attachment shall be quashed. 

Sec. 7. Upon the return of any attachment issued by a justice of the peace, if it 
shall appear that the defendant has been personally served with the same ; or if such 
defendant shall appear without such service, the justice shall proceed to hear and 
determine the cause, as in cases of proceeding by summons. But if it does not 
appear that the defendant has been served, and no appearance be entered by the de- 
fendant as aforesaid, the justice shall continue the case ten days, and shall imme- 
diately prepare a notice to be posted up at three public places in the neighborhood of 
the justice, directed to the defendant, and stating the fact, that an attachment had 
been issued, and at whose instance, the amount claimed to be due, and the time and. 
place of trial ; and also stating, that unless the said defendant shall appearm the 
time and place fixed for trial, judgment will be entered by default, and the pro- 
perty attached ordered to be sold to satisfy the same ; which notice shall be delivered 
to the constable, who shall post three copies of the same at three public places in 
the neighborhood of the justice, at least eight days before the day set for trial; and 
on or before that day he shall return the notice delivered to him by the justice, with 
an endorsement thereon, stating the time when and the place where he posted copies 
as herein required. 

Sec 8. When notices shall be given of any proceedings by attachment, as 
required by the seventh section of this chapter, the justice shall, on the day set for 
trial of the cause, proceed to hear and determine the same, as though process had 
been personally served upon the defendant, and if judgment be given against the 
defendant, shall order a sale of the property attached, or so much thereof as will 
satisfy the judgment, and all costs of suit. But if the constable shall have failed to 
post the notices as herein required, the justice shall again continue the cause, and 
require notices to be posted as aforesaid previous to any trial of the cause. 

Sec. 9. When any constable shall be unable to find personal property of any 
defendant sufficient to satisfy any attachments issued under the provisions of this 
chapter he is hereby required to notify any and all persons within his county, 
whom the creditor shall designate as having any property, effects or choses in ac- 
tion in his possession or power belonging to the defendant, or who are in any wise 
indebted to such defendant, to appear before such justice on the return day of the 
attachment, then and there to answer upon oath what amount he or she is indebted 
to the defendant in the attachment, or what property, effects or choses in action he 
or she had in his or her possession or power, at the time of serving the attachment. 
The person or persons so summoned, shall be considered as garnishees, and the 
constable shall state in his return, the names of all persons so summoned, and the 
date of service on each. 

Sec 10. When an attachment shall be returned executed upon any person as 
garnishee, the justice shall make an entry upon the record of his proceedings in 
the cause, stating the name of each person summoned, and continue the case as to 
such garnishee, and shall proceed with the cause as against the defendant in the 
attachment as though the attachment had been levied on personal property. 

Sec 11. When judgment is entered by a justice of the peace against a defend- 
ant in attachment, and any person or persons have been summoned as garnishee in 



ATTACHMENT BEFORE JUSTICES. 61 

the case, it shall be the duty of the justice to issue a summons against each person 
so summoned, requiring him or her to appear before the justice at a time and place 
to be fixed in the summons, not less than five nor more than fifteen days from the 
date thereof, and show cause, if any he or she has, why a judgment shall not be 
entered against him or her, for the amount of the judgment and costs against the 
defendant in attachment, which summons shall be served and returned by some 
constable of the county, and on the return day thereof, if any person so summoned 
shall fail to appear, the justice shall enter judgment against the person so failing to 
appear, for the amount of the judgment obtained against the defendant in attachment, 
and execution shall be issued thereon, as in other cases. 

Sec. 12. If any garnishee shall appear at the time and place required by the 
constable as aforesaid, and shall upon oath deny all indebtedness to the defendant 
in the attachment, and deny having any property or effects or choses in action in his 
possession or power belonging to such defendant, the justice shall forthwith dis- 
charge him, unless the plaintiff in the attachment shall satisfy the justice by other 
testimony that the garnishee was indebted to the defendant in the attachment, or 
had property, effects, or choses in action in his possession or power, at the time he 
was garnisheed ; in which case the justice shall give judgment in the premises 
according to the right and justice of the cause, and issue execution as in other 
cases. 

Sec. 13. Judgments obtained under the provisions of this chapter, where the de- 
fendant has been personally served with process, or shall have appeared to the ac- 
tion, shall have the same force and effect as judgments obtained upon a summons ; 
but the property attached shall be sold before any execution is issued upon such 
judgment, and if such property shall not sell for a sum sufficient to pay the judg- 
ment and costs, execution may be issued to collect the balance. 

Sec. 14. Judgments obtained under the provisions of this chapter, when the de- 
fendant has not been personally served with process, and no appearance being en- 
tered, shall only authorize a sale of the property levied upon, and proceedings 
against garnishees to collect the amount thereof. Defendants in attachments issued 
under the provisions of this chapter, where property may be levied upon, or the person 
in whose possession the property may be found, may retain possession of such pro- 
perty upon executing a bond to the plaintiff in the attachment with good security, in 
a penalty of double the amount claimed by the attachment, conditioned that the pro- 
perty shall be delivered to any constable of the county whenever demanded, to be 
sold in satisfaction of any judgment which may be obtained in the attachment suit, 
or in case the property is not delivered, that the obligors will pay and satisfy the 
said judgment and costs ; and when a bond shall be executed, the constable shall re- 
turn the same with the attachment, and upon a breach of any condition thereof, the 
plaintiff shall have a right to prosecute suit thereon, and to recover the amount due 
upon his judgment and costs. 

Sec 15. In all cases arising under the previsions of this chapter, when two or 
more attachments shall be levied on the same properly, or be proved on the same 
garnishee, and judgment shall be entered on the same day, the proceeds of the pro- 
perty attached, or the money obtained from garnishees, shall be divided amonc the 
several plaintiffs in attachment, according to the amount of their judgments respec- 
tively: Provided, That when the property sought to be attached shall have been 
removed from the county in which the attachment issued, and shall be overtaken 
and returned to such county, the claim of such attaching creditor shall have priority 
over attachments subsequently issued. 



62 



ATTACHMENTS IN CIRCUIT COURTS. 



Sec. 16. Persons summoned as garnishees, may setup the same defence in trials 
under this chapter, as they might against the defendant in the attachment; and may, 
in like manner, make any set-off against the defendant, whether the same be due 
or not. 

Sec 17. Whenever judgment shall have been rendered against any garnishee, 
and it shall appear that the debt from him to the defendant in the attachment, is 
not yet due, execution shall not issue against him until twenty days after the same 
shall become due : Provided, The plaintiff may swear out execution as in other 
cases, after said debt becomes due. 

Sec. 18. Any garnishee having effects of the defendant in his hands, may, by 
delivering the same, or any part thereof to the constable, and taking his receipt 
therefor, be discharged from his liability respecting such effects so delivered. 

Sec. 19. When two or more persons not residing in this State, are jointly indebt- 
ed, either as joint obligors, partners or otherwise, the writ or writs of attachment 
may be issued against the separate and joint estate of such debtors, or any of them, 
either by their proper names, or by, or in, the name or style of the partnership, or 
by whatever other name or names such joint debtors shall be generally reputed, 
known or distinguished in this State, or against the heirs, executors or administra- 
tors of them or either of them ; and the goods, chattels, rights, credits and effects 
of such debtors, or either or any of them shall be liable to be seized and taken for 
the satisfaction of any just debt or other legal demand, and may be sold to satisfy 
the same. 

Sec 20. The right of property may be tried, and appeals taken in all cases 
arising under this chapter, in the same manner, as when property is taken on exe- 
cution, or judgment rendered in ordinary cases. 

Sec 21. The affidavit required in the first section of this chapter may be sworn 
to in the manner prescribed in section thirty-two of chapter nine of the Revised 
Statutes. 

Sec 22. This chapter shall be construed in all courts in the most liberal man- 
ner for the detection of fraud. 

Sec 23. The provisions of chapter one of the Revised Statutes shall apply as 
well to suits in attachment, as to other cases. 

Approved : March 3, 1845. 



CHAPTER IX. 
ATTACHMENTS IN CIRCUIT COURTS. 



Section 

1. Affidavit of indebtedness to be filed; its con- 

tents; writ may issue; against what pro- 
perty. 

2. Form of writ. 

3. Officer to execute writ ; on what property ; to 

what amount; may pursue and retake property; 
personal service of writ on defendant; return 
of writ. 



Section 

4. Bond required before writ issues ; bond and affi- 

davit to be filed ; when writ void. 

5. Condition of bond. 

6. Proceedings against joint debtors. 

7. Proceedings against defendants by reputed names, 

titles, &c, valid; proceedings may be had 
against heirs, &c, of deceased persons. 

8. Want of form not fatal, if amended; writ quash- 

ed, if, on trial had, issue be for defendant. 



ATTACHMENTS IN CIRCUIT COURTS. 



63 



Section 
9. Officer attaching to retain property, unless bond 
be given for its forthcoming ; then, to be res- 
tored. 

10. If bond forfeited, may be assigned to plaintiff; or 

judgment may be against the sheriff; remedy 
of sheriff 

11. Proceedings against sheriff, when he fails tore- 

turn sufficient bond. 

12. When sufficient property is not found, sheriff 

to summon garnishees. 

13. When defendant is not personally served, pub- 

lication to be made ; defendant not required to 
give bond. 

14. On return of writ published notice to be given; 

contents of notice; if defendant appear and 
give bail, property to be liberated and garnishee 
discharged. 

15. If no defence is made, judgment; estate attached 

to be jold; judgment against garnishee ; eflect 
thereof. 

16. Conditional judgment, when to be entered against 

garnishee ; sci. fa. to issue ; further proceedings. 

17. When judgment is had against garnishee and his 

debt to defendant is not due, execution stayed ; 
no judgment on negotiable instruments not due. 

18. Plaintiff may file interrogatories and compel gar- 

nishee to answer; duty of garnishee. 

19. If garnishee does not make true return, trial to 

be had; judgment in such case and its effect. 

20. Testimony of non-resident witnesses, how taken. 

21. Other parties interested, may interplead; trial 

of right of property. 



Section 

22. Effect of judgment by default ; and of judgment 

on appearance and trial. 

23. Goods of a perishable nature may be sold, if not 

replevied; money, how applied. 

24. When live stock is attached, it maybe fed; sher- 

iff's compensation therefor. 

25. Defendant may be allowed to set off claims against 

plaintiff; garnishee may be allowed to set off 
claims against both. 

26. When several judgments at same time, creditors 

to be paid out of effects, pro rata ; proviso, credi- 
tor retaking removed property has preference. 

27. Attachments may be served on Sunday, in cer- 

tain cases. 

28. Either party may have appeal or writ of error; 

may try the right of property. 

29. Plaintiff desiring return of property, to give 

bond for payment of judgment; attachment to 
be dissolved and property restored, and all pro- 
ceedings set aside. 

30. Plaintiff may have writ of attachment pending a 

suit at law, in aid thereof. 

31. When writ issues to other county, sheriff 

thereof shall levy and return as in other cases. 

32. Before what officer affidavit shall be sworn to ; 

when sworn to out of State, how authenticated. 

33. Non-resident joint debtors, proceedings against; 

whose property liable in such cases. 

34. Construction of this chapter liberal for the de- 

tection of fraud. 

35. As to abatement of suits in attachment. 



Section 1. If any creditor, his agent or attorney shall file an affidavit in the 
office of the clerk of the circuit court of any county in this State, setting forth that 
any person is indebted to such creditor, in a sum exceeding twenty dollars, stating 
the nature and amount of such indebtedness as near as may be, and that such debtor 
has departed, or is about to depart from this State, with the intention of havino- his 
effects removed from this State ; or is about to remove his property from this State, 
to the injury of such creditor ; or that such debtor conceals himself, or stands in 
defiance of an officer, so that process can not be served upon him ; or is not a resi- 
dent of this State, it shall be lawful for such clerk to issue a writ of attachment, 
directed to the sheriff of his county, returnable like other writs, commanding him 
to attach the lands, tenements, goods, chattels, rights, credits, moneys and effects of 
said debtor, of every kind, or so much thereof as will be sufficient to satisfy the 
claim sworn to, with interest and costs of suit, in whose hands or possession the 
same may be found. 

Sec 2. The writ of attachment required in the preceding section shall be 
substantially in the following form : 

"The people of the State of Illinois, to the sheriff of county, greeting : 

Whereas, A. B. (or agent or attorney of A. E. as the case may be,) hath com- 
plained on oath (or affirmation) to clerk of the circuit court of county, 
that C. D. is justly indebted to the said A. B. to the amount of , and oath (or 
affirmation) having been also made, that the said C. D. resides out of this State or 
absconds, or conceals himself or herself, or stands in defiance of a civil officer 
authorized to arrest him or her with civil process, so that the ordinary process of 
law can not be served upon him, or is about to depart this State with intention to 
have his effects and personal estate removed without the limits of the same, or has 
left the State with the intention of having his effects and personal estate removed 
therefrom (as the case may be) and the said having given bond and security 
according to the directions of the act in such case made and provided : We there- 



64 ATTACHMENTS IN CIRCUIT COURTS. 

fore command you, That you attach so much of the estate, real or personal, of the 
said C. D. to be found in your county, as shall be of value sufficient to satisfy the 
said debt and costs according to the complaint : and such estate so attached in your 
hands to secure, or so to provide, that the same may be liable to further proceed- 
ings thereupon, according to law, at a court to be holden at for the county of 

upon the day of next, so as to compel the said CD. to appear and 
answer the complaint of the said A. B., and that you also summon as garnishee, 
to be and appear at the said court on the said day of next, then and there 
to answer to what may be objected against him, when and where you shall make 
known to the said court how you have executed this writ, and have you then and 
there this writ. Witness, clerk of the said court, this day of in the 
year of our Lord," &c, which attachment shall be signed, by the clerk, and the 
seal of the court affixed thereto. 

. Sec. 3. Such officers shall, without delay, execute such writ of attachment upon, 
the lands, tenements, goods, chattels, rights, credits, moneys and effects of the debtor, 
of sufficient value to satisfy the claim sworn to, with costs of suit, as commanded 
in said writ. If the defendant, or any person for him, shall be in the act of remov- 
ing any personal property, the officer may pursue and take the same in any county 
in this State, and return the same to the county from which such attachment issued. 
He shall also serve said writ upon the defendant therein if he can be found, by rea- 
ding the same to him or delivering a copy thereof. The return to such writ shall 
state the particular manner in which the same was served. 

Sec. 4. Every clerk before granting an attachment as aforesaid, shall take bond 
and security from the party for whom the same shall be issued, his or her agent or 
attorney, payable to the defendant in double the sum sworn to be due, conditioned for 
satisfying all costs which may be awarded to such defendant, or to any others inter- 
ested in said proceedings, all damages which shall be recovered against the plaintiff 
for wrongfully sueing out such attachment ; which bond, with affidavit or affirmation 
of the party complaining, his or her agent, or attorney, shall be filed in the office of 
the clerk granting the attachment. Every attachment issued Without a bond and 
affidavit taken and returned as aforesaid, is hereby declared illegal and void, and 
shall be dismissed. 

Sec 5. The condition of the bond required in the preceding section, shall be 
substantially in the following form : 

" The condition of this obligation is such, that whereas the above bounden 
hath, on the day of the date hereof, prayed an attachment out of the circuit court of 
said county, at the suit of against the estate of the above named for the sum of 

and the same being about to be sued out of said court, returnable on the 
day of next, to the term of the court then to be holden : Now if the said 
shall prosecute his suit with effect, or in case of failure therein shall well and truly 
pay and satisfy the said all such costs in said suit, and such damages as shall be 

awarded against the said his heirs, executors or administrators, in any suit or 
suits which may hereafter be brought for wrongfully sueing out the said attachment, 
then the above obligation to be void, otherwise to remain in full force and effect." 

Sec 6. In all cases where two or more persons are jointly indebted, either as 
partners or otherwise, and an affidavit shall be filed as provided in the first section 
of this chapter, so as to bring one or more of such joint debtors within its provis- 
ions, and amenable to the process of attachment, then the writ of attachment shall 
issue against the property and effects of such as are so brought within the provis- 



ATTACHMENTS IN CIRCUIT COURTS. 65 

ions of this chapter; and the officer shall be also directed in said writ to summon 
all such joint debtors as may be named in the affidavit filed in the case, to answer 
to the said action, as in other cases of attachment. 

Sec. 7. It shall be sufficient in all cases of attachment, to designate defendants 
by their reputed names, by surnames, and joint defendants by their separate or 
partnership names, or by such names, styles or titles as they are usually known ; 
and heirs, executors and administrators of deceased defendants shall be subject to 
the provisions of this chapter, in all cases in which it may be applicable to 
them. 

Sec 8. No writ of attachment hereafter to be issued shall be quashed, nor the 
property taken thereon restored, nor any garnishee discharged, nor any bond by 
him given cancelled, nor any rule entered against the sheriff discharged, on account 
of any insufficiency of the original affidavit, writ of attachment or attachment bond, 
if the plaintiff, or some credible person for him, shall cause a legal and sufficient af- 
fidavit or attachment bond to be filed, or the writ to be amended in such time and 
manner as the courts shall in their discretion direct ; and in that event the cause shall 
proceed as if such proceedings had originally been sufficient : Provided, That in 
case any plea in abatement traversing the facts in the affidavit shall be filed, and a 
trial shall be thereon had, if the issue shall be found for the defendant, the attach- 
ment shall be quashed. 

Sec 9. The officer serving the writ, shall take and retain the custody and pos- 
session of the property attached, to answer and abide by the judgment of the court, 
unless the person in whose possession the same may be found, shall enter into bond 
and security to the officer, to be approved by him, in double the value of the .proper-, 
ty so attached, with condition that the said estate and property shall be forthcoming 
to answer the judgment of the court in said suit. The sheriff shall return such bond 
to the court in which the suit is brought, on the first day of the term to which 
such attachment is returnable. 

Sec 10. If such bond shall be forfeited, the sheriff may assign such bond to the 
plaintiff in the attachment, by a writing thereon, under his hand, in the presence of 
two or more credible witnesses, and after such assignment the plaintiff may bring a 
suit in his own name thereupon. If the plaintiff will not accept such assignment of 
such bond, and the court shall adjudge such security insufficient, such sheriff shall 
be subject to the same judgment and recovery, and have the same liberty of de- 
fence as if he had been made defendant in the attachment, unless good and sufficient 
security shall be given, and bond filed during the term of the court to which such 
attachment is returnable, at which term the objections to the sufficiency of the secu- 
rity taken, shall be made to entitle the party sueing out the attachment, to proceed 
against the sheriff; and execution may issue thereupon as in other cases of judgment. 
And whenever the judgment of the plaintiff, or any part thereof, shall be paid or 
satisfied by any such sheriff, he shall have the same remedy against the defendant 
for the amount so paid by him, as is now provided by law for bail against their 
principal, where a judgment is paid or satisfied by them. 

Sec 11. If the sheriff shall fail to return a bond taken by virtue of the provis- 
ions of this chapter, or shall have neglected to take one when he ought to have dqne 
so, in any attachment issued under any provisions of this chapter, the plaintiff-iri the, 
attachment may cause a rule to be entered at any time during the first two days of the 
term, to which the writ is returnable, requiring the said sheriff to return the said 
bond ; in case no bond has been taken, to shew cause why such bond was not taken, 

5 



qq ATTACHMENTS IN CIRCUIT COURTS. 

If the said sheriff shall not return the said bond within one day thereafter, or shew 
legal and sufficient cause why the said bond had not been taken, judgment shall be 
entered up against him for the amount of the plaintiff's demand, with costs of suit ; 
execution may thereupon issue for the same, whenever judgment shall have been 
entered against the defendant in the attachment. 

Sec. 12. When the sheriff shall be unable to find property of any defendant, 
sufficient to satisfy any attachment issued under the provisions of this chapter, he 
is hereby required to summon all persons within his county, whom the creditor 
shall designate, as having any property, effects, or choses in action, in their posses- 
sion or power belonging to the defendant, or who are in any wise indebted to such 
defendant, to appear before the court to which the writ is returnable, on the return 
day of the attachment, then and there to answer upon oath, what amount they are 
indebted to the defendant in the attachment, or what property, effects or choses in 
action he or she had in his or her possession or power, at the time of serving the 
attachment. The person or persons so summoned, shall be considered as garni- 
shees, and the sheriff shall state in his return, the names of all persons so summon- 
ed, and the date of service on each. 

Sec 13. When any attachment shall be issued out of the circuit court and levied 
or served on a garnishee, it shall be the duty of the sheriff to return the same if re- 
quired by the plaintiff, and on return thereof, the clerk shall give notice for four 
weeks successively in some newspaper published in this State, most convenient to 
the place where the court is held, of such attachment, and at whose suit, against 
whose estate, for what sum, and before what court the same is pending, and that 
unless the defendant shall appear on the return day of such writ, judgment will be 
entered, and the estate attached will be sold : Provided, That in case of foreign 
attachment, if sixty days shall not intervene between the first insertion of such 
notice, and the first term of the court, then the cause shall be continued until the 
next term of the court. Any defendant in attachment may appear and plead, with- 
out giving bail or entering into any bond. 

Sec 14. On the return of any writ of attachment against a defendant, it shall 
be the duty of the clerk of the court in which the suit is pending, to give notice for 
four weeks successively in some newspaper published in this State, most convenient 
to the place where the court is held, of such attachment, and at whose suit, 
against whose estate, for what sum, and before what court the same is pending ; 
and that unless the defendant shall appear, give bail, and plead within the time 
limited for his or her appearance in such case, judgment will be entered, and the 
estate so attached will be sold. If the defendant appear, put in sufficient bail, and 
plead as aforesaid, his estate so attached shall be liberated, and the garnishee or 
garnishees, if any, discharged. 

Sec 15. If any attachment as aforesaid shall be returned executed, and the estate 
attached shall not be replevied, or defence shall not be made as this chapter directs, 
the plaintiff shall be entitled to judgment for his whole debt and costs, having estab- 
lished the existence of such debt, by legal testimony, and may thereupon take 
execution for the same according to law, as provided in other cases in debt. All 
the estate attached and not replevied, shall be sold for, and towards satisfying the 
plaintiff's judgment in the same manner as such property is required to be when 
taken in execution on a writ of fieri facias. Where an attachment shall be returned 
served in the hands of any garnishee, it shall be lawful upon his or her appearance 
and examination in the manner as is by this chapter directed, to enter up judgment and 



ATTACHMENTS IN CIRCUIT COURTS. 67 

award execution against every such garnishee, judgment havirg been first entered 
against the original debtor, for all sum or sums of money due from him or them, to the 
defendant in the attachment, or in his, her, or their custody, or possession, for the 
use of such original debtor, or so much thereof as shall be of value sufficient to sat- 
isfy the debt and costs of the complaint. All goods and effects whatsoever in the 
hands of any garnishee or garnishees belonging to such defendant, shall also be liable 
to satisfy such judgment. 

Sec. 16. Where any garnishee shall be summoned by the sheriff or other officer 
in the manner aforesaid, and shall fail to appear and discover on oath or affirmation, 
as by this chapter, is directed, it shall be lawful for the court, after solemnly calling 
the garnishee, and such court is hereby authorized and required to enter a condi- 
tional judgment against such garnishee, and thereupon a scire facias shall issue 
against such garnishee, returnable to the next term of the court, to shew cause if any 
he have, why final judgment should not be entered against him upon such scire 
facias being duly executed and returned ; if such garnishee shall fail to appear, 
accordingly, and discover on oath or affirmation in the manner aforesaid, the 
court shall confirm such judgment and award execution for the plaintiff's whole 
judgment and costs, and if upon the examination of any garnishee, it shall appear 
to the court that there is any of the defendant's estate in the hands of any 
person or persons who have not been summoned, such court shall, upon motion 
of the plaintiff, grant a judicial attachment, to be levied upon the property in 
the hands of such person or persons having any of the estate of the defendant in his 
or their possession or custody, who shall appear and answer, and be liable as other 
garnishees. When any garnishee shall deliver to the sheriff all the goods, chattels 
and effects whatsoever, found or confessed to be in his or her possession belonging 
to the defendant, or any part thereof, the same shall be received in discharge of so 
much of the judgment as the same shall be appraised to by the jury aforesaid, who 
shall enquire and return the value thereof, according to the evidence which may be 
submitted to them relative thereto. 

Sec. 17. Whenever judgment shall be rendered against any garnishee, and it 
shall appear that the debt from him to the defendant in the attachment is not yet 
due, execution shall not issue against him until twenty days after the same shall 
become due ; nor shall judgment be rendered against a garnishee, for a debt founded 
on a negotiable instrument, unless the same shall be due at the time of rendering the 
judgment. 

Sec. 18. If any such writ of attachment shall be served as aforesaid, it shall 
and may be lawful for any such plaintiff at any time during the return term of the 
said court, to prepare, exhibit and file, all and singular such allegations and inter- 
rogatories in writing, upon which he or she shall be desirous to obtain, and compel 
the answer of any and every garnishee, touching the lands, tenements, goods, 
chattels, moneys, credits and effects of the said defendants, and the value thereof, in 
his, her or their possession, custody or charge, or from him, her or them, due and 
owing to the said defendant at the time of the service of the said writ, or at any 
time after, or which shall or may thereafter become due ; and it shall be the duty of 
each and every such garnishee, to exhibit and file under his oath or affirmation, on 
or before the third day of the next succeeding term, full, direct and true answers to 
all and singular the allegations and interrogatories by the said plaintiff supported, 
exhibited and filed, in the manner herein before directed and described. 

Sec. 19. Whenever the plaintiff in any attachment shall allege, that any garnishee 
summoned in such attachment, hath not discovered the true amount of debts due 



OS ATTACHMENTS IN CIRCUIT COURTS. 

from him to the defendant, or what goods and chattels belonging to the defendant, 
are in his or her possession, the court shall direct, without the formality of pleading, 
a jury to be empannelled immediately, (unless good cause be shown by either party 
for a continuance,) to enquire what is the true amount due from such garnishee to 
the defendant, and what goods and chattels are in his possession, belonging to the 
defendant. Upon such examination, witnesses may be examined by the respective 
parties, as in ordinary cases. If the finding of the jury shall be against such gar- 
nishee, the court shall grant judgment in the same manner as if the facts found by 
the jury had been confessed by him or her, on his or her examination, and costs of 
inquest ; and if the jury find in favor of the garnishee, he shall recover his costs 
against the plaintiff. 

Sec. 20. Where any witness resides out of the State, or out of the county in which 
any attachment may be pending, and in which the testimony of such witness may 
be required, it shall be lawful for either party or garnishee in such attachment, on 
filing interrogatories with the clerk of the court from which such attachment has 
issued, and giving ten days' notice of the time and place of taking such testimony, 
by serving a copy of such notice on the opposite party, or if such party shall be 
absent from, or reside out of the county, then by affixing a notice in writing thereof 
on the door of the court house of such county, at least ten days before the day set 
for the taking thereof, to obtain a commission from the clerk of the court to take the 
testimony of such witness or witnesses on such interrogatories ; such examination 
may be read on the trial on motion of either of the parties or garnishee. 

Sec. 21. In all cases of attachment, any person other than the defendant, claiming 
the property attached, may interplead without giving bail, but the property attached 
shall not thereby be replevied; and the court shall immediately (unless good cause 
be shewn by either party for a continuance,) direct a jury to be empannelled to 
enquire into the right of property ; in all cases where the jury find for a claimant, 
such claimant shall be entitled to his costs ; and where the jury find for the plaintiff 
in the attachment, such plaintiff shall recover his costs against such claimant. 

Sec 22. If judgment by default shall be entered on any attachment against the 
estate of the defendant, in any court of this State, no execution shall issue thereon 
except against the goods and chattels, lands and tenements, on which the attachment 
may have been served, or against a garnishee or garnishees, who shall have money 
or other property in his or their hands belonging to the defendant : if the defendant 
shall appear, put in bail, and plead to the suit, the judgment rendered therein shall 
have the same force and effect as if a capias ad respondendum had been served on 
the person of the defendant. 

Sec 23. When any goods and chattels shall be levied on by virtue of any attach- 
ment, and the sheriff or other proper officer, in whose custody such goods and 
chattels are, shall be of opinion that the same are of a perishable nature, and in 
danger of immediate waste and decay, such sheriff or other officer as aforesaid, shall 
summon three respectable freeholders of his county, who shall examine the goods 
and chattels so levied on ; and if the said freeholders shall on oath or affirmation 
certify that, in their opinion, they are of a perishable nature, and in danger of imme- 
diate waste and decay, and if the person or persons to whom such goods and chattels 
belong, his, her or their agent or attorney, shall not within twenty days after serv- 
ing such attachment, replevy the same, then such goods and chattels shall be sold at 
public vendue by the sheriff or other proper officer, he having first advertised such 
sale at the court house, and two other public places in his county, at least ten days 



ATTACHMENTS IN CIRCUIT COURTS. 69 

before the sale; the money arising from such sale shall be liable to the judgment 
obtained upon such attachment, and deposited in the hands of the clerk of the court 
to which the process shall be returnable, there to abide the event of such suit. 

Sec. 24. When any sheriff or other officer shall serve an attachment on slaves, or 
indentured or registered colored servants, or horses, cattle or live stock, and the 
same shall not be immediately replevied or restored to the debtor, it shall and may 
be lawful for such officer, and he is hereby required to provide sufficient sustenance 
for the support of such slaves indentured, or registered colored servants, and live 
stock, until the same shall be sold, or otherwise legally disposed of, or discharged 
from such attachment. He shall receive therefor a reasonable compensation, to 
be ascertained and determined by the court out of which the attachment issued, and 
the same shall be charged in the fee bill of such officer, and shall be collectable as 
part of the costs in the attachment. 

Sec 25. Any defendant against whom an attachment may be sued out under the 
provisions of this chapter, or garnishee, may avail himself in his defence of any set-off 
properly pleadable by the laws of this State, notwithstanding such set-off may not 
be due at the time of sueing out such attachment, or at the trial thereof ; any claim 
due or not due, maybe setoff by the garnishee, whether it exist against the plaintiff 
or defendant in the attachment. 

Sec. 26. In all cases where more than one attachment shall be issued against the 
same person or persons, and returned to the same term of the court to which they 
are returnable, or when a judgment in a civil action shall also be rendered at the 
same term against the defendant, who is the same person and defendant in the 
attachment or attachments, the court shall direct the clerk to make an estimate of 
the several amounts each attaching or judgment creditor will be entitled to out of 
the property of the defendant attached, either in the hands of any garnishee or 
otherwise, after the sale and receipt of the proceeds thereof by the sheriff, calcula- 
ting such amount in proportion to the amount of their several judgments, with costs, 
as the same will respectively bear to the amount of the sum received, so that each 
attaching and judgment creditor will receive his just part thereof in the proportion to 
his respective demand; the clerk shall thereupon certify the several amounts thereof 
to the sheriff, who shall pay over to the respective parties the several sums so 
certified, and endorse such payments on their respective executions : Provided^ 
That when the property sought to be attached, shall have been removed from the 
county in which the attachment issued, and shall be overtaken and returned to such 
county, the claim of such attaching creditor or creditors, shall have priority over 
other attachments. 

Sec 27. On proof being made before any judge or justice of the peace, or clerk 
of the circuit court within this State, that a debtor is actually absconding, or con- 
cealed, or stands in defiance of an officer duly authorized to arrest him on civil 
process as aforesaid, or has departed this State with the intention of having his 
effects and personal estate removed out of the State, or intends to depart with such 
intention, it shall be lawful for the clerk to issue, and sheriff or other officer to 
serve an attachment against such debtor, on a Sunday as on any other day, as is 
directed in this chapter. 

Sec 28. The plaintiff or defendant in any attachment, the garnishee and the 
sheriff, or either of them, who may feel aggrieved by the judgment of the court, 
may prosecute writs of error, and take appeals as by law is provided in other cases ; 
and trials of the right of property may be had in the same manner as when property 
is taken in execution. 



70 ATTACHMENTS IN CIRCUIT COURTS. 

Sec. 29. Any defendant in attachment, desiring the return of property attached, 
may, at his option, instead of the bond required in the ninth section of this chapter, 
give like bond and security, in a sum sufficient to cover the debt and damages sworn 
to in behalf of the plaintiff, with all interest, damages and costs of suit, conditioned 
that the defendant will pay the plaintiff the amount of the judgment and costs which 
may be rendered against him in that suit, on a final trial, within ninety days after 
such judgment shall be rendered. In term time, a recognizance, in substance as 
aforesaid, may be taken in open court, and entered of record, in which case the 
court shall approve of the security and the recognizance made to the plaintiff. In 
either case, the attachment shall be dissolved, and the property taken restored, 
and all previous proceedings either against the sheriff or against the garnishees, 
set aside, and the cause shall proceed as if the defendant had been seasonably 
served with a writ of summons. 

Sec. 30. Plaintiffs in any action of debt, covenant or trespass, or on the case 
upon promises, having commenced their action or actions, by summons, may, at any 
term pending such suit, and before judgment therein, on tiling in the office of the 
clerk where such action is pending, a sufficient affidavit and bond, sue out an attach- 
ment against the lands and tenements, goods and chattels, rights, moneys, credits and 
effects of the defendant, which attachment shall be entitled in the suit pending and 
be in aid thereof, and such proceedings shall be thereupon had, as are required or 
permitted in original attachments, in all things as near as may be. 

Sec 31. When any attachment has issued out of the circuit court in any 
county, it shall be lawful for the plaintiff, at any time before judgment, to cause an 
attachment to be issued to any other county of this State, where the defendant may 
have lands, goods, chattels, rights, credits or effects, which writ of attachment, the 
sheriff to whom it shall be directed shall levy on the lands, goods, chattels, rights, 
credits and effects of the defendant in such county, and make return thereof as in 
other cases. 

Sec. 32. The affidavit required in the first section of this chapter maybe sworn 
to before any officer authorized by the laws of this State to administer oaths, or by 
any officer of any State, territory or district of the United States ; the fact that the 
person administering such oath is duly authorized, to be proved in the same man- 
ner as in the acknowledgment and authentication of deeds. 

Sec. 33. When two or more persons not residing in this State, are jointly 
indebted, either as joint obligors, partners or otherwise, then the writ or writs of 
attachment shall and may be issued against the separate estate of such debtors, or 
any of them, or against the heirs, executors or administrators of them or either of 
them ; and the lands and tenements, goods and chattels, rights, credits and effects of 
such debtors or either of them, shall be liable to be seized and taken for the 
satisfaction of any just debtor other legal demand, and may be sold to satisfy the 
same. 

Sec. 34. This chapter shall be construed in all courts in the most liberal man- 
ner for the detection of fraud. 

Sec 35. The provisions of chapter one of the Revised Statutes shall be 
applicable as well to proceedings in attachment as to other cases. 

Approved : March 3, 1845. 



CHAPTER X. 

ATTACHMENTS OF BOATS AND VESSELS. 



Section 

1 . Boats, vessels, &c. may be attached ; for what 

claims; claims of mariners, &c. , preferred. 

2. Claimant may have attachment in county in 

which boat is found, on malting affidavit and 
giving bond ; to whom bond given ; remedies of 
injured parties under it. 

3. On return of writ, declaration to be tiled; its 

contents; bill of particulars to be filed; trial; 
judgment ; execution. 



Section 

4. Engineers, pilots, &c, may attach for arrears of 

wages. 

5. If sufficient bond be given, boat may be re- 

leased. 

6. Attachment not to affect other creditors, &c, 

after three months from time debt accrued. 



Section 1. Boats and vessels of all descriptions, built, repaired or equipped, 
or running upon any of the navigable waters within the jurisdiction of this State, 
shall be liable for all debts contracted by the owner or owners, masters, super- 
cargoes or consignees thereof, on account of all work done, supplies or materials 
furnished by mechanics, tradesmen and others, for, on account of, or towards 
the building, repairing, fitting, furnishing or equipping such boats and vessels, their 
engines, machinery, sails, rigging, tackle, apparel and furniture ; and such debts 
shall have the preference of all other debts due from the owners, or proprietors, 
except the wages of mariners, boatmen and others, employed in the service of such 
boats and vessels which shall first be paid. 

Sec 2. Any person having a demand, contracted as before mentioned, against 
any such boat or vessel, may have an attachment to be issued out of any court, or 
by any justice of the peace having jurisdiction thereof, in any county in this State, 
in which such boat or vessel may be found, either against the owner or owners, 
by their proper names, or by the name and style of their co-partnership, if known, 
otherwise against such boat or vessel, by her name or description only, authori- 
zing and directing the seizure and detention of the same, with her engine, machin- 
ery, sails, rigging, tackle, apparel and furniture, by the sheriff or constable, upon 
affidavit being made of the justice of such demand, and bond given by the plaintiff, 
as in other cases of attachment : Provided., That in all cases, where such proceed- 
ings are instituted ngainst such boat or vessel by her name or description only, the 
bond to be given by the plaintiff, shall be made payable to the people of the State 
of Illinois, but for the use and benefit of the owner or owners of such boat or ves- 
sel, who may institute a suit thereon, if damages be occasioned by the issuing of 
such attachment, and have recovery thereon in the same manner as if said bond had 
been given to such person or persons by their proper names, or in the name and 
style of their co-partnership. 

Sec 3. Upon the return of such attachment, the person or persons having; 
demands of the description aforesaid, and for whose benefit such attachment was 
issued, shall file a written declaration or statement, against such boat or vessel, 
by her name or description, or against the owner or owners, if known as aforesaid, 
briefly reciting the nature of the demand, whether for work done, or materials, 
firewood, or supplies of provisions furnished, and whether at the request, of the 



72 ATTORNEYS AND COUNSELLORS AT LAW. 

owner, master, supercargo, or consignee of such boat or vessel, and that such 
demand remains unpaid ; annexing to such declaration or statement, a bill of the par- 
ticulars constituting such demand, in separate and distinct items ; and the like pro- 
ceedings shall be had in all other respects, and the like judgment and execution as 
in other cases of attachment. 

Sec. 4. All engineers, pilots, mariners, boatmen and others employed in any 
capacity, in or about the service of any such boat or vessel, who may be entitled 
to arrearages of wages in consequence of such service, may proceed to collect such 
wao-es under the provisions of this chapter, and shall be entitled to all the benefits 
hereof. 

Sec. 5. If the owner or owners, master, supercargo or consignee of any such 
boat or vessel, seized by attachment as aforesaid shall, at any time before final 
judgment, give bond to the plaintiff, with security to be approved by the clerk of 
the circuit court, or by the judge in term time, (or justice of the peace as the case 
may be,) in double the amount of the demand sued for, and a sufficiency to dis- 
charge all costs which may accrue thereon, conditioned to pay and satisfy such judg- 
ment as the court (or justice of the peace) may render against such boat or vessel 
or defendant party, together with the costs of suit, then such boat or vessel shall be 
forthwith discharged from such attachment, seizure and detention ; but shall never- 
theless, be liable to be taken and sold on any execution to be issued on such judg- 
ment or upon the judgment which may be rendered at any time on the bond required 
to be given by the defendant party as aforesaid. 

Sec 6. No creditor shall be allowed to enforce the lien created under the 
provisions of this chapter, as against, or to the prejudice of any other creditor, or 
subsequent incumbrancer, or bona fide purchaser, unless suit be instituted to en- 
force such lien as provided in this chapter, within three months after the indebted- 
ness accrues or becomes due, according to the terms of the contract. 

Approved: March 3, 1845. 



CHAPTER XL 

ATTTOMEYS AND COUNSELLORS AT LAW. 



Section i Section 

1 . No person permitted to practice as attorney, I 7. Certain officers not to practice as attorneys at 

&.c, without license ; rights. law ; attorneys to take oath before being en- 

2. Certificate of moral character. rolled. 

3. Clerk of supreme court to keep roll, on which | 8. Oath of office, 
names of attorneys shall be entered ; oath to j 9. Persons licensed in other States may practice in 



be endorsed on license. 

No person shall practice, unless enrolled; jus- 
tices of supreme court may strike from the 
roll for mal-conduct in office. 

If attorney refuses or neglects to pay over 
money collected, how punished. 

Attorneys, judges, fc.c, may be arrested and 
held to bail, but privileged when attending 
court. 



this State. 

10. Fees, fee, received by person not licensed, may 
be recovered back ; penalty for signing rec- 
ords, &c, if not authorized. 

11 Taities may prosecute and plead in person; 
nothing herein to affect attorneys already ad- 
mitted. 

12. Attorneys from neighboring Slates may practice 
in this State. 



ATTORNEYS AND COUNSELLORS AT LAW. 73 

Section 1. No person shall be permitted to practice as an attorney or counsel- 
lor at law, or to commence, conduct, or defend any action, suit or plaint, in which 
he is not a party concerned, in any court of record within this State, either by 
using or subscribing his own name, or the name of any other person, without 
having previously obtained a license for that purpose from some two of the justices 
of the supreme court, which license shall constitute the person receiving the same 
an attorney and counsellor at law, and shall authorize him to appear in all the 
courts of record within this State, and there to practice as an attorney and counsel- 
lor at law, according to the laws and customs thereof, for and during his good 
behavior in said practice, and to demand and receive all such fees as are or 
hereafter may be established for any services which he shall or may render as an 
attorney and counsellor at law in this State. 

Sec 2. No person shall be entitled to receive a license as aforesaid, until he 
shall have obtained a certificate from the court of some county, of his good moral 
character. 

Sec. 3. It shall be the duty of the clerk of the supreme court to make and 
keep a roll or record, stating at the head or commencement thereof, that the persons 
whose names are therein written, have been regularly licensed and admitted to 
practice as attorneys and counsellors at law within this State, and that they have 
duly taken the oath to support the constitution of the United States and of this 
State, and also the oath of office as prescribed by law, which shall be certified and 
endorsed on the said license. 

Sec 4. And no person whose name is not subscribed to or written on the said 
roll, Avith the day and year when the same was subscribed thereto, or written 
thereon, shall be suffered or admitted to practice as an attorney or counsellor at 
law within this State, under the penalty hereinafter mentioned, any thing in this 
chapter to the contrary notwithstanding ; and the justices of the supreme court, in 
open court, shall have power at their discretion, to strike the name of any attorney 
or counsellor at law from the roll for mal-conduct in his office. 

Sec 5. In all cases when an attorney of any court in this State, or solicitor in 
chancery, shall have received, or may hereafter receive, in his said office of attorney 
or solicitor, in the course of collection or settlement of any claim left with him for 
collection or settlement, any money or other property belonging to any client, and 
shall, upon demand made, and a tender of his reasonable fees and expenses, refuse 
or neglect to pay over or deliver the same to the said client, or to any person duly 
authorized to receive the same, it shall be lawful for any person interested, to apply 
to the supreme court of this State, for a ride upon the said attorney or solicitor, to 
show cause, at a time to be fixed by the said court, why the name of the said attor- 
ney or solicitor should not be stricken from the roll; a copy of which rule shall be 
duly served upon said attorney or solicitor, at least two days previous to the day 
upon which said rule shall be made returnable : and if, upon the return of said 
rule, it shall be made to appear to the said court, that such attorney or solicitor has 
improperly refused or neglected to pay over or deliver said money or property so 
demanded as aforesaid, it shall be the duty of the said court to direct that the name 
of the said attorney or solicitor be stricken from the roll of attorneys in said 
court. 

Sec 6. Every attorney, before his name is stricken off the roll, shall receive a 
written notice from the clerk of the supreme court, stating distinctly the grounds of 
complaint, or the charges exhibited against him, and he shall, after such notice, be 



74 ATTORNEYS AND COUNSELLORS AT LAW. 

heard in his defence, and allowed reasonable time to collect and prepare testimony 
for his justification. And every attorney whose name shall at any time be stricken 
from the roll by order of the court in manner aforesaid, shall be considered as 
though his name had never been written thereon until such time as the said justices, 
in open court, shall authorize him to sign or subscribe the same. 

Sec. 7. All attorneys and counsellors at law, judges, clerks and sherhTs, and 
all other officers of the several courts witbin this State, shall be liable to be arres- 
ted and held to bail, and shall be subject to the same legal process, and may in all 
respects be prosecuted and proceeded against in the same courts, and in the same 
manner as other persons are, any law, usage or custom to the contrary notwith- 
standing: Provided nevertheless, Said judges, counsellors, or attorneys, clerks, 
sheriffs and other officers of said courts, shall be privileged from arrest while 
attending courts, and whilst going to and returning from court. 

Sec. 8. No person who holds a commission, as a justice of the supreme court, 
or as judge of any circuit court, or county commissioner, shall be permitted to 
practice as an attorney or counsellor at law in the court in which he presides as 
justice of the supreme or circuit court, or county commissioner ; nor shall any coro- 
ner, sheriff, deputy sheriff, jailer or constable, be permitted to practice as aforesaid 
in the county in which he is commissioned or appointed, nor shall any clerk of the 
supreme court, circuit court, or court of the county, be permitted to practice as an 
attorney or counsellor at law in the court of which he is clerk, and no person shall 
be permitted or suffered to enter his name on the roll or record, to be kept as afore- 
said, by the clerk of the supreme court, or do any official act appertaining to the 
office of an attorney or counsellor at law, until he hath taken an oath to support the 
constitution of the United States and of this State, and the person administering 
such oath, shall certify the same on the license, which certificate shall be a suffi- 
cient voucher to the clerk of the supreme court, to enter or insert or permit to be 
entered or inserted on the roll of attorneys and counsellors at law, the name of the 
person of whom such certificate is made. 

Sec. 9. The following oath of office sball be administered to every attorney 
and counsellor at law, before they subscribe the respective rolls, to- wit : "I swear, 
or affirm, that I will in all things, faithfully execute the duties of an attorney and 
counsellor at law, according to the best of my understanding and abilities." 

Sec. 10. Any person producing a license or other satisfactory voucher, 
proving that he hath been regularly admitted an attorney at law, in any court of 
record within the United States, that he is of good moral character, may be licensed 
and permitted to practice as a counsellor and attorney at law, in any court in this 
State without examination. 

Sec. 11. If any person not licensed as aforesaid, shall receive any nutucy or 
any species of property, as a fee or compensation for services rendered, or to be 
rendered by him, as an attorney, or counsellor at law within this State, all money 
so received by him shall be considered as money received to the use of the person 
paying the same, and may be recovered back, with costs of suit, by an action for 
money had and received ; and all property delivered or conveyed for the purpose 
aforesaid, or the value thereof, may be recovered back, with costs of suit, by the 
person conveying or delivering the same, by action of detinue, or trover and conver- 
sion, and the person receiving such money or property shall forfeit three-fold the 
amount or value thereof, to be recovered, with costs of suit, before any magistrate, 
if within a magistrate's jurisdiction; but if not, in any court of record within the 



ATTORNEY GENERAL AND CIRCUIT ATTORNEYS. 



75 



State, by action of debt, qui tarn, the one-half to the use of the person who shall 
sue for and recover the same, and the other half to the use of the county in which 
such suit shall be brought ; and if any person shall sign or cause to be signed the 
name of an attorney, or either of the justices of the supreme court, to any certifi- 
cate or license provided for in this section, with an intent to deceive, such person shall 
be deemed guilty of forgery, and shall be prosecuted and punished accordingly. 

Sec. 12. Plaintiffs shall have the liberty of prosecuting, and defendants shall 
have the privilege of defending in their proper persons, and nothing herein 
contained shall be so construed as to affect any person or persons heretofore 
admitted to the degree of an attorney or counsellor at law, by the laws of this 
State, or of the Illinois territory, so as to subject them to further examination, or 
make it necessary for them to renew their licenses. 

Sec. 13. Hereafter, when any counsellor or attorney at law, residing in any 
of the adjacent States or territories, may desire to practice law in this State, such 
counsellor or attorney shall be allowed to practice in the several courts of law and 
equity in this State, upon the same terms, and in the same manner that counsellors 
and attorneys at law residing in this State now are, or hereafter may be admitted to 
practice law in such adjacent States or Territories. 

Approved : March 3, 1845. 



CHAPTER XII. 

ATTORNEY GENERAL AND CIRCUIT ATTORNEYS. 



Section 

1. Attorney general and circuit attorneys elected 

once in two years ; their residence ; their 
duties ; how commissioned. 

2. Each to give oilicial bond; Governor may re- 

quire additional bond; if bond not given in 
sixty days, office to be vacated. 

3. Duty of attorney general; shall attend supreme 

court, try cases for State and for counties ; try 
impeachments ; give advice to officers of State. 

4. Attorney general and circuit attorneys shall at- 



Section 

tend circuit courts ; their duties as circuit at- 
torneys. 

5. Shall attend examinations on writs of habeas 

coi~pus, and examinations for felonies. 

6. When interested in cause, absent, &c, court 

may appoint substitute, with same powers, du- 
ties and fees. 

7. Attorney General may call on circuit attorneys 

to assist him. 

8. Governor may fill vacancies. 



Section 1. There shall be elected by the General Assembly on jointvote, once 
in every two years, an attorney general, who shall reside at the seat of govern- 
ment, and perform such duties as are by this chapter, or may hereafter be pre- 
scribed by law ; and one circuit attorney in each judicial circuit, excepting that in 
which the seat of government is situated. Such circuit attorneys shall reside in 
the circuits for which they may be respectively elected, and shall perform such 
duties as are herein prescribed, or may be hereafter imposed by law. The attorney 
general shall be ex officio the circuit attorney for the circuit in which he resides, 
and shall perform the same duties therein, as other circuit attorneys are or may be 
required to perform ; such officers, when so elected, shall be commissioned by the 
Governor. 

Sec 2. Previous to being commissioned as aforesaid, each of the said officers 
shall file in the office of the secretary of State, a bond, the attorney general in 



76 ATTORNEY GENERAL AND CIRCUIT ATTORNEYS. 

the penal sum of five thousand dollars, and each circuit attorney in the penal sum 
of one thousand dollars, with good security, to be approved by the Governor 
conditioned that they will, respectively, faithfully pay over all such moneys as may 
come into their hands, belonging to the State or to any county, and that they will 
faithfully and with fidelity perform all duties, which are or may be, bylaw imposed 
upon them. The Governor may, at any time when he shall deem necessary, 
require additional bond and security to be given. And in case the attorney 
general or any circuit attorney, shall neglect or refuse to file any bond herein 
required or authorized to be taken, within sixty days after his appointment, his 
office shall be deemed vacant, and may be filled in like manner, as other vacancies. 
Sec. 3. It shall be the duty of the attorney general to attend each of the terms 
of the supreme court, and there commence, prosecute or defend every cause which 
the people of this State, the auditor of public accounts, or any county of this State 
shall in any wise be a party to, or interested in the result. It shall be his further 
duty to prosecute all impeachments which may be tried before the supreme court 
or the Senate of this State. He shall also, when required, give his opinion and 
advice in writing, without fee or reward, to the General Assembly, or either 
branch thereof, upon any question of law ; and to the Governor or the person 
exercising the office of Governor, the secretary of State, auditor of public 
accounts, and State treasurer, upon any question of law relating to the duties of 
their respective offices, which may be submitted to him by them or either of them. 
Sec 4. It shall also be the duty of the attorney general and of each circuit 
attorney to attend each circuit court to be held in each of the counties belonging 
to his judicial circuit, and to commence and prosecute all actions, suits, process, 
indictments and prosecutions, civil and criminal, in which the people of this State, 
or any county within such judicial circuit may be concerned ; to defend all actions 
brought within such judicial circuit, against the auditor of public accounts, or any 
of the counties aforesaid; to prosecute all forfeited recognizances, and all suits 
and actions for the recovery of debts, revenues, moneys, fines, penalties and forfei- 
tures, accruing to the people of this State, or any county within the judicial circuit 
aforesaid. He shall give his opinion without fee or reward, to any county 
commissioners' court, and to any justice of the peace within his circuit, when 
required so to do, upon any question of law, relating to any criminal or other matter, 
in which the people or any county is concerned ; and he shall perform such other 
and further duties, as may be enjoined on him by law. 

Sec. 5. It shall be the duty of the attorney general and circuit attorneys to 
attend, if in their power, the examination of all persons brought on habeas corpus 
before a judge of the supreme or circuit court, within their circuits respectively ; 
and, if convenient, shall attend the examination, within their respective circuits, of 
persons accused of felonious crimes, on being notified of the same. 

Sec 6. When the attorney general or any circuit attorney, shall be interested 
in any cause or proceeding, civil or criminal, which it is, or shall be made his duty 
to prosecute or defend, the court in which such cause is pending, or to be brought, 
may appoint some competent person to prosecute or defend such cause, and in all 
cases where the attorney general or circuit attorney shall be absent or sick, and 
unable to attend to the discharge of his duties, the court in which any of his 
duties are required to be performed, may appoint some competent person to 
discharge such duties, until the attorney general or circuit attorney appear and 
resume the discharge of his duties ; and the person so appointed shall possess 



AUDITOR AND TREASURER. 



77 



the same power in relation to such causes and the business in such court, and shall 
be entitled to the same fees therefor, as would have been allowed to the attorney 
general or circuit attorney for said services. 

Sec. 7. The attorney general shall have the right to call upon any of the 
circuit attorneys to assist him in the prosecution, or in the defence of any suit in 
the supreme court, or the trial of any impeachment which it shall be the duty of 
the attorney general to attend to ; and any circuit attorney being so required shall 
give his assistance accordingly. 

Sec 8. Should any vacancy occur in any of the judicial circuits in this State 
between the sessions of the legislature, it shall be the duty of the Governor to 
fill the same by the appointment of some qualified person to discharge the duties of 
said office, who, when so appointed, shall continue in office until his successor is 
duly elected and qualified as in this chapter provided. 

Approved : March 3, 1845. 



CHAPTER XIII. 

AUDITOR AND TREASURER. 



Section 

1. Auditor and treasurer elected by joint vote of 

General Assembly ; term, two years. 

2. Shall give official bonds ; condition thereof. 

3. Not to be commissioned until bond be given; if 

bond not given in twenty days, office to be 
vacant. 

4. Shall each keep an official seal ; copies of pa- 

pers authenticated" by them to be received in 
evidence. 

5. Governor may require additional bond; if not 

given, office to be vacant. 

6. Governor may order bonds to be sued ; judg- 

ment may bi had against principal and sureties, 
jointly or severally. 
1. Auditor to keep "accounts of the State ; audit ac- 
counts. 

8. Shall draw warrants, and keep record thereof. 

9. Auditor shall personally sign all warrants, &c. 

1 0. Warrants to be countersigned by treasurer, and 
entry thereof made. 



Section 

1 1 . Auditor to report to General Assembly. 

12. Auditor shall make account against collecting 

officers ; circuit attorneys bring suit ; auditor 
to grant quietusscs. 

13. Treasurer shall receive, keep safely, and pay out 

money ; keep accounts ; make reports ; re- 
ports to be published with laws. 

14. Shall report monthly to the auditor ; shall can- 

cel and return warrants, and take receipt. 

15. If treasurer die, his heirs, &c, shall pay over 

money, Sac, to his successor, who shall re- 
port. 

16. If warrant be lost, duplicate to be issued; oath 

and bond to be first made. 

17. Offices to be kept at seat of government ; 

clerks. 

18. Auditor to commence suits, &c, in behalf of the 

State. 



Section 1. There shall be elected by the joint vote of both Houses of the Gener- 
al Assembly, once in every two years, an auditor and a treasurer, who shall hold their 
offices for two years, and until their respective successors are elected and qual- 
ified. 

Sec 2. The auditor and treasurer shall, immediately after their election, execute 
and file in the office of the secretary of State, bonds respectively, to the people of 
the State of Illinois, with good and sufficient securities, to be approved by the Gov- 
ernor and two justices of the supreme court; the auditor in the penal sum of 
twenty thousand dollars, and the treasurer in the penal sum of one hundred thou- 
sand dollars, conditioned that said auditor and treasurer shall faithfully discharge all 
the duties of their said offices, then required, or thereafter to be required by law, 



7S AUDITOR AND TREASURER. 

and that they will at the close of their terms of office, deliver over to their respec- 
tive successors, all moneys, books, records, vouchers, papers and other property 
pertaining to their respective offices. Said bonds shall each contain a clause in the 
condition thereof, that the auditor and treasurer respectively, shall, when requir- 
ed bv the Governor, give additional bonds, with sufficient securities, as specified in 
the fifth section of this chapter, to be approved and tiled in like manner as the 
original bond. 

Sec. 3. No commission shall be issued to any auditor or treasurer until he shall 
have given bond and security as required by this chapter. And if either shall neglect 
or refuse to enter into a bond as required herein, within twenty days after his elec- 
tion, the office shall be deemed and considered vacant, and the Governor shall im- 
mediately communicate the fact to the General Assembly, if in session, and if not, 
he shall fill such vacancy according to law. 

Sec 4. The auditor and treasurer shall each keep an official seal, which shall 
be used to authenticate all writings, papers and documents required by law to be cer- 
tified from either of said offices ; and copies of all papers, writings and documents 
legally deposited in either of said offices, when certified by the officer and authen- 
ticated by the seal of his office, shall be received in evidence in the same manner 
and with like effect as the originals. 

Sec 5. Whenever the Governor shall deem any bond filed by the auditor or 
treasurer insufficient, he may require additional bond in any penalty not exceeding that 
specified in the second section hereof, and if such officer shall fail, when so required, 
to file such bond for the space of twenty days, his office may, in the discretion of 
the Governor, be declared vacant, and shall be filled, as provided in the third section 
hereof. 

Sec 6. Whenever the condition of any bond given by the auditor or treasurer 
shall be broken,- it shall be the duty of the Governor to order the same to be pros- 
ecuted. Suit may be instituted and prosecuted to lined judgment against such audi- 
tor or treasurer, or their respective securities, or one or more of them, jointly or 
severally, without first establishing the liability of the auditor or treasurer, by ob- 
taining judgment against him alone. 

Sec 7. It shall be the duty of the auditor at all limes to keep the accounts of 
the State, with any State or territory, and with the United States, with all public of- 
ficers, corporations and individuals, having accounts with this State; he shall audit 
all accounts of public officers who are to be paid out of the State treasury ; of the 
members of the legislature, and all persons authorized to receive money out of the 
treasury, by virtue of any appropriation made, or to be made by law, particularly 
authorizing such account. 

Sec 8. On ascertaining the amount due any person from the treasury, the au- 
ditor shall grant his warrant on the treasury for the sum due. He shall keep a fair 
record of all warrants by him drawn, numbering the same in a book to be kept for 
that purpose. 

Sec 9. The auditor of public accounts shall hereafter, in all cases, personally 
sign all warrants for money, on the treasury of the State, all tax receipts, and all 
other papers necessary and proper for the auditor to sign. 

Sec 10. In all cases where warrants for money are issued by the auditor upon 
the State treasurer, the said warrants, before they are delivered to the person or 
persons for whose benefit the same are drawn, shall be presented by the auditor 
to the State treasurer, who shall personally countersign the same, and shall also 



AUDITOR AND TREASURER. 79 

enter in a book to be kept for that purpose by him, the date, amount, and the 
name of the person or persons to whom the same are made payable. 

Sec. 11. The said auditor shall make a fair list of all accounts by him audited, 
in a book by him to be kept for that purpose, as also an account of all taxes or oth- 
er moneys which may be due by any person to this State, or which may be paid into 
the treasury ; he shall make out and present to each regular session of the General 
Assembly, by the tenth day of the session, a report, shewing the amount of war- 
rants by him drawn on the treasury, stating particularly on what account said Avar- 
rants were drawn, and if drawn on the contingent fund, to whom, and for what 
they were issued. He shall also report the amount of money received into the 
treasury, stating particularly the source of revenue from which the same maybe 
derived. 

Sec. 12. When the auditor shall have made out abstracts of all sums due in 
the respective counties, and sent them to the different collectors, he shall make out 
in a book to be kept for that purpose, a fair account against each collector, a certi- 
fied copy of which, with the seal of his office thereto attached, shall be sufficient 
for the attorney general or circuit attorneys, to proceed by motion or action against 
such delinquent collectors and their securities, before the supreme or circuit court. 
All quietusses necessary to be granted shall be issued by the auditor, under his hand 
and seal of office. 

Sec 13. It shall be the duty of the State treasurer, to receive the proceeds of 
all taxes and other public moneys of this State, and safely keep the same. He 
shall not pay out of the treasury any money, but on a warrant of the auditor. He 
shall keep a regular and fair account of all moneys and revenues he receives and 
pays out, agreeably to law, stating therein particularly on what account each partic- 
ular sum was paid out, or received, and the time when, and lay a copy thereof be- 
fore the General Assembly, by the tenth day of the session. An abstract of said 
reports of the auditor and treasurer, shall be prepared by the General Assembly 
and published with the laws of each session. 

Sec 14. It shall be the duty of the treasurer to report monthly to the auditor, 
the amount of money which he may have received, stating on what account the 
same was paid into the treasury. He shall also report monthly, an account of pay- 
ments out of the treasury, and deposit with the auditor, all warrants which he may 
have paid or received, and take the auditor's receipt for the same ; and it shall be 
the duty of the auditor to make entries of said reports, in books to be kept by him 
for that purpose. Before depositing said warrants with the auditor, the treasurer 
shall write the word "cancelled" on the face of each. 

Sec 15. If said treasurer die, resign or be displaced, or otherwise cease to hold 
his office, then such treasurer, his heirs, executors or administrators, shall regular- 
ly state the amount and deliver the moneys and warrants, together with all books, 
records, memoranda, papers and instruments of writing of the State, in his or 
their possession, or which such treasurer shall have received and not paid out ac- 
cording to law, to the succeeding treasurer, who shall make report thereon to the 
General Assembly, and the said report, if confirmed by the legislature, shall be a 
discharge of the bonds of the late treasurer, in which case they shall be given up 
to the said treasurer, his heirs, executors or administrators. 

Sec 16. If any auditor's warrant shall be lost, mislaid or destroyed, so that 
the same can not be presented for payment by the person entitled thereto it shall 
be lawful for the auditor, at any time before such warrant shall be paid at the 



80 



BAIL. 



treasury, to issue a duplicate warrant to the person or persons having so lost any 
warrant as aforesaid, on such person tiling with the auditor, an affidavit in writing, 
sworn before some justice of the peace or judge, stating the loss or destruction of 
any such warrant, and the auditor shall immediately certify the same to the treasur- 
er, who shall thereby be authorized to pay any such duplicate warrant : Provided, 
If any such warrant shall be, at the time of such loss or destruction, (which fdct 
shall be ascertained by the oath of the party making such application, or otherwise,) 
negotiable, then, before such certificate shall be given by the auditor, such person 
shall give him satisfactory security for the refunding of the amount, together with 
all costs and charges, should the State afterwards be compelled to pay the original 
warrant. 

Sec 17. The auditor and treasurer shall keep their offices at the seat of govern- 
ment ; and shall not hereafter employ the same person as clerk in both their 
respective offices, at the same time. 

Sec 18. The auditor shall be deemed the proper officer to institute all suits, 
motions, and other proceedings in law and equity, in which the State is plaintiff, 
except in cases otherwise provided by law. 

Approved : March 3, 1845. 

[Amended: — See appendix, Act No. 1.] 



CHAPTER XIV. 

BAIL. 



1. No person not a householder, resident and of 

sufficient property, no attorney, sheriff nor 
bailiff, shah be special bail. 

2. In what actions bail shall be required; what 

facts must be proved ; in what cases bail may 
be discharged. 

3. Sheriff shall take bail; form of condition of bail 

bond; bond to be returned with the writ; if 
sheriff neglect to take sufficient bond, he shall 
be liable as bail. 

4. Plaintiff may sue on bail bond, if sufficient ; if 

not sufficient, bond shall stand as security to 
the sheriff; who shall have the rights of bail ; 
time of excepting to bail ; objections to bail, 
how decided. 

5. Defendant may surrender himself; how, if in 

term time ; how, if in vacation ; how bail dis- 
charged ; when defendant may be discharged 



Section 

from custody ; plaintiff may nevertheless have 
execution. 

6. Defendant in custody may be discharged by giv- 

ing other bail, which officer may take. 

7. Bail may arrest and secure principal, and sur- 

render him. 

8. No suit to be commenced on bail bond, until a 

return that the defendant can not be found ; 
what necessary to charge bail. 

9. Bail having paid debt of principal, may recover ; 

how to proceed. 
10. Bail may plead death of principal in bar of ac- 
tion on bond; when he shall pay costs. 
If principal be arrested and conveyed in custody 

out of State, fee., bail not to be liable. 
When principal is discharged as an insolvent 
debtor, bail not liable ; proviso. 
13. Bail not to be proceeded against by scire facias. 



11. 



12. 



Section 1. No person shall be permitted to be special bail in any action, unless 
he be a householder and resident within this State, and of sufficient property, if the 
writ or process is sued out of the supreme court, or if it issue out of any circuit 
court, unless he be a householder of sufficient property, and resident in the county 
in whicli the court is held ; and no counsellor or attorney at law, sheriff, under 
sheriff, bailiff, or other person concerned in the execution of process, shall be per- 
mitted to be special bail in any action. 

Sec 2. In all actions to be commenced in any court of record in this State, and 
founded upon any specialty, bill or note in writing, or on the judgment of any court, 



BAIL. 81 

foreign or domestic, and in all actions of covenant and account, and actions on verbal 
contracts or assumpsits in law, in which the plaintiff or other credible person can 
ascertain the sum due, or damages sustained, and that the same will be in danger of 
being lost, or that the benefit of whatever judgment may be obtained, will be in dan- 
ger, unless the defendant or defendants be held to bail ; and shall make affidavit 
thereof before the clerk of the court from which process issues, or a justice of the 
peace of this State ; or if the plaintiff reside out of this State, before any judge of 
a court of record, or notary public, or officer of the State or Kingdom in which he 
resides, or may be duly authorized to administer an oath ; and such affidavit shall 
be delivered to such clerk, who shall issue a capias and indorse thereon an order or 
direction to the sheriff or officer to whom such process shall be directed, to hold the 
defendant or defendants to bail, in the sum so specified in such affidavit ; and it shall 
be the duty of the sheriff or officer serving such process to take bail accord- 
ingly. In actions sounding merely in damages, where the same can not be ascertain- 
ed as aforesaid, the affidavit shall also set forth the nature and cause of the action, 
with the substantial or chief facts in relation thereto ; if, upon examination thereof, 
the clerk shall be satisfied that sufficient cause is shown to require bail, he shall 
issue a capias in like manner, and make an order thereon, specifying in what amount 
the defendant or defendants shall be required to give bail ; the officer serving the 
process shall, in like manner, take bail. The bail taken, as herein directed, may be 
discharged, or the amount thereof reduced by the court to which the writ is return- 
ed, on application during the term to which it is returned, upon satisfactory proof. 

Sec. 3. Where any writ shall have been issued from any court of record in this 
State, whereon bail is required, the sheriff or other officer to whom the same may be 
directed, shall take a bail bond to himself, with sufficient security, in a penalty of 
double the sum for which bail is required. And for the purpose of avoiding errors 
in the taking thereof, the condition shall be substantially in the following form : 

" The condition of this obligation is such, that whereas, A. B. has lately sued out 
of the circuit court of -the county of a certain writ of capias ad respondendum, 

in a certain plea of against C. D. returnable to the next term of the said court, 

to be holden at on the day of next: Now, if the said C. D. shall 

be and appear at the said court, to be holden at on the said day of 

next ; and in case the said E. F. shall not be received as bail in the said action, 
shall put in good and sufficient bail, which shall be received by the plaintiff, or shall 
be adjudged sufficient by the court, or the said E. F. being accepted as bail, shall 
pay and satisfy the costs and condemnation money, which may be rendered against 
the said C. D. in the plea aforesaid, or surrender the body of the said CD. in exe- 
cution, in case the said C. D. shall not pay and satisfy the said costs and condemna- 
tion money, or surrender himself in execution, when, by law, such surrender is re- 
quired, then this obligation to be void; otherwise to remain in full force and effect." 
Which bond, so taken, shall be returned with the writ, on or before the first day of 
the term of the court to which the writ is returnable. In case the sheriff or other 
officer executing such process, and to whom it shall be directed, shall neglect to 
take such bond, or the bail be held insufficient, on exception taken and entered of 
record during the term to which such writ shall be made returnable, the sheriff 
or other officer having reasonable notice of taking such exception shall, in either 
ease, be deemed and stand as special bail in the action; and the plaintiff may pro- 
ceed to judgment against such sheriff or other officer, as in other cases against spe- 
cial bail. 

G 



82 BAIL. 

Sec 4. All bail taken according to the directions of this chapter, shall be deem- 
ed and taken as special bail, and may be proceeded against by an action of debt, in the 
name of the plaintiff in the original action, as in the case of a recognizance of bail, 
except where the bail shall be adjudged insufficient by the court ; then the bond 
shall in that case stand as a security to the sheriff, who may, upon a forfeiture of the 
condition to appear and perfect bail, proceed thereon in an action of debt or cove- 
nant, to recover the amount of whatever damages he may have sustained by reason 
of the non-performance of such condition ; and shall also have the same right to 
arrest and detain the principal in custody, in case the bail shall be adjudged insuf- 
ficient by the court, and the principal shall not perfect bail within the time required 
by law, as the bail might have had ; if he shall elect to arrest and commit the prin- 
cipal to prison, then his remedy on the bond shall cease, and the bond be void. The 
sufficiency of the bail shall be excepted to, during the term to which the writ is 
returnable, otherwise the same shall be considered as accepted by the plaintiff. 
Objections to the sufficiency of bail shall be decided by the court in which the 
exception is taken, without delay, on such evidence as may be produced, and as it 
may deem satisfactory ; the burthen of proof shall lie on the party affirming the 
sufficiency, allowing the bail to be examined on oath or affirmation, touching his 
sufficiency. 

Sec. 5. It shall be lawful for the defendant in any action in any court of record, 
when bail shall have been given as aforesaid, to surrender himself, or for his bail 
to surrender him at any time before the return day of the process, which may have 
been sued out against him as bail, to the court in which the suit may be pending, 
during the sitting thereof, or in vacation, to the sheriff of the ceunty in which pro- 
cess was served. In case the surrender shall be made during the sitting of the court, 
an entry shall be made on the records of the court, stating the surrender and com- 
mitment of the defendant to the custody of the sheriff: if the surrender be made in 
vacation, the bail or principal shall obtain a certified copy of the bail bond from the 
sheriff or clerk of the court, in whosesoever possession the same may be, and shall 
deliver himself, or be delivered by his bail to such sheriff, who shall thereupon in- 
dorse on such copy of the bail bond, an acknowledgment of the surrender of the body 
of the defendant to his custody, and thereupon the said copy of the bond with such 
acknowledgment shall be filed in the office of the clerk of the court in which the 
action is pending. Upon giving notice of the surrender, whether made in term time 
or vacation, to the plaintiff or his attorney, and paying the costs of the action against 
the bail, if any have accrued, the bail shall be discharged from all liability ; the de- 
fendant shall be committed to the jail of the county, there to remain until discharged 
by due course of law. If the surrender be after judgment, and the plaintiff shall 
not charge the defendant in execution within fifteen days after notice thereof, he 
shall be discharged out of custody ; the plaintiff may, notwithstanding such dis- 
charge, have execution against the real and personal estate of the defendant. 

Sec. 6. Any defendant surrendered into custody or committed by his bail, in 
manner aforesaid, may at any time before final judgment shall have been rendered 
in" the action, discharge himself from custody by giving other good and sufficient 
special bail ; the sheriff or other officer authorized to take bail, shall take new bail 
to the same effect as is herein before provided. 

Sec 7. In all cases of bail under this chapter, it shall and may be lawful for 
the bail to arrest and secure the body of the principal, until a surrender can be 
made to the sheriff of the county where the suit may be pending, or to the court to 
which the process was returnable. 



BAIL. S3 

Sec 8. Hereafter, no suit shall be commenced upon any bail bond or recogni- 
zance of bail, in any civil action, until a writ of capias ad satisfaciendum, shall 
have issued against the defendant in the original action, directed to the sheriff" of the 
county in which such defendant was arrested, and such sheriff shall have returned 
that the said defendant was not found in his county ; if any action shall hereafter be 
commenced upon such bond or recognizance, and it shall not appear upon the trial 
thereof that a writ of capias ad satisfaciendum was issued and returned in the man- 
ner herein before mentioned, a verdict shall be found for the defendant. It shall be 
also necessary to charge the bail, that such writ of capias ad satisfaciendum should 
be issued and delivered, at least ten days before the return day thereof, to the sher- 
iff of the county, or officer to whom it may be directed ; such sheriff or other officer 
shall endeavor to serve such writ upon the defendant, any directions which he may 
receive from the plaintiff or his attorney, to the contrary notwithstanding. 

Sec 9. In all cases where judgment shall hereafter be entered up in any 
court of record in this State, against any person or persons as bail for another, and 
the amount of such judgment or any part thereof, has been paid, or discharged by 
such bail, his, her or their executors, administrators or heirs, it shall and may be 
lawful for such bail, his, her or their heirs, executors or administrators to obtain 
judgment by motion against the person or persons for whom he, she or they were 
bound for the full amount of what shall have been paid by the said bail, his, her 
or their heirs, executors or administrators, in such court where judgment shall 
have been entered up against such bail, before judgment shall be entered up against 
the principal, ten days previous notice of such motion shall have been given to him, 
if a resident of this State, and if a non-resident, then notice of such motion, shall 
have been published, for four weeks successively, in some newspaper printed in 
this State. 

Sec 10. In all actions against bail, it shall be lawful for the bail to plead in 
bar of such actions, the death of the principal before the return day of the process 
against the bail ; if on the trial of any such issue, the death of the prinpipal be 
found to have happened before such return day, judgment shall be given in favor of 
the defendant; he shall notwithstanding, be liable to judgment and execution for 
the costs of suit, unless such death shall be found to have taken place before the 
commencement of the action. 

Sec 11. If any defendant having given special bail in any action, shall after- 
wards be legally arrested and delivered over to the executive authority of the United 
States, or of any State or territory thereof, upon a charge of having committed a 
crime out of the jurisdiction of this State, and shall be thereupon carried beyond 
the limits thereof, such bail shall be discharged from all liability incurred as bail, 
if the defendant has not returned to this State discharged from such arrest, before 
he shall be liable to be charged as bail for such defendant. 

Sec 12. When any defendant in any civil action, shall have been discharged as 
an insolvent debtor, agreeably to the laws of this State respecting insolvent debtors, 
and a certificate from the authority lawfully granting the same, shall be produced to 
the court, the bail of such defendant, shall in all cases, be entitled to have an 
exoneretur entered upon the records of the court, which shall thereupon operate as 
a discharge from his bond or recognizance, in the same manner as if he had surren- 
dered his principal in court, or to the sheriff as herein before directed : Provided, 
That judgment shall not have been recovered against him as the bail of such 
defendant. 



84 BANK NOTES. 

Sec 13. Hereafter, proceedings by scire facias, against bail, in civil cases, shall 
not be allowed in any covirt of record in this State. 

Approved : March 3, 1845. 

[Amended : — See Appendix, Act No. 2.] 



CHAPTER XV. 

BANK NOTES. 



Se.ction I Section 



1 . Five dollars fine, for passing bank notes of other 

States, of less denomination than five dollars. 

2. Obligations given for loan of such notes, void; 

fact to be pleaded in bar. 



3. Notes of joint stock companies void, and per' 
sons passing them punished as swindlers. 



Section 1. No person or persons shall be permitted to utter or pass in this State, 
as or in lieu of money, any bank bill or note, made or issued by any banking insti- 
tution, or purporting to have been made or issued by any banking institution, of 
a less denomination, or for a less sum than five dollars; and each and every person 
or persons offending herein, shall forfeit and pay the sum of five dollars for every 
offence ; which may be recovered, with costs of suit, by action of debt or assumpsit 
before any justice of the peace, by any person who will sue for the same: Provided, 
The provisions of this chapter shall not apply to the uttering or passing of any bank 
bill or note issued by any banking institution in this State authorized by its charter 
to make, utter or issue, bills or notes of a less denomination than five dollars. 

Sec 2. Any person or persons who shall use or lend any bill or note of any 
bank within the provisions of the first section of this chapter, for a less denomination 
than five dollars, and who shall take obligations in writing, or verbal promise, for 
the re-payment thereof, of any note or bill of the character and description aforesaid, 
loaned as aforesaid, shall not be permitted to collect the same ; and it shall be com- 
petent for the defendant, in any suit brought for the collection thereof, to plead that 
the obligation in writing, or verbal promise, was made and executed or given for and 
in consideration of notes and bills of a less denomination than five dollars, made, 
uttered, and issued by incorporated companies, or by banking institutions, other 
than those excepted in the proviso to the first section of this chapter, which plea, 
when so made, shall be deemed good in law 5 and the plea so pleaded shall be 
deemed a bar to the action. 

Sec 3. If any person or persons shall utter or pass, as or in lieu of money, any 
note or bill issued and published by any joint stock or other company not incorpo- 
rated, or purporting to have been so issued or published, such person or persons 
shall not be permitted to collect any demands arising therefrom ; and the plea allowed 
in the second section of this chapter shall be taken and allowed a good and suffi- 
cient plea, in bar of any such demand; and such person or persons so uttering 
or passing notes or bills issued and published as aforesaid, shall be deemed and 
considered swindlers, and shall be liable to indictment as such : and, upon convic- 
tion, shall be fined, in any sum not less than one hundred dollars, nor more than 
one thousand dollars for each offence. 

Approved : March 3, 1845. 



CHAPTER XVI. 

BASTAKDY. 



Section 

1. When complaint is made by mother of bastard 

child, justice shall cause father to be brought 
before him, examined, and bound to appear at 
next circuit court. On refusal to give bond, 
may be committed. 

2. Court shall try the cause. 

3. Cause continued in certain cases. 

4. Mother may be a witness, if otherwise compe- 

tent. 

5. If issue be found against defendant, he shall be 

adjudged to support child; payments, how made, 



Section 

and to whom; punisliment for refusal; father 
may take charge of child after it is three years 
of age ; if child die, bond to be void ; when 
money paid to guardian. 

6. If issue be found for defendant, mother of child 

to pay the costs. 

7. If parents intermarry, child to be deemed legiti- 

mate, and bond void. 

8. Prosecution barred after two years, except in 

case of absence from the State. 



Section 1. When any unmarried woman, who shall be pregnant or delivered 
of a child, which by law would be deemed a bastard, shall make complaint to any 
one or more of the justices of the peace of the county where she may be so 
pregnant or delivered, and shall accuse, under oath or affirmation, any person with 
being the father of such child, it shall be the duty of such justice or justices to 
issue a warrant, directed to the .sheriff or any constable of such county, against 
the person so accused, and cause him to be brought forthwith before him or them. 
Upon his appearance, it shall be the duty of said justice or justices, to examine the 
said woman, upon oath or affirmation, in the presence of the man alleged to be 
the father of the child, touching the charge against him. If the said justice or 
justices shall be of opinion that sufficient cause appears, it shall be his or their 
duty to bind the person so accused, in bond, with sufficient and good security, to 
appear at the next circuit court to be holden for said county, to answer to such 
charge ; to which such court said warrant and bond shall be returned. On 
neglect or refusal to give such bond and security, the justice or justices shall 
cause such person to be committed to the jail of the county, there to be held to 
answer such complaint. 

Sec. 2. The circuit court of such county, at their said next term, shall have 
full cognizance and jurisdiction of the said charge of bastardy, and shall cause an 
issue to be made up, whether the person charged as aforesaid, is the real father of the 
child or not, which issue shall be tried by a jury. Such inquiry shall not be ex 
parte, when the person charged shall appear and deny the charge ; but he shall 
have a right to appear and defend himself by counsel, and controvert, by all leeal 
evidence, the truth of such charge. 

Sec 3. If at the time of such court, the woman be not delivered, or be unable 
to attend, the court shall order a recognizance to be taken of the person charged as 
aforesaid, in such an amount, and with such sureties as the court may deem just 
for the appearance of such person at the next court, after the birth of her child ; 
and should such mother not be able to attend at the next term after the birth of her 
child, the recognizance shall be continued until she is able. 

Sec 4. On the trial of every issue of bastardy, the mother shall be admitted as 
a competent witness, and her credibility shall be left to the jury. She shall not be 



86 BASTARDY. 

admitted as a witness, in case she has been duly convicted of any crime, which 
would by law disqualify her from being a witness in another case. 

Src. 5. In case the issue be found against the defendant, or reputed father, or 
whenever he shall, in open court, have confessed the truth of the accusation 
against him, he shall be condemned by the judgment of the said court, to pay such 
sum of money, not exceeding fifty dollars, yearly, for seven years, as in the dis- 
cretion of the said court may seem just and necessary for the support, maintenance, 
and education of such child; and shall, moreover, be adjudged to pay all the costs 
of the prosecution, for which execution shall issue as in other cases of costs. The 
said defendant, or reputed father, shall give bond and security for the due and faith- 
ful payment of such sum of money, as shall be ordered to be paid by the said court, 
to be paid by him for the period aforesaid ; which shall be made payable quarter- 
yearly to the judge of the court of probate, and his successor in office, for the county 
in which the prosecution aforesaid was commenced ; and the same, when received, 
shall be laid out and appropriated, from time to time, by the said judge, under his 
order and direction, for the purposes aforesaid ; in case the defendant or reputed 
father shall refuse or neglect to give such security as may be ordered by the court, 
he shall be committed to the jail of the county, there to remain until he shall com- 
ply with such order, or until otherwise discharged by due course of law : Provid- 
er!, always, That the said reputed father, after giving bond with approved security, 
to the court of probate in said county, conditioned for the suitable maintenance of 
any such child, for the term aforesaid, shall be permitted to take charge and have 
the control of his said child at any time after said child shall arrive at the age of 
three years : and from the time of the said father taking charge of such child, or 
should the mother refuse to surrender the said child, when so demanded by the 
said father, then and from thenceforth the said father shall be released and dis- 
charged from the payment of ail such sum or sums of money as may thereafter 
become due against the said father, for the support, maintenance and education of 
any such child. If the said child should never be born alive, or being born alive, 
should die at any time, and the fact shall be suggested upon the record of the^said 
court, then the bond aforesaid shall from thenceforth be void. But when a guardi- 
an shall be appointed for such bastard, the money arising from such bond shall be 
paid over to such guardian. 

Sec. 6. If upon the trial of the issue aforesaid, the jury shall find that the child 
is not the child of the defendant, or pretended father, then the judgment of the court 
shall be that he be discharged. The woman making the complaint shall pay the 
costs ©f the prosecution, and judgment shall be entered therefor, and execution may 
thereupon issue. . 

Sec. 7. If the mother of any bastard child, and the reputed father, shall at any 
time after its birth, intermarry, the said child shall, in all respects, be deemed and 
held legitimate, and the bond aforesaid be void. 

Sec 8. No prosecution under this chapter shall be brought after two years 
from the birth of the bastard child : Provided, The time any person accused shall 
be absent from the State, shall not be computed. 

Approved: March 3, 1845. 



CHAPTER XVII. 

BIRTHS AND DEATH 



Section 



County commissioners' clerk to record births 

and deaths in a book. 
Father, mother, or another may file affidavit of 

birth of child. 
Who may make affidavit of death ; in what 

time ; contents of affidavit ; if inquest be held 

by coroner, he shall make report. 



Section 

4. Clerk shall file affidavit, and make entry ; form 

of entry of birth ; of death. 

5. Clerk shall keep alphabetical index ; shall on re- 

quest, give certificate ; which shall be prima 
facie evidence. 

6. Fees of clerk in such cases. 

7. Persons swearing falsely to be deemed guilty of 

perjury, and punished accordingly. 



Section 1. It shall be the duty of the clerk of the county commissioners' court, 
in each county of this State, to provide himself with a well bound book, wherein 
he shall record the births and deaths of all persons coming to his knowledge, in the 
manner hereinafter provided. 

Sec 2. The father of a child or children, or mother of any child or children, 
in case the father be dead, out of the State or otherwise prevented, or in case oi 
an illegitimate child or children, may appear before the clerk of the county com- 
missioners' court of his or her respective county, and make an affidavit m writing 
before such clerk, setting forth the birth or births of his or her child or children, 
stating therein the day and year when, and the justice's precinct wherein such 
birth or births happened, and the christian and surname of said child or children. 
In case such father or mother fail or neglect to make an affidavit as aforesaid within 
sixty days after such birth or births, any householder may make the same concern- 
ing every birth happening in his house. 

Sec 3. The eldest person next of kin may make affidavit before the clerk 
aforesaid, of his or her respective county, of the death of his or her kindred, and 
in ease the next of kin neglects to make such an affidavit for the space of twenty 
days, the administrator or executor of such deceased person may make such affida- 
vit as aforesaid ; and any householder may make the like affidavit before said clerk 
concerning any death happening in his house. Affidavits made under the pro- 
visions of this section shall state the name and the age of the person deceased, ac- 
cording to the best of his or her knowledge and belief, and shall also state the jus- 
tice's precinct where such death happened. If any person shall come to his death, 
and a coroner's inquest be held over his or her body, or if any person die while 
confined in any penitentiary, jail, workhouse, poorhouse, or hospital within this 
State, the respective wardens, jailers, or keepers of such workhouses, poorhouses 
or hospitals, shall make out a certificate containing substantially the same statements 
concerning the name, age, death and place of death, required in the affidavit last 
aforesaid, and within ten days after such death happened, file the same with the 
county commissioners' clerk of the proper county. 

Sec 4. The said county commissioners' clerk shall carefully file and number 
such affidavits and certificates in the order they are presented, which shall be parts 
of the records of his office, and said clerk shall make an abstract of the material 



88 



CASTOR BEANS. 



facts set forth in said affidavit or certificate and enter the same in the said record of 
births and deaths ; which abstract shall be in substance as follows : 
Entry concerning the birth of a person. 
On the day of A. D. , A. B. (being the father or mother; or a 

householder as the case may be) made proof of the birth of C. D., which took 



,A.D, 



precinct, county of 



place on the day of 

affidavit on file, No. 

Entry of death. 

On the day of , A. D. , A. B. of county (being the eldest 

person next of kin, or a householder in whose house the death happened, executor 
or administrator of deceased, coroner or keeper of a jail, poorhouse, workhouse or 
hospital, as the case may be) made proof of the death of C. D. aged years, 

which took place the day of A. D. in precinct, county ; 

see affidavit (or certificate) on file No. 

Sec. 5. The clerk shall keep a correct alphabetical index to said record, 
showing the christian names and surnames of the persons concerning whom entries 
have been made ; said index distinguishing between cases of births and deaths, and 
shall upon request of any person, make out a certificate of said entry, under his 
hand and the seal of the county commissioners 1 court ; and such certificate shall be 
received as prima facie evidence of the facts stated therein in all courts of law and 
equity in this State. 

Sec 6. For every affidavit taken under this chapter, the said clerk 
shall be entitled to a fee of twelve and a half cents ; for making the entry and filing 
certificates, to a fee of twelve and a half cents ; and for making out a certificate 
under seal as aforesaid, to a fee of fifty cents : Provided, He shall not be entitled 
to any fee in case where one of the above enumerated officers files a certificate of 
the death of any person under his charge. 

Sec 7. Any person having sworn or made affirmation to any of the affidavits 
above mentioned, who shall swear or affirm wilfully, corruptly and falsely, in g, ma- 
terial point therein set forth, or shall suborn any other person to swear or affirm as 
aforesaid, shall be deemed guilty of perjury or subornation of perjury, and shall be, 
upon conviction thereof, punished accordingly. 

Approved : March 3, 1845. 



CHAPTER XVIII. 

CASTOR BEANS. 



Section 

i. Persons cultivating castor beans to secure the 

same by sufficient enclosure. 
2. Violations of this chapter, punished by fine; how 



Section 

collected, and applied ; damages may be recov- 
ered. 



Section 1. No person or persons shall -hereafter be permitted to plant and 
eullivate castor beans, without securing' the same with as good and sufficient a fence 



CENSUS. 



89 



or fences as is generally put up, and used, for the protection of grain crops in the 
neighborhood. 

Sec. 2. All persons violating this chapter shall be fined in the sum of twenty- 
five dollars, to be sued for and recovered, by any person, before any justice of the 
peace, within the proper county, in an action of debt ; the one-half whereof shall 
go to the person so sueing, the other half into the treasury of the county where such 
penalty is recovered. Nothing herein contained shall in any wise prejudice the 
owner or owners of animals which may be injured by the negligence of any of the 
persons aforesaid, from recovering adequate damages for such injury. 

Approved : March 3, 1845. 



CHAPTER XIX. 

CENSUS. 



Section 

8. Penalty for neglect ; how recovered; judges 
to give this law in charge to grand juries. 

9. Who shall be returned as members of families, 
&c. 

Heads of families and others to render account; 

penalty for refusing. 
Compensation of commissioners ; how paid. 
12. Secretary of State thall receive and file returns, 
and report same to Speaker of House at next 
session; adjutant general report number of 
militia to the Secretary at War of the United 
States. 



10. 



11. 



Section 

1. Census taken every five years. 

2. To be taken by commissioners, appointed by 

county courts. 

3. Census of unorganized county taken by com- 

missioner of county to which it is attached. 

4. Commissioner to take oath of office ; form of 

oath. 

5. When commissioner shall commence taking 

census ; what facts he shall ascertain and set 

down. 
C. Of whom enquiry to be made. 
7. Commissioners shall, by first day of October, 

transmit returns to secretary of State, and to 

county court; shall report number of militia 

to adjutant general. 

Section 1. An enumeration of the inhabitants of this State shall be taken on 
the first day of July, one thousand eight hundred and forty-five, and at the end 
of every five years thereafter. 

Sec 2. The enumeration shall be taken by commissioners, to be appointed by 
the county commissioners' courts of the respective counties. 

Sec 3. The enumeration of the inhabitants of any unorganized county shall 
be taken by the commissioner of the county to which such unorganized county is 
attached; the table of enumerations in such counties to be kept distinct from each 

other. 

Sec 4. Before entering upon their duties, each of such commissioners shall file 
in the office of the county commissioners' clerk of his county, in substance the fol- 
lowing oath : « I, A. B., do solemnly swear, that I will make a just and perfect 
enumeration and description of all persons resident within the county of C, (and 
the county of D., thereto attached, when such is the fact,) and perform all other 
duties required of me by law, according to the best of my knowledge and abilities." 

Sec 5. Each commissioner shall commence taking such enumeration on the first 
day of July in each year in which such enumeration is required to be taken, and shall 
ascertain and set down in a book to be kept for that purpose, in a convenient tabular 



90 CENSUS. 

form, the following facts : The number each, of white males and females of ten 
years of age and under ; over ten and not over twenty ; over twenty and not over 
thirty ; over thirty and not over forty ; over forty and not over fifty ; over fifty and 
not over sixty ; over sixty and not over seventy ; over seventy and not over eighty ; 
over eighty and not over ninety ; over ninety and not over one hundred ; over one 
hundred : Also, the number of white male persons between the ages of eighteen 
and forty-five years, subject to military duty : Also, each, of free male and female 
persons of color, of all ages ; of indentured or registered servants and their children ; 
of French negroes and mulattoes held in bondage : Also, the number of manufac- 
tories of every kind, and the annual product of each kind ; the number and annual 
product of coal mines ; the value of live stock ; value of grains produced ; value of 
all other agricultural products ; the number of pounds of wool ; number of mills and 
distilleries ; the number of universities or colleges ; academies and grammar schools, 
and common schools, with the number of pupils in each. 

Sec. 6. The said enumeration shall be made by an actual inquiry at each dwel- 
ling house, or from the head of each family, when the same can be conveniently done, 
or otherwise from the best information that can be obtained, where there shall be no 
fixed place of residence, or the head of such family, or other person to be included 
in such enumeration, shall be absent from the county or State. 

Sec. 7. Each of said commissioners shall, on or before the first day of October, 
of each year in which the enumeration is required to be taken, transmit to the secre- 
tary of State, and to the commissioners' court of his county, his return, by him duly 
certified as correct, full and true, so far as he has been able to ascertain. He shall 
also transmit to the adjutant general of the State a certified statement of the number 
of persons subject to military duty. Such commissioner in his report shall at the 
foot of each column, list or class, give the total number or amount, and shall give the 
aggregate number of all the inhabitants of the State. 

Sec 8. Each commissioner failing or neglecting to make proper returns, as 
aforesaid, or making a false return of the enumeration to the clerk of the county 
commissioners' court of the county, to the secretary of State, and adjutant general, 
within the time limited by this chapter, shall forfeit the sum of three hundred dol- 
lars, recoverable in the circuit court of the county where such offence shall have 
been committed, by action of debt, information or indictment ; the one-half thereof 
to the use of the informer, and the other half to the county. And for the more 
effectual discovery of said offences, the judges of the several circuit courts, in this 
State, at their next term to be held after the expiration of the time allowed for making 
the returns of the enumeration hereby directed, shall give this chapter in charge to 
the grand juries of their respective counties, and shall cause the returns of the com- 
missioner to be laid before them, for their inspection. 

Sec. 9. Each person, whose usual place of abode shall be in any family, on the 
said first Monday in July, in the year of our Lord, one thousand eight hundred and 
forty-five, and on the first Monday in July, every fifth year thereafter, shall be 
returned with the members of such family ; and the name of every person who shall 
be an inhabitant of any county, or the attached part thereof, without any fixed place 
of residence, shall be inserted in the county in which he or she, shall be on the 
said first Monday in July ; and every resident person who shall be absent from the 
county or State, at the time of taking any such enumeration, shall be set down as 
belonging to the place where he or she, usually resides in this State. 

Sec. 10. Each free person, over the age of sixteen years, whether heads of 
families or not, belonging to any family within any county, made or established in 



CHATTEL MORTGAGES. 



91 



this State, shall be and hereby is obliged to render to the commissioner appointed in 
said county, if required, a true account, to the best of his or her knowledge, of every 
person belonging to such family, respectively, according to the several descriptions 
aforesaid, on pain of forfeiting twenty dollars, to be sued for and recovered, by action 
of debt, by such commissioner, for the use of the proper county : Provided, That in 
all cases where any such fine shall be assessed against any minor or minors, the 
same shall be paid by his, her or their parent or guardian; and in case of his or 
her refusal to pay the same, an attachment may be issued to enforce the payment 
thereof. 

Sec. 11. Each of said commissioners shall receive at the rate of two dollars for 
every hundred persons returned, for the first two thousand ; at the rate of one dollar 
and seventy-five cents for each hundred persons returned, over two and not exceed- 
ing three thousand j at the rate of one dollar and fifty cents for the fourth thousand ; 
at the rate of one dollar and twenty-five cents for the fifth thousand ; and at the 
rate of one dollar for each hundred over and above five thousand ; to be paid out of 
the State treasury, out of any moneys not otherwise appropriated. 

Sec. 12. The secretary of State shall receive and file such returns in his office, 
and return the same to the speaker of the House of Representatives, on or before 
the second day of the next session after such enumeration is made ; and the adjutant 
general shall file the returns to be made to him of the number of persons subject to 
militia duty, as aforesaid, in his office ; and shall immediately thereafter make out a 
statement of the whole number of such persons, and report the same to the secretary 
at war of the United States. 

Approved : March 3, 1845. 



CHAPTER XX. 

CHATTEL MORTGAGES. 



Section 



Chattel mortgage not valid, unless acknowledged 
and recorded, and possession by mortgages. 

Acknowledgment, form of; justice's memoran- 
dum ; his fee. 

Mortgage when recorded and bona fide, good for 
two years ; proviso as to possession. 



Section 

4. Copy of mortgage on record to be proof, if orig- 

nal be lost. 

5. Fee of recorder. 

6. If mortgagor sell mortgaged property, how pun- 

ished. 

7. Provisions to extend to all conveyances opera- 

ting as chattel mortgages. 



Sectiox 1. No mortgage on personal property shall be valid as against the rights 
and interests of any third person or persons, unless possession of such personal 
property shall be delivered to, and remain with the mortgagee, or the said mortgage 
be acknowledged and recorded, as hereinafter directed. 

Sec 2. Any mortgagor of personal property, may acknowledge such mortgage 
before any justice of the peace in the justice's district in which he may reside ; and 
said justice shall certify the same in substance as follows: "This mortgage was 
acknowledged before me, by A. B., (the mortgagor,) this day of 18 ;" 

and the said justice shall also keep on his docket a memorandum of the same, in 



92 



CHANCERY. 



substance as follows, viz : "A. B. to C. D., mortgage of (here describe the property,) 
acknowledged this day of 18 ," inserting the name of the mortgagor in 

place of A. B., and the name of the mortgagee in place of C. D., and the justice may 
receive therefor a fee of twenty-five cents. 

Sec. 3. Any mortgage of personal property, so certified, shall be admitted to 
record by the recorder of the county in which the mortgagor shall reside at the time 
when the same is made, acknowledged and recorded ; and shall thereupon, if bona 
Jide, be good and valid from the time it is so recorded, for a space of time not 
exceeding two years, notwithstanding the property mortgaged or conveyed by 
deed of trust, may be left in possession of the mortgagor : Provided, That such 
conveyance shall provide for the possession of the property so to remain with 
the mortgagor. 

Sec 4. A copy of any such mortgage made, acknowledged and recorded as 
aforesaid, certified by the proper recorder from the proper record, may b'e read in 
evidence in any court of this State, without any further proof of the execution of 
its original, if said original be lost or out of the power of the person wishing to use it. 

Sec 5. For recording any such mortgage, the recorder recording the same, 
shall receive eight cents for every one hundred words, and for copies thereof, the 
same compensation only. 

Sec 6. Any person having conveyed any article of personal property to an- 
other by mortgage, who shall, during the existence of the lien or title created by such 
mortgage, sell the said personal property to a third person, for a valuable consid- 
eration, without informing him of the existence and effect of such mortgage, shall 
forfeit and pay to such purchaser, twice the value of such property so sold ; which 
forfeiture may be recovered in an action of debt in any court having jurisdiction 
thereof, or if the amount claimed does not exceed one hundred dollars, before any 
justice of the peace. 

Sec. 7. The provisions of this chapter shall be deemed to extend to all such bills 
of sale, deeds of trust and other conveyances of personal property as shall have the 
effect of a mortgage or lien upon such property. 

Approved : March 3, 1845. 



CHAPTER XXL 

CHANCERY. 



Section 

1. Circuit courts have chancery jurisdiction; may 

make rules of practice. 

2. Suits commenced by bill; in what county ; when 

defendants are non-residents ; in case of bills 
for injunctions. 

3. Set-oft' allowed in certain cases. 

4. Infants may sue by guardian, &c. 

6. Summons to issue on filing bill; how served 
When defendants reside in different counties. 

6. Summons, how tested, sealed, signed, dated and 

when returnable. 

7. Service of summons to be by delivery or leaving 

copy ten days before returnable. 



Section 

8. If defendant be non-resident, service may be 

made by publication, in newspaper; contents 
of notice ; to be inserted four weeks ; first 
publication sixty days before return ; diligence 
required of sheriff; notwithstanding publica- 
tion. 

9. If no service nor timely publication be made, 

cause continued ; but if otherwise, and no 
defence made, bill may be taken for confessed. 

1 0. If cause be continued, same proceedings had. 

11. If return be made without service, alias, plu- 

ries, &c, to issue without order. 



CHANCERY. 



93 



19. 



BO. 



Section 

12. Defendants out of tliis State, may be served by 
copy of bill thirty days before return. 

13. When bill is taken for confessed, court may 

make and enforce decree ; how enforced. 

14. Decree for money a lien on real estate. 

15. Parties not served or notified, or their heirs, &c, 

may petition to be heard; re-hearing; such 
parties barred after three years. 

16. If defendant be brought into court for contempt, 

solicitor to be appointed by court, and cause 
may proceed. 

17. Courts may establish rules of proceeding. 

18. Rule respecting time for pleading, answering, 

&c. 
If bill is taken for confessed, plaintiff may be 

required to produce proof. 
Answer to be on oath, by whom oath may be 

administered and authenticated. 

21. When bill is not for discovery only, oath may be 

waived. 

22. If answer be insufficient, defendant may be 

ruled to file additional answer, and punished for 
refusal. 

23. Answer to be full. 
Defendant may file cross bill, which plaintiff must 

answer. 

Plaintiff to answer cross bill as if original ; ef- 
fect of Ins answer. 

If plaintiff do not answer cross bill, his bill may 
be dismissed, or decree entered against him. 

27. How defendant may bring in new parties by his 

filing cross bill. 

28. Bill not to be dismissed without consent, after 
filing cross bill. 

Plaintifl'need not answer cross bill until defend- 
ant has answered his original bill. 

30. Exceptions to testimony, how filed, argued and 

disposed of. 

31. Replications to be general ; when filed. 

32. Cause when at issue ; when answer taken as 

true. 

33. Disclosures made in answer, not conclusive, but 

may be rebutted. 



41. 



42. 



84. 



£6. 



29. 



Section 

34. Court may grant time, &c. 

35. May direct issues to be tried by a jury. 

36. If execution be returned unsatisfied, bill of dis- 

covery maybe filed in aid of suit at law. 

37. Power of court to compel discovery ; to prevent 

transfers ; answers not to be read in evidence 
on trial of defendant for the fraud charged in 
the bill. 

38. If one of several complainants or defendants 

die, cause may proceed against survivors. 

39. When party dies and his interest vests in oth- 

ers, they maybe made parties ; in what manner 
and to what extent they may be bound. 

40. When parties die, suit not to abate, but may be 
revived by legal representatives. 

How unknown parties may be notified ; publi- 
cation. 

How such unknown persons affected by de- 
cree. 

43. When party neglects to comply with order of 

court to make deed, court may appoint a com- 
missioner to execute the same, with like 
effect. 

44. Court may prescribe terms of sale. 

45. Decrees respecting real estate shall be a lien 

thereon ; extent of lieu in other cases. 

46. When there is no officer to execute decree, 

sheriff may execute same ; remedy against 
sheriff for neglect, and against parties for not 
complying with order. 

47. Court may appoint guardian ad litem for infant or 

insane defendant ; guardian not liable for costs; 
his compensation. 

48. Courts may appoint masters in chancery ; their 

term of office. 

49. Masters to file with clerk a bond, anl oath of 

office. 

50. Powers of masters in chancery. 

61. When there is no master, or he be disqualified 

from acting, court may appoint substitute. 

62. Fees of masters in chancery. 

53. Property exempt from execution, not liable 
herein. 



Section 1. The several circuit courts of this State, in all causes of which they 
may have jurisdiction as courts of chancery, shall have power to proceed therein 
according to the mode hereinafter prescribed ; and where no provision is made by 
this chapter, according to the general usage and practice of courts of equity, or 
agreeably to such rules as may be established by the said courts in that behalf. 

Sec. 2. The mode of commencing suits in equity, shall be by filing a bill, setting 
forth the nature of the complaint, with the clerk of the circuit court of the county, 
within whose jurisdiction the defendants, or the major part of them, if inhabitants 
of this State, reside ; or if the suit may affect real estate in the county where the 
same or greater part thereof shall be situated : If the defendants are all non-residents, 
then with the clerk of the circuit court of any county. Bills for injunctions to stay 
proceedings at law, shall be filed in the office of the circuit court of the county in 
which the record of the proceedings had, shall be. 

Sec 3. In suits for the payment or recovery of money, set-offs shall be allowed 
in the same manner, and with the like effect, as in actions at law. 

Sec. 4. Suits in chancery may be commenced and prosecuted by infants, either 
by guardian or next friend. 

Sec. 5. Upon the filing of every bill as aforesaid, the clerk of the court aforesaid 
shall thereupon issue a summons directed to the sheriff of the county in which the 
defendant resides, if the defendant be a resident of this State, requiring him to 
appear, and answer the bill on the return day of the summons ; and where there 



94 CHANCERY. 

are several defendants residing in different counties, a separate summons shall be 
issued to each county, including all the defendants residing therein. 

Sec. 6. Every summons shall be tested in the name of the clerk of the court 
out of which it may issue ; shall bear the seal of the court and the signature of its 
clerk * shall be dated of the day it issues, and be made returnable to the next term 
of the court, after the date thereof, unless the suit be brought within ten days im- 
mediately preceding any term, in which case the summons shall be returnable to 
the next term thereafter. 

Sec 7. Service of summons shall be made by delivering a copy thereof to the 
defendant, or leaving such copy at his usual place of abode, with some white person 
of the family, of the age often years or upwards, and informing such person of the 
contents thereof, which service shall be at least ten days before the return day of 
such summons. 

Sec 8. Whenever any complainant shall file in the office of the clerk of the 
court in which his suit is pending, an affidavit showing that any defendant resides 
or hath °-one out of this State, or on due inquiry can not be found, or is concealed 
within this State, so that process can not be served upon him, the clerk shall cause 
publication to be made in some newspaper printed in his county, and if there be no 
newspaper published in his county, then in a newspaper published in this State, 
containing notice of the pendency of such suit, the names of the parties thereto, the 
title of the court, and the time and place of the return of summons in the case ; such 
publication to be made for four successive weeks, the first of which shall be at least 
sixty days before the return day of such summons. But this proceeding shall not 
dispense with the usual exertion on the part of the sheriff, to serve the summons. 

Sec 9. If sixty days shall not intervene between filing such affidavit and the 
return day of the summons, and the summons shall not be served, the cause shall 
be continued to the next term. If sixty days shall intervene, as aforesaid, or if ser- 
vice of process shall be made, and the defendant shall not appear on the return day 
of the summons, the bill may be taken for confessed. 

Sec 10. If, for want of due publication or service, the cause shall be continued, 
then the same proceedings shall be had at the succeeding term of the court, as may 
have been had at the term to which said summons shall be returnable. 

Sec 11. If, in any suit in chancery, the process shall not be returned executed 
on the return day thereof, the clerk, if required, shall issue an alias, pluries, or other 
process, without an order of the court therefor. 

Sec 12. The complainant may cause a copy of the bill or petition, together with 
a notice of the commencement of the suit, to be delivered to any defendant residing 
or being without this State, not less than thirty days previous to the commencement 
of the term at which such defendant is required to appear ; which service, when 
proved to the satisfaction of the court, by the oath or deposition of any person com- 
petent to be a witness in the cause, shall be as effectual as if such service had been 
made in the usual form, within the limits of this State. 

Sec 13. When any bill is taken for confessed, the court may make such decree 
thereon, as may be just, and may enforce such decree, either by sequestration of real 
and personal estate, by attachment against the person, by causing possession of 
real and personal estate to be delivered to the party entitled thereto, or by ordering 
the demand of the complainant to be paid out of the effects or estate sequestered, or 
which are included in such decree ; and by the exercise of such other powers as 
pertain to courts of chancery, and which may be necessary for the attainment of 
justice. 



CHANCERY. 95 

Sec. 14. A decree for money shall be a lien on the lands and tenements of the 
party against whom it is entered, to the same extent and under the same limitations 
as a judgment at law. 

Sec. 15. When any final decree shall be entered against any defendant who shall 
not have been summoned or* notified to appear as required by this chapter, and such 
person, his heirs, devisees, executor, administrator or other legal representatives, 
as the case may require, shall, within one year after notice in writing given him or 
them of such decree, or within three years after such decree, if no such notice 
shall have been given as aforesaid, appear in open court and petition to be 
heard, touching the matter of such decree, and shall pay such costs as the court 
shall deem reasonable in that behalf, the person so petitioning may appear, and 
answer the complainant's bill, and thereupon, such proceedings shall be had as if 
the defendants had appeared in due season,, and no decree had been made. The 
decree shall, after three years from the making thereof, if not set aside in manner 
aforesaid, be deemed and adjudged confirmed against such non-resident defendant, 
and all persons claiming under him by virtue of any act done subsequent to the 
commencement of such suit ; and at the end of the said three years, the court 
may make such further order in the premises as shall be required, and shall be 
just. 

Sec. 16. If the defendant shall be brought into court by virtue of any process, 
being in contempt for refusing to appear, and shall continue to refuse or neglect to 
enter his appearance, or appoint a solicitor of the court to do it for him, according 
to the provisions of this chapter, or the rules of said court, then, and in that case, 
the court may appoint a solicitor to enter an appearance of such defendant, and 
such further proceedings may be had in the said cause, as if the party had 
actually appeared. 

Sec. 17. The judges of the circuit courts, in their respective circuits, may 
establish rules of proceeding in chancery, and make all needful orders and regula- 
tions, consistent with the practice of courts of chancery, in cases not provided for 
by law. 

Sec. 18. Every defendant who shall be summoned according to the provisions 
of this chapter shall file his exceptions, plea, demurrer, or answer to the bill at 
the time to which the process or summons shall be returnable ; if he fail to do so, 
the bill may be taken for confessed ; but for good cause shewn, the court may 
extend the time for excepting or pleading, and the court may thereupon enter an 
interlocutory decree, which may be made absolute at the next term, and carried 
into effect as other final decrees. If the defendant shall appear at the next term 
and offer to file his answer to the bill, the court may permit him to do so, upon his 
showing sufficient cause, and paying the costs of the preceding terms ; in such 
case, the decree shall be vacated, and the cause may be proceeded in as in other 
cases. 

Sec. 19. Where a bill is taken for confessed, the court, before a final decree is 
made, if deemed requisite, may order the complainant to produce documents 
and witnesses to prove the allegations of his bill, or may examine him on oath or 
affirmation, touching the facts therein alleged ; such decree shall be made in either 
case as the com - t shall consider equitable and proper. 

Sec. 20. Every answer shall be verified by an oath or affirmation, taken before 
and certified by a judge or justice of the peace in this State, or the clerk of the 
court in which the action is pending, or before a judge or justice of the peace or 



96 CHANCERY. 

other person authorized to administer an oath in the State, territory, kingdom or 
empire, in which the defendant may be, or reside ; the official character of such 
officer, if out of this State, being attested by the seal of some court of record, 
within such State, territory, kingdom or empire. 

Sec. 21. When a bill shall be filed in the court 'of chancery, other than for 
discovery only, the complainant may waive the necessity of the answer being 
made on the oath of the defendant ; and in such cases, the answer may be made 
without oath, and shall have no other or greater force as evidence than the bill. 

Sec 22. When an answer shall be adjudged insufficient, the defendant shall file 
a further answer within such time as the court shall direct, and on failure thereof, 
the bill shall be taken as confessed ; if such further answer shall be likewise 
adjudged insufficient, the defendant shall file a supplemental answer, and pay all costs 
attendant thereon; if that shall be adjudged insufficient, the defendant may be pro- 
ceeded against for a contempt, and the like proceedings be had thereon to enforce 
the order of the court, as in other cases of contempt. 

Sec. 23. Every defendant shall answer fully all the allegations and interrogato- 
ries of the complainant, except such as are not required to be answered, by reason 
of exceptions, plea or demurrer thereto allowed. 

Sec 24. Any defendant may, after filing his answer, exhibit and file his cross 
bill containing interrogatories to the complainant, and call upon him to file his 
answer thereto, in such time as may be prescribed by the rules of the court. 

Sec 25. The complainant shall in such case be held to except, plead, demur 
or answer to such cross bill in the same manner that a defendant is required to ex- 
cept, plead, demur, or answer to an original bill, and his answer shall be evidence 
in the same manner as the defendant's answer to the bill. 

Sec 26. If the complainant shall fail to answer such interrogatories, his bill or 
petition shall be dismissed with costs, or the new matter set out in the defendant's 
cross bill shall be taken as confessed, and a decree entered accordingly. 

Sec 27. Where it is necessary for the defendant to bring a new party before 
the court, he shall state it in his answer, and insert interrogatories for him in 
his answer; and a subpoena shall be issued, and other proceedings had, as in the 
case of other defendants. 

Sec 28. No complainant shall be allowed to dismiss his bill, after a cross bill 
has been filed, without the consent of the defendant. 

Sec 29. The complainant shall not be compelled to file his answer to any cross 
bill, until the defendant shall have filed a sufficient answer to the complainant's bill. 

Sec. 30. All exceptions to answers to interrogatories exhibited by the defendant 
as aforesaid, shall be filed within such time as the court may direct, and be argued 
at such time as the court may appoint. If the complainant's exceptions be overruled, 
he shall pay costs to the defendant; and if the defendant's answer be adjudged in- 
sufficient, he shall pay costs to the complainant. 

Sec 31. Replications shall be general, with the like advantage to all parties as 
if special ; and shall be filed in four days after the answer, if in term time ; or if 
such answer be filed in vacation, the plaintiff or his attorney shall have notice thereof. 

Sec 32. After replication is filed, the cause shall be deemed at issue, and stand 
for hearing at the next term, or in default of filing such replication, the cause may 
be set for hearing upon the bill and answer ; in which case the answer shall be taken 
as true, and no evidence shall be received, unless it be matter of record to which 
the answer refers. 



CHANCERY. 97 

Sec. 33. When the complainant shall require a discovery respecting the matters 
charged in the bill, the disclosure shall not bo deemed conclusive ; but if a replica- 
tion be filed, may be disproved or contradicted, like any other testimony, according 
to the practice of courts of equity. 

Sec 34. The said circuit courts, when sitting as courts of equity, may extend 
the time for answering, replying, pleading, demurring, or joining in demurrer ; and 
may permit the parties to amend their bills, petitions, pleas, answers and replications. 
on such terms as the court may deem proper, so that neither party be surprised nor 
delayed thereby. 

Sec. 35. The said circuit courts may, in their discretion, direct an issue or 
issues to be tried by a jury, whenever it shall be judged necessary in any cause in 
equity, pending in any of the said courts. In all other causes in equity, the mode 
of trial shall be the same as has been heretofore practiced in courts of chancery. 

Sec. 36. Whenever an execution shall have been issued against the property of 
a defendant, on a judgment at law or in equity, and shall have been returned unsat- 
islied, in whole or in part, the party sueing out such execution may file a bill in 
chancery against such defendant, and any other person, to compel the discovery of 
any property, or thing in action, belonging to the defendant; and if any propertv, 
money or thing in action due to him, or held in trust for him, and to prevent the 
transfer of any such property, money or thing in action, or the payment or deli- 
very thereof to the defendant, except when such trust has been created bv, or the 
fund so held in trust has proceeded from, some person other than the defendant 
himself. 

Sec 37. The court shall have power to compel such discovery, and to prevent 
such transfer, payment or delivery, and to decree satisfaction of the sum remaining 
due on such judgments, out of any personal property, money, or things in action, 
belonging to the defendant, or held in trust for him, with the exception above stated, 
which shall be discovered by the proceedings in chancery, whether the same were 
originally liable to be taken in execution at law or not: Provided, That no answer 
made to any bill filed under this and the preceding section shall be read in evidence 
against the defendant on the trial of any indictment for the fraud charged in the bill. 

Sec 38. If in any suit or action now pending, or which shall hereafter be 
brought in any court of chancery, there are or shall be two or more complainants or 
defendants, and one or more of them die, (if the cause of such action or suit survive 
to the surviving complainant or complainants, or against the surviving defendant or 
defendants,) such suit or action shall not thereby be abated ; but such death being 
suggested and shown to the satisfaction of the court, such suit or action shall pro- 
ceed at the suit of the surviving complainant or complainants, and against the sur- 
ving defendant or defendants. 

Sec 39. When there shall be two or more complainants or defendants, in any 
suit or action in chancery, as aforesaid, and any of them die, and the cause of action 
do not survive, but other persons shall become parties in interest, in right, or by the 
death of such deceased party, such suit or action shall, by reason of such death, be 
abated only with respect to such deceased party. The surviving complainant or 
complainants may proceed against the surviving defendant or defendants, without 
reviving the suit against the representatives of the deceased party, or any other 
who may become interested by the death of such party ; but, in such case, such 
representatives or other persons becoming interested by the death of such party, 
shall not be bound by any order or decree in such cause to which they are not made 
7 



9S CHANCERY. 

parties ; and they may be made parties in the manner provided in chapter one of 
the Revised Statutes. 

Sec. 40. In all cases where all the complainants or defendants, in any suit now 
pending, or hereafter to be brought in any court of chancery, shall die before final 
decree, such suit or action shall not thereby be abated, but may be revived in the 
name of the legal representatives of the deceased, or other person becoming inter- 
ested in the cause of action by the death of such party. 

Sec. 41. In all suits in chancery, and suits to obtain title to lands, in any of the 
courts of this State, if there be persons interested in the same, whose names are 
unknown, it shall be lawful to make such persons parties to such suits or proceed- 
ings, by the name and description of persons unknown, or unknown heirs or devi- 
sees of any deceased person, who may have been interested in the subject matter 
of the suit previous to his or her death; but in all such cases an affidavit shall be 
filed b) r the party desiring to make any unknown person a party, stating that the 
names of such persons are unknown, and process shall be issued against all parties, 
by the name and description given as aforesaid, and notices given by publication, as 
is required in section eight of this chapter, shall be sufficient to authorize the court 
to hear and determine the suit, as though all parties had been sued by their proper 
names. 

Sec. 42. All decrees, orders, judgments and proceedings, made or had with 
respect to such unknown persons, shall have the same effect, and be as binding and 
conclusive upon them, as though such suit or proceeding had been instituted against 
them by their proper names. 

Sec 43. Whenever a decree shall be made in any suit in equity, directing the 
execution of any deed or other writing, and the party against whom the same shall 
have been entered shall not comply therewith, within the time required, it shall 
be lawful for the court to appoint a commissioner to execute the same ; the 
execution thereof by such commissioner shall be as valid in law to pass, release or 
extinguish the right, title and interest of the party on whose behalf it is executed, 
as if it had been executed by such party in proper person, in conformity with 
such decree ; and such deed or other writing, if it relate to land, shall, within 
six months after its execution by such commissioner, be recorded in the office of 
the recorder of the county wherein the lands may lie. 

Sec 44. In all cases where a sale of property is decreed, the court may direct 
the same to be made for cash, or on such credit, and on such terms as it may deem 
best and most equitable to the interests of the several parties. 

Sec 45. All decrees given in causes in equity in this State, shall be a lien 
on all real estate respecting which such decrees shall be made ; and whenever, by 
any decree, any party to a suit in equity shall be required to perform any act other 
than the payment of money, or to refrain from performing any act, the court may, 
in such decree, order that the same shall be a lien upon the real or personal estate, 
or both, of such party until such decree shall be fully complied with ; and such lien 
shall have the same, force and effect, and be subject to the same limitations and re- 
strictions as judgments at law. 

Sec 46. When there shall be no master in chancery or commissioner to ex- 
ecute a decree, the same may be carried into effect by execution, or other final 
process, according to the nature of the case, directed to the sheriff or other officer of 
the proper county ; which, when issued, shall be executed and returned by the sheriff 
or other officer to whom it may be directed, and shall have the same operation and 



CHARITABLE USES. 



99 



force, as similar writs issued upon a judgment at law. The sheriff or other officer 
to whom the same is directed, shall be subject to the like penalties and recoveries 
for misconduct or neglect in the execution or return thereof, as in cases at law ; or 
the court may, if necessary, direct an attachment to be issued against the party 
disobeying such decree, and fine or imprison him, or both, in the discretion of the 
court and may also direct a sequestration for disobedience of any decree. 

Sec 47. In any cause in equity it shall be lawful for the court in which the 
cause is pending to appoint a guardian ad litem, to any infant or insane defendant in 
such cause, whether such infant or insane defendant shall have been served with 
process or not, and to compel the person so appointed to act. By such appoint- 
ment, such person shall not be rendered liable to pay costs of suit; and he shall 
moreover be allowed a reasonable sum for his charges as such guardian, to be paid 
by the party at whose motion he was appointed, to be taxed in the bill of costs. 

Sec. 48. The several circuit courts of this State shall have power to "appoint, 
in each county, a master in chancery, who shall hold his office during the term of 
four years. 

Sec 49. Every master in chancery, before entering on the duties of his ap- 
pointment, shall give bond, with security to be approved by the court, and take 
and subscribe an oath of office, which bond and oath shall be filed with the clerk of 
the court making the appointment. 

Sec 50. Masters in chancery, in their respective counties, shall have power to 
take depositions, both in law and equity, to administer oaths, to compel the attend- 
ance of witnesses, and in the absence from the county, of the circuit judge presiding 
in such county, to order the issuing of writs of habeas corpus, ne exeat and injunc- 
tion, and perform all other duties, which, according to the laws of this State, and 
the practice of courts of chancery, appertain to the office. 

Sec 51. Whenever it shall happen that there shall be no master in chancery, 
in any county, or when such master shall be of counsel, of kin to either party, in- 
terested, or otherwise disqualified or unable to act in any suit or matter, the court 
may appoint a special master, to perform the duties of the office in all things con- 
cerning such suit or matter. 

Sec 52. Masters in chancery shall receive for their services such compensa- 
tion as shall be allowed by law, to be taxed as other costs. 

Sec 53. Nothing in the preceding sections contained shall be construed to ex- 
tend to those articles in possession of the defendant, which are exempt from exe- 
cution by law. 

Approved: March 3, 1845. 

[Amended: — See Appendix, Acts Nos. 3, 4 and 6.] 



CHAPTER XXII. 

CHARITABLE USES. 



Section 

1. Grants of land, not over ten acres, for school 

houses, &c, valid ; to be recorded. 

2. Grants to be made to county commissioners' 

court, in trust, &c. 

3. Trespassers, how punished ; fines, how applied. 



Section 

4. When trust is perverted, property to vest in 

county, unless otherwise directed in grant. 

5. Property donated, may be sold by county com- 

missioners, by consent of parties j county 
commissioners not to be responsible for title. 



100 CHARITABLE USES. 

Section 1. All gifts and grants of land heretofore made for the erection of a 
school house, a house for divine worship, for burying the dead, or for any other chari- 
table public purpose, when such gift or grant of land shall not exceed ten acres, 
shall be held valid in law to the use of the person or persons or religious society 
therein named, for the purpose of education, for divine worship or for the inter- 
ment of the dead, and none other : Provided, That such gifts and grants shall be 
recorded in the county where such lands may lie, within the time prescribed by 
law. 

Sec. 2. When any person shall hereafter deem it proper to make a donation or 
grant of land for the purpose of erecting a house for divine worship, a house for 
education or for the interment of the dead, such deed of gift or grant shall be made 
and executed to the county commissioners of the proper county, and their succes- 
sors in office in trust, and for the use of the persons, society or collection of people 
therein named ; which shall be held and used by such society, persons, or body of 
people, as therein directed, for the sole use of education, divine worship, and inter- 
ment of the dead, and none other ; which deed shall be recorded in the recorder's 
office of the proper county, within twelve months after the execution of the same : 
Provded, That in no case shall such grant for the erection of a house for divine 
worship exceed in quantity ten acres of land. 

Sec. 3. If any person or persons shall commit any trespass upon the premises so 
granted, such trespasser shall be liable to pay all damages so committed, to be recov- 
ered in the name of any person who will sue for the same ; and when recovered shall 
be paid over to those persons or societies interested in the premises, to be expended 
by them in repairing such damages, or making any improvements thereon that they 
may think fit. 

Sec 4. When any gift or grant, as aforesaid, shall be perverted, or used for 
any other purpose than contemplated in this chapter, or shall be abandoned by the 
donees, such gifts or grants shall become vested in the county where such lands may 
lie, unless otherwise directed in such gift or grant, by the donor, and shall be sold 
by the order of the county commissioners of such county, and the proceeds thereof 
applied for the use of education in such county. 

Sec 5. In all cases in which any land or lot has been, or may be conveyed to 
the county commissioners of any county in this State for the use of any religious 
society, congregation or church, or to the intent that houses should be erected thereon 
for purposes of divine worship, and the society, congregation, church or person 
for whose use the conveyance was made, shall desire to sell or otherwise dispose 
of the premises conveyed, and shall obtain the consent of the donor, or grantor, or 
his heirs, or their legal representatives to such sale, or dispostion, it shall be the 
duty of the county commissioners to whom the conveyance was made, or their 
successors, to execute conveyances for the same, so as to divest the legal title, and 
release all claim of the county to the premises conveyed ; but no commissioners 
or county shall, by virtue of such conveyance, become responsible for the title of 
the premises conveyed, except as against their own acts. 

Approved : March 3, 1845. 
[Amended: — See Appendix, Act No. 6.] 



CHAPTER XXIII. 

CONGRESS. 



Section 

1. State divided into seven congressional districts. 

2. Counties composing the first district. 

3. Counties composing the second district. 

4. Counties composing the third district. 

5. Counties composing the fourth district. 



Section 

6. Counties composing the fifth district. 

7. Counties composing the sixth district. 

8. Counties composing the seventh district. 

9. One representatives in Congress elected in each 

district once in two vears. 



Section 1. For the purpose of electing seven representatives to the House of 
Representatives of the Congress of the United States, the following districts shall 
be and are hereby established, to be styled and known as districts numbered first, 
second, third, fourth, fifth, sixth and seventh. 

Sec. 2. The first district shall be composed of the counties of Alexander, Union. 
Pulaski, Jackson, Perry, Randolph, Monroe, Washington, St. Clair, Clinton, Bond 
and Madison. 

Sec S. The second district of the counties of Johnson, Pope, Hardin, William- 
son, Gallatin, Franklin, Hamilton, White, Wabash, Edwards, Wayne, Jefferson, 
Marion and Massac. 

Sec. 4. The third district of the counties of Lawrence, Richland, Crawford, 
Jasper, Effingham, Fayette, Montgomery, Christian, Shelby, Moultrie, Coles, Clark. 
Clay, Edgar, Macon, Piatt and De Witt. 

Sec 5. The fourth district of the counties of Lake, Mctlenry, Boone, Cook, 
Kane, De Kalb, Du Page, Kendall, Grundy, La Salle, Will, Iroquois, Livingston. 
McLean, Champaign, Vermilion and Bureau. 

Sec 6. The fifth district of the counties of Greene, Jersey, Calhoun, Pike. 
Adams, Marquette, Brown, Schuyler, Fulton, Peoria and Macoupin. 

Sec 7. The sixth district of the counties of Jo Daviess, Stephenson, Winnebago. 
Carroll, Ogle, Lee, Whiteside, Rock Island, Henry, Stark, Mercer, Henderson, 
Warren, Knox, McDonough and Hancock. 

Sec 8. Tlie seventh district of the counties of Putnam, Marshall, Woodford. 
Tazewell, Mason, Menard, Cass, Morgan, Scott, Logan and Sangamon. 

Sec 9. One representative to Congress shall be elected from each of the dis- 
tricts above enumerated, once in every two years, recurring from the day of the 
last election, to-wit, the first Monday of August, eighteen hundred and forty-four, 
which representatives in Congress shall be elected as provided by law. 

Approved: March 3, 1845. 



CHAPTER XXIV. 

CONVEYANCES. 



Section 

1. Livery of seizin not necessary in convey- ; 

ances of real property ; capacity of grantor j 

in such case; grant, how vested; prior title i 

not to be disturbed. 
i. Effect of grant. 

3. When any person is seized of lands, &c, extent 

of title, and legal obligation. 

4. Claimant of lands, though not in possession, 

may convey interest therein; grantees shall 
have right of recovery, as fully as though gran- 
tee were in possession. 

5. Estate in joint tenancy, how held; when in joint 

tenancy ; when in common. 

6. Persons seized in fee tail of lands at common 

law, to have estate for life only ; how remain- 
der shall pass. 

7. When vendor, not having good title at the time 

of sale, afterwards acquires it, title to be valid. 

8. Person in actual possession seven years and 

paying all taxes, his paper title deemed good; 
all persons holding under such possession to 
have same benefit. 

9. Persons having paper title to unoccupied lands, 

how to acquire title ; persons having better 
paper title, their rights. 

1 0. Limitation to two preceding sections ; proviso. 

1 1 . Import of the words " grant, " " bargain, " « sell." 

12. Deeds given in security for payment of money 

shall be considered as mortgages. 

13. Estates to one, without words of inheritance, 

deemed estates of inheritance, unless expressly 
limited. 
1 4. Estates in remainder to posthumous heirs, how 
taken. 

15. Married women may relinquish right of dower. 

16. Conveyances of real estate; by whom maybe 

made ; in what manner and before whom ac- 
knowldged ; in this State ; out of this State ; 
out of United States ; mode of authentication 
in each case. 

17. Manner of acknowledging and proving convey- 

ance executed by husband and wife ; rights of 
wife, how aliected thereby. 

18. What acknowledgment suHicient to entitle deed 

to record in other counties ; what necessary 
when acknowledged before justices of the 
peace. 

1 0. Deeds, &c, of lands sold for taxes, may be ac- 

knowledged before auditor. 
20. When necessary to prove identity of person ac- 

Sjection 1. Livery of seizin shall in no case be necessary for the conveyance 
of real property ; but every deed, mortgage, or other conveyance in writing, signed 
and sealed by the party making the same, the maker or makers being of full age, 
sound mind, discovert, at large, and not in duress, shall be sufficient, without livery 
of seizin ; for the giving, granting, selling, mortgaging, leasing or otherwise con- 
veying or transferring any lands, tenements or hereditaments, in this State ; so as 
to all intents and purposes, absolutely and fully to vest in every donee, grantee, 



Section 

knowledging deed; how proved; how certi- 
lied; how signatures of subscribing witnesses 
may be proved ; how, in case of death of sub- 
scribing witness. 

2 1 . Married woman may release her right of dower 
in landj of her husband; manner of ac- 
knowledgment; what facts to be certified; 
eliect of such acknowledged grant; right of 
dower bond. 

22. Deeds, &c, to be recorded in county in which 
the land conveyed lies ; or in county to which 
unorganized county may be attached. 

23. Conveyances to take eflect from time of being 
filed for record. 

24. Powers of attorney, &c, affecting real estate to 
be acknowledged and recorded; shall have ef- 
fect, until revoked by deed. 

25. Deeds, &.c, may, though not recorded, be read 
in evidence; if original deed be lost, trans- 
cript of record may be read in evidence. 

26. County commissioners may execute conveyances 
of real estate in behalf of their counties. 

27. Certificates of school lands may be transferred 
by indorsement, &.c; eliect of such transfer; 
how proved. 

28. Deeds, &c, when filed for record, notice to cred- 
itors and subsequent purcliasers, but not to be 
read in evidence, unless proved by proper tes- 
timony. 

Deeds of sheriffs, proved before clerk of court 
of record, entitled to be recorded. 

Sheriff may execute deed for predecessor. 

Persons dying, having contracted to give deed, 
court of chancery may enforce such contract. 

How case to be presented before court can act 
in such case. 

33. When minors are concerned, to have notice ; 
guardian to be appointed. 

34. Legal representatives of deceased person may 
prosecute suit for enforcement of such con- 
tract. 

35. Court may continue cause ; decree. 

36. Complete record to be made ; costs awarded. 

37. How mortgages may be discharged. 

38. Penalty if mortgagee refuse to discharge mort- 
gage. 

39. Term "real estate" defined. 

40. This chapter not to affect wills, &c. 

41. If grantor be dead, and his deed be not properly 
proved, defect, how supplied. 



29. 



32. 



CONVEYANCES. 103 

bargainee, mortgagee, lessee or purchaser, all such estate or estates as shall be 
specified in any such deed, mortgage, lease or other conveyance. Nothing herein 
contained shall be so construed as to divest or defeat the older or better estate or 
rig! t of any person or persons, not party to any such deed, mortgage, lease, or other 
conveyance. 

Sec. 2. Every estate, feoffment, gift, grant, deed, mortgage, lease, release, or 
confirmation of lands, tenements, rents, services or heredit aments made or had, or 
hereafter to be made or had, by any person or persons, being of full age, sound 
mind, discovert, at large, and not in duress, to any person or persons ; and all 
recoveries, judgments and executions, had or made, or to be had or made, shall be 
good and effectual to him, her or them, to whom it is, or shall be so made, had or 
given, and to all others ; to his, her or their use, against the judgment debtor, 
seller, feoffor, donor, grantor, mortgagor, lessor, releasor or confirmor, and against 
m\, her or their heirs, or heirs claiming the same, only as heir or heirs, and 
every of them ; and against all others having or claiming any title or interest in the 
same, only to the use of the same judgment debtor, seller, feoffor, donor, grantor, 
mortgagor, lessor, releasor or confirmor, or his, her, or their said heirs, at the time 
of the judgment, execution, bargain, sale, mortgage, covenant, lease, release, gift 
or grant made. 

Sec. 3. Where any person or persons stand or be seized, or at any time here- 
after shall stand or be seized of, and in any messuages, lands, tenements, rents, 
services, reversions, remainders, or other hereditaments, to the use, confidence or 
trust of any other person or persons, or of any body politic, by reason of any bar- 
gain, sale, feoffment, fine, recovery, covenant, contract, agreement, will or other- 
wise, by any manner of means whatsoever ; in every such case, all and every such 
person or persons, and bodies politic, that have, or hereafter shall have any such 
use, confidence or trust, in fee simple, for term of life or for years or otherwise, 
or any use, confidence or trust, in remainder or reversion, shall from thenceforth 
stand and be seized, deemed and adjudged in lawful seizin, estate and possession of, 
and in the same messuages, lands, tenements, rents, services, reversions, remain- 
ders and hereditaments, with their appurtenances, to all intents, constructions and 
purposes in law, of, and in such like estates, as they had or shall have in use, confi- 
dence or trust, of, or in the same 5 and that the estate, right, title and possession, 
that was or shall be in such person or persons, that were, or hereafter shall be 
seized of any lands, tenements or hereditaments, to the use, confidence, or trust of 
any such person or persons, or of any body politic, be from henceforth clearly 
deemed and adjudged to be in him, her or them, that have, or hereafter shall have 
such use, confidence, or trust, after such quality, manner, form and condition, as 
they had before, in or to the use, confidence, or trust, that was or shall be in them. 

Sec 4. Any person claiming right or title to lands, tenements or hereditaments, 
although he, she, or they may be out of possession, and notwithstanding there may 
be an adverse possession thereof, may sell, convey, and transfer his or her interest 
in and to the same, in as full and complete a manner as if he or she were in the 
actual possession of the lands and premises intended to be conveyed; and the grantee 
or grantees shall have the same right of action for the recovery thereof, and shall 
in all respects derive the same benefit and advantage therefrom, as if the grantor or 
grantors had been in the actual possession at the time of executing the conveyance. 

Sec 5. No estate in joint tenancy, in any lands, tenements or hereditaments, 
shall be held or claimed under any grant, devise or conveyance whatsover, here- 



104 CONVEYANCES. 

toibre or hereafter made, other than to executors and trustees, unless the premises, 
therein mentioned shall expressly be thereby declared to pass, not in tenancy in 
common, but in joint tenancy j and every such estate, other than to executors or 
trustees, (unless otherwise expressly declared as aforesaid,) shall be deemed to be 
in tenancy in common. 

Sec. 6. In cases where, by the common law, any person or persons might here- 
after become seized, in fee tail, of any lands, tenements or hereditaments, by virtue 
of any devise, gift, grant or other conveyance, hereafter to be made, or by any other 
means whatsoever, such person or persons, instead of being or becoming seized 
thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, 
for his or her natural life only, and the remainder shall pass in fee simple absolute, 
to the person or persons to whom the estate tail would, on the death of the first 
grantee, devisee or donee in tail, first pass, according to the course of the common 
law, by virtue of such devise, gift, grant or conveyance. 

Sec. 7. If any person shall sell and convey to another, by deed or conveyance, 
purporting to convey an estate in fee simple absolute, in any tract of land or real 
estate, lying and being in this State, not then being possessed of the legal estate or 
interest therein at the time of the sale and conveyance; but after such sale and con- 
veyance, the vendor shall become possessed of, and confirmed in the legal estate, to 
the land or real estate so sold and conveyed, it shall be taken and held to be in 
trust, and for the use of the grantee or vendee ; and the conveyance aforesaid shall 
be held and taken, and shall be as valid as if the grantor or vendor had the legal 
estate or interest, at the time of said sale or conveyance. 

Sec 8. Every person in the actual possession of lands or tenements, under 
claim and color of title, made in good faith, and who shall, for seven successive 
years, continue in such possession, and shall also, during said time, pay all taxes 
legally assessed on such lands or tenements, shall be held and adjudged to be the 
legal owner of said lands or tenements, to the extent and according to the purport of 
his or her paper title. All persons holding under such possession, by purchase, 
devise, or descent, before said seven years shall have expired, and who shall con- 
tinue such possession, and continue to pay the taxes as aforesaid, so as to complete 
the possession and payment of taxes for the term aforesaid, shall be entitled to the 
benefit of this section. 

Sec 9. Whenever a person having color of title, made in good faith, to vacant 
and unoccupied land, shall pay all taxes legally assessed therecn fcr seven succes- 
sive years, he or she shall be deemed and adjudged to be the legal owner of said 
vacant and unoccupied land, to the extent and according to the purport of his or her 
paper title. All persons holding under such tax-payer, by purchase, devise, or de- 
scent, before said seven years shall have expired, and who shall continue to pay 
the taxes as aforesaid, so as to co nplete the payment of taxes for the term afore- 
said, shall be entitled to the benefit of this section : Provided, however, If any per- 
son, having a better paper title to said vacant and unoccupied land, shall, during 
the said term of seven years, pay the taxes assessed on said land for any one or more 
years of the said term of seven years, then and in that case such tax-payer, his 
heirs and assigns, shall not be entitled to the benefit of this section. 

Sec 10. The two preceding sections shall not extend to lands or tenements 
owned by the United States or this State, nor to school and seminary lands, nor to 
lands held for the use of religious societies, nor to lands held for any public purpose. 
Nor shall they extend to lands or tenements wdicn there shall be an adverse title 



CONVEYANCES. 105 

to such lands or tenements, and the holder of such adverse title is under the age of 
twenty-one years, insane, imprisoned, feme covert, out of the limits of the United 
States, and in the employment of the United States or of this State : Provided, 
Such person shall commence an action, to recover such lands or tenements so pos- 
sessed as aforesaid, within three years after the several disabilities herein enumer- 
ated shall cease to exist, and shall prosecute such action to judgment, or, in case of 
vacant and unoccupied land, shall, within the time last aforesaid, pay to the person 
or persons who have paid the same, all the taxes, with interest thereon, at the rate of 
twelve per cent, per annum, that have been paid on said vacant and. unimproved 
land. 

Sec. 11. All deeds, whereby any estate of inheritance, in fee simple, shall here- 
after be limited to the grantee and his heirs, or other legal representatives, the words 
" grant, " " bargain, " " sell, " shall be adjudged an express covenant to the grantee, 
his heirs and other legal representatives, to-wit : That the grantor was seized of an 
indefeasible estate, in fee simple, free from incumbrances, done or suffered from the 
grantor, except the rents and services that maybe reserved, as also for quiet enjoy- 
ment against the grantor, his heirs and assigns, unless limited by express words 
contained in such deed: And the grantee, his heirs, executors, administrators and 
assigns, may in any action assign breaches, as if such covenants were expressly in- 
serted : Provided, always, That this law shall not extend to leases at rack rent, or 
leases not exceeding one-and-twenty years, where the actual possession goes with 
the lease. 

Sec 12. Every deed conveying real estate, which, by anything therein contain- 
ed shall appear to have been intended only as a security in the nature of a mortgage, 
though it be an absolute conveyance in terms, shall be considered as a mort- 
gage. 

Sec 13. Every estate in lands, which shall be granted, conveyed or devised to 
one, although other words heretofore necessary to transfer an estate of inheritance 
be not added, shall be deemed a fee simple estate of inheritance, if a less estate be 
not limited by express words, or do not appear to have been granted, conveyed, or 
devised by construction or operation of law. 

Sec 14. When an estate hath been, or shall be, by any conveyance limited in 
remainder to the son or daughter or to the use of the son or daughter of any person 
to be begotten, such son or daughter, born after the decease of his or her father, 
shall take the estate in the same manner as if he or she had been born in the life time 
of the father, although no estate shall have been conveyed to support the contingent 
remainder after his death. 

Sec 15. A married woman may relinquish her right of dower, in any of the 
real estate of her husband, by joining him in a deed of conveyance, and acknowl- 
edging the same in the manner hereinafter prescribed. 

Sec 16. Deeds and instruments of writing for the conveyance of real estate in 
this State, or any interest therein, whereby the rights of any person may be affected 
in law or equity, before they shall be entitled to record, shall be subscribed by the 
party or parties thereto, in proper person, and acknowledged or proved before one 
of the following ofiicers, to-wit : First, when acknowledged or proved within this 
State, before any judge, justice or clerk of any court of record in this State, having 
a seal ; any mayor of a city, notary public, or commissioner authorized to take the 
acknowledgment of deeds, having a seal, or any justice of the peace: Second, when 
executed and acknowledged or proved without this State and within the United 



106 CONVEYANCES. 

States or their territories, or the District of Columbia, in conformity with the laws 
of such State, territory or District : Provided, That any clerk of a court of record, 
within such State, territory or District, shall, under his hand and the seal of such 
court, certify that such deed or instrument is executed and acknowledged or proved 
in conformity with the laws of such State, territory or District : Third, when 
acknowledged or proven without the United States, bei'ore any court of any republic, 
State, kingdom or empire, having a seal, or any mayor or chief officer of any city or 
town, having a seal, or before any officer authorized by the laws of such foreign 
country, to take acknowledgments of conveyances of real estate, if he have a seal, 
such deed to be attested by the official seal of such court or officer ; and in case 
such acknowledgment is taken other than before a court of record, or mayor, or 
chief officer of a town having a seal, proof that the officer taking such acknowledg- 
ment was duly authorized by the laws of his country to do so, shall accompany the 
certificate of such acknowledgment. 

Sec. 17. When any husband and wife residing in this State, shall wish to con- 
vey the real estate of the wife, it shall and may be lawful for the said husband and 
wife, she being above the age of eighteen years, to execute any grant, bargain, sale, 
lease, release, feoffment, deed, conveyance or assurance, in law whatsoever, for the 
conveying of such lands, tenements and hereditaments ; and if, after the executing 
thereof, such wife shall appear before some judge or other officer, authorized by 
this chapter to take acknowledgments, to whom she is known, or proved by a cred- 
ible witness to be the person who executed such deed or conveyance, such judge or 
other officer shall make her acquainted with, and explain to her the contents of such 
deed or conveyance, and examine her separate and apart from her husband, whether 
she executed the same voluntarily, freely, and without compulsion of her said hus- 
band ; and if such woman shall, upon such examination, acknowledge such deed 
or conveyance to be her act and deed, that she executed the same voluntarily and 
freely, and without compulsion of her husband, and does not wish to retract, the 
said judge or other officer shall make a certificate indorsed on, or annexed to such 
deed or conveyance, stating that such woman was personally known to the said 
judge or other officer, or proved by a witness, (naming him,) to be the person who 
subscribed such deed or conveyance and setting forth the examination and acknowl- 
edgment aforesaid, and that the contents were made known and explained to her ; 
and such deed, (being acknowledged or proved according to law as to the husband,) 
shall be as effectual in law as if executed by such woman while sole and unmarried. 
No covenant or warranty contained in any such deed or conveyance, shall in any 
manner bind or affect such married woman, or her heirs, further than to convey 
from her and her heirs effectually, her right and interest expressed to be granted 
or conveyed in such deed or conveyance. 

Sec 18. Deeds and other conveyances of real estate, executed and acknowl- 
edged or proven in proper form in this State, before any judge or justice of the 
supreme or circuit courts, or before any court or officer having a seal, and attested 
by such seal, shall be entitled to record without further attestation. When 
acknowledged before a justice of the peace, residing within this State, the certificate 
of the clerk of the county commissioners' court, of the proper county, under his 
seal of office, that the person taking such proof, or acknowledgment, was a justice 
of the peace at the time of taking the same, shall be deemed sufficient evidence of 
that fact. If such justice reside within the county where the lands conveyed, are 
situate, no such certificate shall be required. 



CONVEYANCES. 107 

Sec. 19. Any conveyance or assignment of certificates of the purchase of 
land sold for taxes by the auditor of public accounts, may be acknowledged before 
said auditor, and such acknowledgment shall be deemed good and valid. 

Sec. 20. No judge or other officer shall take the acknowledgment of any 
person to any deed or instrument of writing as aforesaid, unless the person offer- 
ing to make such acknowledgment shall be personally known to him to be the real 
person who, and in whose name such acknowledgment is proposed to be made, or 
shall be proved to be such, by a credible witness, and the judge or officer taking 
such acknowledgment shall in his certificate thereof, state that such person was 
personally known to him to be the person whose ■ name is subscribed to such deed 
or writing, as having executed the same, or that he was proved to be such by a 
credible witness, (naming him,) and on taking proof of any deed or instrument of 
writing by the testimony of any subscribing witnesses, the judge or officer shall 
ascertain, that the person who offers to prove the same, is a subscribing witness, 
either from his own knowledge, or from the testimony of a credible witness ; and 
if it shall appear from the testimony of such subscribing witness that the person 
whose name appears subscribed to such deed or writing, is the real person who 
executed the same, and that the witness subscribed his name as such, in his presence 
and at his request, the judge or officer shall grant a certificate, stating that the 
person testifying as subscribing witness was personally known to him to be the 
person whose name appears subscribed to such deed as a witness of the execution 
thereof, or that he was proved to be such by a credible witness, (naming him,) and 
stating the proof made by him ; and where any grantor or person executing such 
deed. or writing and the subscribing witnesses are deceased, or can not be had, the 
judge or officer, as aforesaid, may take proof of the hand writing of such deceased 
party and subscribing witness or witnesses (if any) and the examination of a com- 
petent and credible witness, who shall state on oath or affirmation, that he person- 
ally knew the person, whose hand writing he is called prove, and well knew his 
signature, (stating his means of knowledge,) and that he believes the name cf such 
person subscribed to such deed or writing, as party or witness, (as the case may 
be,) was thereto subscribed by such person; and when the hand writing of the 
grantor or person executing such deed or writing, and of one subscribing witness, 
(if any there be,) shall have been proved as aforesaid, the judge or officer shall 
grant a certificate thereof, stating the proof aforesaid. 

Sec 21. It shall and may be lawful for any married woman to release her 
right of dower, of, in, and to any lands and tenements, whereof her husband may 
be possessed or seized, by any legal or equitable title during coverture, by joining 
such husband in the deed or conveyance, for the conveying of such lands and 
tenements, and appearing and acknowledging the same before any judge or other 
officer authorized to take acknowledgments by this chapter ; and it shall be the duty 
of such judge or other officer, if such woman be not personally known to him, to 
be the person who subscribed such deed or conveyance, to ascertain the same by 
the testimony, of at least one competent and credible witness ; and upon being 
satisfied of that fact, shall acquaint such woman with the contents of the deed or 
conveyance, and shall examine her separate and apart from he husband, whether 
she executed the same, and relinquished her dower to the lands and tenements 
therein mentioned, voluntarily, freely, and without compulsion of her said husband ; 
and if she acknowledge that she executed the same, and relinquishes her dower 
in the lands and tenements therein mentioned, voluntarily and freely and without 



10S CONVEYANCES. 

the compulsion of her husband, such judge or other officer shall grant a certificate 
to be indorsed on, or annexed to such deed, stating that such woman was personally 
known to him, or was proved by a witness, (naming him,) to be the person who 
subscribed such deed or writing; and that she was made acquainted with the 
contents thereof, and was examined, and acknowledged such deed as aforesaid ; 
which, being recorded, together with the deed, duly executed and acknowledged by 
the husband according to law, shall be sufficient to discharge and bar the claim of 
such woman to dower, in the lands and tenements conveyed by such deed or con- 
veyance. 

Sec. 22. Deeds and other instruments relating to, or affecting the title to real 
estate in this State, shall be recorded in the county in which such real estate is 
situated, but. if such county is not organized, then in the county to which such 
unorganized county is attached for judicial purposes. 

Sec. 23. All deeds, mortgages and other instruments of writing which are 
required to be recorded, shall take effect, and be in force from and after the time of 
filing the same for record, and not before, as to all creditors and subsequent pur- 
chasers, without notice; and all such deeds and title papers shall be adjudged void 
as to all such creditors and subsequent purchasers, without notice, until the same 
shall be filed for record. 

Sec. 24. All powers or letters of attornejr, or agency, authorizing the granting, 
selling, conveying, assuring, releasing or transferring, or for the executing or 
acknowledging of any grants, sales, leases, assurances, or other conveyances or 
writings whatsoever, concerning any lands and tenements or whereby the same 
may be affected in law or equity, shall be acknowledged or proved, and recorded as 
herein before required in cases of deeds and other assurances ; after which, all 
grants, conveyances and assurances, made and acknowledged, pursuant'tothe powers 
granted, unless the same be revoked by a deed duly acknowledged and proven, 
and recorded as aforesaid, shall be as valid and effectual as if executed and ac- 
knowledged by the constituent or constituents. 

Sec 25. Every deed, conveyance or other writing, of, or concerning any 
lands, tenements or hereditaments, which, by virtue of this chapter shall be re- 
quired or entitled to be recorded as aforesaid, being acknowledged or proved accor- 
ding to the provisions of this chapter, whether the same be recorded or not, maybe 
read in evidence without any further proof of the execution thereof, and if it shall 
appear to the satisfaction of the court, that the original deed so acknowledged or 
proved and recorded, is lost or not in the power of the party wishing to use it, a 
transcript of the record thereof, certified by the recorder in whose office the same 
may be recorded, may be read in evidence, in any court of this State, without proof 
thereof. 

Sec 26. The county commissioners of the several counties of this State are 
hereby authorized to execute and deliver all deeds, grants, conveyances and 
bonds which may become necessary in settling and transferring real estate belonging 
to their respective counties ; and such deeds, grants, conveyances and bonds, if 
made without fraud or collusion, shall be obligatory upon the counties to all intents 
and purposes. 

Sec. 27. Purchasers of school or canal lands or town lots, may by indorse- 
ment in writing on their certificates of purchase, transfer and assign all right and 
title to the lands or lots purchased, or transfers or assignments of such certificates 
may be made upon a separate paper, and transferees or assignees, may in like man- 



CONVEYANCES. 109 

ner transfer and assign all such certificates, and in all cases where certificates have 
been or shall hereafter be transferred or assigned, patents shall issue in the name of 
the last transferee or assignee: Provided, That the transfers or assignments, shall 
be proven by certificate of the school or acting canal commissioner ; or proven 
in the manner required to prove the execution of deeds of conveyance, to entitle 
them to be admitted to record. 

Sec. 28. Deeds, mortgages and other instruments of writing relating to real 
estate, shall be deemed, from the time of being filed for record, notice to subse- 
quent purchasers and creditors, though not acknowledged or proven according to 
law ; but the same shall not be read as evidence unless their execution be proved in 
manner required by the rules of evidence applicable to such writings, so as to sup- 
ply the defects of such acknowledgment or proof. 

Sec. 29. All deeds which may be executed by any sheriff or other officer, for 
any real estate, sold on execution, upon being acknowledged or proven before any 
clerk of any court of record in this State, and certified under the seal of such court, 
shall be admitted to record in the county where the real estate sold, shall be situated. 
Sec 30. The successor of any sheriff or other officer shall be authorized to ex- 
ecute deeds for real estate sold by the predecessor, or to acknowledge any deed 
executed and not acknowledged by such predecessor. 

Sec 31. When any person or persons who have heretofore entered, or may 
hereafter enter into any contract, bond or memorandum in writing, to make a 
deed or title to land in this State, for a valuable consideration and shall depart this 
life, or have died heretofore, without having executed and delivered said deed, it 
shall and may be lawful for any court having chancery jurisdiction, in the proper 
circuit in which such case shall arise, to make decree, compelling the executors or 
administrators of such deceased person, to execute and deliver such deed to the 
party having such equitable right as aforesaid to the same, or his heirs, according 
to the true intent and meaning of said contract, bond or memorandum of the de- 
ceased ; and all such deeds shall be good and valid in law. 

Sec 32. It shall not be lawful for any court to make such decree as aforesaid, 
except upon the petition in writing of the person entitled to the benefit of the same, 
or his heirs, setting forth the said contract, bond or memorandum in writing, and 
fully describing the lands to be conveyed ; nor until the person or persons so ap- 
plying for such title, shall have given* reasonable notice of the time and place of 
such application, to the executors, administrators and heirs of such person so de- 
ceased as aforesaid, and shall have fully paid, discharged and fulfilled the consider- 
ation of such contract, bond or memorandum in writing, according to the true in- 
tent, tenor and effect thereof. 

Sec 33. In all cases where any minor heirs shall be interested in such proceed- 
ing as aforesaid, reasonable notice of such application shall be given to the guar- 
dian or guardians of such minors ; and if there shall be no guardian, then the said 
court shall appoint a guardian or guardians, to litigate and act in such case. 

Sec 34. The executors, administrators or heirs of any deceased person or 
persons, who shall have made such contract, bond or memorandum in writing as 
aforesaid, in his or her life time, for the conveyance of land, for a valuable con- 
sideration, when such consideration has been paid and fulfilled as aforesaid, may, 
upon application in writing, obtain such decree as aforesaid, upon giving notice to 
the party to whom such deed is intended to be made, and under the same condition 
as is provided in this chapter. 



HO CONVEYANCES. 

Sec. 35. In all cases where application shall be made as aforesaid, the court 
shall have power to continue the same from term to term, to obtain such evidence as 
the nature of the case shall require; and no decree for the conveyance of land, 
upon application as aforesaid, shall be made, unless the said courts shall be satisfied 
that decree can be made without injustice to any heir or creditor of the deceased, 
and that the same is just and equitable. 

Sec. 36. A complete record of such petition and proceedings thereon shall be 
made, and the court shall decree payment of costs as shall appear right and equi- 
table. 

Sec 37. Every mortgagee of real estate, his assignee or other legal represen- 
tative, having received full satisfaction and payment of all such sum or sums of money 
as are really due to him or her from the mortgagor, shall, at the request of the 
mortgagor, enter satisfaction upon the margin of the record of such mortgage, in 
the recorder's office, which shall forever thereafter discharge and release the same, 
and shall bar all actions or suits brought, or to be brought, thereupon. Or it shall 
be deemed a sufficient release and extinction of any mortgage granted upon any 
real estate, if the mortgagee, his or her legal representative or assigns, shall grant, a 
full release of the same under his, her, or their seal and signature, in the presence 
of an attesting witness, and acknowledge the execution of such release in the same 
manner, and under the same restrictions, in which deeds are acknowledged by the 
existing laws of this State. 

Sec 38. If such mortgagee, by himself or herself, his or her attorney, shall 
not, within three months after request, and tender made of his or her reasonable 
charges, repair to said office, and there make acknowledgment as aforesaid, he or 
she neglecting or failing so to do, shall, for every such oifence, forfeit and pay to 
the party or parties aggrieved, any sum not exceeding the mortgage money, to be 
recovered in any court of record, by action of debt. 

Sec 39. The term "real estate," as used in this chapter, shall be construed 
as co-extensive in meaning with "lands, tenements and hereditaments," and as em- 
bracing all chattels real. 

Sec 40. This chapter shall not be construed so as to embrace last wills and 
testaments. 

Sec 41. If any grantor shall not have duly acknowledged the execution of any 
deed or instrument, entitled to be recorded, and the subscribing witnesses be dead, 
or not to be had, it may be proved by evidence of the hand writing of the grantor, 
and of at least one of the subscribing witnesses, which evidence shall consist of 
the testimony of two or more disinterested persons, swearing to each signature. 

Approved : March 3, 1845. 



CHATTER XXV. 

CORPORATIONS. 

DIVISION I. TOWNS 



Section 

1. Inhabitants of town having 150 inhabitants, may 

become incorporated ; mode of proceeding in 
such cases ; notice given and meeting held. 

2. Inhabitants to decide by vote; vote of two- 

thirds necessary. 

3. Meeting called to elect trustees ; vacancies, how 

filled. 

4. Trustees to choose president ; style of corpora- 

tion ; powers ; duty of clerk. 

5. Powers of trustees, as to police, fires, taxes, 

&c. 

6. Duties of trustees, collectors to give bond ; term 

of office. 

7. Mode of holding elections ; proceedings to be 

public; ordinances to be published; quorum. 

8. How moneys appropriated ; accounts to be kept; 

sales for taxes ; fines, how collected and paid. 

9. How corporation may be dissolved. 

10. Statement of polls; poll books, where deposi- 

ted ; oath of office. 

11. Trustees may appoint constable; his powers 

and duties. 

12. May abate nuisances; punish assaults, &c. ; 

trial by jury. 

13. May imprison offenders, for what time. 



Section 

14. May adopt laws respecting wagons, and to pun- 

ish disturbances. 

15. May regulate fees and compensation of officers. 

16. When town becomes incorporated, hereby, 

other like laws repealed; work on roads; dis- 
position of funds, &c, if corporation be dis- 
solved. 

17. Towns, and additions thereto to be surveyed 

and laid out. 
IS. In-lots and out-lots, to be laid out in plat and 
numbered. 

19. Stone monuments at corners of lots. 

20. Map to be certified, acknowledged and recorded. 

2 1 . Recorded plat to be evidence of conveyance, 

&c. 

22. If county be unorganized, where plat recorded. 

23. Old plats to be acknowledged and recorded ; pen- 

alty for neglect. 

24. Penalty for not placing corner stones, &.C., in 

towns hereafter laid out. 

25. Selling lots before law complied with, penalty 

for. 

26. Fees of county surveyor. 

27. Forfeitures, how recovered; to whose use; 

who shall bring suit. 



Section 1. Whenever the white male residents of lawful age of any town in 
this State, having not less than one hundred and fifty inhabitants, shall wish to be- 
come incorporated for the better regulation of their internal police, it shall be lawful 
for the said residents, who may have resided six months therein, or who shall be 
the owner of any freehold property therein, to assemble themselves together, in 
public meeting, at the court house or other place in said town, and when so assem- 
bled, they may proceed to choose a president and clerk of the meeting from among 
their number, both of whom shall be sworn, or affirmed r by any person authorized 
to administer oaths, faithfully to discharge the trust reposed in them as president 
and clerk of said meeting: Provided, ho iever? That at least ten days' notice of the 
time and place of holding such meeting shall have been previously given by adver- 
tising in some newspaper of the town, or by setting up written notices, in at least 
three of the most public places in such town. 

Sec. 2. The residents, as aforesaid, of any town having assembled as directed in 
the first section of this division, may proceed to decide by vote, viva voce, whether 
they will be incorporated or not, and the president or clerk, after their votes are 
given in, shall certify under their hands, the number of votes in favor of being 
incorporated and the number against being incorporated ; and if it shall appear 
that two-thirds of the voters present, are in favor of being incorporated, the presi~ 



ijo CORPORATIONS. 

dent and clerk shall deliver a certificate of the state of the polls to the board of 
trustees, to be elected as hereinafter provided. 

Sec. 3. Whenever the qualified voters, of any town, shall have decided in the 
manner herein provided, that they wish to be incorporated, it shall be the duty of 
the clerk of the meeting, at which they may so decide, to give at least five days 
previous public notice to the said voters, to assemble at the court house, or some 
other public place in such town, on a day to be named in such notice, to elect 
by viva voce vote, five residents and freeholders of such town, for trustees of the 
same, who shall hold their office for one year, and until other trustees are chosen 
and qualified ; at which first election, the president and clerk of the first meeting 
shall preside, or in case of the absence of either of them, some suitable person 
shall be appointed by the electors present to fill such vacancy or vacancies. And 
at every succeeding election for president and trustees, the preceding board of 
trustees shall direct the manner in which the same shall be conducted. 

Sec. 4. The board of trustees of any town, elected agreeably to the provisions 
of this division, shall choose a president out of their own body ; and the president 
and trustees aforesaid, and their successors in office, shall thenceforth be considered, 
in law and equity, a body corporate and politic, by the name and style of " the 
president and trustees of the town of ; " and by such name and style shall be 

forever able and capable in law and equity to sue and be sued, to plead and be im- 
pleaded, to answer and be answered unto, defend and be defended in all manner of 
suits, actions, plaints, pleas, causes, matters and demands, of whatever kind or nature 
they may be, in as full and effectual a manner, as any person or persons, bodies 
corporate or politic can or may do; and may have a common seal, and may alter the 
same at pleasure. The said president and trustees shall require their clerk to keep 
a fair journal and record of all their proceedings, and record all by-laws and ordi- 
nances which they may make, in a book to be provided for that purpose. 

Sec 5. The president and trustees, or a majority of them, of any town incor- 
porated as herein directed, shall have power to make, ordain and establish and 
execute such ordinances in writing, not inconsistent with the laws, or the constitu- 
tion of this State, as they shall deem necessary to prevent and remove nuisances, to 
restrain and prohibit gambling, or other disorderly conduct, and to prevent the 
running of, and indecent exhibitions of horses, within the bounds of such town ; 
to provide for licensing public shows ; to regulate and establish markets ; to sink 
and keep in repair public wells ; to keep open and in repair the streets and alleys 
of such town, by making pavements or side-walks as to them may seem needful : 
Provided, always, That the lot in front of which any side-walk is made, shall be 
taxed to pay at least one-half of the expenses of making such side- walk. The said 
president and trustees shall also have power to provide such means as they may deem 
necessary to protect such town from injuries by fires. And for the purpose of car- 
rying the aforesaid powers into effect, the said president and trustees shall have 
power to define the boundaries of such town : Provided, That the same shall not 
exceed one mile square ; and to levy and collect annually a tax, on all the real estate 
in such town, not exceeding fifty cents on every hundred dollars of assessment 
valuation thereof. 

Sec. 6. It shall be the duty of the said president and trustees, to cause all the 
streets and alleys of such town, and all the public roads passing from and through 
such town, for one mile from the centre thereof, to be kept in good repair ; and to 
tins end they are authorized to require every male resident of such town, over the 



CORPORATIONS. 113 

age of twenty-one years, to labor in said streets, alleys and roads, at least three 
days in each and every year ; and if such labor shall be insufficient, to appropriate 
so much of the tax levied on real estate, as may be necessary to keep the said 
streets, alleys and roads in repair, and also to appoint and prescribe the duty of all 
such officers, for such town, as they may deem necessary to carry into effect the 
foregoing powers ; the collectors of the corporation tax, and the treasurer, shall sev- 
erally give bond, made payable to the president and trustees, and their successors in 
office, with good and sufficient securities, in such sum as may by said president and 
trustees be deemed advisable. And a clause shall be inserted, that if at any time 
additional security be required, the same shall be given : the conditions of which 
bonds shall be, that the officer shall faithfully perform the duties of his office ; and 
said officers shall remain in office one year, (unless sooner removed,) and until 
others shall be appointed, and shall have given bonds. 

Sec. 7. The said president and trustees elected under this division, shall con- 
tinue in office for one year, and until their successors shall be elected and qualified. 
And it shall be their duty, before their time expires,* to give at least ten days public 
notice to the qualified voters under this division, to meet at such place as they 
may name, in such town, and elect a new board of president and trustees for such 
town ; and all vacancies which may happen in said board by resignation, or other- 
wise, before their term of office expires, shall be filled by the other members of the 
board. The proceedings of said board shall always be public ; and all their ordi- 
nances, before taking effect, shall be published for at least ten days, in a newspaper 
of such town or by setting up copies of the same, in three of the most public 
places in such town. A majority of said board shall constitute a quorum. 

Sec 8. All moneys arising from the collection of taxes, fines, penalties and for- 
feitures, shall be appropriated by said president and trustees towards the erec- 
ting, improving and regulating those objects which are placed under their con- 
trol and jurisdiction, and to none others. And it shall be their duty to have 
an account current of the fiscal concerns of the corporation so kept, as will at all 
times, show the true situation of the same to such as may desire to inspect the 
same ; and the said president and trustees shall have full power to enforce their ordi- 
nances, by authorizing the person or persons by them appointed to collect any tax 
imposed in pursuance of this division, to collect the same by distress and sale of 
goods and chattels of the person chargeable with the same, on giving at least thirtv 
days public notice of the time and place of such sale ; and if no goods and 
chattels of the person chargeable with said tax, can be found, it shall be lawful to 
sell any town lot, owned by such person, or so much thereof as will pay the tax due 
and in arrear from any such person, upon giving at least thirty days' notice of the 
time and place of making such sale, paying to the owner or owners, the overplus, 
if any. The president and trustees may impose fines for the breach of their ordi- 
nances ; but no fine shall be inflicted on any one person, for any one breach of any 
ordinance, of more than five dollars, which fine may be recovered before any justice 
of the peace, by action of debt, in the name of the president and trustees of such 
town, and collected by execution as other judgments of justices of the peace. AH 
fines collected in pursuance of this division, shall, by the officer collecting the same, 
be paid over to the treasury of the corporation ; and for an omission to do so, such 
officer may be proceeded against by the president and trustees, in an action of debt 
for the same. 



114 CORPORATIONS. 

Sec. 9. Two-thirds of the qualified voters of any town incorporated according 
to the provisions of this division shall have power to dissolve the same at any an- 
nual election for president and trustees, by voting against the incorporation, as is 
directed in the second section of this division. 

Sec 10. Whenever a president and trustees shall be elected for any town as 
herein directed, it shall be the duty of the president and clerk of the first meeting, 
provided for in the first section of this division, to deliver to them a certified state- 
ment in writing, of the polls at said first meeting ; and it shall be the duty of such 
president and trustees, to deposit the same with the clerk of the county commis- 
sioners' court of the proper county, to be entered on record in his office ; and 
before entering upon their duty, to take an oath to discharge this duty according to 
their best abilities. 

Sec. 11. The president and trustees of towns incorporated by virtue of the 
provisions of this division, shall have power to appoint a town constable, and author- 
ize him to execute all writs, process and precepts which may be issued against 
persons for the violation of the laws of the corporation, and to arreet, on view, all 
persons who may violate such laws, and to collect all fines, forfeitures and penalties 
which may be assessed or recovered for the use of the corporation, and to require 
bond and security of said constable in such sum as they may think proper. 

Sec 12. The said president and trustees are also vested with power to declare 
what shall be considered a nuisance within the limits of the corporation, and to 
provide for the abatement or removal thereof; also, to regulate the speed which 
horses and other animals may be rode or driven within the limits of the corporation; 
to provide for the trial and punishment of persons who may be engaged in assaults, 
assaults and batteries, and affrays within the limits of the corporation, and to pro- 
vide that such punishment may be inflicted for any offence against the laws of the 
corporation, as is or may be provided by law for like offences against the laws of 
the State : Provided, That no person shall be deprived of the right of trial by jury 
in any case, when such person would be entitled to a trial by a jury for a like 
offence against the law of the State. 

Sec 13. The president and trustees as aforesaid, are further authorized to pro- 
vide for the punishment of offenders by imprisonment in the county jails, in all cases 
where such offenders shall fail or refuse to pay fines which may be assessed, or for 
forfeitures or penalties which may be recovered : Provided, That no person shall be 
imprisoned under the provisions of this section, for a longer period than twelve 
hours for every five dollars of any fine assessed, or forfeiture or penalty recovered. 

Sec 14. The said president and trustees are also authorized to adopt such laws 
for the security of wagons and other carriages w r hich may be used within the limits 
of the corporation^and for the protection of the inhabitants against injury by reason 
of horses or other animals fastened to such wagons or carriages running with the 
same, as they may deem necessary ; also, to provide for the punishment of persons 
who may at any time, disturb the peace of the inhabitants of the town, or the delib- 
erations or proceedings of any public meeting of such inhabitants. 

Sec 15. The said president and trustees shall also have power to regulate the 
fees and compensation of all officers of the corporation. , 

Sec 16. Whenever any town shall be incorporated under the provisions of this 
division, all other laws incorporating the same, or made to regulate in any way, the 
internal police of such town, shall be considered as repealed. The inhabitants of 
any town so incorporated, shall not be required to work upon any road except as herein 



CORPORATIONS. 115 

required. And whenever any town corporation shall be dissolved, according to 
this division, all persons having any funds belonging to such corporation, in their 
hands, shall pay the same into the county treasury ; and all bonds and securities 
taken for the same by such corporation, shall vest in the county commissioners for 
the use of such county, who may have and maintain any proceedings thereon in law 
or equity, which might have been had by the said corporation. 

Sec. 17. Whenever any county commissioners or other person or persons wish 
to lay out a town in this State, or an addition or subdivision of out-lots, said commis- 
sioners or other person or persons shall cause the same to be surveyed, and a plat 
or map thereof made by the county surveyor, if any there be, of the county in which 
said town or addition is situated ; but if there be no county surveyor in the county, 
then, and in that case, by the county surveyor of an adjacent county ; which plat or 
map shall particularly describe and set forth all the streets, alleys, commons or 
public grounds, and all in and out-lots, or fractional lots, within, adjoining or adja- 
cent to said town, giving the names, widths, corners, boundaries and extent of all 
such streets and alleys. 

Sec 18. All the in-lots intended for sale shall be numbered in progressive num- 
bers, or by the squares in which they are situated, and their precise length and 
width shall be stated on said plat or map ; and all out-lots which shall not exceed 
ten acres in size, shall in like manner, be surveyed and numbered, and their precise 
length and width stated on the plat or map, together with any streets, alleys or 
roads which shall divide or border on the same. 

Sec 19. The county commissioners, proprietor or proprietors of the town, 
addition or subdivision of out-lots, by themselves or agent, shall, at the time of sur- 
veying and laying out the same, plant and fix at a corner of the public ground, or at 
the corner of a public lot, if any there be, and if there be none, then at the corner of 
some one of the in-lots in the town, and at the corner of each out-lot a good and 
sufficient stone, of such size and dimensions, and in such manner as the surveyor 
shall direct, for a corner from which to make future surveys ; and the point or 
points where the same may be found, shall be designated on the plat or map. 

Sec 20. The plat or map, after having been completed, shall be certified by 
the surveyor and the county commissioners, and every person or persons whose 
duty it maybe to comply with the foregoing requisitions, shall, at or before the time 
of offering such plat or map for record, acknowledge the same before a justice of 
the supreme court, justice of a circuit court, or a justice of the peace in the county 
where the land lies ; a certificate of such acknowledgment shall be by the officer 
taking the same indorsed on the plat or map ; which certificate of the surveyor and 
acknowledgment shall also be recorded, and form a part of the record. 

Sec 21. The plat or map, when made out, certified, acknowledged and recor- 
ded, as required by this division, and every donation or grant to the public, or any 
individual or individuals, religious society or societies, or to any corporation or 
bodies politic,- marked or noted as such on said plat or map, shall be deemed in law 
and in equity a sufficient conveyance to vest the fee simple of all such parcel or 
parcels of land as are therein expressed, and shall be considered to all intents and 
purposes as a general warranty against such donor or donors, their heirs and repre- 
sentatives to the said donee or donees, grantee or grantees, for his, her or their 
use, for the uses and purposes therein named, expressed or intended, and for no 
other use or purpose whatever. And the land intended to be for streets, alleys, 
ways, commons or other public uses, in any town or city, or addition thereto, shall 



11(5 CORPORATIONS. 

be held in the corporate name thereof, in trust to, and for the uses and purposes set 
forth and expressed or intended. 

Sec. 22. If the county in which said town or addition is situated shall not be 
organized, then, and in that case, the plat or map shall be recorded in the recorder's 
office of that county to which the county in which said town is situated shall at the 
time be attached for judicial purposes. 

Sec 23. Where any town, addition or subdivision of out-lots has been hereto- 
fore laid out, and lots sold in this State, either by county agents, commissioners or 
other persons, and a plat or map of the same has not been acknowledged and 
recorded as required by law, it shall be the duty, and it is hereby required of the 
present county commissioners, or a majority of them, in such county, or other per- 
son or persons, proprietors, who have laid out the same, or his, her or their legal 
representatives, to have the same fairly, fully and clearly made out, certified, 
acknowledged and recorded in the proper county, in the form and manner required 
by this division, noting and particularly describing the donations of land, or other- 
wise, to individuals, societies, bodies politic, or for common or public uses : Provi- 
ded, That if the lots shall have been differently numbered, and sales made, and they 
can not well be changed, they shall be returned as originally stated ; but in all other 
respects, the plat or map shall conform to the provisions of this division ; and if any 
county commissioner or commissioners, or other person or persons, whose duty it 
is to comply with the requisitions in this section named, shall neglect or refuse so 
to do, he or they shall forfeit and pay the sum of one hundred dollars for each and 
every month he or they shall delay a compliance. 

Sec. 24. If any county commissioners, or other person or persons, shall hereaf- 
ter lay out any town, or addition to any town or city, and neglect to plant the 
corner stones therein, or cause the same to be surveyed and platted in any other 
manner than that which is prescribed in this division, every person so offending 
shall forfeit and pay the sum of one hundred dollars. 

Sec 25. If any person or persons shall dispose of, offer for sale, or lease for 
any time exceeding five years, any out or in-lot, in any town, or addition to any 
town or city, or any part thereof, which shall hereafter be laid out, until all the 
foregoing requisitions of this division shall have been complied with, every person 
so offending shall forfeit and pay the sum of twenty-five dollars for each and every 
lot or part of lot so sold or disposed of, leased, or offered for sale. 

Sec 26. The county surveyor, who shall lay out, survey and plat any town or 
addition, shall be entitled to receive twenty-five cents for each and every in and 
out-lot, and the recorder of the county recording the same shall receive the sum of 
four cents for each and every lot the same may contain. 

Sec 27. All forfeitures and liabilities which may be incurred and arise under 
this division, shall be prosecuted for, and recovered in the name of the county treas- 
urer of the proper county, one-half thereof to go to the county in which the town 
or addition, lies, to be applied to such objects and for such purposes as the county 
commissioners' court shall direct, and the other moiety to the use and benefit of the 
inhabitants and owners of property in such town or city, to be disbursed under the 
direction of the trustees or corporation officers, in improving the streets and alleys, 
and other objects of internal improvement in said town, the addition, if any, inclu- 
sive ; and it is hereby made the duty of the county treasurer, whenever he shall be 
satisfied that the provisions of this division have been violated, and a forfeiture in- 
curred, to bring suit, and prosecute for the same. 



CORPORATIONS. 



117 



DIVISION II. ACADEMIES. 



Section 

28. Five or more may be incorporated to establish 

academy, &.C., and hold real estate. 

29. First meeting ; ten days' notice given; trustees 

to be elected ; powers. 

30. Certificate of election to be recorded. 

31. Trustees shall be body corporate ; powers and 

Obligations. 
Have no power to sell real estate. 
Stockholders ; annual elections ; vacancies, how 

filled. 
May receive donations. 



32. 
33 



34. 



35. Application of funds ; donations, how applied. 



Section 

36. Treasurer to be elected and sworn; his duties. 

37. Who may be stockholders ; who may vote. 

38. Trustees to receive subscriptions; concerning 

elections. 

39. Payments by stockholders, how made. 

40. Who may receive instruction ; who be stock- 

holder. 

41. Proceedings in case of violation of this law. 

42. If day of election pass by, another day to be 

named. 

43. Trustees may prescribe course of instruction, 

appoint teachers, &c. 



Section 28. When five or more persons shall associate themselves together, 
for the purpose of forming an acad emy or seminary of learning in their neighbor- 
hood, and shall acquire by gift, grant or purchase, any lots or lands not exceeding 
one hundred and sixty acres, and shall build a house thereon for the purposes of ed- 
ucation, it shall be lawful for them to apply to the county commissioners' court of 
the county in which the land so acquired may be situated, to receive the legal title 
to said land, and hold it in trust for them until the persons so associated shall become 
qualified as a body corporate, to receive the same in the manner and mode herein- 
after provided for. 

Sec. 29. It shall be lawful for the persons associated together for the purposes 
named in the preceding section, or a majority of them, to meet at some public place 
in the neighborhood of the intended academy or seminary of learning, after giving 
ten days' notice thereof by advertisement set up at three public places in the vicinity, 
or by notice in some public newspaper printed in the county, and then and there 
proceed to the election of not less than five nor more than seven trustees, a major- 
ity of whom shall be capable of receiving a deed or deeds from the county commis- 
sioners' court in which the same may lie, for such lots or lands as may be held in 
trust for such association under the provisions of the twenty-eighth section of this 
chapter. 

Sec. 30. The clerk who may have acted as such at the election of said trustees, 
shall within ten days thereafter deposit in the recorder's office of the county where 
such lands or lots may lie, a certificate of the election of said trustees, which shall 
be immediately recorded in some book in which deeds are recorded, and the lots 
or lands so deeded by the county commissioners' court aforesaid, shall vest in said 
trustees and their successors in office, for the sole use and benefit of said academy 
or seminary of learning, forever, all the right and title to such lots or lands for the 
purposes herein named and no other. 

Sec 31. As soon as the clerk of such election shall deposit with the recorder 
of the county as aforesaid, a certificate of said election, stating therein the name of 
the association, and for what object formed, and the names of the trustees elected, 
then, and from that time, the said trustees and their successors in office shall be 
created and remain a body corporate and politic, and in the name and style assumed 
by them, shall remain in perpetual succession, with power to sue and be sued, to 



118 CORPORATIONS. 

plead and be impleaded, to acquire, hold and convey property, real and personal, to 
have and to use a common seal, to alter the same at pleasure, to make and alter 
from time to time such by-laws as they may deem necessary for the government and 
regulation of such academy or seminary of learning, its officers servants and 
property. 

Sec. 32. The aforesaid trustees, and their successors in office, shall have no 
power nor authority under this law to sell or convey away any of the lots or lands 
deeded to them by the county commissioners' court, but the same shall be held in 
trust forever for the purposes for which said lots or lands were originally given, 
granted or purchased, and for no other use or purpose whatsoever. 

Sec. 33. The persons associated under the provisions of this division, shall be 
called and deemed stockholders, and from their number, after the first election and 
organization, shall elect annually in such manner, mode and time, as they may fix 
by by-law, not less than five, nor more than seven trustees, who shall continue in 
office until their successors are duly elected and qualified ; and before entering on 
the duties of their office, they shall take an oath before some justice of the peace, 
faithfully to perform the duties enjoined on them by this division, and by the by-laws 
of the association to which they belong : and should any vacancy occur in the 
board of trustees before the expiration of the year, either by death or resignation, 
the remaining members of the board shall be authorized to fill such vacancy from 
among the stockholders ; which appointment shall hold and continue until the 
ensuing annual election. 

Sec 34. The trustees, when elected and qualified, and their successors in 
office, shall be competent in law or equity to take or receive in their corporate 
name, and for and in behalf of the associated stockholders, any estate, real, personal 
or mixed, by the gift, grant, bargain and sale, conveyance, will, demise or be- 
quest of any person or persons whatsoever, and the same estate, whether real, per- 
sonal or mixed, to grant, bargain, sell, convey, demise or place at interest or other- 
wise dispose of, for the use and benefit of the academy or seminary whose interests 
they represent. 

Sec 35. Said trustees shall faithfully apply all funds collected, or the available 
proceeds thereof, in erecting, completing or repairing suitable buildings, paying 
suitable salaries to the necessary officers, instructors and servants, in procuring 
books, stationery, maps, charts, globes and apparatus necessary to be used in an 
academy or seminary of learning ; and in case any donation, devise or bequest 
shall be made to any institution established under the provisions of this division, 
and the corporation to which the same shall be made, shall accept the same, such 
donation, devise or bequest shall be applied in conformity with the express condi- 
tions of the donor or devisor. 

Sec 36. At the time of the annual election of trustees, the stockholders in 
each corporation created under the provisions of this division, shall elect a treasur- 
er, who shall, before he enters upon the duties of his office, give bond, with ap- 
proved security, to the trustees thereof, in such penal sum as they may require, for 
the faithful performance of the duties of his office, and who, for good cause, may be 
removed by the concurrent vote of two-thirds of the trustees ; and in case of his 
death, removal, resignation or refusal to serve, it shall be lawful for the trustees 
at any of their meetings, to appoint another treasurer in his stead, to remain in office 
till the expiration of the time for which his predecessor was elected. 



CORPORATIONS. 119 

Sec. 37. On the payment of such sum as the stockholders, in each corporation 
under the provisions of this division may ordain by their by-laws, every free white 
person shall be considered a stockholder and be entitled to one vote, and it may be 
lawful for each and every stockholder for the time being, his executors, administra- 
tors or assigns, to give, sell, devise and dispose of their respective rights or shares 
in such academy or seminary, and such donee or purchaser shall be entitled to all 
the rights of the original holders. 

Sec. 38. The first board of trustees elected under the provisions hereof, shall, 
and they are hereby appointed commissioners to solicit and receive subscriptions 
of stock to the corporation which they represent, and give receipts for the same, 
and pay the same over to the treasurer when elected and qualified; and said trus- 
tees, within six months from the time of their first election, shall give public notice 
in some newspaper of the county, if there be any, or in at least three public places 
in the neighborhood of the location of the academy or seminary, of the time and 
place of holding an election of trustees and treasurer ; and said election shall be 
held between the hours of twelve, M. and six, P. M.j and said trustees, or any 
three of them, may act as judges of elections. 

Sec 39. Each stockholder shall be required at or before the second election of 
trustees, to pay five dollars on each share by him or her subscribed, and the resi- 
due at such time, and in such amounts, as shall be required by the board of trus- 
tees ; and if the instalments are not paid within six months from the time required, 
then the amount already paid by him or her, shall be forfeited to the corporation. 

Sec 40. Any academy or seminary established under the provisions of this 
division, and in operation, shall at all times be open for the use and privilege of 
every free white person who may wish to be instructed therein, if such person will 
comply with the by-laws and regulations of the corporation, and pay such sum as the 
trustees may require for the instruction of students attending such academy or semi- 
nary ; and every free white person who may at any time tender to the treasurer of 
the corporation the sum required by the by-laws to constitute a stockholder, shall 
be admitted as such, and receive from the treasurer a certificate of stock. 

Sec 41. If at any time any corporation created under this division, shall violate 
any of its provisions, it shall be the duty of the attorney general when he may 
have knowledge thereof, to file an information in the nature of a quo warranto, for 
the purpose of vacating the same : Provided, In that case the trustees shall have 
the right of selling all the property, real and personal, belonging to such corpora- 
tion, and after paying all its debts, the balance, if any, shall be distributed pro rata 
among the stockholders thereof. 

Sec 42. In case it should happen that an election of trustees should not be 
made on the day appointed by the by-laws of any corporation established by this 
division, such corporation shall not for that cause be deemed to be dissolved, but 
it shall be lawful on any other day to hold and make an election of trustees, in 
such manner as shall be prescribed by the by-laws and ordinances of such cor- 
poration. 

Sec 43. All corporations created under the provisions of this division, may 
from time to time prescribe and regulate the course of studies to be pursued in 
such institution, fix the rate of tuition, appoint instructors, officers, and such assist- 
ants and agents as may be deemed necessary in managing its concerns ; and do all 
and every thing that may be fit and proper, for the purpose of promoting the cause 
of education, that is not inconsistent with the provisions hereof, or contrary to the 
constitution and laws of the United States and of this State. 



120 



CORPORATIONS. 



DIVISION III. RELIGIOUS SOCIETIES 



Section 

44. Religicus societies may receive gifts of land, 
not over ten acres, for erecting houses of 
worship; trustees. 

Certificate of election of trustees to be recorded; 
their term of office ; subsequent elections. 

Trustees to have perpetual succession ; property- 
vested in them; how property to be held; 
trustees may sue and be sued; have power 
under direction, &c, to make deeds, 6cc; ef- 
fect thereof; no deed to be made, to defeat ob- 
jects of grant. 



45. 



46. 



Section 

47. Power of society respecting trustees, and of its 

estate. 

48. If society is dissolved, what disposition made of 

property; if trustees be not elected at the pro- 
per time, society not dissolved thereby, but 
other day may be named. 

49. The provisions hereof to apply to estate here- 

tofore acquired; such rights not to accrue un- 
til the provisions hereof be complied with. 



Section 44. It shall be lawful for the members of any society or congregation 
heretofore formed in this State for purposes of religious worship, and for members 
of any society or congregation which may hereafter be formed for the purpose 
aforesaid, to receive by gift, devise or purchase, a quantity of land not exceeding 
ten acres, and to erect or build thereon, such houses and buildings as they may deem 
necessary for the purposes aforesaid, and to make such other use of the land, and 
make such other improvements thereon as may be deemed necessary for the comfort 
and convenience of such society or congregation ; and such society or congregation 
may assume a name and elect or appoint any number of trustees, not exceeding 
ten, who shall be styled trustees of such society or congregation by the name 
assumed ; and the title to the land purchased and improvements made, shall be 
vested in the trustees, by the name and style assumed as aforesaid. 

Sec 45. Immediately after the election or appointment of trustees by any 
society or congregation as aforesaid, the persons elected or appointed, shall make a 
certificate under their hands and seals, stating the date of their election or ap- 
pointment, the name of the society, or congregation, and the length of time for 
which they were elected or appointed, which shall be verified by the affidavit of 
some one of the persons making the same, and shall be recorded by the recorder of 
the county in which such society or congregation may be formed, and the said 
trustees shall hold their office for and during the period stated in the certificate 
aforesaid. And at the expiration of their term of service and forever thereafter, 
at the expiration of the term of service of any trustee elected or appointed as 
aforesaid, the said society or congregation shall elect or appoint successors, who 
shall, in like manner, continue in office for such period as may be limited by the 
society or congregation, and a certificate of their election or appointment shall be 
made by the trustees whose term of service shall have expired which shall be 
verified by affidavit, and recorded as provided in the election or appointment of 
trustees in the first instance. 

Sec 46. The trustees elected or appointed under the provisions of this divi- 
sion and their successors, shall have perpetual succession and existence, and the 
title to land herein authorized to be purchased, and to the buildings and improve- 
ments thereon, shall be vested in the said trustees by their assumed name, and their 
successors forever ; and the same shall be held for the uses and purposes herein 
named and no other ; and such trustees shall be capable in law, to sue and be sued, 
implead and be impleaded, answer and be answered unto, defend and be defended, 



CORPORATIONS. 



121 



in all courts of law or equity whatsoever, in and by the name and style assumed 
as aforesaid ; and shall have power, under the direction of the society or congrega- 
tion, to execute deeds and conveyances of and concerning the estate and property 
herein authorized to he held by such society or congregation; and such deeds or 
conveyances shall have the same effect as like deeds or conveyances made by natu- 
ral persons : Provided, That no deed or conveyance shall be made of any estate 
held as aforesaid, so as to defeat or destroy the interest or effect of any grant, dona- 
tion or bequest which may be made to any such society or congregation, but all 
grants, donations and bequests shall be appropriated and used as directed by the 
person or persons making the same. 

Sic. 47. Every society or congregation formed as aforesaid, shall have power 
to provide for filling vacancies which may happen in the office of trustee, and also 
to remove trustees from office, and to adopt such rules and regulations in relation 
to the duties of trustees, and the management of its estate as the members may 
deem proper, not inconsistent with the constitution and laws of this State or the 
United States. 

Sec. 48. Upon the dissolution of any society or congregation formed under the 
provisions of this division, the estate and property of such society or congregation 
shall revert back to the persons, their heirs and assigns, who may have given or 
contributed to the purchase of, or payment for the same, according to their respec- 
tive rights. A failure to elect or appoint trustees at any time when, by the 
provisions of this division such election or appointment should be had, shall not 
work a dissolution of the society or congregation, but the trustees last elected or 
appointed, shall be considered as in office until another election or appointment shall 
take place. 

Sec 49. The provisions of this division shall be deemed and taken to apply to 
real estate heretofore acquired and now held by religious societies or congregations, 
so as to vest such societies or congregations, or their trustees with the rights and 
powers herein conferred over real estate hereafter acquired : Provided, That such 
rights and powers shall not be exercised until the provisions of this division shall 
have been complied with. 



DIVISION IV. LIBRARIES 



Section 

60. Five or more persons may associate and estab- 
lish library, elect trustees, &c. 

51. Elections, how held ; certificate of elections to be 
tiled ; fee of clerk. 

62. Any debating or literary society may organize, 
without subscribing funds. 

53. Trustees ; powers, liabilities and duties of cor- 
poration. 

64. Trustees may purchase and hold real estate; 
amount limited. 



Section 

55. Term of office of trustees ; officers appointed. 

56. Meetings of stockholders, to elect officers ; ac- 

counts to be submitted to meeting of mem- 
bers. 

57. Meetings of trustees, when held. 

58. Members may sell shares in library. 

59. Trustees may make by-laws. 

60. Payments of fees by members. 

6 1 . Election may be held on any day. 



Section 50. Any number of persons, not less than ten, who shall associate them- 
selves together, and subscribe, in the whole, not less than one hundred dollars, may 
assemble at any time and place upon which a majority of such subscribers shall de- 



122 CORPORATIONS. 

termine to elect and appoint not less than three, nor more than seven of their num- 
ber as trustees, to take charge of the moneys belonging to the corporation thereby 
erected, and to transact all affairs relative to the same. 

Sec. 51. The said election, to be held as aforesaid, shall be conducted in the 
following manner, to-wit : That whenever two-thirds of the subscribers shall assem- 
ble at the time and place previously agreed on, they shall proceed to choose a chair- 
man from among themselves, who shall preside at such election, receive the votes 
of the subscribers, and be the officer to return the names of those who, by plurality 
of voices, shall be elected trustees of said corporation ; the said returning offi- 
cer shall certify under his hand, the names of the persons elected trustees for said 
library, in which certificate the name and style of the corporation shall be particu- 
larly described ; which certificate shall be filed in the office of the clerk of the 
county commissioners' court; and at the next term of said court after such filing, 
the clerk thereof shall copy the same upon the records of the proceedings of the 
said court; for doing which he shall receive a fee of fifty cents and no more. 

Sec 52. Any debating or literary society may organize according to the provi- 
sions of this division, without having subscribed one hundred dollars, and may form 
its own constitution and by-laws, and regulate its own proceedings without appoint- 
ing trustees, or any other than such officers as may be proper ; and when so organi- 
zed shall receive all the benefits conferred by this division. 

Sec 53. The persons so elected shall be trustees for said library, and the 
said trustees and their associates, and such other persons as shall, from time to time, 
become members of such corporation, shall be one body corporate and politic, in 
fact and in name, by the name, style or title mentioned in said certificate, so to be 
filed and entered on record as aforesaid, and by that name shall have succession ; 
and they and their successors shall be capable in law to sue and be sued, implead 
and be impleaded, answer and be answered unto, defend and be defended, in all 
courts of law or equity whatsoever ; and they and their successors shall have a 
common seal, and may alter and change the same at their discretion. 

Sec 54. The said trustees and their successors, by the name and style descri- 
bed in said certificate, shall be capable in law of purchasing, holding and conveying 
any estate, real or personal, for the use of said corporation: Provided, Such real 
and personal estate, so held, shall not at any one time exceed the annual value of 
six hundred dollars, exclusive of the books and the annual payments which shall 
be made by the members of the said corporation. 

Sec 55. The trustees shall hold their offices one year, and until others be elec- 
ted in their places, and shall manage the business of the said corporation ; and 
there shall be one chairman of said trustees, one treasurer and one librarian ; and 
it shall be lawful for the said trustees, whenever they conceive it necessary, to 
appoint one and the same person treasurer and librarian. 

Sec 56. A general meeting of the members of the corporation shall be held 
once in each year, for the election of officers, who shall be chosen by a plurality of 
votes ; and any person holding more than one right in said library, shall be entitled 
to one vote for each right he or she shall hold in the same ; the trustees of said 
library shall, annually, at their first meeting on or after the day that their offices 
commence, appoint one of the said trustees their chairman ; and in case of the death, 
removal, refusal or neglect to serve, of the chairman for the time being, it shall be 
lawful for the trustees of the said library, at any of their meetings, to appoint ano- 
ther chairman, instead of the one dying, removing, refusing or neglecting to serve 



CORPORATIONS. 123 

as aforesaid, to remain in office till the expiration of the time during which his pre- 
decessor was entitled to serve ; and when any vacancy shall happen, by the death, 
removal, resignation or neglect to serve, of any of the said trustees, it shall be law- 
ful for the chairman of the said trustees, or on his neglect or refusal, for any other 
two of the said trustees, to summon a meeting of the members of said corporation 
at a place fixed by the by-laws of said corporation, for the purpose of electing other 
person or persons instead of such as shall have so died, removed, refused or neglect- 
ed to serve as aforesaid ; and such person or persons so to be chosen trustee 
or trustees, at such meeting as last aforesaid, shall respectively remain in office 
during such time as the person in whose stead such trustee shall be chosen, would 
have done in case such death, removal or refusal had not happened, and no longer ; 
and the trustees of the said library shall at every such annual meeting of the 
members of the said corporation, exhibit to the members, a state of the said library, 
the minutes of the proceedings of the trustees during the year immediately prece- 
ding, with the treasurer and librarian's accounts, stating the amount of the receipts 
and expenditures during such year. 

Sec. 57. The said trustees shall have stated meetings in every quarter in every 
year, at such time and place as shall, from time to time, be appointed for that pur- 
pose ; and the chairman, or any two trustees of said library, for the time being, 
may, from time to time, as occasion requires, call together at such place as shall, 
from time to time, be appointed by the by-laws of said corporation, the trustees of 
said library, giving them at least two days previous notice of such meeting ; and 
the chairman and a majority of the said trustees shall form a board of trustees, and 
in the absence of the chairman, the trustees so met shall choose another to serve 
on that occasion ; the chairman shall have a casting vote and no other ; the chair- 
man and a majority of the trustees so met, shall have authority to adjourn from 
time to time, as the business of said corporation may require ; and from time to time, to 
appoint, at their pleasure, or displace, a treasurer or librarian of the said library, and 
to appoint other or others in their stead ; to ascertain the compensation to be allowed 
to the treasurer or librarian, or either of them, for their services in their stations 
respectively, and to appoint to them their respective powers, trusts and duties ; to 
direct the application of moneys belonging to the said corporation, to the purchase 
of such books and apparatus as they shall think proper ; to the providing a room or 
house for the safe keeping of the books of the said library ; and to do, in the name 
of the said corporation, all and every act and acts, thing and things whatsoever, 
which shall be necessary to be done, and which the trustees of the said library are 
by this law authorized to do ; and to make, at all times hereafter, such laws and 
regulations for the government of the officers and members of said corporation ; for 
regulating the terms upon which the books of the said library shall be lent out, both 
to the members of said corporation or to others ; for fixing and ascertaining the 
times and places in the quarterly meetings of the said trustees ; for allowing and 
fixing the places of meeting of the members of said corporation ; for the election of 
trustees ; for regulating the management and disposition of the books of the said 
library, and the moneys, funds and effects belonging to the said corporation ; the 
mode of transferring rights in the said library from one person to another ; and 
all the other business of the said corporation, as they or the major part of them, so 
legally met, shall judge best for the general good of said corporation ; and for the 
more effectual promoting, increasing and preserving the said library; and the same 
or any of them to alter or repeal from time to time, as they or a major part of them, 



124 



CORPORATIONS. 



so met, shall think proper : Provided, Such laws and regulations shall not be repug- 
nant to the laws of this State. 

Sec. 58. It shall be lawful for each and every of the members for the time being 
of the said corporation, his or her executors, administrators and assigns, to give, 
sell, devise and dispose of their respective rights in the said library, and their 
respective assignees shall be members of said corporation, and shall be entitled to 
all the same rights and privileges in said corporation as the original members are 
entitled to by this division : Provided, That a part of a right in said library shall 
not entitle the proprietor or owner thereof, to any privilege whatever in said 
library or corporation. 

Sec. 59. It shall be lawful at such meeting of a majority of said trustees of the 
library for the time being, to make any by-laws, constitutions or ordinances of the 
said corporation, to admit under the common seal of the said corporation, such and 
so many persons, members of said corporation, as they shall think beneficial to said 
library; which members so admitted, shall be entitled to have, hold and enjoy, all 
and every the same rights and privileges as the original members are entitled to by 
this division. 

Sec. 60. Each member of such corporation for the time being, shall, on or 
before the first Tuesday in the month fixed for the election of trustees, annually 
pay to the treasurer of said library for the use of said corporation, the sum or sums 
which shall be fixed by the by-laws of said corporation ; and whenever any of 
the members of the said corporation shall neglect to pay the said annual sum, or any 
other sum which shall of right become due to the corporation, for the space of fifty 
days next after the day on which the same ought to have been paid, then the 
person or persons from whom the same shall be due, shall be precluded from exer- 
cising any of the privileges to which he became entitled by virtue of his being or 
becoming a member of the said corporation, until such sums shall be fully satisfied ; and 
if such sums shall not be paid within two years after any such sums shall become 
due as aforesaid, then, and after the expiration of two years from the time such 
payment shall become due, the person or persons from whom the same shall become 
due, shall thereupon forfeit and be utterly excluded from all his, her, or their rights 
and privileges in the said library and incorporation. 

Sec 61. In case it shall happen that an election of trustees should not be made 
on any day, when pursuant to this division, it ought to have been made, the said 
corporation shall not for that cause be deemed to be dissolved, but that it shall be 
lawful on any other day, to hold and make an election of trustees, in such manner as 
shall have been regulated by the laws and ordinances of the said corporation. 



DIVISION V. FIRE COMPANIES. 



Section 

62. Forty or more persons may organize fire com- 

panies ; may make by-laws. 

63. To be body politic and corporate; powers, &c, 

of corporation. 



Section 

64. Fines, how recovered and applied. 

65. Exemption from militia duty while member of 

fire company, and after serving in fire compa- 
ny twelve years. 



COSTS. 



125 



Section 62. It shall be lawful for any number of persons, resident within any 
town or corporation within this State, exceeding forty persons, to form themselves 
into a company or companies, for the purpose of extinguishing fires, who on having 
their names and subscriptions recorded in the recorder's office in the proper county, 
are hereby authorized to make such rules and regulations as to a majority of said 
company or companies may seem proper and necessary for the procuring of engines, 
buckets, hooks, ladders, and all implements necessary for working said engines and 
exercising the companies : Provided, No by-law shall be contrary to the laws of 
this State. 

Sec 63. So soon as such persons shall have had their names and subscriptions 
recorded as aforesaid, they and their successors shall be, in law and in fact, a body 
corporate and politic, to have continuance forever, by the name and style of " The 
Fire Company ;" and by such corporate name and style, shall be forever 
able and capable in law and in equity, to sue and be sued, implead and be implea- 
ded, answer and be answered, defend and be defended, in all manner of suits, 
actions, plaints, pleas, causes, matters and demands of whatever kind and nature 
they may be, in as full and effectual a manner, as any person or persons, bodies corpo- 
rate and politic may or can do. 

Sec 64. All fines and forfeitures for non-attendance or delinquency, imposed 
by the by-laws and regulations to be adopted by the companies provided for by 
this division, not exceeding twenty dollars, shall be recoverable by action of debt, 
before any justice of the peace of the proper county, by the said company in their 
corporate capacity, which said fines and forfeitures, shall be for the use of the com- 
pany sueing for the same. 

Sec 65. All persons who shall form themselves into fire companies, as is pro- 
vided in this division, shall be exempt from militia duty during the time they belong 
to such company ; and all persons, who shall have served twelve years in suc- 
cession in any such fire company, shall, forever after, be exempt from doing mili- 
tia duty in this State, except in time of war. 

Appboved : March 3, 1845. 



CHAPTER XXVI. 

COSTS. 



Section 

1 . Bond for costs required, in what cases ; nature 

and form of bond. 

2. If suit commenced without bond, suit to be dis- 

missed at cost of plaintiff's attorney; if plain- 
tiff become non-resident or unable to pay, af- 
ter commencement of suit, bond may be re- 
quired, and on refusal to file one, suit may be 
dismissed. 

3. If plaintiff be poor person. 

4. When plaintiff has judgment in matter personal 

to himself, he shall have costs. 

5. In what case defendant may have costs. 



Section 

6. If plaintiff in replevin be non-suited, defendant 

may have costs. 

7. Costs on overruling demurrer. 

8. Costs when pleas adjudged insufficient. 

9. When counts in declaration insufficient, costs to 

be awarded. 

10. One, of several defendants in tort, on acquittal, 

shall recover costs. 

1 1 . Costs on scire facias. 

12. How many witnesses may have costs. 

13. When there is irregularity or failure to prose- 

cute, defendant may have costs. 



126 



COSTS. 



Section 

14. State or county may recover costs; when de- 

fendant in action brought by State or county 
may not recover costs. 

15. Costs against complainant on dismissal of Ms 

bill in equity. 

16. Person to whose use suit is commenced, shall 

be liable for costs. 

17. On appeals, or writs of certiorari from judg- 

ments of justices of the peace, how costs 
awarded. 
IS. In appeals from probate court. 



Section 

19. Costs on writs of error to supreme court. 

20. If, on writ of error, judgment be allirmed,dirn- 

ages may be given in certain cases. 

21. Costs, when divided between the parties. 

22. Clerks of courts of record shall tax, and sub- 

scribe all bills of costs. 

23. On application of aggrieved party, court may re- 

tax bill of costs ; cleric improperly taxing to 
forfeit his fees, and refund. 
If costs not paid in certain cases, how to be col- 
lected. 



24. 



Section 1. In all actions on office bonds for the use of any person; actions on 
the bonds of executors, administrators or guardians ; qui tarn actions ; actions on 
any penal statute ; and in all cases in lav/ or equity, where the plaintiff, or person 
for whose use an action is to be commenced, shall not be a resident of this State, 
the plaintiff or person for whose use the action is to be commenced, shall, before 
he institutes such suit, file, or cause to be filed with the clerk of the circuit or 
supreme court in which the action is to be commenced, an instrument in writing, 
of some responsible person, being a resident of this State, to be approved by the 
clerk, whereby such person shall acknowledge himself bound to pay, or cause to be 
paid, all costs which may accrue in such action, either to the opposite party, or to 
any of the officers of such courts ; which instrument in writing may be in the form, 
and to the purport following, to-wit : 

A. B. ) Court, 

vs. > 
C. D. ) 

I do hereby enter myself security for costs in this cause, and acknowledge my- 
self bound to pay or cause to be paid, all costs which may accrue in this action 
either to the opposite party or to any of the officers of this court, in pursuance of 
the laws of this State. Dated this day of E. F. 

Sec. 2. If any such action shall be commenced without filing such instrument 
of writing, the court, on motion, shall dismiss the same, and the attorney of the 
plaintiff shall pay all costs accruing thereon ; and if at any time after the commence- 
ment of any suit by a resident of this State, he shall become non-resident ; or, if 
in any case the court shall be satisfied that any plaintiff is unable to pay the costs 
of suit, or that he is so unsettled as to endanger the officers of the court, with 
respect to their legal demands, it shall be the duty of the court, on motion of the 
defendant or any officer of the court, to rule the plaintiff on or before a day, in such 
rule named, to give security for the payment of costs in such suit : if such plain-' 
tiff shall neglect or refuse, on or before the day in such rale named, to file an instru- 
ment of writing of some responsible person, being a resident of this State, whereby 
he shall bind himself to pay all costs which have accrued, or may accrue in such 
action, the court shall, on motion, dismiss the suit. 

Sec. 3. If any court shall, before or after the commencement of any suit, be 
satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, 
and pay the costs and expenses thereof, they may, in their discretion, permit him or 
her to commence and prosecute his or her action, as a poor person ; and thereupon 
such person shall have all the necessary writs, process and proceedings, as in other 
cases without fees or charge. The court may assign to such person counsel, who, 
as well as all other officers of the court, shall perform their duties in such suit 
without any fees, charge or reward; if judgment be entered for the plaintiff, there 
shall be judgment for his costs ; which costs shall be collected for the use of the 
said officers. 



COSTS. 127 

Sec. 4. If any person shall sue in any court of this State in any action, real, per- 
sonal or mixed, or upon any statute for any offence or wrong immediately personal 
to the plaintiff, and shall recover any debt or damage in such action, then the plain- 
tiff or demandant shall have judgment to recover costs against the defendant to be 
taxed ; and the same shall be recovered together with the debt or damages by exe- 
cution, except in the cases hereinafter mentioned. * 

Sec. 5. If any person shall sue in any court of record of this State, any action, 
wherein the plaintiff or demandant might have costs in case judgment be given for 
him, and he be non-pros 'd, or suffer a discontinuance, or be non-suited after appear- 
ance of the defendant, or a verdict pass against him, then the defendant shall have 
judgment to recover his costs against the plaintiff, (except against executors or 
administrators prosecuting in the right of their testator or intestate,) or demandant 
to be taxed, and the same shall be recovered of the plaintiff or demandant, by like 
process as the plaintiff or demandant might have had against the defendant, in case 
judgment had been given for such plaintiff or demandant. 

Sec. 6. Any person making avowry, justification or cognizance in replevin, if 
the same be found for him, or the plaintiff be non-suited or non-prosed, suffer a dis- 
continuance, or be otherwise barred, then such person shall recover his damages 
and costs against the plaintiff, in like manner as the plaintiff would bave done, if the 
same had been found against the defendant. 

Sec 7. If, in any action, judgment upon any demurrer, by either party to the 
action, shall be given against the plaintiff or demandant, the defendant shall recover 
costs against the plaintiff or demandant. If such judgment be given for the plaintiff 
or demandant he shall recover costs against the defendant; and the person so recov- 
ering costs, shall have execution for the same. 

Sec. 8. Where any defendant in any action, or plaintiff in replevin, shall plead 
several matters, and any of such matters, upon demurrer joined, shall be adjudged 
insufficient, or if a verdict shall be found, in any issue of the cause, for the plaintiff 
or demandant, costs shall be given at the discretion of the court. 

Sec. 9. Where there are several counts in any declaration, and any one of them 
be adjudged insufficient, or a verdict on any issue joined thereon, shall be found for 
the defendant, costs shall be awarded in the discretion of the court. 

Sec. 10. Where several persons are made defendants to any action of trespass, 
assault, false imprisonment, detinue, replevin, trover or ejectment, and any one or 
more of them shall, upon the trial, be acquitted by verdict, every person so acquit- 
ted shall recover his costs of suit, in like manner as if such verdict of acquittal 
had been given in favor of all the defendants. 

Sec. 11. In all suits upon any writ of scire facias, or upon prohibition, the 
plaintiff obtaining judgment, or an award of execution, after plea pleaded, or de- 
murrer joined therein, shall recover his costs of suit; if the plaintiff shall be 
non-suited, non-prosed, or suffer a discontinuance, or a verdict shall pass against 
him, the defendant shall recover his costs. 

Sec. 12. In no case in the circuit court shall the fees of more than four wit- 
nesses be taxed against the party against whom judgment shall be given for costs, 
unless the court shall certify on their minutes, that more than four witnesses were 
really necessary; in which case the clerk shall tax the costs of as many witnesses 
as the court shall so certify. 

Sec. 13. In all cases, where any action shall be dismissed for irregularity, or 
be non-prosed or non-suited, by reason that the plaintiff neglects to prosecute the 



128 COSTS. 

same, the defendant shall have judgment for his costs, to be taxed, and have execu- 
tion therefor. 

Sec. 14. In all suits and actions commenced or to be commenced for and on be- 
half of the people of this State, or the Governor thereof, or for or on behalf of any 
county of this State, or in the name of any person for the use of the people of this 
State or any county, then and in every such case, if the plaintiff or plaintiffs shall 
recover any debt or damages in such action or suit, the plaintiff or plaintiffs shall 
recover costs as any other person in like cases ; but if such plaintiff or plaintiffs 
suffer a discontinuance, or be non-suited or non-pros^, or verdict pass against such 
plaintiff or plaintiffs, the defendant shall not recover any costs whatever. Nothing 
in this sed^on contained shall extend to any popular action, nor to any action to be 
prosecuted by any person in behalf of himself and the people or a county, upon any 
penal statute. 

Sec 15. Upon the complainant dismissing his bill in equity, or the defendant 
dismissing the same for want of prosecution, the defendant shall recover against the 
complainant full costs ; and in all other cases in chancery, not otherwise directed by 
law, it shall be in the discretion of the court to award costs or not ; and the payment 
of costs, when awarded, may be compelled by execution. 

Sec 16. When any suit shall be commenced in the name of one person, to the 
use of another, the person to whose use the action is brought shall be held liable and 
bound for the payment of all costs which the plaintiff may be adjudged or bound to 
pay, to be recovered by action on the case. 

Sec 17. In all cases of appeal or certiorari upon the judgments of justices of 
the peace, when the judgment of the justice of the peace shall be wholly affirmed 
or reversed, the party succeeding shall recover from the opposite party his costs, 
not only in the circuit court but before the justice of the peace, and shall have his 
execution therefor : where the judgment of the justice of the peace shall be affirm- 
ed in part, then the court shall divide the costs between the parties, according to the 
justice of the case. 

Sec 18. In all cases of appeal from the decision of a court of probate, the costs 
shall be in the discretion of the circurt court. 

Sec 19. If any person shall sue out a writ of error, or take an appeal to the 
supreme court, to review the judgment of the circuit court, and the same judgment 
be affirmed, or the writ of error be discontinued or quashed, or the plaintiff in 
error or appellant be non-suited, the defendant in error or appellee shall recover 
his costs, and have execution therefor ; and if the judgment be reversed, the appel- 
lant or plaintiff in error shall recover his costs, and shall have execution therefor, 
as in other cases. 

Sec 20. In every such case, if the judgment or decree be affirmed in the whole, 
the party prosecuting such writ of error or appeal shall pay to the opposite party a 
sum not exceeding ten per centum on the amount of the judgment or decree so at- 
tempted to be reversed, at the discretion of the court, and in addition to the costs, 
shall have judgment and execution therefor : Provided, the supreme court shall be 
of opinion that such appeal or writ of error, was prosecuted for delay. 

Sec 21. Where such judgment or decree shall be reversed in part, and affirmed 
in part, the costs shall be apportioned between the parties, according to the discre- 
tion of the supreme court. 

Sec 22. The clerk of any court in this State is hereby authorized and requi- 
red to tax and subscribe all bills of costs arising in any cause or proceeding institu- 



COUNTIES AND COUNTY COURTS. 



129 



ted in the court of which he is clerk, agreeably to the rates which shall, for the time 
being, be allowed or specified by law ; and shall in no case allow any item or charge 
unless he shall be satisfied that the service for which it was made was actually per- 
formed in the cause. 

Sec. 23. If any person shall feel himself aggrieved by the taxation of any bill 
of costs by the clerk, he may apply to the court in which the action or proceeding 
was had to retax the same, according to law. If the said court shall find any charge 
allowed for services not performed, or for which the person charged is not liable, 
or any item charged higher than by law is allowed, then the court shall correct 
such taxation; and if the party aggrieved shall have paid such unlawful charge, the 
clerk shall forfeit all fees allowed to him for taxation ; and shall pay to the party 
aggrieved the whole amount which he may have paid by reason of the allowing of 
such unlawful charge. 

Sec. 24. In all cases where either party shall be adjudged to pay costs before 
final judgment, by reason of setting aside, a 7ion-suit, default or non-pros'-, or the 
granting of a continuance or new trial, or otherwise, and in all cases where there is 
security for costs, or attorney liable for costs, or an action brought to the use of 
another, and the plaintiff shall be adjudged to pay the costs, either before or upon 
final judgment, it shall be lawful for the clerk to make out and tax a bill of costs so 
adjudged to be paid, against the party adjudged to pay the same, and against his se- 
curity for costs, or other person liable for the payment thereof, or either of them, 
and certify the same under the seal of the court, which being delivered to the sher- 
iff of the proper county, he shall demand payment from the person therein charged ; 
if payment shall not be made accordingly, within thirty days after such demand, 
the sheriff shall levy the same on the goods and chattels, lands and tenements of 
the person so chargeable, and proceed therein in all things as on a writ of fieri 
facias. 

Approved : March 3, 1845. 



CHAPTER XXVII. 

COUNTIES AND COUNTY COMMISSIONERS' COURTS. 



Section 

1 . Counties to be bodies politic ; names ; corporate 

powers. 

2. County commissioners' courts. 

3. Commissioners, how elected ; how sworn. 

4. Terms of office determined by lot. 

5. Terms to be one, two and three years, as lots 

shall designate. 

6. Two preceding sections apply only to first elec- 

tions of county commissioners ; subsequent 
elections, how conducted ; regular term to be 
three years. 

7. How vacancies may be filled; proviso. 

8. Clerk of county commissioners' court to be 

elected once in four years. 

9. Clerk shall keep his office at county seat; shall 

be sworn ; shall give official bond. 

9 



Section 

1 0. For what causes clerk may be removed. 

1 1 . When office of clerk becomes vacant, pro tem- 

pore appointment may be made, until vacancy 
be filled. 

12. How vacancy may be filled. 

13. Clerk refusing at the close of his term to deliver 

books, &c, to his successor, may be punished 
by fine and imprisonment; liability on offi- 
cial bond not impaired by infliction of pun- 
ishment. 

14. Deeds, &c, made or to be made for the use of 

any county, valid. 

15. County court may appoint commissioner to sell 

real estate of county. 

16. All bonds, made to any person for use of coun- 



!30 COUNTIES AND COUNTY COURTS. 

Section I Section 

ty valid to vest title in county ; suit may be i dollars, for use of county ; officer to have no- 

brought thereon, in whose name. tice. I 

17 County commissioners may appoint agent to 32. Compensation of county commissioners, 

contract for erecting buildings, whose acts ' 33. Which commissioner shall preside, 
shall be valid. 34* County commissioners' courts shall erect jails, 

13. Suits against county may be commenced in cir- and make report thereof to the circuit court, 

cuit court of same county; copy of summons ] 35. Shall erect court houses. 



to be left with clerk ; time of service and re- 
turn ; inhabitants of county sued, may be wit- 
nesses. 
19. County commissioners shall take proper meas- 
ures for prosecuting and defending suits 



36. Way purchase lands on which to erect county 

buildings. 

37. Way lease vacant rooms in court houses. 

38. Shall have custody of court houses. 

39. When county divided, line not to be within ten 



20. When judgment is recovered against a county, ' miles of county seat. 

commissioners shall provide for its payment, i 40. No county to contain less than four hundred 

21. Counties on the Mississippi and Wabash rivers, ! square miles. 

have jurisdiction to State line. ; 41. County commissioners to make out statement 

22. Sessions of comity commissioners' court, how ' of fiscal concerns ; same to be posted up in 

often and when held. clerk's office; penalty for neglecting, how 

23. Quorum; if no quorum, may adjourn. recovered. 

24. Special session, how called and held. ; 42. Appeals may be taken; proceedings in such 

25. Extent of jurisdiction and power of county : cases. 

commissioners' courts. ' i 43. Circuit courts, how to proceed in trial of such 

26. Official seals to be procured. appeals; written opinion to be made out, on 

27. Process, &c, to be sealed; how entitled; how ! decision of such cases. 

executed and returned, and by whom. j 44. Fire proof recorders' offices to be erected ; 

28. Court may enforce orders, &c, by attachment. ! rooms in court house may be used, if tire 

29. Not to have jurisdiction of suits at law, but proof. 

only of county business; may punish for con- j 45. Fire proof clerks' offices. 

tempts; compensation of clerks. | 46. County orders to be countersigned by county 

30. Fines, &c, collected by justices and other offi- j treasurer, and record thereof made. 

cers, to be paid into county treasury. 47. Treasurer shall examine vouchers before coun- 

31. Officer failing to pay over to forfeit seventy-five ; lersigning orders. 

Section- 1. Each county which has heretofore been, or may hereafter be estab- 
lished in this State, according to the laws thereof, shall be a body politic and corpo- 
rate, by the name and style of "The county of ;" and by that name may 
sue and be sued, plead and be. impleaded, defend and be defended against in any 
court of record, either in law or equity, or other place where justice shall be ad- 
ministered. 

Sec 2. There shall remain, as at present established, in each county of this 
State, and shall be established in each county hereafter created, a court of record, 
to be constituted, composed of three commissioners, elected by the people as here- 
inafter provided, to be styled "the county commissioners' court of county." 

Sec. 3. Such commissioners shall be elected as provided in chapter thirty- 
seven (title "elections,") of the Revised Statutes. Previous to entering upon 
their duties they shall be sworn, before some justice of the peace, judge of the cir- 
cuit court or clerk of the circuit court, faithfully to perform the duties of their 
office to the best of their knowledge and ability. 

Sec 4, At the first meeting of such commissioners after they shall have been 
so elected and sworn, the clerk of said county commissioners' court, shall prepare 
three tickets, upon one of which he shall write the words "one year" upon another 
the words "two years " and upon the other the words "three years" which tickets 
so prepared shall be presented by said clerk with the writing thereon concealed, to 
such county commissioners, and each of said commissioners shall draw one of said 
tickets. 

Sec 5. The term of service of the commissioner who draws the ticket upon 
which is written "one year" shall expire at the end of one year ; the term of ser- 
vice of the commissioner who draws the ticket upon which is written "two years " 
shall expire at the end of two years ; and the term of service of the commission- 
er who draws the ticket upon which is written "three years," shall expire at the 



COUNTIES AND COUNTY COURTS. 131 

end of three years ; the result of which drawing shall be entered by the clerk 
upon the records of the court. 

Sec. 6. The two preceding sections shall be deemed to apply only to commis- 
sioners elected at the first elections to be held in counties hereafter to be organized. 
Thereafter in all such new counties, as well as in all counties now organized ac- 
cording to law, one commissioner shall be elected at the general election in each year 
as provided in chapter thirty-seven, (title "elections,") to supply the place of the 
commissioner whose term of office shall then expire : it being intended that after 
such first election, each commissioner shall hold his office for the term of three 
years. 

Sec 7. Whenever a vacancy shall happen in the office of county commis- 
sioner by death, resignation or otherwise, it shall be the duty of the clerk of the 
county commissioners' court of the county in which the vacancy shall happen, to 
issue his order to the judges of election in the different precincts in said county, re- 
quiring them on a certain day not less than twenty days from the date of such order, 
to hold an election to fill such vacancy : Provided, That if the term of service of 
the commissioner whose vacancy is to be filled, would have expired within six 
months of the happening of said vacancy, it shall not be necessary for the clerk to 
order an election to fill such vacancy. 

Sec 8. There shall be elected in each county, a county commissioners' clerk, 
who shall hold his office four years, and until his successor is elected and qualified. 
In counties hereafter to be organized, they shall be elected at the first election of 
county commissioners, and in like manner every four years thereafter. In counties 
now existing they shall be elected at the periods and in the order of time by law 
established. 

Sec 9. Each clerk so elected and qualified shall keep his office at the place 
of holding court for each county respectively; and each and every clerk before he 
enters on the duties of his office, shall take an oath to support the constitution of 
the United States and of this State, and the oath of office, in open court, and enter 
the same on record, and give a bond with good securities to the county commission- 
ers, to be approved by them for the use of any person or persons injured, or for 
the use of the county if injured, in the penal sum of one thousand dollars, condi- 
tioned for the faithful performance of the duties of his office. 

Sec 10. The county commissioners' court of any county, may, for misconduct 
in office, gross neglect of duty, incompetency, or other good cause shown, to be 
entered upon the record of their said court, remove their clerk, whose office shall 
be considered vacant. 

Sec 11. Whenever, by reason of death, resignation, removal, or any other 
cause, the office of clerk shall become vacant, the court may appoint a clerk, pro 
tempore, who shall perform the duties of such office until such vacancy shall be 
filled. 

Sec 12. Such vacancy shall be filled in the same manner as is provided in 
section seven of this chapter, for filling vacancies in the office of county commis- 
sioner. 

Sec 13. Every clerk who shall refuse or neglect, after going out of office, to 
deliver to his successor in office, all papers, books, moneys, and all and every thing 
appertaining to his office, shall forfeit and pay any sum not over five hundred 
dollars, and be imprisoned any time, not exceeding thirty days, at the discretion of 
the court before which he may be tried : such forfeiture and payment to be inde- 



132 COUNTIES AND COUNTY COURTS. 

pendent of, and in nowise discharging or diminishing the obligation of his official 
bond. 

Sec. 14. All deeds, grants and conveyances, heretofore made, or which shall 
be hereafter made, and duly acknowledged and recorded, as other deeds conveying 
any lands, tenements or hereditaments, to any county or the inhabitants of any 
county and their successors, or to the county commissioners, or to the county com- 
missioners' court, or to the governor, or any other person or persons by whatever 
form of conveyance, for the use and benefit of any county, shall be good and valid to 
all intents and purposes, to vest in such county in fee simple or otherwise, all such 
right, title, interest and estate as the grantor or grantors in any such deed or con- 
veyance had at the time of the execution thereof, in the lands conveyed, and was 
intended thereby to be conveyed. 

Sec 15. The county commissioners' court may, by their order to be entered 
on their minutes, appoint a commissioner to sell and dispose of any real estate of 
their county, and the deed of such commissioner, under his proper hand and seal, 
for and in behalf of such county, duly acknowledged and recorded, shall be suffi- 
cient to all intents and purposes, to convey to the purchaser or purchasers, all the 
right, title, interest and estate whatever, which the county may then have in and to 
the premises, so to be conveyed. 

Sec. 16. All notes, bonds, bills, contracts, covenants, agreements or writings 
made, or to be made, whereby any person or persons, is, are or shall be bound to 
any county or the inhabitants thereof, or the county commissioners, or county com- 
missioners' court, or to the governor, or any other person or persons, in whatever 
form, for the payment of money, or any debt or duty, or the performance of any 
matter or thing to the use of any county, shall be as valid and effectual to all intents 
and purposes, to vest in the said county all the rights, interest and actions, which 
would be vested in any individual, if any such contract had been made directly to 
him : suits may be commenced, sued and prosecuted thereon in the name of said 
county, as is provided in the first section of this chapter, or in the name of the 
person to whom they are made, to the use of the county, as fully and effectually to 
all intents and purposes, as any person may or can upon like notes, bills, bonds, 
contracts, agreements or writings made to him. 

Sec 17. The county commissioners' court may appoint an agent or agents, to 
make any contract on behalf of such county for erecting any county building, or for 
any other purpose authorized by law. The contracts of such agent or agents, duly 
executed for and on behalf of such county, shall be valid and effectual to bind such 
county to all intents and purposes. 

Sec 18. All actions, local or transitory, against any county, may be commenced 
and prosecuted to final judgment and execution in the circuit court of the county 
against which the action is brought. Any action, local or transitory, in which any 
county shall be plaintiff, maybe commenced and prosecuted to final judgment, in the 
county in which the defendant in such action resides. When any action shall be 
commenced against any county, a copy of the summons shall be left with the clerk 
of the commissioners' court, either during the sitting of said court, or so as a term 
of said court shall intervene between the day of leaving a copy of such summons and 
the return day thereof. There shall always be ten days between the service and 
return of every such summons. In all actions brought by or against every county, 
the inhabitants of the county so sueing, or being sued, may be jurors or witnesses, if 
otherwise competent or qualified according to law. 



COUNTIES AND COUNTY COURTS. 133 

Sec. 19. It shall be the duty of the county commissioners' court of each of the 
counties of this State, to take and order suitable and proper measures for the prose- 
cuting and defending of all suits to be brought by or against their respective counties. 

Sec. 20. When any judgment shall be rendered against any county, it shall be 
the duty of the county commissioners' court to order a warrant to be drawn on their 
treasurer for the amount of the judgment and costs ; which warrant shall be paid as 
other county debts. Nothing herein contained shall authorize any execution to be 
issued against lands or other property of any county of this State. 

Sec. 21. All the counties of this State, or which shall hereafter be erected, 
which are or shall be bounded, or which may front on either the Mississippi or 
Wabash rivers, shall respectively have and exercise jurisdiction upon such rivers 
so far as the counties shall respectively be bounded by the rivers aforesaid ; which 
jurisdiction shall be exercised concurrently by the counties aforesaid, with the con- 
tiguous States and territories bounded by said rivers, so far and to such extent as the 
said rivers shall form the boundary of the counties aforesaid respectively; and also 
the boundary between this State and contiguous States or territories. 

Sec. 22. There shall be four sessions of the county commissioners' court in 
each county in this State, to be holden at the usual place of holding courts, or at the 
office of the clerk, to commence on the first Mondays of March, June, September 
and December of each year, and continue six days, if the business shall not be 
sooner completed. 

Sec. 23. Two commissioners shall constitute a quorum to do business. Should 
a quorum not meet at any stated meeting of the said court, then the said court shall 
be considered to be continued by law from day to day, if necessary, until four of 
the clock in the afternoon of the second daj-, and then if a quorum be not present 
for said court, the business therein to stand continued to the next court in course. 

Sec. 24. Should it be necessary to have a called court on any urgent business, 
then any one of the county commissioners shall have power to call said court, on 
giving the other two commissioners five days previous notice, and the clerk, before 
said special term of said court. Said special court shall have the same power and 
authority as when holding a stated court. 

Sec. 25. The said courts shall have jurisdiction throughout their respective 
counties in all matters and things concerning the county revenue, and regulating 
and imposing the county tax, and shall have power to grant licenses for ferries 
and for taverns, and all other licenses and things that may bring in a county re- 
venue ; and shall have jurisdiction in all cases of public roads, canals, turnpike 
roads and toll bridges, where the law does not prohibit the said jurisdiction of said 
courts ; and shall have power and jurisdiction to issue all kinds of writs, warrants, 
process and proceedings by the clerk, throughout the State, which are necessary 
to the execution of the power and jurisdiction with which such courts are or may 
be vested by law. 

Sec. 26. It shall be the duty of the county commissioners in each county, as 
soon as practicable, to cause to be procured, all the necessary official seals that may 
be requisite in their respective counties ; and they shall be, and are hereby 
authorized, to draw on the county treasurer for the expense of any such seal or 
seals, which shall be paid for in the same manner as other county debts are paid. 

Sec. 27. The said court of each county shall have a judicial seal; and all 
warrants, writs, process and proceedings to be issued by said court, shall be sealed 
with said seal, bearing date the time they issue, and be signed by the clerk of said 



134 COUNTIES AND COUNTY COURTS. 

court. All such process shall run " In the name of the people of ike State of Illi- 
nois" and may be executed and returned as other process, by the sheriff or any 
constable of the county. 

Sec. 28. Tbe said court of each county respectively, shall have power and 
jurisdiction to compel and enforce by writ or writs of attachment, or other process, 
the orders, decrees or judgments of said courts respectively. 

Sec. 29. There shall be nothing contained or construed in this chapter, to give 
the said court any original or appellate jurisdiction in civil or criminal suits or 
actions, wherein the State is a party, or any individual or individuals, bodies politic 
or corporate, are parties ; but said court shall have jurisdiction in all cases where 
the matter or thing brought before the said court relates to the public concerns of 
the county collectively, and all county business : and the said court shall have 
power to punish for contempts, as other courts may do, and have all the power 
necessary to the right exercise of the jurisdiction with which said court is or may 
be vested according to law ; and the clerks of said courts respectively, shall have 
the same fees, emoluments and perquisites of office, as are given to the other 
clerks of courts of this State by law, for the like services, or as may be given 
them by law. 

Sec 30. It shall be the duty of justices of the peace, and of all other officers, 
to' account for, and pay over to the county commissioners' court of the county 
within which such officer shall reside, at "or before the December term of the said 
court, in each and every year, all sums of money recovered by fine, penalty or 
otherwise, which by law is required to be paid into the treasury of the several 
counties in the same kind of funds received by them. 

Sec 31. Any officer failing to comply with the foregoing section, shall forfeit 
and pay the sum of seventy-five dollars, with any money by him not accounted 
for and paid over as aforesaid, to be recovered by motion before the circuit court 
of the county wherein default is made, for the use of said county, together with 
the costs of said motion: •Provided, That the officer against whom the motion is 
made shall have notice thereof at least ten days before the first day of the term at 
which such motion is made. 

Sec 32. There shall be allowed to each county commissioner in full for his 
services for each day's attendance in holding courts, the sum of one dollar and 
fifty cents, to be paid on the certificate of the clerk, out of any moneys in the 
treasury of the county, not otherwise appropriated. 

Sec 33. That commissioner who shall be oldest in commission shall preside at 
all meetings of the court. 

Sec 34. It shall be the duty of the county commissioners' courts, in their res- 
pective counties, to prepare or cause to be erected, when, in the opinion of said 
court, the means of the county are such as to justify it, and where they have not 
heretofore done so, strong and substantial jails, so that prisoners may be confined 
therein with safety : and the said commissioners are hereby expressly charged 
with the faithful execution of this law, and they shall make report thereof respec- 
tively, to the circuit court, at the next term in the county after the same shall 
have been done, and said report shall be entered upon the records of the said cir- 
cuit court. 

Sec 35. It shall also be the duty of the said county commissioners, in each 
county, to cause to be erected, when, in the opinion of said court, the means of 
the county are such as to justify it, a suitable court house in each of their respec- 



COUNTIES AND COUNTY COURTS. 135 

five counties ; and they shall have power to enter into contracts from time to time, 
with any person or persons, in behalf of the county, for the erection of such court 
houses, or finishing any court house already begun, at any regular term of their 
court, or at any special term they may appoint. 

Sec. 36. The county commissioners' courts in each county, shall have power 
to contract for and procure, for the use of their respective counties, whenever it shall 
become necessary, any lot or lots of land, whereon to erect such county buildings, 
and obtain deeds of conveyance to such counties, and to sell and convey the same 
when it shall become necessary, to any purchaser or purchasers, in the manner 
prescribed by law. 

Sec. 37. The county commissioners' courts of any county in this State are 
hereby authorized to lease such vacant room or rooms as offices, as may be in the 
court house of said counties and not occupied by and furnished for the sheriff, 
clerk of the circuit court, clerk of the county commissioners' court, and probate 
justice of the peace of said counties, for any term not exceeding one year, and for 
such rent or rents as they may think right and proper. 

Sec. 38. The county commissioners of said counties shall have the care and cus- 
tody of said court houses ; any law or usage to the contrary notwithstanding. 

Sec 39. Hereafter, in all cases of division of any county in this State, by peti- 
tion or otherwise, it shall not be lawful to establish any boundary line within less 
than ten miles of the seat of justice of the county to be divided. 

Sec 40. Hereafter, no county in this State shall be curtailed in its limits so 
as to reduce the territory to less than four hundred square miles, nor shall any county 
be created hereafter, the territory of which shall contain less than four hundred 
square miles. - 

Sec 41. It shall be the duty of the commissioners' court of each county to 
cause a complete statement in writing of the fiscal concerns of the county to be 
made out at their March term, annually, which shall specify the amount of money 
paid out of the county treasury during the preceding year, to whom paid, and for 
what purposes ; and likewise the amount of the county orders issued and unre- 
deemed during the same year ; and the clerk of said court shall keep said statement 
posted up in his office for the period of one month at least, from the end of said 
term ; and for failing to perform this duty, he shall pay a fine often dollars. Each 
county commissioner who shall neglect to cause such statement to be made 
out, shall also pay a fine of ten dollars, to be recovered by action of debt, at the suit 
of any individual, before any justice of the peace of the county ; one-half for the 
use of the county, and the other half with costs of suit, for the use of the person 
so sueing. 

Sec 42. Any party to a proceeding had before any county commissioners' 
court, who may feel aggrieved by the final decision, judgment or order of such court, 
shall be allowed to appeal to the circuit court of the county in which the decision, 
judgment or order may have been made : Provided, The appeal be prayed during 
the term of the court at which the decision, judgment or order may be rendered : 
And, provided farther. That the party praying appeals shall be required to execute 
bond, with good security, to be approved by the court, payable to such person, and 
with such conditions as the court shall require ; and after the execution of the ap- 
peal bond, the clerk of the commissioners' court shall file with the clerk of the cir- 
cuit court, a full and complete transcript of the record and proceedings of the court, 
together with the appeal bond, and all original papers relating to the case j and the 



13Q COUNTIES AND COUNTY COURTS. 

clerk of the circuit court shall thereupon issue a summons against all parties inter- 
ested in the decision, judgment or order appealed from, as in cases of appeals from 
judgments of justices of the peace, and if a county be interested, the summons 
shall issue against the county commissioners of such county. 

Sec. 43. The circuit courts shall have jurisdiction to hear and determine all 
such appeals, and shall give such judgment in respect to the rights of the parties, 
as the commissioners' court should have given, and shall have power to make all 
such orders, and to issue all such process and notices as may be necessary to bring 
all persons interested before the court; and on the trial of such appeals, the c^trt 
shall proceed in—all respects as is or may be required in the trial of other appeal 
cases in said court ; and the judgment of the court in the premises, shall be final 
and conclusive upon the parties, unless an appeal be taken to the supreme court. 
The said circuit court shall also have power to remand all such cases to the county 
commissioners' court, with directions to carry into effect, so far as relates to rights 
of parties, the judgment of said court : Provided, That in cases so remanded, the 
circuit court shall make out and deliver a w*Mren opinion to be entered of record, 
and transmitted to the county commissioners' court. 

Sec 44. The county commissioners' courts of the several counties in this State, 
are hereby authorized and required, whenever the finances of any county in this 
State shall justify such expenditure, to cause to be erected a fire proof recorder's 
office, on some suitable lot at their respective county seats, and pay for the same 
in the same manner as court houses and jails are paid for : Provided, That if the 
county commissioners' court of any county as aforesaid shall be of opinion that any 
one of the rooms unappropriated in their court houses respectively can be made 
fire proof, they shall be required and authorized as aforesaid to cause such improve- 
ments or additions to be made to any such room as will render the same fire proof; 
in which said fire proof buildings or room, the records and office of county recorder 
shall be kept. 

Sec 45. The provisions of the foregoing section may, at the discretion of the 
county commissioners' court of any county in this State, be deemed to apply to the 
offices of clerks of the county commissioners' and circuit courts, respectively. 

Sec 46. In all cases when orders for money are issued by the clerk of any 
county commissioners' court, in any county of this btate, upon the treasurer of 
such county, the said -orders, before they are delivered to the person or persons for 
whose benefit the same is or are drawn, shall be severally presented by the clerk 
to the said treasurer, who shall personally countersign the same ; and shall also 
enter in a book, to be kept for that purpose, the date, amount and number of each 
of said orders, and the name or names of the person or persons in whose favor 
such orders are drawn respectively. 

Sec 47. No county treasurer shall countersign any county order before the 
same is filled up, nor until he shall examine the records of the court, and be satis- 
fied that the order to be issued is warranted by the order of the county commis- 
sioners' court. 

Approved : March 3, 1845. 

[Amended: — Soe Appendix, Acts No. 7, 8 and 9.1 



CHAPTER XXVIII. 

COUNTY TREASURERS AND COUNTY FUNDS. 



Section 

1. County treasurer elected once in four years; 

how and when elected in new counties. 

2. To take oath of office ; form of oath. 

3. Shall file bond ; form thereof. 

4. Treasurer of each county shall keep books of 

account; entries therein. 

5. Shall keep account of moneys paid out ; books 

open to inspection. ^^ 

6. No money to be paid out, but by order of^Rfft, 

or as directed by law. 
T. To report to county commissioners' court at 

each term ; particulars to be reported. 
S. Clerk shall file reports, &c. 
9. Clerk shall not receive money. 

10. Money not considered paid, until received by 

the treasurer; treasurer to give receipts. 

11. Court shall settle with treasurer at June and 

December terms. 

12. If treasurer be in default, to be dismissed from 

office and sued. 



Section M 

13. Embezzlement of public funds declared to be 

felony ; how punished. 

1 4. Court shall publish fiscal statement annually. 

15. Court may call on treasurer at any time for a 

settlement. 

16. If treasurer speculate in funds, how examined; 

may be dismissed. 

17. If treasurer be dismissed, office, how filled. 

18. If county officer neglect duty, he may be pun- 

ished by fine, &c. 

19. If sheriff, &c, refuse to pay over money col- 
lected, office to be vacated. 

When, by whom, and in what manner office of 
defaulters declared vacant. 

Collectors of revenue not to speculate in Audi- 
tor's warrants. 

How punished therefor ; penalty, how collected 
and applied. 

Duty of county treasurers when orders are pre- 
sented, to keep list thereof, &c. 



'20. 



21. 



-22. 



Section 1. There shall be elected in each county of this State, a county treas- 
urer, who shall hold his office four years and until his successor is elected and 
qualified. In counties hereafter to be organized, they shall be elected at the first 
election of county commissioners, and in like manner every four years thereafter. 
In counties now existing, they shall be elected at the periods and in the order of 
time by law established. 

Sec. 2. Each county treasurer, previous to entering on the duties of his office, 
shall take and subscribe the following oath, to- wit: "I, A. B., treasurer of the coun- 
ty of , in the State of Illinois, do solemnly swear, (or affirm) that I will 
honestly and faithfully pay over to the proper officers and individuals authorized by 
law to receive the same, any and all current money, and other funds that may come 
into my possession by virtue of my office as treasurer of the county of , 
and that I will not, directly or indirectly, exchange, lend or use any portion there- 
of, for the purpose of speculation, or will I appropriate or apply any portion 
thereof, to my own use or benefit, or for the use or benefit of another, and that I 
will faithfully and impartially, and to the best of my skill and judgment, perform 
the duties required of me by law as treasurer of the county of . A. B. 

Sworn to and subscribed before me this day of , 18 

C. D., Justice of the peace for county." 

Sec. 3. Each county treasurer, before he enters upon the duties of his office, 
shall also execute a bond, in such penalty and with such security as the county com- 
missioners shall deem sufficient ; which bond shall be in substance in the following 
form, to-wit: "Know all men by these presents, that we, A. B., principal, and C. D., 
and E. F., securities, all of the county of and State of Illinois, are held and 

firmly bound to the people of the State of Illinois, in the penal sum of dol- 



138 COUNTY TREASURERS AND COUNTY FUNDS. 

Jars, for the payment of which well and truly to be made, we bind ourselves, each 
of us, our heirs, executors and administrators, firmly by these presents : Signed 
with our hands, and sealed with our seals. Dated at the day of 

18 . The condition of the above bond is such, that if the above bounden A. B. 
shall perform all the duties required by law to be performed by him, as treasurer 
of the said county of in the time and manner prescribed by law ; and when 

he shall be succeeded in office, shall surrender and deliver over to his successor in 
office, all books, papers, moneys and other things belonging to said county, and ap- 
pertaining to his said office, then the above bond to be void, otherwise to remain in 
full force. 

Signed, sealed, and delivered ) p" n" k r , T 'n 

/> ri n )) *-'• • L '* I SEAL. J 

in presence of G. H. $ £ F |= seal> J 

Sec 4. The county treasurers of the several counties in this State, shall each 
of them keep a book, in which they shall keep a regular, just and true account of 
all moneys and revenues received by them re^ectively, stating therein particularly 
in what kind of funds each particular sum was received, whether in gold, silver, 
county orders or any other funds authorized to be received as revenue, by the laws 
of this State. They shall also keep a regular, just, and true account of the time 
when, of whom, and on what account each particular sum in money, or other funds, 
may have been received by them. 

Sec 5. They shall also keep a regular, just and true account of all moneys 
and funds paid out by them agreeably to law, stating therein particularly on what 
account each particular sum was paid out, to whom paid, the particular kind of 
money or funds paid out to each individual, and the time when such payment was 
made. The books and accounts aforesaid to be free for the inspection of any indi- 
vidual who may wish to examine the same. 

Sec 6. No money, county orders or other funds, shall hereafter be paid out of 
any county treasury in this State, except in accordance with an order or decree of 
the county commissioners' courts respectively, or by virtue of a law specifically 
directing such payment to be made. 

Sec 7. It shall be the duty of the treasurers of each and every county to report 
to the county commissioners' courts of their respective counties, at the regular terms 
of said courts, the amount of money, county orders, or other public funds, in their 
possession ; also, the amount of money, county orders and other public funds re- 
ceived by them since their last reports. They shall also state in said reports, the 
amount they may have received from each and every source of revenue, by whom, 
on what account, in what kind of funds, and at what time the same may have been 
paid into the treasury. The said treasurers shall also report to the county commis- 
sioners' courts of their respective counties, at the regular terms of said courts, 
regular, just and true accounts of all payments out of the treasury, stating particu- 
larly at what time, on what account, in what kind of funds, and to whom each par- 
ticular sum was paid out. 

Sec 8. The clerks of the county commissioners' courts of the several counties 
in this State respectively, shall number, hie, and carefully preserve the reports 
mentioned in the eighth section of this chapter and the said reports shall be free for 
the inspection of any individual who may wish to examine the same. 

Sec 9. No clerk of any county commissioners' court in this State shall 
receive any money claimed by or due to either of the counties of this State, from 
any source whatever, whether on account of revenue, costs or fines, or from mer- 



COUNTY TREASURERS AND COUNTY FUNDS. 139 

chants, grocers, tavernkcepers, showmen, peddlers or ferry licenses, or from any- 
other source whatever. 

Sec. 10. No claim of any county, whether for revenue, costs or lines, or for 
merchants, grocers, tavernkeepers, showmen, peddlers or ferry licenses, or from 
any other source whatever, shall be considered as having been paid and satisfied 
until the money or other funds shall have been paid to the treasurer of such coun- 
ty, and his duplicate receipts had therefor, which receipts shall specify the kind of 
money or other funds in which the payments shall have been made ; one of which 
receipts shall be presented to the clerk of the county commissioners' court of the 
proper county, which said clerk shall number, file and carefully preserve the same 
in his office, which aforesaid duplicate receipts, it shall be the duty of the treasurer 
to give to any person who shall pay into the county treasury any money or other 
funds as aforesaid. 

Sec. 11. The county commissioners' court of each and every county in this 
State shall, at their June and December terms in each year, settle with their county 
treasurer, and count the funds then in the treasury of their county ; and the clerk 
of said court shall then enter on the records of said court the amount and kind of 
funds found to be in the treasury at the time. 

Sec 12. Should the treasurer, at any such settlement, prove a defaulter, and be 
actually in arrears with the county, the county commissioners shall immediately 
dismiss him from office, and commence suit against him on his official bond. 

Sec 13. If any State or county officer, school commissioner, or any other per- 
son charged by law with having the possession and the safe-keeping of any public 
money, auditor's warrants, county orders or other funds belonging to the State, or 
to any county in the State, or in any way pertaining to the school funds or any 
county or township therein, shall convert to his own use, in any way whatever, or 
shall use, by way of investment in any kind of property or merchandize, or for his 
own use shall loan, with or without interest, any portion of the public moneys, 
auditor's warrants, county orders, or any other funds intrusted to him for safe 
keeping, disbursement, transfer or for any other purpose, every such act shall be 
deemed and adjudged an embezzlement of so much of said moneys, auditor's war- 
rants, county orders or other funds, as shall be thus taken, converted, invested, 
used or loaned, which is hereby declared to be a felony. Any officer of the State, 
or of any county, or of any township, and all persons advising or participating in 
such act, being convicted thereof before any court of this State of competent juris- 
diction, shall, in case the sum so embezzled, taken, converted, invested, used or 
loaned, be less than fifty dollars, be fined in a sum not exceeding two hundred 
dollars, or imprisoned in the jail of the proper county not exceeding three 
months, or both, at the discretion of the court before which such conviction shall be 
had ; and in case the sum so embezzled, taken, converted, invested, used or loaned, 
shall exceed fifty dollars, then the said officer or other person so convicted, shall be 
fined in a sum double the amount of the sum so embezzled, taken, converted, inves- 
ted, used or loaned, and confined in the penitentiary not exceeding ten years, nor 
less than one year : Provided, however, That this chapter shall not be so construed 
as to extend to any public officer or agent who shall loan any school or other fund, 
in pursuance of any of the laws of this State. 

Sec 14. The county commissioners' courts of this State shall publish annually, 
at their June terms, in a newspaper, if one is printed in the county, a full and per- 
fect statement of the financial affairs of their respective counties, and if a newspaper 



140 COUNTY TREASURERS AND COUNTY FUNDS. 

is not published in said county, then the clerks of said courts shall post the same up 
in their respective offices, which shall be kept there for the inspection of all persons, 
at all seasonable hours, who may desire to examine the same. 

Sec. 15. The county commissioners' court of any county in this State may, at 
any time when any two of them think it for the interests of the people of their county 
so to do, call through their clerk upon the treasurer of their county for a settlement, 
and should said treasurer neglect or refuse to appear and make settlement as notified 
to do, said commissioners shall declare his office vacant, and proceed upon his bond 
as required to do in this chapter. 

Sec. 16. Should the county commissioners' court of any county in this State be 
of opinion that the treasurer of their county has at any time used the funds of said 
county when current, and replaced the same in depreciated funds, they shall have 
the power to examine said treasurer under oath as touching said transaction, and if 
it shall appear that he has parted with any current funds belonging to the county, 
and replaced the same with funds less valuable, they shall immediately dismiss 
him from office. 

Sec 17. Should any county treasurer be dismissed from office pursuant to the 
provisions of this chapter, it shall be the duty of the county commissioners' court 
to appoint some suitable person to fill the vacancy so occasioned, and the person so 
appointed, shall give bond and security as now required by law of county treasurers, 
and shall perform all the duties enjoined upon the county treasurer until one is 
elected and qualified. 

Sec. 18. If any clerk, county commissioner or treasurer of any county in this 
State, shall neglect or refuse to perform any of the duties required of them by this 
chapter, they shall severally forfeit a sum of not less than fifty dollars, and not 
exceeding one thousand dollars, according to the nature and aggravation of the 
offence, to be recovered by indictment in the circuit court of the proper county, or 
by action of debt by any person who shall sue therefor, one-half to the person sueing, 
and the other half to the proper county. 

Sec 19. Whenever any sheriff, coroner, constable, justice of the peace or 
probate justice of the peace in this State, shall, after proper demand made, fail, 
neglect or refuse to pay over any sum or sums of money collected or received by 
such officer, in and by virtue of his office, his said office shall be forfeited and 
vacated. 

Sec 20. Whenever in pursuance of the laws of this State, any judgment shall 
be had or taken, against any sheriff, coroner, constable, justice of the peace, or 
probate justice of the peace, for any failure, neglect or refusal of such officer, to pay 
over any sum or sums of money collected or received by him, in and by virtue of 
his office, and it shall appear to the satisfaction of the court, that proper demand 
for the same has been made, it shall be the duty of the court, or justice of the peace 
before whom such judgment is had or taken, further to adj.udge and decree that the 
office of such officer, so failing, neglecting or refusing, as aforesaid, is forfeited and 
vacated, and such vacancy shall be filled as in other cases of vacancy, as is now 
provided by law. 

Sec 2] . The collectors of the State revenue in the several counties in this 
State, shall receive auditor's warrants in payment of any or all taxes due the State, 
in their respective counties, at par, and they shall not be permitted to take, buy, 
share or receive, directly or indirectly, by themselves or agent, any auditor's war- 
rant or warrants, at less than the full sum due thereon, to the holder of such 
warrant or warrants. 



COURTS. 



141 



Sec 22. For any violation of the provisions of the preceding section by any 
collector or collectors aforesaid, he or they shall be liable to double the amount so 
made by purchasing or sharing said warrants, at less than their face, in an action of 
debt, before any justice of the peace or court of record of the proper county. One 
half of all sums so collected to go to the person complaining, and the other half to 
go to, and form a part of the school fund of the county where such collector may 
reside. 

Sec 23. It shall be the duty of the county treasurer, of any county in this 
State, whenever any county order is presented for payment, to indorse on the back 
of any such order, the time when the same was presented for payment ; and it shall 
also be the duty of the said treasurer, to set down in a book to be kept by him for 
that purpose, the amount and date of all such county orders, to whom made payable, 
and the time when presented to the said treasurer for payment ; and all county 
orders shall be paid according to their original dates ; and it shall be the duty of the 
county treasurer, whenever any money comes to his hands, to set apart the amount 
of the order presented as aforesaid, which money shall be kept by the treasurer 
until called for ; and the said treasurer, when he goes out of office, shall deliver 
said book, containing a list of the county orders so presented, to his successor, who 
shall in all things act as though the entries of orders were made by himself. 

Approved : March 3, 1845. 



CHAPTER XXIX. 

COUKTS. 



Section 

1. Supreme court, composed of a chief justice 

and eight associates ; how chosen. 

2. One session of supreme court in each year. 

3. To be held at the Seat of Government, unless, 

&c. 

4. Five justices constitute a quorum ; decisions 

to be by a majority. 

5. Justices to take oath ; who may administer it. 

6. May make rules of practice, &c, chief justice 

shall examine cleric's office annually. 

7. Appellate jurisdiction; general powers. 

8. If no quorum, or court fails to sit, may adjourn 

from day to day. 

9. Chief justice and associate justices shall hold 

circuit courts; when one is unable to hold 
court another may supply his place. 

10. Causes pending when court adjourns, may be 

continued. 

11. Process, how tested, signed and sealed, and how 

returnable. 

12. How process may be executed ; power of court 

to punish for contempts. 
Original jurisdiction of supreme court, in case 
of public officers ; if bond of officer be de- 
fective, may proceed against officer, and com- 
pel him to account, and may give judgment ; 



13. 



Section 

party to have notice ;' attorney general to pros- 
ecute. 

14. Supreme court may appoint clerk; may remove 

him for cause ; cause of removal to be entered 
of record. 

15. Duty of clerk to issue process; keep record; 

shall be sworn; shall keep his office at the 
Seat of Government; shall give bond; its con- 
dition ; bond to be filed in secretary's office. 

16. Parties in circuit court may make agreed case, 

and submit same to supreme court. 

17. Judge, if parties agree, may certify case to the 

supreme court ; or, case may be certified by 
counsel ; proceedings thereon in the supreme 
court. 

18. Two preceding sections not to apply to suits 

respecting real estate. 

19. Opinions delivered in supreme court to be de- 

livered in writing, filed and recorded. 

20. Court shall appoint reporter. 

21. Reporter shall be sworn; may, for cause, be 

removed from office. 

22. Reporter shall deliver sufficient number of re- 

ports to secretary of State, for distribution 
and for State library. 

23. Reports, how distributed. 



142 



COURTS. 



Section' 
24. 



26. 

27. 



Reports, how paid for. 

Court may make rules of practice. 

Salary of judges. 

Vacancies when occurring during session of 

General Assembly, how filled; when during 

recess, how filled. 

28. When judge does not attend circuit court on the 

first day of term, what proceedings had. 

29. Judges to reside in respective circuits ; powers. 

30. Power of judges, as to issuing process. 

31. Power to hear- cases of treason, felony, &.c. 

32. Suits, where tried. 

33. Clerks of circuit courts to be sworn. 

34. Shall give bond, which shall be filed in office of 

secretary of State. 

35. Clerks shall keep their offices at county seats ; 

duties generally. 

36. Their fees. 

37. Judge may, for cause to be entered of record, 

remove clerk; removal of clerk not to dis- 
charge obligation of official bond. 
Clerk going out of office, to deliver papers, &c, 
to successor ; on refusal, compulsory process 
may be used. 

39. Judges shall examine clerks' offices annually. 

40. Clerks of circuit courts may issue process ; 

how tested, dated, signed and sealed. 

41. Judges may hold courts for each other; their 

powers in such cases. 

42. If judge fail to attend circuit court, how causes 

continued.. 

43. Judges of circuit courts may appoint special 

term for the hearing of chancery cases ; pow- 
ers in such cases ; may appoint term for hear- 
ing of civil and criminal cases; jury, how 
summoned. 

44. If judge be interested, cause transferred to an- 

other circuit. 

45. If person in custody for crime desires a trial, 

how to proceed. 



38. 



Section 

46. Duty of sheriff in such case; penalty for neg- 

lect ; when no such special term shall be or- 
dered. 

47. How court shall proceed in such cases. 

4S. How process issued in such cases, shall be exe- 
cuted; power of courts to punish contempts, 
&c. 

49. Clerks may issue subpoenas to any county. 

50. Judges may, in vacation, appoint special term ; 

proceedings in such cases. 

51 . Circuit court of Sangamon county to have original 

jurisdiction in cases in which State is plain- 
tiff. 

52. Suits to be brought in the name of the people, 

&c. 

53. Attorney general may, on his official statement, 

without oath, cause writs to be issued in be- 
half of the State. 

54. State not required to give bond. 

55. Sheriffs, &c. } thioughout State to obey such 

writs ; how defendants may be arrested and 
held to bail. 

56. Defendants may recover costs against the State ; 

how paid. 

57. State officers to give notice of any delinquency 

to attorney general, who shall prosecute forth- 
with. 

58. Duty of attorney general to enforce penalties of 

criminal code against officers guilty of embez- 
zlement. 

59. Official statements of officers to be evidence. 

60. Process, may go to any county; fees, &c. 

61. Causes how docketed; other courts of the State 

to have concurrent jurisdiction. 

62. Process, by what officer served. 

63. Construction of twelve preceding sections. 

64. Sheriff of county in which supreme court is 

held, shall attend its sittings. 

65. State to remain divided into nine judicial cir- 

cuits; judges to hold courts therein, &c. 



Section 1. There shall remain, as at present established, a supreme court, to be 
composed of one chief justice and eight associate justices, to he chosen and continu- 
ed in office in manner and for the term provided in article fourth of the constitution. 

Sec. 2. The supreme court shall hold one session in each year, to commence on 
the second Monday in December, and continue in session until all the business be- 
fore it is disposed of. 

Sec. 3. The sessions of the supreme court shall be held at the seat of govern- 
ment, unless by reason of pestilence or any other public calamity, the justices 
thereof shall see fit to change the same until the cause of such removal shall cease. 

Sec. 4. Five of said justices shall constitute a quorum for business ; and all 
questions submitted for decision shall be determined by a majority of the justices 
present at. the hearing. 

Sec. 5. The chief justice and associate justices of the supreme court, previously 
to entering upon the duties required of them by law, shall, in addition to the oath to 
support the constitution of the United States and of this State, take the following 
oath of office : " I, A. B., chief justice (or associate justice, as the case may be,) 
of the supreme court do solemnly swear, (or affirm) that I will administer justice, 
without respect to persons, and do equal right to the poor and to the rich, without 
sale or denial, promptly, without delay, conformably to the laws, without favor, 
affection, or partiality, to the best of my judgment and abilities 5 " which oath or 
affirmation may be administered by any justice of the peace in this State ; a certifi- 
cate whereof shall be indorsed by the person administering the same, on the back 
of the commission of such judge, and another certificate thereof filed in the office 
of the secretary of State. 



COURTS. 143 

Sec 6'. The said supreme court may, from time to time, institute such rules of 
practice, and prescribe such forms of process to be used, and for the keeping of the 
dockets, records and proceedings, for the regulation of the said court, as shall be 
deemed most conducive to the due administration of justice ; and it shall be the duty 
of the chief justice to examine the state of the clerk's office of the said court annual- 
ly, and make report thereof to the next term of the court which shall be noted in the 
proceedings. 

Sec 7. The said supreme court shall exercise appellate jurisdiction only, (ex- 
cept as is hereinafter excepted) and shall have final and conclusive jurisdiction of 
all matters of appeal, error or complaints from the judgment or decrees of any of 
the circuit courts of this State, and from such other inferior courts as may hereafter 
be established by law in all matters of law and equity, wherein the rules of law or 
principles of equity appear, from the files, records or exhibits of any such court, to 
have been erroneously adjudged and determined. And the said supreme court is 
hereby empowered, authorized and enabled to take cognizance of all such causes as 
shall be brought before it in manner aforesaid, and shall be vested with all the power 
and authority necessary for carrying into complete execution all its judgments, 
decrees and determinations in the matters aforesaid, according to the laws, customs 
and usages of this State, and according to the rules and principles of the common 
law; and its judgments, decrees and determinations shall be final and conclusive 
on all the parties concerned. 

Sec. 8. If there shall not be a quorum of the justices of the said supreme court 
present, on the first day of any term, the court shall stand adjourned from day to 
day, until a quorum shall attend ; and if, from any cause, the supreme court shall 
not sit on any day in a term after it shall have opened, there shall be no discon- 
tinuance, but so soon as the cause is removed, the court shall proceed to business 
until the end of the term, or until the business depending before it shall be dis- 
posed of. 

Sec 9. The chief justice and associate justices of the said supreme court, shall 
hold circuit courts as is herein provided for by law ; and when either of the said 
judges shall, by death, resignation, removal from office or unavoidable absence, 
fail to attend and hold any of the circuit courts required of him by law, it shall be 
the duty of one of the other judges presiding in either of the other circuits, upon 
receiving information that such courts will not be holden, to attend in the said circuit, 
so situated, and hold courts therein, and exercise all the powers and jurisdiction, 
both in term time and vacation, that the judge assigned by law to such circuit could 
legally do, until the causes aforesaid, which authorize and require such judge to 
exercise such power and jurisdiction in such circuit, shall be removed. 

Sec 10. If the said supreme court, or any of the circuit courts directed to be 
held by this chapter, shall not sit in any term, or shall not continue to sit the whole 
term, or before the end of the term shall not have heard and determined all matters 
and causes depending in said courts, all matters and causes depending and undeter- 
mined, shall stand continued until the next succeeding term. 

Sec 11. All process which shall be issued from the said supreme court, shall 
bear teste, in the name of the chief justice, be signed by the clerk, dated when issu- 
ed, and sealed with the seal of the court ; and all such process shall be made re- 
turnable according to law, or such rules and orders as may be prescribed by the 
court. 

Sec 12. Any process which may be issued from the said supreme court or 
any justice thereof, or the clerk, according to law, shall be executed by the officer 



144 COURTS. 

or person to whom it shall be directed in any county or place in this State, in the 
usual manner that process is or may be required to be executed and returned. The 
said court shall have power to punish contempts offered by any person to it while 
sitting, and for disobeying any of its process, rules and orders issued or made con- 
formably to law. 

Sec. 13. The supreme court shall have original jurisdiction in all causes, suits 
and motions against public debtors, sheriffs, clerks and all collectors of the public 
revenue to the State, of every denomination whatsoever ; and in all cases where it 
may have been or may hereafter be the duty of any sheriff, clerk, collector or recei- 
ver of public moneys for the State, to make collections and settlements with the 
proper authority : if he or they have failed to do so or shall hereafter fail to do 
so and there shall appear any defect in the bond given by said officer or person or 
other proceeding, sufficient to exempt from liability the security or securities of such 
officer or person, or to defeat the ordinary proceedings against himself, the court 
shall have power to compel such person, whether in or out of office, who has either 
collected public money, or ought to have done so, to exhibit upon oath a full and 
fair statement of all moneys by him collected, and a list of all persons, as far as it 
may be practicable to obtain the same, of whom such person had a right to collect, 
and who had failed to pay him accordingly 5 and the court shall, upon hearing the 
whole case, without regard to form, have power to give such judgment for such sum 
or sums of money as such person ought to be liable to pay, according to the true 
spirit of the law and the principles of equity: Provided, That the person or per- 
sons as aforesaid shall have due and reasonable notice of the time of proceeding 
against him or them as aforesaid ; and it shall be the duty of the attorney general 
to attend and prosecute the same. 

Sec. 14. The supreme court, or a majority of the justices thereof, shall ap- 
point a clerk of said court, and may remove him from office at pleasure, for neglect 
of duty, mal-conduct in office, incompetency to perform the duties thereof, or For 
any other cause which shall be satisfactory to said court, or a majority thereof. 
The cause of such removal shall be entered upon the records of said court. 

Sec 15. It shall be the duty of the clerk of the supreme court, to issue pro- 
cess in all cases where process ought to be issued from the said court ; and to 
keep and preserve complete records of all the decisions and proceedings of the 
said court : he shall, before he enters upon the duties of his office, take the follow- 
ing oath or affirmation before one of the justices of the supreme court: " I, A. B., 
being appointed clerk of the supreme court, do solemnly swear, (or affirm)"that I 
will truly and faithfully enter on record all the orders, decrees, judgments and 
proceedings of the said court, and that I will faithfully and impartially discharge 
and perform all the duties of my said office, according to the best of my abilities 
and understanding according to law ;" and the said clerk shall keep his office at the 
seat of government, and shall do and perform all such acts and things as are or may 
be enjoined on him, and be entitled to such compensation as is or may be provided 
by law. And he shall, at the first term of said court after he shall be appointed, 
give bond to the Governor of this State and his successors in office, for the use of 
the people of the State, with one or more securities, to be approved by the said 
court, in the sum of three thousand dollars, conditioned for the faithful discharge 
of his duties, and to deliver up all moneys, papers, books, records and other things, 
appertaining to the same, whole, safe and undefaced, when lawfully required so to 
do ; which bond so executed as aforesaid, shall be filed in the office of the secreta- 
ry of State. 



COURTS. 145 

Sec 16. The parties in any suit or proceeding at law, or in chancery, in any 
circuit court, may make an agreed case containing the points of law at issue be- 
tween them, and file the same in the said court ; and the said agreed case may be 
certified to the supreme court by the clerk of such circuit court, without certify- 
ing any fuller record in the case ; and upon such agreed case being so certified and 
filed in the supreme court, the appellant or plaintiff in the error may assign errors, 
and the case shall then be proceeded in in the same manner as it might have been 
had a full record been certified to said supreme court. 

Sec. 17. Any judge of a circuit court may, if the parties litigant assent thereto, 
certify any question or questions of law arising in any case tried before him, to the 
supreme court, together with his decision thereon ; or the parties in the suit may 
agree as to the questions or points of law arising in the case, and the same may be 
certified by the counsel or attorneys of the respective parties, who shall sign their 
names thereto ; and upon such certificate being made, the same shall be filed in the 
circuit court, and a copy of such certificate certified by the clerk of said circuit 
court to the supreme court, and filed therein ; and upon filing the same, the like 
proceedings may be had in the supreme court as if a full and complete record had 
been transcribed and certified to said court. 

Sec. 18. The two preceding sections shall not apply to cases in which the title 
to real estate is in question. 

Sec. 19. In the decision of cases submitted to the supreme court, the opinions 
of the justices shall be delivered in writing, and filed with the other papers. Such 
opinions shall also be spread at large upon the records of the court. 

Sec 20. The court shall appoint some person learned in the law to minute 
down and make report of all the principal matters, drawn out at length, with the 
opinion of the court, in all such cases as may be tried before the said court ; and the 
said reporter shall have a right to use the original written opinion after it shall have 
been recorded by the clerk. 

Sec 21. The reporter, before entering upon his duties, shall be sworn by some 
one of the justices of the supreme court, faithfully to perform the duties of his 
said office. He may, for misconduct in office, neglect of duty, incompetency, or 
other cause shown, to be entered of record, be removed from office. 

Sec 22. It shall be the duty of the reporter to deliver to the secretary of State, 
as soon as convenient after publication, such number of copies of the respective 
volumes of the reports of said court, as may be necessary to enable the said secre- 
tary to distribute the same in the manner provided in the following section, together 
with one hundred copies in addition, to be deposited in the secretary's office for the 
use of the State. 

Sec 23. It shall be the duty of the secretary of State to distribute the said 
reports, in the manner following, to-wit : He shall deliver one copy to each of the 
jutices of the supreme court; one copy to the attorney general, each State's attorney, 
and to each clerk of a court of record in this State, except the supreme court ; one 
copy to each probate justice, and five copies to the clerk of the supreme court ; one 
copy to the executive of each State in the United States, and five copies to the ex- 
ecutive of the United States ; and one copy to each of the officers of the executive 
department of this State, who are required to keep their offices at the seat of gov- 
ernment. 

Sec 24. Upon the delivery of the requisite number of any volume of said 
reports, it shall be the duty of the secretary of State to deliver to said reporter, a 

10 



146 COURTS. 

certificate, specifying the number of copies of said reports, which shall have been 
delivered to him ; and on presentation of said certificate to the auditor of public 
accounts,' he shall issue his warrant upon the treasury for such an amount as said 
volumes shall amount to, at the price for which said books shall be sold to individ- 
uals : Provided, Said price shall not exceed the ordinary price of law books of the 
same description, to be determined by the auditor, treasurer and secretary of State. 

Sec. 25. The supreme court shall have power, from time time, by general 
rules, to establish, modify, alter and amend the practice in the said court, in matters 
not provided for by statute. 

Sec 26. Each justice of the supreme court shall receive a yearly salary of 
fifteen hundred dollars, payable quarterly out of the public treasury. 

Sec 27. When any of the said judges shall die, resign, remove from the State, 
become incompetent or be removed from office, during the session of the General 
Assembly, his successor shall be chosen as provided in article four of the constitu- 
tion ; if such vacancy occur or exist during a recess of the General Assembly, it 
shall be filled by appointment of the Governor ; the person so appointed to con- 
tinue in office until the close of the ensuing session of the General Assembly, and 
until his successor shall be appointed and qualified. 

Sec 28. If there shall be no judge attending in any county, on the first day of 
any term, the court shall stand adjourned from day to day until a judge shall attend, 
if that should happen before the hour of four o'clock in the afternoon of the second 
day ; but if no judge shall have attended before that time, the court shall stand ad- 
journed until the next succeeding term. 

Sec 29. The chief justice and the associate justices of the supreme court, shall 
be required to reside in the circuits assigned them respectively ; and the said circuit 
courts shall be holden at the respective court houses of said counties, and the said 
judges respectively, in their respective circuits shall have jurisdiction over all mat- 
ters and suits at common law and in chancery, arising in each of the counties in 
their respective circuits, where the debt or demand shall exceed twenty dollars. 

Sec 30. The said judges shall be conservators of the peace, and the said 
courts in term time, and the judges thereof in vacation, shall have power to 
award throughout the State, and returnable in the proper county, writs of injunc- 
tion, ne exeat, habeas corpus, and all other writs and process, that may be necessary 
to the due execution of the powers with which they are or may be vested. 

Sec 31. The said courts shall respectively have power and authority to hear 
and determine all cases of treason and other felony, crimes and misdemeanors of 
whatever kind, that may be committed within any county or place within their 
respective circuits, and that may be brought before them, by any rules and regula- 
tions provided by law. 

Sec 32. All suits brought in the said circuit courts shall be tried in the coun- 
ties in which they originated, unless in cases that are or may be specially provided 
for by law. 

Sec 33. The clerks appointed by the said circuit courts, or by the judges 
thereof in each county, shall, before they enter upon the duties of their offices, 
respectively take an oath, to support the constitution of the United States, and of 
this State, and also the following oath of office, before one of the judges of the said 
circuit courts, or some justice of the peace in this State : "I, A. B., being appoin- 
ted clerk of the circuit court for county, do solemnly swear, (or affirm) 
that I will truly and faithfully enter and record all the orders, decrees, judgments 
and proceedings of the said court ; and that I will faithfully and impartially dis- 



COURTS. 147 

charge and perform all the duties of my said office, according to the best of my 
abilities and understanding, according to law." A certificate whereof, with the ap- 
pointment, shall be entered on the records of the court at the first term of the court 
after the same shall be done. 

Sec. 34. The clerk of each circuit court shall, at the first term of the said 
court held in his county after he shall be appointed, enter into bond to the gov- 
ernor of the State, and to his successors in office, for the use of the people of the 
State of Illinois, with one or more securities to be approved by the court, in the 
sum of two thousand dollars, conditioned for the faithful performance of the duties 
of his office, and to deliver up the papers, books, records and proceedings apper- 
taining thereto, whole, safe and undefaced, when lawfully required so to do ; which 
bond, so executed, shall be transmitted to the office of the secretary of State, and 
filed therein. 

Sec. 35. The clerks of the respective circuit courts, shall keep their offices at 
the county seats of their respective counties ; they shall make, keep and preserve, 
complete records of all the proceedings and determinations of the courts, of which 
they are clerks, except in cases otherwise provided by law, and do and perform all 
other duties pertaining to their said offices, as may be required by law, or the rules 
and orders of their courts respectively. 

Sec. 36. The clerks of the circuit courts shall be entitled to such fees and 
compensation for their services as shall be allowed by law, or by order of court. 

Sec 37. The clerk of any circuit court may be removed from office by the 
judge of said court, for any neglect of duty, incompetency, misconduct in office, or 
any other cause which may be satisfactory to said court ; the reasons for such re- 
moval to be entered at large upon the records of said court. The official bond of 
such clerk shall not be affected by such removal, but shall remain in full force, for 
the satisfaction of any breach of its conditions. 

Sec. 38. It shall be the duty of every clerk of the circuit court, hereafter to be 
appointed to succeed another, to demand of his predecessor, or the person in whose 
possession they may be, all the books, papers and proceedings appertaining to the 
circuit court of which he shall be appointed clerk : and the said predecessor or 
person in whose possession the same may be, shall, on such application and demand , 
deliver them up to the person so appointed ; and should any person herein required 
to give up the books, papers and proceedings as aforesaid, refuse so to do on such 
application and demand, the proper circuit court shall have power to use such com- 
pulsory process, and take such measures as may be necessary to coerce the deliv- 
ery as aforesaid, according to the true intent and meaning hereof. 

Sec 39. The judges shall annually examine into the condition of the office of 
every clerk of the circuit court in their respective circuits, and make such order 
thereon as circumstances may require. 

Sec 40. The clerks of the circuit courts may issue process in all cases arising 
therein ; which process shall bear teste in the name of, and be signed by such clerks 
respectively, and dated on the days on which they issue, and be made returnable 
according to law j and all process issuing from the said circuit courts, shall be sealed 
with the judicial seal which shall be provided for that purpose ; but in case there 
shall not be a judicial seal, the clerk shall affix his private seal until a public one 
shall be provided. 

Sec 41. The chief justice, and the associate justices of the supreme court, may 
interchange and hold each other's circuit courts as often as they may agree to do 
the same, and may award writs of habeas corpus, ne exeat, certiorari and injunction , 



148 COURTS. 

and may grant orders to stay proceedings, which said writs and orders shall run, 
and have force, in each other's circuits ; and such acts, writs and orders shall have 
the same effect, and be obeyed in the same manner, as if the said acts, orders and 
writs were done, granted and sued by the proper justice or judge of the circuit. 

Sec. 42. Should the chief justice or either of the associate justices fail to attend 
in anv county, in their respective circuits, on the day appointed for commencing the 
term of the circuit court therein, as required by law, the court shall stand adjourned 
until the next day, and should the judge not attend by four o'clock in the afternoon 
of the second day of the term, the court shall stand adjourned until the next succeed- 
ing term of the court; and all suits, writs, process, indictments, recognizances and 
other proceedings, shall stand continued over until the next term of the court, as 
effectually as if the same had been continued by the order of the court. 

Sec. 43. The said judges in their respective circuits, may, at any regular term 
of the court in any county, make an order appointing a time for holding a special 
term of the court, for hearing and deciding chancery causes, and shall have power 
at such special terms, to hear and decide all causes, matters and things depending 
in chancery in such courts ; and all proceedings had, and all orders, decrees and 
judgments made at such special term, shall have the same validity as if had or made 
;>t a regular term appointed by law. The said judges shall also have power at any 
regular term of a circuit court in any county, to make an order appointing a time 
for holding a special term of such court, for the trial of civil and criminal causes; 
and suits may be instituted, and process made returnable to such special term in 
the same manner, and with like effect as at a regular term of such court ; and the 
county commissioners of such county, shall select and cause to be summoned a 
grand and petit jury, to attend the special term appointed for the trial of civil and 
criminal cases ; and the court shall have power at such special term to try all civil 
and criminal cases; and all orders, judgments and proceedings made and had at 
such special term, shall be as valid and effectual, as if made or had at a regular 
term of the court. 

Sec. 44. If any judge of the circuit court shall be interested in any suit or pro- 
ceeding in his circuit, it shall be his duty to cause all the papers relating to such 
suit or proceeding, and a transcript of the record, if necessary, to be transmitted 
•to the most convenient county in the next adjoining circuit, as in case of a change 
of venue ; and the judge of the circuit, to which such cause shall be transferred, 
shall proceed therein, in all respects, as if the same had been originally instituted 
in his circuit. 

Sec 45. Whenever any person shall be in the custody of the sheriff of any 
county, charged with a capital crime, or any felony, or other offence, punishable by 
confinement in the penitentiary, it shall be the duty of such sheriff, provided such 
person shall desire a trial, to give information thereof, in writing, to the judge pre- 
siding in the circuit, or in the case of his absence or disability, to the next circuit 
judge nearest to the county where the offence is charged to have been committed, 
whose duty it shall be to issue a precept, under his hand and seal, to the sheriff of 
such county, to summon twenty-three grand jurors, and twenty-four petit jurors, to 
attend at the seat of justice of said county on a day therein mentioned, which shall 
not be less than fifteen nor more than thirty days from the date of said precept. 

Sec. 46. It shall be the duty of the sheriff, on receiving the precept aforesaid, 
to give notice by advertisement, set up at the seat of justice of his county, at least 
ten days before the return of such precept, of the time of holding a special term of 



COURTS. 149 

the circuit court, in pursuance of this chapter ; and it shall be the duty of the cir- 
cuit judge, either personally or in writing, to notify the attorney prosecuting for the 
State in such county, of the time and place of holding court in pursuance of this 
chapter ; but the want of such advertisement by the sheriff, or notice by the judge, 
shall not be construed to invalidate the authority of the court, or to render its pro- 
ceedings void or erroneous ; but in case of such omission, the precept aforesaid 
shall be considered as legal notice of the time and place of holding such court; and 
the sheriff, for omitting to advertise in manner aforesaid, may be fined at the discre- 
tion of the court, in a sum not exceeding five hundred dollars : Provided, That there 
shall be no such special term of the circuit court, where a regular term of said 
court will be held within forty days of the time of receiving such notice as afore- 
said, by the judges from the sheriff, but in all such cases the person shall wait until 
the regular term for his trial. 

Sec. 47. The said circuit court, when met in pursuance of this chapter, shall 
have authority to adjourn to any day which may be adjudged reasonable and expe- 
dient, for the fair and impartial trial of any such person, who may be indicted be- 
fore it, and in case the requisite number of grand and petit jurors shall not attend 
at the time and place specified in such precept, or the number of petit jurors be 
reduced by challenge below the number of twelve, the court may order the sheriff 
to complete the pannel of the grand or petit jury from the bystanders, or award a 
venire de novo for a grand or petit jury, as the case may require. 

Sec 48. Any process which may be issued by any of the clerks of the said 
circuit courts, or any judge thereof, in pursuance of law, shall be executed by the 
officer or person to whom the same shall be directed, in any county or place in 
this State, in the same manner that process usually is, or may be required to be 
executed, and returned ; and the said circuit courts shall respectively have power 
to punish all contempts offered by any person or persons to them, while sitting as 
such, at any regular or special term as aforesaid ; and for disobeying any of its pro- 
cess, rules or orders, issued or made conformably to law. 

Sec 49. The clerks of the several circuit courts may issue subpoenas for wit- 
nesses to any county in this State. 

Sec 50. The circuit judges of the several judicial circuits of this State, shall 
have power in vacation, and they are required to appoint a special term of the court 
in any of the counties comprising their respective circuits, whenever it may be 
necessary for the prompt and efficient administration of justice; and whenever any 
special court shall be held, the clerk of said court shall give the sheriff of said 
county notice in writing at least twenty days before said court is to be held, who 
shall summon a grand and petit jury, to attend at the court house on the day ap- 
pointed for holding said court, and said sheriff shall put up notices of the time of 
holding such court, in at least five of the most public places in said county, ant! 
all process which may have been made returnable to the regular term, shall be 
deemed in law returnable to the said special term appointed as aforesaid. 

Sec 51. The circuit court of Sangamon county shall have original jurisdiction 
in all causes, suits and motions, against every person or persons, body politic or 
corporate in this State, in which the State shall be a party, plaintiff or complainant, 
whether such causes, suits and motions grow out of contracts express or implied, 
or out of iorts of any nature or description whatever, affecting the interest or welfare 
of the State. 

Sec 52. All such suits, motions, causes and proceedings shall hereafter be 
instituted and prosecuted in the name of the People of the Stale of Illinois. 



150 COURTS. 

Sec 53. Writs of ne exeat, capias, attachment and injunction may issue in the 
causes, suits and proceedings aforesaid on behalf of the State, as in cases provided 
lor by law between individuals, and such writs shall issue in all instances upon 
ihe official statement in writing of the attorney general, which statement shall con- 
form to the law applying to the issuing of those writs in other cases, only dispensing 
with the oath or affidavit of the attorney general. 

Sec 54. The State shall in no case be required to give bond and security as is 
required of individuals in sueing out such writs as aforesaid. 

Sec 55. It shall be the duty of the sheriffs and coroners throughout the State 
to obey the writs aforesaid, and serve the same in their respective counties ; and 
whenever any person or persons by virtue of any such writs of capias or ne exeat, 
shall be required to give bail or enter into bond or recognizance, for his, her or 
their appearance at the court aforesaid, as in other cases provided for by law : in 
default of giving bail, or entering into bond or recognizance, such person or persons 
shall be imprisoned in the county where he, she or they may be arrested, and there 
detained until he, she or they shall give such bail, or enter into such bond or recog- 
nizance, or be otherwise discharged by law ; and in case he, she or they shall not 
be discharged from custody, the sheriff or coroner having him, her or them in 
custody, shall surrender him, her or them before the said court at the return day 
of such writ. 

Sec 56. Any person or persons, body politic or corporate, against whom any 
such suit, cause, motion or proceeding as aforesaid, shall be instituted and prosecu- 
ted, shall recover payment for his, her or their costs, which shall be paid by the 
State, and for which Ihe clerk of said court shall certify the same to the auditor, 
and the auditor of public accounts shall issue his warrant for the same on the treas- 
urer, in the event that such cause, suit, motion or proceeding shall be determined 
or disposed of against the State. 

Sec 57. It shall be the duty of the governor, secretary of State, treasurer, 
auditor and fund commissioner, to give immediate notice to the attorney general, of 
any delinquency or default of any person or persons, body politic or corporate, in 
any matter relating to the public revenue and public interests, growing out of con- 
tracts or torts as aforesaid, and it shall be the duty of the attorney general to proceed 
forthwith against such person or persons, body politic or corporate, in the most 
efficient manner allowed by law. 

Sec 58. It shall be the duty of the attorney general to enforce the penalties 
of the criminal code against all persons who may embezzle the public money, 
or who may be liable to prosecution for any delinquency or default pertaining 
to the public revenue in his district ; and it shall be the further duty of the 
attorney general to give information and directions and instructions to the prosecu- 
ting attorneys of the State, of any such offences as above in other parts of the State 
out of his district, so that prosecutions may be instituted against such offenders. 

Sec 59. In all such suits, causes, motions and proceedings as aforesaid, the 
official statement of the governor, secretary of State, auditor, treasurer and fund 
commissioner, of any fact or facts, properly within the legitimate powers and duties 
of such officers, respectively, shall be deemed and taken as evidence for and against 
ihe State, as the case may be. 

Sec. 60. All subpoenas, summonses, executions and other legal process in said 
suits, causes, motions and proceedings, shall issue and be directed to any county in 
the State, and be served as in other cases provided for by law ; and the fees of the 



CRIMINAL JURISPRUDENCE. 



151 



clerks, witnesses, sheriffs, coroners and other officers, shall be the same as in 
other cases. 

Sec. 61. The causes, motions, suits and proceedings aforesaid, shall be docketed 
in the court aforesaid, and tried and disposed of as other cases : Provided, That 
said court shall not have exclusive jurisdiction ol such causes, motions and suits, 
but only concurrent jurisdiction with the other circuit courts of the State, where 
the defendant or defendants in said causes, motions and suits may happen to reside 
or be found. 

Sec 62. The sheriff or coroner of the proper county shall hereafter serve and 
return all writs and process issuing; out of the supreme and circuit courts, unless 
otherwise provided for by law. 

Sec. 63. The twelve preceding sections hereof shall not be construed as 
repealing any other law of this State, relating to the interests of the State, but the 
same shall be considered a cumulative remedy in the enforcement of public justice. 

Sec 64. The sheriff of the county in which the supreme court is held, shall 
attend upon its sittings, and perform such duties, under the order and direction of 
said court, as are usually performed by such officer, and such as said court shall 
from time to time require. 

Sec 65. The State shall remain as now, divided into nine judicial circuits, and 
the chief justice and eight associate justices, shall hold circuit courts therein, and 
shall perform all the duties prescribed in this chapter, in the manner and at the 
times by law specified, and perform such other duties as such judges, as shall 
hereafter be defined by law. 

Approved : March 3, 1845. 

[Amended:. — See Appendix, Acts No. 10, 11 and 12.] 



CHAPTER XXX. 

CRIMINAL JURISPRUDENCE. 



IVISION I. PERSONS CAPABLE OF COMMITTING 

CRIMES. 



Section 

1 . Crime or misdemeanor, what constitutes. 

2. Intention, how manifested. 

3. Wlij capable of committing crimes. 

4. Infant under ten years not capable. 

5. Lunatic or insane not capable. 

6. Idiot not capable. 

7. Person counselling infant to commit offence, 

prosecuted as principal. 

8. Married woman committing certain crimes un- 

der coercion of husband, not punishable, but 
husband punishable. 



Section 
9. Drunkenness not an excuse for crime, unless 
occasioned by the fraud of some other per- 
son, for the purpose, &c, in which case such 
person considered as principal. 
10. Acts committed by misfortune not deemed crim- 
inal. 
Person committing crime not punishable with 
death, under threats, not guilty; persons com- 
pelling commission of oftence by such threats, 
liable as principal or principals. 
Person becoming lunauc or insane after com- 
mission of crime, not to be tried during such 



li. 



V2. 



152 CRIMINAL JURISPRUDENCE. 

Section I Section 

lunacy ; and if after verdict of guilty, and be- ] before sentence, execution thereof to be stayed 

fore judgment, such person become lunatic, j till recovery; question of insanity to be tried 

then no judgment shall be given, and every by jury. 

person becoming lunatic, after judgment and 

Section 1. A crime or misdemeanor consists in a violation of a public law, in 
the commission of which there shall be an union or joint operation of act and in- 
tention, or criminal negligence. 

Sec 2. Intention is manifested by the circumstances connected with the per- 
petration of the offence, and the sound mind and discretion of the person accused. 

Sec 3. A person shall be considered of sound mind who is neither an idiot nor 
lunatic, nor affected with insanity ; and who hath arrived at the age of fourteen 
years, or before that age, if such person know the distinction between good and 
evil. 

Sec 4. An infant under the age of ten years, shall not be found guilty of any 
crime or misdemeanor. 

Sec 5. A lunatic or insane person, without lucid intervals, shall net be found 
guilty of any crime or misdemeanor, with which be may be charged : Provided-, 
The act so charged as criminal, shall have been committed in the condition of 
insanity. 

Sec 6. An idiot shall not be found guilty, or punished for any crime or mis- 
demeanor, with which he or she may be charged. 

Sec 7. Any person counselling, advising or encouraging an infant under the 
age of ten years, lunatic or idiot, to commit any offence, shall be prosecuted for 
such offence when committed as principal, and if found guilty, shall suffer the 
same punishment that would have been inflicted on such person counselling, advi- 
sing or encouraging as aforesaid, had he or she committed the offence directly, 
without the intervention of such infant, lunatic or idiot. 

Sec 8. A married woman acting under the threats, command or coercion of her 
husband, shall not be found guilty of any crime or misdemeanor not punishable 
with death, provided it appear from all the facts and circumstances of the case, 
that violent threats, command or coercion were used ; and in such case the hus- 
band shall be prosecuted as principal, and receive the punishment which would 
otherwise have been inflicted on the wife, if she had been found guilty. 

Sec 9. Drunkenness shall not be an excuse for any crime or misdemeanor, 
unless such drunkenness be ocsasioned by the. fraud, contrivance or force, of some 
other person or*persons for the purpose of causing the perpetration of an offence ; 
in which case the person or persons so causing said drunkenness, for such malig- 
nant purpose, shall be considered principal or principals, and suffer the same 
punishment as would have been inflicted on the person or persons committing the 
offence, if he, she or they had been possessed of sound reason and discretion. 

Sec 10. Acts committed by misfortune or accident, shall not be deemed crimi- 
nal, where it satisfactorily appears, that there was no evil design or intention, or 
culpable negligence. 

Sec 11. A person committing a crime or misdemeanor, not punishable with 
death, under threats or menaces which sufficiently show, that his or her life or 
member was in danger ; or that he or she had reasonable cause to believe, and did 
believe that his or her life or member was in danger, shall not be found guilty : 
and such threats or menaces being proved and established, the person or persons 
compelling by such threats or manaces, the commission of the offence, shall be 



CRIMINAL JURISPRUDENCE. 



153 



considered as principal or principals, and suffer the same punishment, as if he or 
she had perpetrated the offence. 

Sec. 12. A person that becomes lunatic or insane after the commission of a 
crime or misdemeanor, ought not to be tried for the offence during the continuance 
of the lunacy or insanity. If, after verdict of guilty, and before judgment pro- 
nounced, such person become lunatic or insane, then no judgment shall be given 
while such lunacy or insanity shall continue. And if after judgment, and be- 
fore execution of the sentence, such person become lunatic or insane, then in 
case the punishment be capital, the execution thereof shall be stayed until the 
recovery of said person from the insanity or lunacy. In all of these cases, it 
shall be the duty of the court to empannel a jury to try the question, whether the 
accused be, at the time of cmpanneling, insane or lunatic. 



DIVISION II. ACCESSORIES TO CRIMES 



Section 

1 3. Accessories to crimes ; when punished as prin- 
cipals. 



Section 
14. Accessory after the fact ; how punished. 



Section 13. An accessory is he or she, who stands by and aids, abets or assists ; 
or who not being present aiding, abetting or assisting, hath advised and encouraged 
the perpetration of the crime. He or she who thus aids, abets or assists, advises or 
encourages, shall be deemed and considered as principal, and punished accordingly. 

Sec 14. An accessory after the fact, is a person who, after full knowledge 
that a crime has been committed, conceals it from the magistrate, or harbors and 
protects the person charged with or found guilty of the crime. Any person being 
found guilty of being an accesssory after the fact, shall be imprisoned for any term 
not exceeding two years, and fined in a sum not exceeding five hundred dollars, 
in the discretion of the court, to be regulated by the circumstances of the case, 
and the enormity of the crime. 



DIVISION III. WHO MAY BE WITNESSES IN CRIMINAL 

CASES. 



Section 

15. Party injured may be witness, unless incompe- 

tent by reason of infamy, &c, jury to deter- 
mine credibility. 

16. Black or mulatto person or Indian not evidence 



Section 

against white person ; who deemed mulatto or 
Indian. 

17. Approvers not to give testimony. 

IS. Affirmation deemed sufficient, and false affirma- 
tion deemed perjury. 



Section 15. The party or parties injured shall, in all cases be competent wit- 
nesses, unless he, she or they shall be rendered incompetent by reason of his, her 



154 



CRIMINAL JURISPRUDENCE. 



or their infamy or other legal incompetency other than that of interest ; the credi- 
bility of all such witnesses shall be left to the jury as in other cases. 

Sec. 16. No black or mulatto person or Indian shall be permitted to give evi- 
dence in favor or against any white person whatsoever. Every person who shall 
have one-fourth part or more of negro blood shall be deemed a mulatto ; and every 
person who shall have one-half Indian blood shall be deemed an Indian. 

Sec. 17. Approvers shall not be allowed to give testimony. 

Sec 18. The solemn affirmation of witnesses shall be deemed sufficient. A 
false and corrupt affirmation shall subject the witness to all the penalties and pun- 
ishment provided for those who commit wilful and corrupt perjury. 



DIVISION IV. 



CRIMES AGAINST THE GOVERNMENT 
AND PEOPLE. 



Section 

19. Crimes against government, &c, what shall con- 

stitute, and who may commit. 

20. Treason, what shall constitute, and penalty 

therefor ; persons guilty of overt act out of 



Section 

this State, may be arrested in this State, and 
tried where arrested. 
21. Misprision, what shall constitute, and penalty 
therefor. 



Section 19. Crimes against the government and people shall consist in treason 
and misprision of treason, and can only be committed by persons owing allegiance 
to the State. 

Sec. 20. Treason shall consist in levying war against the government and peo- 
ple of this State, in the same, or being adherent to the enemies of this State, giving 
them aid, advice and comfort in this State or elsewhere. Any person being thereof 
duly convicted of open deed by two or more witnesses or voluntary confession in 
open court, shall suffer the pains and penalty of death ; and when the overt act of 
treason shall be committed without the limits of this State, the person charged 
therewith may be arrested, tried and punished in any county in this State, within 
the limits of which he may be found ; and the offence may be charged to have been 
committed in the county where he may be arrested. 

Sec. 21. Misprisions of treason shall consist in the knowledge and concealment 
of treason, without otherwise assenting to or participating in the crime. Any per- 
son found guilty thereof shall be punished by confinement in the penitentiary for 
any term not exceeding two years. 



DIVISION V. OFFENCES AGAINST THE PERSONS OF 

INDIVIDUALS. 



Section 
22. Murder, what shall constitute, and how may be 
committed. 



committed. 
23. Express malice, what deemed. 



Section 

24. Implied malice, what deemed ; penalty for mur- 

der. 

25. Manslaughter, what constitutes, and how may 

be committed. 



CRIMINAL JURISPRUDENCE. 



155 



Section 

26. Voluntary manslaughter, what shall be deemed 

provocation therefor. 

27. The killing must be the result of violent pas- 

sion, and if reasonable interval occur between 
provocation and act, to be considered deffber- 
ate revenge, and punished as murder. 

28. Involuntary manslaughter, what deemed: Pro- 

viso, that when in the commission of an un- 
lawful act or of felonious intent, the offence 
to be deemed murder. 

29. Punishment. 

30. The killing, what shall make it murder or man- 

slaughter. 

31. Accused to be tried in county where the cause 

of death was administered ; and if party killed 
and party killing be in different counties when 
cauje of death administered, accused may be 
tried in either county. 

32. Justifiable homicide, what shall be deemed. 

33. Bare fear of offence not considered justification 

for homicide. 

34. Self-defence, what deemed. 

35. Officer assaulted while serving process, when 

justified in killing. 

36. Justifiable homicide, further defined. 

37. Excusable homicide, what deemed; but if 

bounds of moderation be exceeded, and death 
ensue, shall be considered manslaughter or mur- 
der. 

38. Other instances, when justifiable or excusable. 

39. Homicide, when justifiable, person indicted 

shall be acquitted. 



Section 

40. Mitigation, burden of proof in, to devolve on 

accused. 

41. When mother shall conceal death of illegitimate 

issue, if born alive, whether it may have been 
murdered or not, being convicted thereof, may 
be imprisoned : Provided, mother may be in- 
dicted for murder. 

42. Distinction between petit treason and murder 

abolished. 

43. Duelling, how punished. 

44. Challenging or accepting challenge, penalty there- 

for. 

45. Persons conveying challenge, how punished; 

indictment, allegation thereof. 

46. Poisoning, punishment for. 

47. Mayhem, what deemed, and punishment therefor. 

48. Rape, what constitutes, who deemed guilty, and 
punishment therefor. 

Emission not necessary to constitute rape. 
Crime against nature, what deemed, and punish- 
ment therefor. 
Assault, what constitutes. 

52. Assault, with intent to commit murder &c, how 

punished ; with intent to inflict bodily injury, 
how punished. 

53. Assault and battery defined. 

54. False imprisonment, what deemed, and how 

punished. 

55. Kidnapping defined. 

56. Kidnapping, who may be guilty thereof, and pun- 

ishment therefor. 

57. Kidnapping further defined, and punishment 

therefor. 



49. 
50. 



51. 



Section 22. Murder is the unlawful killing of ahuman being, in the peace of the 
people, with malice aforethought, either express or implied. The unlawful killing 
may be perpetrated by poisoning, striking, starving, drowning, stabbing, shooting, 
or by any other of the various forms or means by which human nature may be over- 
come and death thereby occasioned. 

Sec 23. Express malice is that deliberate intention unlawfully to take away 
the life of a fellow creature, which is manifested by external circumstances capable 
of proof. 

Sec 24. Malice shall be implied when no considerable provocation appears, or 
when all the circumstances of the killing show an abandoned and malignant heart. 
The punishment of any person or persons convicted of the crime of murder shall 
be death. 

Sec. 25. Manslaughter is the unlawful killing of a human being without malice 
express or implied and without any mixture of deliberation whatever. It must be 
voluntary, upon a sudden heat of passion, caused by a provocation apparently suffi- 
cient to make the passion irresistible or involuntary, in the commission of an unlaw- 
ful act, or a lawful act without due caution or circumspection. 

Sec 26. In cases of voluntary manslaughter there must be a serious and highly 
provoking injury inflicted upon the person killing, sufficient to excite an irresistible 
passion in a reasonable person, or an attempt by the person killed to commit a seri- 
ous personal injury on the person killing. 

Sec 27. The killing must be the result of that sudden violent impulse of pas- 
sion, supposed to be irresistible ; for if there should appear to have been an interval 
between the assault or provocation given and the killing, sufficient for the voice of 
reason and humanity to be heard, the killing shall be attributed to deliberate revenge, 
and punished as murder. 

Sec 28. Involuntary manslaughter shall consist in the killing of a human being 
without any intent so to do, in the commission of an unlawful act, or a lawful act> 



156 CRIMINAL JURISPRUDENCE. 

which probably might produce such a consequence, in an unlawful manner : Pro- 
vided, always, That where such involuntary killing shall happen in the commission 
of an unlawful act, which in its consequences naturally tends to destroy the life of a 
human being, or is committed in the prosecution of a felonious intent, the offence 
shall be deemed and adjudged to be murder. 

Sec. 29. Every person convicted of the crime of manslaughter shall be pun- 
ished bv imprisonment in the penitentiary for a term not exceeding eight years. 

Sec. 30. In order to make the killing either murder or manslaughter, it is requi- 
site that the party die within a year and a day after the stroke received or the cause 
of death administered ; in the computation of which, the whole of the day on which 
the hurt was done shall be reckoned the first. 

Sec 31. If the injury be inflicted in one county and the party die within ano- 
ther county or without the State, the accused shall be tried in the county where the 
cause of death was administered. And if the party killing shall be in one county 
and the party killed be in another county, at the time the cause of death shall be 
administered, the accused may be tried in either county. 

Sec 32. Justifiable homicide is the killing of a human being in necessary self 
defence or in the defence of habitation, property or person, against one who mani- 
festly intends or endeavors by violence or surprise to commit a known felony, such 
as murder, rape, robbery, burglary and the like, upon either person or property, or 
against any person or persons who manifestly intend and endeavor, in a violent, 
riotous or tumultuous manner, to enter the habitation of another for the purpose of 
assaulting or offering personal violence to any person dwelling or being therein. 

Sec 33. A bare fear of any of these offences, to prevent which the homicide is 
alleged to have been committed, shall not be sufficient to justify the killing. It 
must appear that the circumstances were sufficient to excite the fears of a reasonable 
person, and that the party killing really acted under the influence of those fears and 
not in a spirit of revenge. 

Sec 34. If a person kill another in self defence, it must appear that the dan- 
ger was so urgent and pressing, that in order to save his own life, or to -prevent his 
receiving great bodily harm, the killing of the other was absolutely necessary ; and 
it must appear also, that the person killed was the assailant, or that the slayer had 
really and in good faith, endeavored to decline any further struggle before the mortal 
blow was given. 

Sec 35. If an officer in the execution of his office in a criminal case, having 
legal process, be resisted and assaulted, he shall be justified if he kill the assailant. 
If an officer or private person attempt to take a person charged with treason, mur- 
der, rape, burglary, robbery, arson, perjury, forgery, counterfeiting or other crime, 
denominated felony by the common law, and he or they be resisted in the endeavor to 
take the person accused, and to prevent the escape of the accused by reason of such 
resistance, he or she be killed, the officer or private person so killing shall be jus- 
tified: Provided, That such officer or private person, previous to such killing, shall 
have used all reasonable efforts to take the accused without success, and that from 
all probability, there was no prospect of being able to prevent injury from sueh re- 
sistance and the consequent escape of such accused person. 

Sec 36. Justifiable homicide may also consist in unavoidable necessity, without 
any will or desire, and without any inadvertence or negligence in the party killing. 
An officer, who in the execution of public justice, puts a person to death in virtue 
of a judgment of a competent court of justice, shall be justified. The officer must, 



CRIMINAL JURISPRUDENCE. 157 

however, in the performance of his duty, proceed according to the sentence and the 
law of the land. 

Sec. 37. Excusable homicide, by misadventure, is when a person in doing a 
lawful act, without any intention of killing, yet unfortunately kills another ; as where 
a man is at work with an axe and the head flies off and kills a bystander; or where 
a parent is moderately correcting his child, or master his servant or scholar, or an 
officer punishing a criminal, and happens to occasion death, it is only a misadven- 
ture, for the act of correction was lawful ; but if a parent or master exceed the 
bounds of moderation, or the officer the sentence under which he acts, either in the 
manner, the instrument or quantity of punishment, and death ensue, it will be man- 
slaughter or murder, according to the circumstances of the case. 

Sec 38. All other instances which stand upon the same footing of reason and 
justice as those enumerated, shall be considered justifiable or excusable homicide. 

Sec 39. The homicide appearing to be justifiable or excusable, the person in- 
dicted shall upon his trial be fully acquitted and discharged. 

Sec 40. The killingbeing proved, the burden of proving circumstances of miti- 
gation, or that justify or excuse the homicide, will devolve on the accused, unless 
the proof on the part of the prosecution sufficiently manifests that the crime com- 
mitted only amounts to manslaughter, or that the accused was justified or excused 
in committing the homicide. 

Sec 41. If any woman shall endeavor, privateby, either by herself or the pro- 
curement of others, to conceal the death of any issue of her body, male or female, 
which if born alive would be a bastard, so that it may not come to light, 
whether it shall have been murdered or not, every such mother being convicted 
thereof shall suffer imprisonment in the county jail for a term not exceeding one 
year : Provided, however. That nothing herein contained shall be so construed as to 
prevent such mother from being indicted and punished for the murder of such bas- 
tard child. 

Sec 42. The distinction between petit treason and murder is hereby abolished. 
Any person who might have been indicted for petit treason, shall hereafter be indicted 
for murder, and if convicted, be punished accordingly. 

Sec 43. If any person hereafter shall wilfully and maliciously , or by agreement, 
fighl a duel or single combat, with any engine, instrument or weapon, the probable 
consequence of which might be the death of either party, and in so doing, shall kill 
his antagonist, or any person or persons, or shall inflict such wound as that 
the party injured shall die thereof within one year thereafter, every such offender, 
his second, as well as the second of the person killed, and all aiders, abettors and 
counsellors, being thereof duly convicted, shall be considered to have committed a 
high misdemeanor, and shall be punished by confinement to labor in the penitentiary 
for any term not exceeding five years, nor less than one year. 

Sec 44. If any person shall hereafter challenge another to fight a duel with 
any deadly weapon, or in any manner whatever, the probable issue of which might 
result in the death of either ; or if any person shall accept a challenge or agree to 
fight a duel, every person so offending shall, upon conviction thereof, be rendered 
incapable of holding or being elected to any office of profit, trust or emolument, 
either civil or military, under the government of this State, and be fined in a sum 
not exceeding one hundred dollars. 

Sec 45. If any person shall, willingly or knowingly, carry or deliver any 
written challenge, or verbally deliver any message intended as or purporting to be a 



158 CRIMINAL JURISPRUDENCE. 

challenge, or shall be present at the fighting of any duel as aforesaid, as second or 
aid, or give countenance thereto, such person being thereof duly convicted shall be 
subject to the same fines and disabilities as are provided in the case of sending a 
challenge as aforesaid. It shall not be necessary in an indictment against any per- 
son or persons for fighting a duel, or against their seconds, aiders, abettors or coun- 
sellors, or against any person for sending or accepting a challenge, or for carrying 
any challenge, or delivering any message intended as or purporting to be a challenge, 
or for being present at the fighting of any duel as a second, or for aiding or giving 
countenance to any duel, or the sending or accepting any challenge, to specify the na- 
ture or kind of the engine, instrument or weapon with which the duel shall be fought 
or intended to be fought, so that it be alleged in the indictment, that the engine, 
weapon or instrument was deadly, the probable consequence of fighting with which, 
might be the death of either of the parties. 

Sec 46. Every person who shall wilfully and maliciously administer, or cause 
to be administered to, or taken by any person, any poison or other noxious or de- 
structive substance or liquid, with the intention to cause 'the death of such person, 
and being thereof duly convicted, shall be punished by confinement in the peniten- 
tiary, for a term not less than one year, and not more than seven years. And every 
person who shall administer, or cause to be administered or taken, any such poison, 
substance or liquid, with the intention to procure the miscarriage of any woman then 
being with child, and shall thereof be duly convicted, shall be imprisoned for a term 
not exceeding three years in the penitentiary, and fined in a sum not exceeding one 
thousand dollars. 

Sec 47. Mayhem consists in unlawfully depriving a human being of a member 
of his or her body, or disfiguring or rendering it useless. If any person shall 
unlawfully cut out or disable the tongue, put out an eye, slit the nose, ear or lip, 
or disable any limb or member of another, or shall voluntarily and of purpose, put 
out an eye or eyes, every such person shall be guilty of mayhem, and on conviction, 
shall be punished by confinement in the penitentiary, for a term not less than one 
year nor more than three years : Provided, That no person shall be found guilty of 
mayhem, where the fact occured during a fight had by consent, nor unless it appear 
that the person accused shall have been the assailant, or that the party maimed had, 
in good faith, endeavored to decline further combat. But in all other cases where 
the fact shall happen in actual fight, the party accused, being thereof duly convict- 
ed, shall be adjudged guilty of a high misdemeanor, and punished by imprison- 
ment in the penitentiary not exceeding one year, and be fined not exceeding one 
thousand dollars. 

Sec 48. Rape is the carnal knowledge of a female, forcibly and against her 
will. Every male person of the age of fourteen years and upwards, who shall have 
carnal knowledge of any female child under the age of ten years, either with or 
without her consent, shall be adjudged to be guilty of the crime of rape. Every 
person convicted of the crime of rape, shall be punished by confinement in the 
penitentiary for a term not less than one year, and may extend to life. 

Sec 49. It shall not be necessary to prove emission to convict any person of 
the crime of rape, or the crime against nature. 

Sec 50. The infamous crime against nature, either with man or beast, shall 
subject the offender to be punished by imprisonment in the penitentiary for a term 
not less than one year, and may extend to life. 

Sec 51. An assault is an unlawful attempt, coupled with a present ability, to 
commit a violent injury on the person of another. 



CRIMINAL JURISPRUDENCE. 



159 



Sec. 52. An assault, with an intent to commit murder, rape, mayhem, robbery 
or larceny, shall subject the offender to confinement in the penitentiarjr for a term 
not less than one year, nor more than fourteen years. An assault with a deadly 
weapon, instrument or other thing, with an intent to inflict upon the person of 
another, a bodily injury, where no considerable provocation appears, or where the 
circumstances of the assault show an abandoned and malignant heart, shall be 
adjudged to be a high misdemeanor, and any person thereof duly convicted, shall 
be fined in a sum not exceeding one thousand dollars, and imprisoned not exceeding 
one year in the county jail. 

Sec 53. Assault and battery is the unlawful beating of another. 

Sec. 54. False imprisonment is an unlawful violation of the personal liberty 
of another, and consists in confinement or detention without sufficient legal authority. 
Any person convicted of false imprisonment shall be fined in any sum not exceed- 
ing five hundred dollars, or imprisoned not exceeding one year in the county jail. 

Sec 55. Kidnapping is the forcible abduction or stealing away of a man, woman, 
or child, from his or her own country and sending or taking him or her into 
another. 

Sec 56. Every person who shall forcibly steal, take or arrest any man, woman, 
or child, whether white, black or colored, in this State, and carry him or her into 
another country, State or territory, or who shalljbrcibly take or arrest any person 
or persons whatsoever, with a design to take him or her out of this State, without 
having established a claim according to the laws of the United States, shall, upon 
conviction, be deemed guilty of kidnapping. Every person found guilty of kidnap- 
ping, shall be confined in the penitentiary for a term not less than one year, and 
not more than seven years, for each person kidnapped or attempted to be kidnapped. 

Sec 57. Every person who shall hire, persuade, entice, decoy or seduce, by 
false promises, misrepresentations and the like, any negro, mulatto or colored per- 
son, not being a slave, to go out of this State, or to be taken or removed therefrom, 
for the purpose and with the intent to sell such negro, mulatto or colored person 
into slavery or involuntary servitude, or otherwise to employ him or her for his or 
her own use, or to the use of another, without the free will and consent of such 
negro, mulatto or colored person, any person so offending, shall be deemed to have 
committed the crime of kidnapping, and upon conviction thereof, shall be punished 
as in the preceding section. 



DIVISION VI. CRIMES AND OFFENCES AGAINST 
HABITATIONS AND OTHER BUILDINGS, 



Section 

68. Arson, what deemed, and punishment therefor. 
59. Arson, further defined, and punishment there- 
for. 



Section 

60. Burglary, what deemed, and punishment there- 
for. 



Sectiox 58. Every person who shall wilfully and maliciously burn, or cause to- 
be burned, any dwelling house, kitchen, office, shop, barn, stable, store house, ware- 



160 CRIMINAL JURISPRUDENCE. 

house, malt house, stilling house, factory, mill, pottery or other building, the property 
of any other person, or any church, meeting house, school house, state house, court 
house, work house, jail or other public building, or any boat or other water craft, or 
any bridge of the value of fifty dollars, erected across any of the waters of this State, 
such person, so offending, shall be deemed guilty of arson, and upon conviction 
thereof, shall be punished by imprisonment in the penitentiary for a term not less 
than one year nor more than ten years ; and should the life or lives of any per- 
son or persons be lost in consequence of any such burning as aforesaid, such 
offender shall be deemed guilty of murder, and shall be indicted and punished ac- 
cordingly. 

Sec. 59. Every person who shall wilfully and maliciously set fire to any of 
the buildings or other property described in the foregoing section, with intent to 
burn or destroy the same, shall be deemed guilty of a high misdemeanor, and upon 
conviction thereof, shall be imprisoned in the penitentiary for a term not exceeding 
two years, and be fined in a sum not exceeding five hundred dollars. 

Sec. 60. Every person who shall, in the night time, wilfully and maliciously 
and forcibly break and enter, or wilfully and maliciously without force, (the doors 
or windows being open,) enter into any dwelling house, kitchen, office, shop, store 
house, warehouse, malt house, stilling house, mill, pottery, factory, water craft, 
church or meeting house, with intent to commit murder, robbery, rape, mayhem, 
larceny or other felony, shall be deemed guilty of burglary, and upon conviction 
thereof shall be punished by confinement in the penitentiary for a term net less 
than one year nor more than ten years. 



DIVISION VII. CRIMES AND OFFENCES RELATIVE 

TO PROPERTY. 



Section i Section 

Cl. Robbery, its definition, and punishment there- 68. Destroying any deed, lease or bond, how pun- 



for. 

62. Larceny, its definition, and punishment there- 

for. 

63. Stolen goods, buying or receiving, and punish. 

ment therefor. 

64. Right of owner to stolen property. 

Co. Altering brands, marks, &c., with felonious in- 
tent, how punished. 

66. Embezzlement, how punished. 

67. Defalcations of persons intrusted by law, to 

collect, disburse, receive or safely keep any 
moneys for public purposes, how punished. 



isked. 

69. Landmarks, punishment for altering or remo- 

ving. 

70. Embezzlement by clerk, apprentice or servant, 

deemed larceny, and punished accordingly. 

71. Bailee, converting money, &c, to his own use, 

deemed guilty of larceny, and punished accord- 
ingly. 

72. Lodger embezzling property which he or she is 

to use, deemed guilty of larceny, and pun- 
ished accordingly. 



Section 61. Robbery is the felonious and violent taking of money, goods or 
other valuable thing, from the person of another, by force or intimidation. Every 
person guilty of robbery shall be punished by confinement in the penitentiary for a 
term not less than one year nor more than fourteen years. 

Sec. 62. Larceny is the felonious stealing, taking and carrying, leading, riding 
or driving away the personal goods of another. Larceny shall embrace every 
theft which deprives another of his money or other personal property, or those 
means, or muniments by which the right and title to property, real or personal, 
may be ascertained. Private stealing from the person of another, and from a house 



CRIMINAL JURISPRUDENCE. 161 

in the day time, shall be deemed larceny : Larceny may be also committed by felo- 
niously taking and carrying away any bond, bill, note, receipt, or any instrument of 
writing of value to the owner. Every person convicted of larceny, shall be pun- 
ished by confinement in the penitentiary, for a term not less than one year, and not 
more than ten years. 

Sec. 63. Every person who for his own gain, or to prevent the owner from 
again possessing his property, shall buy or receive stolen goods,- or any thing, the 
stealing of which is declared to be larceny, or property obtained by robbery or bur- 
glary, knowing the same to have been so obtained, shall, upon conviction, be punished 
by confinement in the penitentiary, for any term not less than one year, nor more 
than ten years, and every such person may be tried, convicted and punished, as 
well before as after the trial of the principal. No person convicted of larceny, or 
of buying or receiving goods or other things obtained by larceny, burglary or rob- 
bery, shall be condemned to the penitentiary, unless the money or the value of the 
tiling stolen, bought or received, shall amount to five dollars. 

Sec 64. All property obtained by larceny, robbery or burglary, shall be res- 
tored to the owner, and no sale, whether in good faith on the part of the purchaser 
or not, shall divest the owner of his right to such property. Such owner may 
maintain his action, not only against the felon, but against any person in whose pos- 
session he may find the same. 

Sec 65. Every person who shall mark or brand, alter or deface the mark or 
brand of any horse, mare, colt, jack, jennett, mule or any one or more head of neat 
cattle or sheep, goat, hog, shoat or pig, not his or her own property, but belonging 
to some other person, with intent thereby to steal the same, or to prevent identifica- 
tion thereof by the true owner, shall, on conviction thereof, be punished by con- 
finement in the penitentiary, for a term not less than one year, nor more than three 
years : Provided, That no person shall be condemned to the penitentiary under 
this section, unless the value of the property affected shall amount to five dollars. 
And in case the value of the property affected by the offences herein described, or 
by larceny, or by buying or receiving goods or other property obtained by larceny, 
robbery or burglary shall not amount to five dollars, then the offender shall be pun- 
ished by imprisonment in the county jail, for a term not exceeding three months, 
and fined not exceeding fifty dollars. 

Sec 66. Every servant, officer or person employed in any public department, 
station or office of the government of this State, or any county of this State, or in 
any office of a corporate body, who shall embezzle, steal, secrete or fraudulently 
take and carry away any money, goods, chattels, effects, book or books of record 
or of account, bond or bonds, promissory note or notes, bank bills or notes, or any 
other writing or secuiity for the payment of money or property, of whatever de- 
scription it may be, being the property of said State, county or corporate body, 
shall, on conviction, be punished by confinement in the penitentiary, for a term not 
less than one year nor more than ten years. 

Sec 67. If any officer or person who now is, or hereafter may be entrusted by 
law to collect, disburse, receive or safely keep, any money or moneys, revenue or 
revenues belonging to this State, to the school fund of this State, to the school fund 
of any county or township, to any county in this State, to any canal, turnpike or 
railroad fund of this State, or any county thereof, or to any fund for the improve- 
ment of any public road, river, creek or other water course, bordering on or within 
this State, or to any other fund, now in being, or hereafter to be established by law 
11 



162 CRIMINAL JURISPRUDENCE. 

for public purposes, and who shall fail or refuse to pay over all moneys, warrants, 
bills, notes and orders which any such officer or person shall receive for disburse- 
ment, and has not disbursed, or shall collect, or shall receive, or shall receive for 
safe keeping, belonging to this State, to any county of this State, or to any such 
fund as aforesaid, when such officer or person shall be thereto required by law, 
and demand duly made by the successor or successors of such officer or person in 
office, or by the officer or person to whom such moneys, warrants, bills, notes or 
orders, ought by law to be paid over, or his or their attorney or agent duly author- 
ized, in writing, signed and acknowledged, if such demand be practicable ; every 
such officer or person shall, on conviction thereof, be punished by confinement in 
the penitentiary, for any term not less than one year, nor more than ten years : 
Provided, That no person shall be committed to the penitentiary under this section, 
unless the money not paid over shall amount to one hundred dollars, if it appear 
that such failure or refusal shall be occasioned by unavoidable loss or accident. 
Every person convicted under the provisions of this section, shall forever thereaf- 
ter be ineligible and disqualified from holding any office of honor or profit in this 
State. 

Sec. 68. Every person who shall fraudulently or maliciously tear, burn, efface, 
cut or in any other way destroy any deed, lease, bond, will or any other writing sealed, 
or any bank bill or note, check, warrant for the payment of money or other thing, 
or other security for the payment of money or the delivery of goods, or any certi- 
ficate 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, defeasance, dis- 
charge 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 account, or any agreement or contract whatsoever, 
with intent to defraud, prejudice or injure any person or body corporate, shall, 
upon conviction thereof, be punished by confinement in the penitentiary, for a term 
not less than one year, nor more than five years. 

Sec. 69. Every person who shall, knowingly, maliciously and fraudulently, cut, 
fell, alter or remove any certain boundary tree or other allowed land mark, to the 
wrong of his neighbor or any other person, shall, on conviction thereof, pay a 
fine not exceeding one hundred dollars, or be imprisoned in the county jail, for a 
term not exceeding three months. 

Sec. 70. If any clerk, apprentice or servant, whether bound or hired, to whom 
any money, bank bill or note, or goods or chattels shall le entrusted or delivered by 
his or her master or mistress, shall withdraw himself or herself from his or her 
master or mistress, and go away with the said money, bank bill, or note or goods 
or chattels, or any part thereof, with intent to steal the same, "and defraud his or her 
master or mistress thereof, contrary to the trust and confidence in him or her 
reposed by his or her said master or mistress, or being in the service of his or her 
said master or mistress, shall embezzle the said money, bank bill or note, goods or 
chattels, or any part thereof, or otherwise shall convert the same to his or her 
own use, with like purpose to steal the same, every such person so offending shall 
be deemed guilty of larceny, and be punished accordingly. 

Sec. 71. If any bailee of any money, bank bill or note, or goods or chattels, 
shall convert the same to his or her own use, with an intent to steal the same, he 
shall be deemed guilty of larceny in the same manner as if the original taking had 
been felonious, and on conviction thereof, shall be punished accordingly. 



CRIMINAL JURISPRUDENCE. 



163 



Sec. 72. If any lodger shall take away, with intent to steal, embezzle or pur- 
loin, any bedding, furniture, goods or chattels, which he or she is to use, in or with 
his or her lodging, he or she shall be deemed guilty of larceny, and on conviction 
shall be punished accordingly. 



DIVISION VIII. FORGERY AND COUNTERFEITING 



Section 

73. Counterfeiting and forgery, how punished. 

74. Gold or silver coin, counterfeiting or passing 

with intent to defraud, how punished. 

75. Keeping in possession any counterfeit gold or 

silver coin, with intent to defraud, how pun- 
ished. 

Passing or receiving from any other person, any 
forged note, bill, &c. 3 with intent to pass, how 
punished. 

Passing or uttering, or having in possession, 



76. 



77. 



Section 

with intent to pass, &c, any fictitious bill, &c, 
forgery, and punished accordingly. 

78. Making or having in possession any die, plate 

or other apparatus for counterfeiting coin or 
bank notes, how punished. 

79. On trial of person for forging bill or note of in- 

corporated company, act of incorporation may 
be proved by general reputation. 

80. Who may be witnesses. 

81. Seal of State, or of any court, &c, when forged 

or counterfeited, how offender punished. 



Section. 73. Every person who shall falsely make, alter, forge or counterfeit any 
record, or other authentic matter of a public nature, or any charter, letters patent, 
deed, lease, indenture, writing obligatory, will, testament, codicil, annuity, bond, 
covenant, bank bill or note, post note, check, draft, bill of exchange, contract, pro- 
missory note, due bill for the payment of money or property, receipt for money or 
property, power of attorney, any auditor's warrant for the payment of money at 
the treasury, county order, or any accountable receipt, or any order or warrant, or 
request for the payment of money or the delivery of goods or chattels of any kind, 
or for the delivery of any instrument of writing or acquittance, release or receipt 
for money or goods, or any acquittance, release or discharge for any debt, account, 
action, suit, demand or other thing real or personal, or any transfer or assurance of 
money, stock, goods, chattels or other property whatever, or any letter of attorney or 
other power to receive money, or to receive or transfer stock or annuities, or to 
let, lease, dispose of, alien or convey any goods or chattels, lands or tenements, or 
other estate, real or personal, or any acceptance or indorsement of any bill of ex- 
change, promissory note, draft or order, or assignment of any bond, writing 
obligatory or promissory note, for money or other property ; or shall counterfeit or 
forge the seal or hand writing of another, with intent to damage or defraud anv 
person or persons, body politic or corporate, whether the said person or persons, 
body politic or corporate reside in, or belong to this State or not ; or shall utter, 
publish, pass or attempt to pass as true and genuine, or cause to be uttered, pub- 
lished, passed or attempted to be passed as true and genuine, any of the above 
named false, altered, forged or counterfeited matters, as above specified and des- 
cribed, knowing the same to be false, altered, forged or counterfeited, with intent 
to prejudice, damage or defraud any person or persons, body politic or corporate, 
whether the said person or persons, body corporate and politic reside in this State 
or not ; every person so offending, shall be deemed guilty of forgery, and upon 
conviction thereof, shall be punished by confinement in the penitentiary, for a term 
not less than one year, nor more than fourteen years. 



164 CRIMINAL JURISPRUDENCE. 

Sec. 74. Every person who shall counterfeit any of the species of gold or 
silver coin now current, or that shall hereafter be current in this State, or shall 
pass or give in payment, or offer to pass or give in payment such counterfeited 
coin or permit, cause or procure the same to be altered or passed, with intention 
to defraud any person, body politic or corporate, knowing the same to be counter- 
feited, shall be deemed guilty of counterfeiting, and being thereof duly convicted, 
shall be punished by confinement in the penitentiary, for a term not less than one 
year, nor more than fourteen years. 

Sec. 75. Every person who shall have in his or her possession, or receive for 
any other person, any counterfeit gold or silver coin or coins,- of the species now 
current or hereafter to be current in this State, with intention to utter or pass the 
same, or to permit, cause or procure the same to be uttered or passed, with inten- 
tion to defraud any person or persons, body politic or corporate, knowing the same 
to be counterfeit, and being thereof duly convicted, shall be punished by confine- 
ment in the penitentiary, not less than one, nor more than fourteen years. 

Sec 76. Every person who shall have in his or her possession, or shall re- 
ceive from any other person, any forged promissory note or notes, or bank bill or 
bills for the payment of money, with intention to utter or pass the same, or to per- 
mit, cause or procure the same to be uttered or passed, with intention to defraud 
any person or persons, body corporate or politic, whether such person or persons, 
body corporate or politic, reside in or belong to this State or not, knowing the same 
to be forged or counterfeited, or shall have or keep in his possession any blank or 
unfinished note or bank bill, made in the form or similitude of any promissory note 
or bill for payment of money, made to be issued by any incorporated bank or bank- 
ing company in this State or elsewhere, with intention to fill up and complete such 
blank and unfinished note or bill, or to permit or cause or procure the same to be 
filled up and completed, in order to utter or pass the same, or to permit or cause or pro- 
cure the same to be uttered or passed, to defraud any person or persons, body politic 
or corporate, whether in this State or elsewhere, shall, upon conviction thereof, be 
punished by confinement in the penitentiary, for a term not less than one year nor 
more than fourteen years. 

Sec 77. Every person who shall make, pass, utter or publish, with an intention to 
defraud any other person or persons, body politic or corporate, either in this State or 
elsewhere, or with like intention shall attempt to pass, utter or publish, or shall have 
in his or her possession, with like intent to pass, utter or publish, any fictitious bill, 
note or check purporting to be the bill, note or check or other instrument of writing 
for the payment of money or property of some bank, corporation, co-partnership or 
individual, when in fact there shall be no such bank, corporation, co-partnership or 
individual in existence, the said person knowing the said bill, note, check or instru- 
ment of writing for the payment of money or property to be fictitious, shall be 
deemed guilty of the crime of forgery, and on conviction thereof, shall be punished 
by confinement in the penitentiary, for a term not less than one nor more than four- 
teen years. 

Sec 78. Every person who shall make or knowingly have in his possession, 
any die or dies, plate or plates, or any apparatus, paper, metal, machine or other 
thing whatever, made use of in counterfeiting the coin now current or hereafter to 
be current in this State, or in counterfeiting bank notes or bills, whether such bank 
be situate in this State or not, upon conviction thereof, shall be punished by confine- 
ment in the penitentiary, for a term not less than one year nor more than fourteen 



CRIMINAL JURISPRUDENCE. 



165 



years ; and all such dies, plates, apparatus, paper, metal or machines, intended for 
the purposes aforesaid, shall be destroyed. 

Sec. 79. On the trial of any person for forging any bill or note, purporting to 
be Ihe bill or note of some incorporated company or bank, or for passing or attempt- 
ing to pass, or having in possession with intent to pass, any such forged bill or note, 
it shall not be necessary to prove the incorporation of such bank or company by the 
charter or act of incorporation, but the same may be proved by general reputation. 

Sec. 80. Persons of skill shall be competent witnesses to prove that such bill 
or note is forged or counterfeited. 

Sec 81. Every person who shall fraudulently forge, deface, corrupt or coun- 
terfeit the seal of this State, or the seal of any court or public officer by law entitled 
to have and use a seal, and shall make use of the same, or shall forge or counterfeit 
the signature of any public officer, or shall unlawfully and corruptly, or with evil 
intent, affix any of the said true seals to any commission, deed, warrant, pardon, certifi- 
cate or other writing, or who shall have in his possession or custody any such coun- 
terfeited seal, and shall wilfully conceal the same, knowing it to be falsely made and 
counterfeited, and shall thereof be eonvdeted, shall be punished by confinement in 
the penitentiary, for a term not less than one nor more than fourteen years. 



DIVISION IX. CRIMES AND OFFENCES AGAINST 
PUBLIC JUSTICE. 



Section 

82. Perjury defined, and how punished. 

83. Procuring conviction and execution of inno- 

cent person by perjury or subornation of per- 
jury, punishable with death. 

84. In indictment for perjury, what maybe set forth. 

85. Bribery, how punished. 

86. Bribery, further defined, and how punished. 

87. Bribery, finable in certain cases. 

88. Any judge, justice, &c, who shall steal, embez- 

zle, &c, any record, process, &c, or shall 
knowingly take off any issue, forfeited recog- 
nizance, &c, or shall forge any document, how 
punished. 

89. Jailer, inhumanity of, how punished. 

90. Officer withholding the records, &c, appertaining 

to his office from successor, or mutilating or 
destroying same, how punished. 

91. False personation, how punished. 

92. Resisting or assaulting oliicer in service of pro- 

cess, how punished. 

93. Penalty for rescuing in certain cases. 

94. Further penalty for setting criminal at liberty in 

certain cases. 

95. When warden of penitentiary, &.c, shall fraudu- 

lently contrive, procure, or voluntarily suffer 
the escape of any convict, how punished. 

When warden of penitentiary,&c, shall negligent- 
ly suffer convict to be at large, shall be fined. 

When any person shall convey to any convict 
any tool, &c, to assist his escape, how punished. 



96, 



97. 



101. 



102. 



Section 

98. Rescuing person in legal custody on civil pro- 

cess, how punished. 

99. Assisting prisoner to escape from jail, how pun- 

ishable. 
100. Assisting prisoner to escape, or rescuing pris- 
oner from custody, how punished. 

If any sheriff; coroner, &c, having prisoner in 
legal custody, shall voluntarily sutler him to 
escape, how punished. 

When sheriff; &c, shall wilfully refuse to receive 
or arrest any person charged with crime, how 
punished. 

103. Compounding criminal offence, finable. 

104. Conspiracy to charge with criminal offence, 

how punished. 

105. Penalty for assuming right to exercise office. 

106. Embracery, what constitutes, and how pun- 

ished. 

1 07. Barratry, what deemed, and penalty therefor. 

108. Maintenance, what deemed, and penalty there- 

for. 

109. If any judge, justice of the peace, &c, shall re- 

ceive fee except as allowed by law, he shall be 
deemed guilty of extortion, and fined. 

110. Omission of duty, malfeasance, &c, or other 

misconduct, by clerk, sheriff' or other public 
officer, punishable by fine and removed from 
office ; vacancy, how filled. 
Threatening to accuse of crime, or to injure 
person or property, how punished. 



ill. 



Section 82. Every person having taken a lawful oath, or made affirmation in 
any judicial proceeding, or in any other matter where by law, an oath or affirms- 



166 CRIMINAL JURISPRUDENCE. 

tion is required, who shall swear or affirm, wilfully, corruptly and falsely, in a 
matter material to the issue or point in question, or shall suborn any other person 
to swear or affirm as aforesaid, shall be deemed guilty of perjury or subornation 
of perjury, (as the case may be,) and upon conviction thereof, shall be punished 
by confinement in the penitentiary, for a term not less than one year, nor more than 
fourteen years. 

Sec. 83. Every person who by wilful and corrupt perjury or subornation of 
perjury, shall procure the conviction and execution of any innocent person, shall 
be deemed and adjudged guilty of murder, and upon conviction thereof, shall suffer 
the punishment of death. 

Sec. 84. In every indictment for perjury or subornation of perjury, it shall be 
sufficient to set forth the substance of the offence charged upon the defendant, and 
before what court or authority the oath or affirmation was taken, averring such 
court or authority to have had full power to administer the same, together with the 
proper averment or averments to falsify the matter or matters wherein the perjury 
is assigned, without setting forth any part of the record or proceedings, either in 
law or equity, other than as aforesaid, and without setting forth the commission or 
authority of the court or other authority before whom the perjury was, committed, 
or the form of the oath or affirmation, or the manner of administering the same. 

Sec 85. If any person or persons shall, directly or indirectly, give any sum or 
sums of money, or any other bribe, present or reward, or any promise, contract, 
obligation or security, for the payment or delivery of any money, present, reward 
or any other thing, to obtain or procure the opinion, judgment or decree of any 
judge or justice of the peace, acting within this State, or to corrupt, induce or in- 
fluence such judge or justice of the peace to be more favorable to one side than to 
the other, in any suit, matter or cause depending or to be brought before him or 
them, or shall, directly or indirectly, give any sum or sums of money, present or 
reward, or any promise, contract, obligation or security for the payment or delivery 
of any money, present or reward, or other thing, to obtain, procure or influence 
the vote of any member of the General Assembly, or to incline, induce or influence 
any such member of the General Assembly to be more favorable to one side than 
the other, on any question, election, matter or thing pending, or to be brought be- 
fore the General Assembly, or either house thereof, the person so giving any money, 
bribe, present or reward, promise, contract, obligation or security, with intent and 
for the purpose aforesaid, and the judge, justice of the peace, or member of the 
General Assembly, who shall in anywise accept or receive the same, shall be 
deemed guilty of bribery, and on conviction, shall be punished by confinement in 
the penitentiary, not less than one year nor more than five years. 

Sec 86. If any person shall, directly or indirectly, give any sum or sums of 
money, or any other bribe, present or reward, or any promise, contract, obliga- 
tion or security for the payment of any money, present or reward, or any other 
thing, to any judge, justice of the peace, sheriff, coroner, clerk, constable, jailer, 
attorney general or State's attorney, member of the General Assembly or other 
officer, ministerial or judicial, (but such fees as are allowed by law,) with intent 
to induce or influence such officer to appoint any person to office, or to execute any 
of the powers in him vested, or perform any duty of him required, with partiality 
or favor, or otherwise than is required by law, or in consideration that such officer 
hath appointed any person to any office, or exercised any power in him vested, or 
performed any duty of him required, with partiality or favor, or otherwise contrary 



CRIMINAL JURISPRUDENCE. 167 

to law, the person so giving, and the officer so receiving any money, bribe, present, 
reward, promise, contract, obligation or security, with intent, or for the purpose or 
consideration aforesaid, shall be deemed guilty of bribery, and on conviction, shall 
be punished by confinement in the penitentiary, for a term not less than one year, 
nor more than five years. 

Sec. 87. Every person who shall offer, or attempt to bribe any member of the 
General Assembly, judge, justice of the peace, sheriff, coroner, clerk, constable, 
jailer, attorney general, State's attorney or other ministerial or judicial officer, in 
any of the cases mentioned in either of the two preceding sections ; and every mem- 
ber of the General Assembly, judge, justice of the peace, sheriff, coroner, clerk, 
constable, jailer, attorney general, State's attorney or other ministerial or judicial 
officer, who shall propose or agree to receive a bribe in any of the cases mentioned 
in either of the two preceding sections, shall, on conviction, be fined in a sum not 
exceeding five hundred dollars. 

Sec. 88. If any judge, justice of the peace, sheriff, coroner, clerk, recorder or 
other public officer, or any person whatsoever, shall steal, embezzle, alter, corrupt, 
withdraw, falsify or avoid any record, process, charter, gift, grant, conveyance, 
bond or contract, or shall knowingly and wilfully take off, discharge, or conceal 
any issue, forfeited recognizance, or other forfeiture, or shall - forge, deface or fal- 
sify any document or instrument recorded, or any registry, acknowledgment or certi- 
ficate, or shall alter, deface or falsify any minute, document, book or any procee- 
ding whatever, of, or belonging to any public office within this State, the person so 
offending and being thereof duly convicted, shall be punished by confinement in the 
penitentiary, for a term not less than one year, nor more than seven years. 

Sec. 89. Every jailer who shall be guilty of wilful inhumanity or oppression, to 
any prisoner under his care or custody, shall be fined in any sum not exceeding five 
hundred dollars, and be removed from office. 

Sec 90. If any officer, whose office shall be abolished by law, or who after 
the expiration of the time for which he may be appointed or elected, or after he 
shall have resigned or been legally removed from his office, shall wilfully and un- 
lawfully withhold or detain from his successor or other person entitled thereto by 
law, the records, papers, documents or other writing appertaining or belonging to 
his office, or mutilate, destroy or take away the same, the person so offending shall, 
on conviction, be punished by confinement in the penitentiary, for a term not less 
than one year, nor more than five years. The provisions of this section shall apply 
to any person or persons who shall have such records, documents, papers or other 
writings, in his, her or their possession, and who shall wilfully mutilate, destroy, 
withhold or detain the same as aforesaid. 

Sec 91. If any person shall, without due authority so to do, acknowledge or 
confess, or procure to be acknowledged or confessed, any fine, common recovery, 
deed, bond, power of attorney, mortgage, recognizance, bail or judgment, in the 
name of any other person, by personating any such other person, the person so 
offending, on conviction thereof, shall be punished by confinement in the peniten- 
tiary, for any term not less than one year, nor more than ten years. 

Sec 92. If any person shall, knowingly and wilfully, obstruct, resist or oppose 
any sheriff, deputy sheriff, coroner, constable or other officer of this State, or other 
person duly authorized, in serving or attempting to serve any lawful process or 
order of any court, judge or justice of the peace, or any other legal process Avhat- 
soever, or shall assault or beat any sheriff, deputy sheriff, coroner, constable or 



168 CRIMINAL JURISPRUDENCE. 

other officer, or person duly authorized in serving or executing, or attempting to 
serve or execute any process or order aforesaid, or for having served or executed, 
or attempted to serve or execute the same, every person so offending shall be fined 
in any sum not exceeding five hundred dollars, and imprisoned, for a term not ex- 
ceeding one year : Provided, Any officer or person whatever that may or shall as- 
sault or beat any individual under color of his commission or authority, without 
lawful necessity so to do, shall, on conviction, suffer the same punishment. 

Sec 93. If any person or persons shall set at liberty, or rescue any person 
who shall have been found guilty or convicted of a crime, the punishment of which 
is death, such person, on conviction thereof, shall be punished by confinement in the 
penitentiary, for a term not less than one year, nor more than fourteen years ; and 
if any person or persons shall set at liberty, or rescue any person who shall have 
been found guilty, or convicted of a crime, the punishment of which is confinement 
in the penitentiary, whether such person be in custody of an officer, or in the pen- 
itentiary, the person so offending, on conviction thereof, shall be sentenced to the 
same punishment that would have been s inflicted on the person so set at liberty or 
rescued. 

Sec. 94. If any person shall set at liberty, or rescue any person who before 
conviction stands charged or committed for any capital offence, or any crime pun- 
ishable by confinement in the penitentiary, such person so offending, shall be, on 
conviction, fined in a sum not exceeding one thousand dollars, and imprisoned in 
ihe penitentiary, for a term not exceeding three years ; and if the person rescued or 
set at liberty stands charged, committed or convicted of any misdemeanor, or other 
offence punishable by fine or imprisonment, or both, the person convicted of such 
rescue or setting at liberty, shall suffer the same punishment that would have been 
inflicted on the person rescued or set at liberty, if he or she had been found guilty. 

Sec 95. If the warden of the penitentiary, or any servant, officer or agent, 
belonging to, or in employment at the same, or any sheriff, deputy sheriff or jailer, 
or any person employed by them as a guard, shall fraudulently contrive, procure, 
aid, connive at or otherwise voluntarily suffer the escape of any convict in custody, 
or in said penitentiary committed, every such person, on conviction, shall be pun- 
ished by confinement in said penitentiary — to solitary confinement for a term not 
exceeding three months, and by confinement to hard labor for a term not exceeding 
ten years. 

Sec 96. If the warden of the penitentiary, or other person as aforesaid, shall 
negligently suffer any convict committed, or in custody as aforesaid, under sentence 
of solitary imprisonment, to be at large without the cell or apartment assigned to 
such convict, or to be there visited, conversed with, comforted or relieved, contrary 
to the rules and regulations of the penitentiary, or shall negligently suffer such 
convict, or any other convict committed to the penitentiary, under sentence of con- 
finement to hard labor, to be at large without the precincts of the penitentiary, or 
contrary to the rules and regulations thereof, to be out of close confinement, the 
warden or other person neglecting his duty in the premises, being thereof duly 
convicted, shall be punished by fine, not exceeding two hundred dollars. 

Sec 97. If any person shall convey to any convict in custody, or committed to 
the penitentiary, into the penitentiary, or other place where such convict may be 
confined, any tool, weapon or other aid, with intent to enable such convict to escape 
such custody or confinement, whether such escape be effected or not, every person 
so offending, on conviction thereof, shall be punished by fine, not exceeding five hun- 
dred dollars, and imprisonment in the penitentiary, not exceeding six months. 



CRIMINAL JURISPRUDENCE. 169 

Sec. 98. If any person or persons shall rescue another in legal custody, on 
civil process, such person or persons shall, on conviction, be fined in any sum not 
exceeding the sum for which said civil process issued. 

Sec 99. If any person shall aid or assist a prisoner lawfully committed or 
detained in any jail for any offence against this State, or who shall be lawfully con- 
fined by virtue of any civil process, to make his or her escape from jail, though no 
escape be actually made, 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, any person so offending, (although no escape or attempt to escape be 
actually made,) shall, on conviction, be punished by fine, not exceeding five hundred 
dollars, and imprisonment in the county jail, for a term not exceeding one year. 

Sec 100. If any person shall aid or assist any prisoner to attempt to escape, 
or shall rescue or attempt to rescue any prisoner from the custody of any sheriff, 
deputy sheriff, coroner, constable, officer or other person, who shall have the lawful 
custody of such prisoner, every person so offending, shall, upon conviction thereof, 
be fined not exceeding one thousand dollars, and imprisoned in the county jail, not 
exceeding one year. 

Sec 101. If any sheriff, coroner, jailer, keeper of a prison, constable or other 
officer or person whatever, having any prisoner in his legal custody, before convic- 
tion, shall voluntarily suffer or permit such prisoner to escape or go at large, every 
such officer or person so offending, shall, on conviction, be fined in any sum not 
exceeding one thousand dollars, and imprisoned in the county jail, for any term not 
exceeding six months : Provided, That if such prisoner be in custody charged with 
murder or other capital offence, then such officer or person suffering or permitting 
such escape, shall be punished by confinement in the penitentiary, for any term not 
less than one year, nor more than ten years. A negligent escape of a person 
charged with a criminal offence, before conviction, from the custody of any of the 
aforesaid officers, shall be deemed a misdemeanor, and punished by fine, not exceed- 
ing five hundred dollars. 

Sec 102. If any sheriff, coroner, keeper of a jail, constable or other officer, 
shall wilfully refuse to receive or arrest any person charged with a criminal offence, 
then such sheriff, coroner, jailer, constable or other officer, shall, on conviction, be 
fined, not exceeding five hundred dollars, and imprisoned, not exceeding six months, 
in the common jail. 

Sec 103. If any person shall take money, goods, chattels, lands or other reward, 
or promise thereof, to compound any criminal offence, such person or persons shall 
be fined, in double the sum or value of the thing agreed for or taken, but no person 
shall be debarred from taking his goods or property from the thief or felon, or 
receiving compensation for the private injury occasioned by the commission of any 
such criminal offence. 

Sec 104. If any two or more persons shall conspire or agree, falsely and ma- 
liciously to charge or indict, or cause or procure to be charged or indicted, any 
person for any criminal offence, each of the persons so offending, shall, on conviction, 
be fined, in any sum not exceeding one thousand dollars, and imprisoned, not 
exceeding one year. 

Sec 105. If any person shall take upon himself to exercise or officiate in any 
office or place of authority in this State, without being lawfully authorized thereto, 
he shall, upon conviction, be fined in any sum not exceeding two hundred dollars. 



170 CRIMINAL JURISPRUDENCE. 

Sec 106. Embracery is an attempt to influence a juror or jurors corruptly to 
one side, by threats or menaces, or by promises, persuasions, entreaties, money, 
entertainments and the like. Every embracer who shall procure any juror to take 
money, gain or profit, or shall corruptly influence any juror by persuasions, prom- 
ises, entreaties, or by any other improper means, or shall threaten or menace any 
juror, shall be fined, not exceeding five hundred dollars, and imprisoned in the pen- 
itentiary, not exceeding one year. And any juror convicted of taking money, gain 
or profit, or corruptly being influenced as aforesaid, shall suffer the like punishment, 
and be forever disqualified to act as a juror. This section shall apply as well to 
the grand as the petit jurors. 

Sec. 107. If any person or persons shall wickedly and wilfully excite and stir 
up any suits or quarrels between the people of this State, either at law or otherwise, 
with a view to promote strife and contention, every such person so offending, shall 
be deemed to have committed the crime of common barratry, and upon conviction 
thereof shall be fined, in any sum not exceeding one hundred dollars ; and if he be 
an attorney or counsellor at law, he shall be suspended from the practice, for any 
time not exceeding six months. 

Sec 108. If any person shall officiously intermeddle in any suit at common 
law or in chancery, thatin nowise belongs to or concerns such person, by maintain- 
ing or assisting either party with money or otherwise, to prosecute or defend such 
suit, with a view to promote litigation, every such person, so offending, shall be 
deemed to have committed the crime of maintenance, and upon conviction thereof 
shall be fined and punished as in cases of common barratry: Provided, That it 
shall not be considered maintenance for a man to maintain the suit of his kinsman or 
servant or poor neighbor out of charity. 

Sec 109. If any judge, justice of the peace, sheriff, coroner, constable, clerk 
or other officer of this State, ministerial or judicial, shall wilfully or corruptly 
receive or take any fee or reward, to execute or do his duty as such officer, except 
such as is or shall be allowed by law, or if any such officer shall wilfully or cor- 
ruptly ask or demand as a condition precedent to the performance of his duty as such 
officer, any fee or reward, except such as shall be allowed by law, every such 
officer so offending, shall be deemed guilty of extortion, and on conviction thereof, 
shall be fined, in any sum not exceeding two hundred dollars. 

Sec 110. Every clerk, sheriff, coroner, constable, county commissioner, justice 
of the peace, recorder, county surveyor, attorney general or State's attorney, who 
shall be guilty of any palpable omission of duty, or who shall wilfully and corruptly 
be guilty of oppression, malfeasance or partiality in the discharge of his official 
duties, shall, upon conviction thereof, be fined, in a sum not exceeding two hundred 
dollars, and the court shall have power, upon the recommendation of the jury, to 
add to the judgment of the court, that any officer so convicted, shall be removed 
from office. The court shall have power whenever any clerk of the circuit court, 
attorney general or State's attorney, shall be presented or indicted, to appoint for that 
occasion, a prosecuting attorney or clerk, as the case may require, who shall thereby 
be invested, in relation to such presentment or indictment, with all the powers of 
clerk or attorney general or State's attorney. It shall be the duty of the court, 
when the judgment shall extend to removal from office, to cause immediate notice 
of such removal to be given to the proper department, in order that the vacancy 
thus occasioned may be filled. 

Sec 111. If any person shall, knowingly send or deliver any letter or writing, 
threatening to accuse another of a crime or misdemeanor or to expose or publish 



CRIMINAL JURISPRUDENCE. 



171 



any of his infirmities or failings, with intent to extort money, goods, chattels or 
other valuable things, or threatening to maim, wound, kill or murder, or to burn 
or destroy his or her house or other property, or to accuse another of a crime or 
misdemeanor, or expose or publish any of his or her infirmities or failings, though 
no money, goods, chattels or valuable thing be demanded, such person so offending, 
shall, on conviction, be fined in a sum not exceeding five hundred dollars and impri- 
soned, not exceeding six months. 



DIVISION X. OFFENCES AGAINST THE PUBLIC 
PEACE AND TRANQUILLITY. 



Section 

112. Disturbing the peace, how punished. 

113. Persons assembling to disturb the peace, refu- 

sing to disperse when required by judge, jus- 
tice, or other public officer, liable to fine and 
imprisonment. 

114. Affray, what deemed. 

115. Unlawful assemblage defined, and punishment 

therefor. 

116. Rout defined, and punishment therefor. 



Section 

117. Riot, what constitutes, and penalty therefor. 

118. Failure of officer to preserve public peace upon 

knowledge of contemplated duel, such officer 
shall be lined. 

119. Publication of cowardice in refusing to accept a 

challenge to fight a_ duel, shall render wri- 
ter or printer liable to fine and imprisonment. 

120. Libel, what constitutes, and liability therefor. 

Truth may be given in evidence. 



Section 112. If any person, at late and unusual hours of the night time mali- 
ciously or wilfully disturb the peace or quiet of any neighborhood or family, by 
loud or unusual noises or by tumultuous and offensive carriage, threatening, tradu- 
cing, quarreling, challenging to fight or fighting, every person convicted thereof, 
shall be fined in a sum not exceeding fifty dollars or imprisoned, not exceeding two 
months. 

Sec. 113. If two or more persons assemble for the purpose of disturbing the 
public peace or committing any unlawful act, and do not disperse on being desired 
or commanded so to do, by a judge, justice of the peace, sheriff, coroner, constable 
or other public officer, persons so offending, shall, on conviction, be severally fined, 
in any sum not exceeding fifty dollars, and imprisoned, not exceeding one month. 

Sec 114. If two or more persons shall, by agreement, fight in a public place, to 
the terror of the citizens of this State, the persons so offending shall be deemed 
guilty of an affray. 

Sec 115. If two or more persons shall assemble together to do an unlawful 
act, and separate without doing or advancing towards it, such persons shall be deemed 
guilty of an unlawful assemblage, and upon conviction thereof, be severally fined, 
in a sum, not exceeding fifty dollars, or imprisoned, not exceeding three months. 

Sec 116. If two or more persons shall meet to do an unlawful act, upon a com- 
mon cause of quarrel, and make advances towards it, they shall be deemed guilty of 
a rout, and on conviction, shall be severally fined, in a sum not exceeding seventy 
dollars, or imprisoned, not exceeding four months. 

Sec 117. If two or more persons actually do an unlawful act with force or vio- 
lence against the person or property of another, with or without a common cause of 
quarrel, or even do a lawful act in a violent and tumultuous manner, the persons 
so offending, shall be deemed guilty of a riot, and on conviction, shall severally be 
fined, not exceeding two hundred dollars, or imprisoned, not exceeding six months. 



172 



CRIMINAL JURISPRUDENCE. 



Sec. 118. If any judge, justice of the peace, sheriff or other officer bound to 
preserve the public peace, shall have knowledge of an intention on the part of any 
two persons to fight with any deadly weapon or weapons, and such officer shall not 
use and exert his official authority to arrest the parties and prevent the duel, every 
such officer shall be fined, not exceeding one hundred dollars. 

Szc. 119. If any person or persons shall, in any newspaper or handbill, writ- 
ten or printed, publish or proclaim any other person or persons as a coward or 
cowards, or use any other opprobrious or abusive language, for not accepting a chal- 
lenge to fight a duel, or for not fighting a duel, such person or persons so offending, 
on conviction, shall be fined, in a sum not exceeding five hundred dollars, or impri- 
soned, for a term not exceeding three months. The publisher or printer of any such 
newspaper, handbill or other publication, may be summoned as a witness, and shall 
be required to testify against the writer or writers of such handbill or publication ; 
and if any such printer or printers shall refuse to testify in relation to the premises, 
either before the grand or petit jury, he or they shall be deemed guilty of a flagrant 
contempt of the court, and may be punished by fine and imprisonment, or either : 
Provided, however, That the testimony given by any such witness shall, in no case, 
be used in any prosecution against such witness. 

Sec 120. A libel is a malicious defamation, expressed either by printing or by 
signs or pictures, or the like, tending to blacken the memory of one who is dead or 
to impeach the honesty, integrity, virtue or reputation, or publish the natural defects 
of one who is alive, and thereby to expose him or her to public hatred, contempt or 
ridicule: Every person, whether writer or publisher, convicted of this offence, shall 
be fined, in a sum not exceeding five hundred dollars, or imprisoned, not exceeding 
one year. In all prosecutions for a libel, the truth thereof may be given in evidence 
in justification, except libels tending to blacken the memory of the dead, or expose 
the natural defects of the living. 



DIVISION XL OFFENCES AGAINST THE PUBLIC 
MORALITY, HEALTH AND POLICE. 



Section 

121 . Bigamy, what constitutes, and punishment there- 

for. 

122. Bigamy, further defined, and penalty. 

123. Adultery and fornication, and punishment there- 

for. 
12-1. What marriages declared incestuous. 

125. Incestuous intercourse, and punishment there- 

for. 

126. Cohabitation of father and daughter, how pun- 

ished. 

127. Open lewdness, indecency and debauchery, how 

punished. 

128. Playing cards, dice, &c, importation or use of, 

how punished. 

129. Gaming houses, keepers of, how punished. 

130. Gaming, how punished. 

131. Tavern keepers, penalty for permitting gaming 

in their houses; justices of the peace, their 
duty under this chapter, and penalty for omis- 
sion thereof. 



Section 

132. Spirituous liquors, selling without license, how 

punished. 

133. Colored servants, slaves or Indians, selling li- 

quor to, how punished. 

134. Public roads and highways, navigable and other 

streams, obstruction of, how punished. 

1 35. Unwholesome food, penalty for selling. 

136. Bills of credit, for issuing when not authorized, 

how punished. 

137. Public notices, defacing, injuring or destroying, 

how punished. 

138. Vagrants, how disposed of. 

139. Suspicious persons, under certain circumstan- 

ces, deemed vagrants, and how punished. 

140. Posse comitatus, penalty for refusing to join. 

141. Graves, desecration of, how punished. 

142. Voting fraudulently, how punished. 

143. Bribery of electors, how punished. 

144. Sabbath breaking, how punished, 



CRIMINAL JURISPRUDENCE. 



173 



Section 

145. Preceding section, how to be construed. 

146. Private family, disturbance of on Sabbath, pen- 

alty therefor. 

147. Public worship, disturbance of, how punished. 



Section 

148. Jurisdiction of justices of the peace, and offi- 

cers above named. 

149. Offences specified in the preceding five sections, 

how tried, &.c. 

150. Appeals. 



Section 121. Bigamy consists in the having of two wives or two husbands at 
one and the same time, knowing that the former husband or wife is still alive. If any 
person or persons within this State, being married, or who shall hereafter marry, do at 
any time marry any person or persons, the former husband or wife being alive, the 
person so offending shall, on conviction thereof, be punished by a fine, not exceeding 
one thousand dollars, and imprisoned in the penitentiary, not exceeding two years. 
It shall not be necessary to prove either of the said marriages by the register or 
certificate thereof, or other record evidence ; but the same may be proved by such 
evidence as is admissible to prove a marriage in other cases ; and when such 
second marriage shall have taken place without this State, cohabitation in this State, 
after such second marriage, shall be deemed the commission of the crime of bigamy, 
and the trial in such case may take place in the county where such cohabitation 
shall have occurred. Nothing herein contained shall extend to any person or per- 
sons whose husband or wife shall have been continually absent from such person 
or persons for the space of five years together prior to the said second marriage, 
and he or she not knowing such husband or wife to be living within that time. Als6, 
nothing herein contained shall extend to any person that is or shall be at the time 
of such second marriage, divorced by lawful authority from the bands of such 
former marriage, or to any person where the former marriage hath been by law- 
ful authority declared void. 

Sec 122. If any man or woman, being unmarried, shall knowingly marry the 
husband or wife of another, such man or woman shall, on conviction, be fined, not 
more than five hundred dollars, or imprisoned, not more than one year. 

Sec. 123. Any man and woman who shall live together in an open state of 
adultery or fornication, or adultery and fornication, every such man and woman shall 
be indicted, and on conviction, shall be fined, in any sum not exceeding two hundred 
dollars each, or imprisoned, not exceeding six months. This offence shall be suffi- 
ciently proved by circumstances which raise the presumption of cohabitation and 
unlawful intimacy ; and for a second offence, such man or woman shall be severally 
punished twice as much as the former punishment, and for the third offence, treble, 
and thus increasing the punishment for each succeeding offence : Provided, however, 
That it shall be in the power of the party or parties offending, to prevent or sus- 
pend the prosecution by their intermarriage, if such marriage can be legally solemn- 
ized, and upon the payment of the costs of such prosecution. 

Sec 124. Marriages between parents and children, including grand-parents 
and grand-children of every degree, between brothers and sisters of the half as 
well as of the whole blood, and between uncles and nieces, aunts and nephews, are 
declared to be incestuous and absolutely void. This section shall extend to illegit- 
imate as well as legitimate children and relations. 

Sec 125. Persons within the degrees of consanguinity within which marriages 
are declared b}' the preceding section to be incestuous and void, who shall intermar- 
ry with each other, or who shall commit adultery or fornication with each other, or 
who shall lewdly and lasciviously cohabit with each other, shall be liable to indict- 
ment, and upon conviction, be punished by imprisonment in the penitentiary, not 
exceeding ten years. 



174 CRIMINAL JURISPRUDENCE. 

Sec. 126. If a father shajl rudely and licentiously cohabit with his own daugh- 
ter, the father shall, on conviction, be punished by confinement in the penitentia- 
ry, for a term not exceeding twenty years. 

Sec. 127. If any person shall be guilty of open lewdness, or other notorious 
act of public indecency, tending to debauch the public morals, or shall keep open 
any tippling house on the Sabbath day or night, or shall maintain or keep a lewd 
house or place for the practice of fornication, or shall keep a common ill-governed 
and disorderly house, to the encouragement of idleness, gaming, drinking, fornica- 
tion or other misbehavior, every such person shall, on conviction, be fined, not ex- 
ceeding one hundred dollars, or imprisoned, not exceeding six months. 

Sec. 128. If any person shall hereafter bring or cause to be brought or impor- 
ted into this State for sale, or shall sell or offer to sell any pack or packs of playing 
cards, or any dice, billiard table, billiard balls, or any other device or thing invented 
or made for the purpose of being used at any game, or any obscene book, pamphlet 
or print, every such person shall, on conviction, be fined, in a sum not less than 
twenty-five dollars, nor more than fifty dollars. 

Sec 129. If any person shall, by himself, herself, servant or other agent, for 
his or her gain or profit, keep, have, exercise or maintain a common gaming house, 
table or room, or in any house or place occupied by him or her, procure or permit 
any persons to frequent or come together to play for money, or other valuable thing, 
at any game, every offender, on conviction, shall be fined, not exceeding one hun- 
dred dollars, or imprisoned, not exceeding six months. 

Sec. 130. If any person or persons shall play for money or other valuable 
thing, at any game with cards, dice, checks or at billiards, or with any other article 
or instrument, thing or things whatsoever, which may be used for the purpose of 
playing or betting upon, or winning or losing money, or any other thing or things, 
article or articles of value, or shall bet on any game others may be playing, every 
person so offending shall be fined, not exceeding one hundred dollars, and not less 
than ten dollars. 

Sec 131. Every tavern keeper who shall suffer or permit any game or games, 
prohibited or intended to be prohibited by this chapter, to be played in his tavern, or 
in any out house appendant thereto, shall, on conviction, be fined, not exceeding one 
hundred dollars, and shall forfeit his license, and shall not be again licensed as a 
tavern keeper for one year from such conviction. It shall be the duty of all justi- 
ces of the peace, sheriffs, coroners and grand jurors now in office, or hereafter to 
be appointed, to take notice and give information to the proper authorities, of all 
such offences as may be committed in their respective counties, contrary to the pro- 
visions of this chapter, whenever the same may in anywise come under their immedi- 
ate observation. And if any officer, whose duty it is made to execute the provisions 
of this chapter, shall neglect to enforce its provisions upon view or complaint, such 
officer, upon conviction thereof, shall be fined in the sum of one hundred dollars, 
and shall moreover be suspended from office for one year. 

Sec 132. Every person who shall not have a legal license to keep a grocery, 
who shall barter, exchange or sell any wine, rum, brandy, gin, whiskey or other 
vinous, spirituous or mixed liquors, to any person or persons, by a less quantity than 
one quart, shall, on conviction, be fined for every offence ten dollars. 

Sec 133. Every tavern keeper or other retailer of spirituous liquors, who shall 
barter, sell or exchange any wine, rum, gin, brandy, whiskey or other spirituous 
liquors, to any black or mulatto servant or slave, without the consent of the master 



CRIMINAL JURISPRUDENCE. 175 

or mistress of such servant or slave ; and every person, whether tavern keeper or 
not, who shall sell, barter or exchange any wine, rum, gin, brandy, whiskey or other 
spirituous or mixed liquors, to any Indian or Indians in this State, shall, on conviction, 
be fined in the sum of ten dollars for each offence. 

Sec. 134. If any person shall obstruct or injure, or cause or procure to be 
obstructed or injured, any public road or highway, or common street or alley, of 
any town or village, or any public bridge or causeway, or public river or stream 
declared navigable by law, or shall continue such obstruction, so as to render the 
same inconvenient or dangerous to pass, or shall erect or establish any offensive 
trade or manufacture or business, or continue the same after it has been erected or 
established, or shall in anywise pollute or obstruct any water course, lake, pond, 
marsh or common sewer, or continue such obstruction or pollution, so as to render 
the same offensive or unwholesome to the county, town, village or neighborhood 
thereabouts ; every person so offending, shall, upon comiction thereof, be fined not 
exceeding one hundred dollars. And every such nuisance may, by order of the 
circuit court before whom the conviction may take place, be removed and abated 
by the sheriff of the proper county ; and any inquest and judgment thereon, had un- 
der the provisions of any law authorizing a writ of ad quod damnum, shall be no 
bar to a prosecution under this chapter. 

Sec. 135. If any person or persons shall, knowingly sell any flesh of any dis- 
eased animal, or other unwholesome provisions, or any pernicious or adulterated 
drink or liquors, every person so offending, shall be fined, not exceeding one hun- 
dred dollars, or imprisoned, not exceeding three months. 

Sec 136. If any person, number of persons or corporation, in this State, without 
special leave from the General Assembly, shall emit or utter any bill of credit, 
make, sign, draw or indorse any bond, promissory note or writing, bill of exchange 
or order, to be used as a general circulating medium, as, and in lieu of money or 
other currency, every such person or persons, or members of such corporation, 
assenting to such proceedings, being thereof duly convicted, shall pay a fine, not 
exceeding three hundred dollars, or be imprisoned, not exceeding one year. 

Sec 137. If any person shall intentionally deface, obliterate, tear down or 
destroy, in whole or in part, any copy or transcript, or extract from, or of any law 
of the United States or of this State, or any proclamation, advertisement or notifica- 
tion, set up at any place in this State by authority of any law of the United States 
or of this State, or by order of any court, such person, on conviction, shall be fined, 
in a sum not exceeding fifty dollars, nor less than five dollars, or imprisoned, for a 
term not exceeding one month : Provided, That this section shall not extend to 
defacing, tearing down, obliterating or destroying any law, proclamation, publication, 
advertisement or notification, after the time for which the same was by law to remain 
set up, shall have expired. 

Sec 138. Any person able to work and support himself in some honest and 
respectable calling, not having wherewithal to maintain himself, who shall be found 
loitering, strolling about, frequenting of public places where liquor is sold, begging 
or leading an idle, immoral or profligate course of life, shall be liable to be indicted 
or arrested on the complaint, under oath, of any resident citizen of the county, and 
carried before any two justices of the peace, who shall examine said accused person, 
and hear the testimony in relation thereto; and if they shall be satisfied that he is 
a vagrant, as above set forth, the fact having been established by a jury, which 
shall in all such cases be summoned and sworn to inquire the truth thereof, 



176 CRIMINAL JURISPRUDENCE. 

whether the person be a vagrant or not, shall make out a warrant under their hands 
and seals, authorizing and requiring the officer having him in charge or custody, to 
hire out such vagrant, within twenty-four hours to the best bidder, by public outcry, 
or on a notice given, as they shall direct, for the highest price that can be had, for 
any term not exceeding four months : and such vagrant shall be subject to, and 
governed by, all the provisions of the act regulating apprentices, during the time 
for which he has been so hired. The money received for his hire shall, after de- 
ducting the costs, be, if he be without a family, paid into the county treasury ; but 
if he have a family, the same shall be appropriated for their use and benefit : Pro- 
vided, That any sucli vagrant, when arrested, and before judgment, may release 
himself by giving to said justices a bond, with good security, conditioned that he 
will for the next twelve months be of good behavior, and betake himself to some 
honest employment for support, and that he shall not, nor his family, become a 
county charge, through, or by reason of his idleness, immorality or profligacy. 

Sjec. 139. If any person shall be found, having upon him or her, any pick-lock, 
crow, key, bit or other instrument or tool, with intent feloniously to break and enter 
into any dwelling house, store, warehouse, shop or other building containing valu- 
able property, or shall be found in any of the aforesaid buildings with intent to 
steal any goods and chattels, every such person so offending, shall, on conviction, 
be deemed a vagrant, and punished by confinement in the penitentiary, for any term 
not exceeding two years. And if any person shall have upon him any pistol, gun, 
knife, dirk, bludgeon or other offensive weapon, with intent to assault any person, 
every such person, on conviction, shall be fined, in a sum not exceeding one 
hundred dollars, or imprisoned, not exceeding three months. 

Sec. 1401 Every male person above eighteen years of age, who shall neglect 
or refuse to join the posse comitatus, or power of the county, by neglecting or re- 
fusing to aid and assist in taking or arresting any person or persons against whom 
there may have issued any civil or criminal process, or by neglecting or refusing 
to aid and assist in retaking any person or persons, who after having been arrested 
or confined, may have escaped from such arrest or imprisonment, or by neglecting or 
refusing to aid and assist in preventing any breach of the peace, or the commission 
of any criminal offence, being thereto lawfully required by any sheriff, deputy 
sheriff, coroner, constable, judge or justice of the peace, or other officer concerned 
in the administration of justice, shall, upon conviction, be fined, in a sum not less 
than ten dollars, nor more than fifty dollars. 

Sec 141 . If any person or persons shall open the grave or tomb where the body 
or bodies of any deceased person or persons shall have been deposited, and shall 
remove the body or bodies, or remains of any deceased person or persons from the 
grave or place of sepulture, for the purpose of dissection, or any surgical or anato- 
mical experiment, or for any other purpose, without the knowledge and consent of 
the near relations of the deceased, or shall in any way aid, assist, counsel or pro- 
cure the same to be done, every such person or persons so offending, shall, on con- 
viction, be fined, not less than one hundred dollars nor more than five hundred dol- 
lars: Provided, That this section shall not extend to the dissection of any criminal 
where the same shall be directed to be. delivered up for that purpose by competent 
authority : And provided also, That this section shall not be construed to prevent 
any person from removing the body or bodies of their deceased relations or intimate 
friends, to any other place of sepulture that he or she may think proper. 



CRIMINAL JURISPRUDENCE. 177 

Sec. 142. If any person, being an elector, shall vote more than once at any 
election which may be held by virtue of any law of this State, lie shall, on convic- 
tion thereof, be fined, in any sum not exceeding one hundred dollars. 

Sec. 143. If any person shall, by bribery, menace, treating or other corrupt 
means or device whatsoever, either directly or indirectly, attempt to influence any 
elector of this State in giving his vote at any election, every person so offending, and 
being thereof convicted, shall be fined, not exceeding five hundred dollars, and shall 
thereafter be disqualified from voting at any election in this State for five years. 

Sec 144. Any person who shall hereafter knowingly disturb the peace and 
good order of society by labor or amusement on the first day of the week, commonly 
called Sunday, (works of necessity and charity excepted,) shall be fined, upon con- 
viction thereof in any sum not exceeding five dollars. 

Sec. 145. The preceding section shall not be construed to prevent watermen 
from landing their passengers, lading and unlading their cargoes, or ferrymen from 
carrying over the water, travelers or persons moving with their families, on the first 
day of the week ; nor to prevent the due exercise of the rights of conscience by 
any person who may think proper to keep any other day as a Sabbath, than the first 
day of the week. 

Sec 146. Whoever shall be guilty of any noise, rout or amusement on the 
first day of the week, called Sunday, whereby the peace of any private family may 
be disturbed, such person, so offending, shall be deemed guilty of a misdemeanor 
and upon conviction thereof, shall be fined, in any sum not exceeding twenty-five 
dollars. 

Sec 147. Any person who shall, by menace, profane swearing, vulgar language 
or any disorderly or immoral conduct, interrupt and disturb any congregation or 
collection of citizens assembled together for the purpose of worshipping Almighty 
God, or who shall sell or attempt to. sell, or otherwise dispose of ardent spirits or 
liquors, or any articles, which will tend to disturb any worshipping congregation or 
collection of people, within one mile of such place, unless the person so sellinc or 
disposing of said spirituous liquors or articles, shall be regularly licensed to keep a 
tavern or grocery, and shall sell the same at his said tavern or grocery, any person 
so offending shall be deemed guilty of a high misdemeanor, and upon conviction 
shall be fined, in any sum not exceeding fifty dollars : Provided, That this section 
shall not be so construed as to affect any person who may sell whiskey or any other 
ardent spirits at his own distillery, store or dwelling house. 

Sec 148. Justices of the peace, respectively, in their several counties, shall 
have jurisdiction of the aforesaid offences, and may, on view or upon information on 
oath, cause every such person, having offended as aforesaid, to be apprehended and 
brought before him to answer such charge. 

Sec 149. Any person who shall be accused of either of the offences specified in 
the five preceding sections, if he choose it, shall have the cause tried by a jury of 
six lawful jurors, and if he shall insist on a full jury, by twelve, who shall be sum- 
moned to try the cause ; and if the jury shall find the accused guilty, they shall 
assess and state the amount of the fine, not more than in said sections specified : 
upon which the justice before whom the trial shall be had, or in case the person shall 
plead guilty, shall give judgment for fine and costs, and proceed to collect the same 
without delay ; and when said fine shall be collected, the officer or person collecting 
the same shall be required to pay it over without delay to the treasurer of the pro- 
per county, taking his receipt therefor ; and which receipt shall be filed with the 
12 



178 



CRIMINAL JURISPRUDENCE. 



clerk of the county commissioners' court; after which the said fine or fines which 
may be thus deposited shall be subject to the control of said court, and appropriated 
to the education of any poor orphan child or children of the proper county. 

Sec 150. The judgments rendered under the six preceding sections shall be 
subject to appeals as in cases of assault and battery and affrays, and shall be col- 
lected in the same manner. * 



DIVISION XII. OFFENCES COMMITTED BY CHEATS, 
SWINDLERS AND OTHER FRAUDULENT PERSONS. 



Section Section 

161. Fraudulent conveyance, penalty for making, and 153. False pretences, person guilty of, deemed 

for knowingly receiving benefit of. a cheat, punishment therefor. 

152. False representations, &c, what constitutes, and 154. Fraudulent sale of lands or lots, how punished. 

- how punished. 156. False weights, use of, how punished. 

Section 151. All and every person who shall be a party to any fraudulent con- 
veyance of any lands, tenements or hereditaments, goods or chattels, or any right or 
interest issuing out of the same, or to any bond, suit, judgment or execution, con- 
tract or conveyance had, made or contrived, with intent to deceive and defraud 
others, or to defeat, hinder or delay creditors or others of their just debts, damages 
or demands ; or who, being parties as aforesaid, at any time shall wittingly and wil- 
lingly put in use, avow, maintain, justify or defend the same or any of them as true 
and done, had or made in good faith, or upon good consideration, or shall sell, alien 
or assign any of the lands, tenements, hereditaments, goods, chattels or other things 
before mentioned to him, her or them conveyed as aforesaid or any part thereof, he, 
she or they so offending, shall, on conviction, be fined, not exceeding one thous- 
and dollars. 

Sec 152. If any person by false representations of his own respectability, 
wealth, or mercantile correspondence and connexions, shall obtain a credit thereby, 
defraud any person or persons of money, goods, chattels or any valuable thing, or 
if any person shall cause or procure others to report falsely of his honesty, wealth 
or mercantile character, and by thus imposing upon any person or persons, obtain 
credit, and thereby fraudulently get into possession of goods, wares or merchandize, 
or any valuable thing, every such offender shall be deemed a swindler, and on con- 
viction, shall be sentenced to return the property so fraudulently obtained, if it can 
be done, and shall be fined, not exceeding one thousand dollars and imprisoned, not 
exceeding six months. 

Sec 153. If any person or persons shall, knowingly and designedly, by any 
false pretence or pretences, obtain from any other person or persons, any chose in 
action, money, goods, wares, chattels, effects or other valuable thing whatever, with 
intent to cheat or defraud any such person or persons of the same, every person so 
offending shall be deemed a cheat, and upon conviction, shall be fined, in any sum 
not exceeding one thousand dollars, and imprisoned, not exceeding one year, and shall 
be sentenced to restore the property so fraudulently obtained, if it can be done. 

Sec 154. Any person or persons, after once selling, bartering or disposing of 
any tract or tracts of land, town lot or lots, or executing any bond or agreement for 
the sale of any lands, or town lot or lots, who shall again knowingly and fraudu- 



CRIMINAL JURISPRUDENCE. 



179 



lently sell, barter or dispose of the same tract or tracts of land, or town lot or lots, 
or any parts thereof, or shall knowingly and fraudulently execute any bond or 
agreement to sell or barter, or dispose of the same land or lot or lots, or any part 
thereof, to any other person or persons for a valuable consideration, every such 
offender, upon conviction thereof, shall be punished by confinement in the peniten- 
tiary, for a term not less than one year, nor more than ten years. 

Sec. 155. If any person shall knowingly sell by false weights or measures, or 
shall knowingly use false measures at any mill, in taking toll for grinding corn, wheat. 
rye or other grain, he or she shall be deemed a common cheat, and on conviction, 
shall be fined, not less than two hundred dollars, and imprisoned, not exceeding three 
months. 



DIVISION XIII. FRAUDULENT AND MALICIOUS 

MISCHIEF. 



Section 

156. Malicious mischief, what constitutes, and how 
punished. 



Section 

157. Public jail, &c, injury to, how punished. 

158. Firing woods or prairie, how punished. 



Section 156. If any person shall wilfully or maliciously cut down, breakdown, 
level, demolish, or otherwise destroy or damage any bridge, embankment or mill- 
dam, or break or destroy the windows or doors of any dwelling house or other 
house, or shall set fire to, or burn, or destroy, or procure or cause to be burnt or 
destroyed, any barrack, cock, crib, rick or stack of hay, corn, wheat, oats, barlev 
or other grain of any kind, or shall cut down, girdle or destroy any fruit tree, or 
shade tree, or shall cut, pull down or destroy, any gate, post, railing or fence, or 
shall pull down, burn or destroy, any pile or piles of wood, boards or planks, or 
other lumber, or shall overturn any cart, wagon or other carriage, or shall run them 
into sloughs, holes or other places, or shall cut loose or set adrift, any canoe, ferry- 
flat, skiff, boat or other vessel, for mischief, or shall unlawfully, wantonly, wilfully 
or maliciously, kill, wound, disfigure or destroy, any horse, mare, filly, colt or 
gelding, or any bull, ox, steer, bullock, cow, heifer or calf, or any sheep or lamb, or 
any hog, pig or dog, or any other useful animal, being the property of another, every 
person so offending, on conviction, shall be fined, not exceeding one hundred dollars, 
or imprisoned, not exceeding three months, or both. 

Sec. 157. If any person shall, wilfully and intentionally, break down, pull down, 
or otherwise destroy or injure, in whole or in part, any public jail or other place 
of confinement, every person so offending, shall, upon conviction, be fined, in any sum 
not exceeding five thousand dollars, nor less than the value of such jail or other 
place of confinement so destroyed, or of such injury as may have been done thereto 
by such unlawful act. 

Sec. 158. If any person or persons shall, at anytime hereafter, wilfully and in- 
tentionally, or negligently and carelessly, set on fire, or cause to be set on fire, any 
woods, prairies or other grounds whatsoever, in the inhabited parts of this State, 
every person so offending, shall, on conviction, be fined, in any sum not less than 
five dollars, nor more than one hundred dollars: Provided, That this section shall 



180 



CRIMINAL JURISPRUDENCE. 



not extend to any person who shall set on fire or cause to be set on fire, any 
woods or prairies adjoining his or her own farm, plantation or inclosure, for the 
necessary preservation thereof from accident by fire, between the first day of March 
and the last day of November, by giving to his or her neighbors two days' notice of 
such intention : Provided, also, That this section shall not be construed, to take 
away any civil remedy, which any person may be entitled to for any injury which 
may be done or received in consequence of such firing. 



DIVISION XIV. OFFENCES RELATIVE TO SLAVES 
INDENTURED SERVANTS AND APPRENTICES. 



Section 

159. Colored slaves or servants, harboring, &c, how 

punished. 

160. Colored persons, indentured, illegal disposition 

of, how punished. 



Section 

161. Minors and apprentices, keepers of public houses 

prohibited from harboring, &c, fine and penalty 

therefor. 



Section 159. If any person shall harbor or secrete any negro, mulatto or per- 
son of color, the same being a slave or servant, owing service or labor to any other 
persons, whether they reside in this State, or any other State or territory, or dis- 
trict within the limits and under the jurisdiction of the United States, or shall in 
anywise hinder or prevent the lawful owner or owners of such slaves or servants, 
from retaking them in a lawful manner, every such person so offending, shall be 
deemed guilty of a misdemeanor, and fined, not exceeding five hundred dollars, or 
imprisoned, not exceeding six months. 

Sec 160. If any person or persons, entitled to the service or labor of any 
negro, mulatto or colored person, by indenture or other contract or registry made, 
or entered into under the laws of the late territory of Indiana or of Illinois, having 
aright to hold such person of color in temporary servitude, by virtue of those laws 
and the constitution of this State, shall hire out, or send any such negro, mulatto or 
colored person, or any of his or her children, to live or reside in any other State, 
territory or country, or shall cause, procure, or suffer it to be done, or shall sell or 
otherwise dispose of any such person of color, or the children of such, for tbe pur- 
poses aforesaid, to any citizen or resident of another State, territory or country, be- 
fore the expiration of his or her term of service, every person so offending, and all 
purchasers of such colored persons so sold or removed, shall forfeit and lose all right 
and title or claim to the service of such person of color, and shall, on conviction, 
for each offence, be fined, not exceeding five hundred dollars, one-half to be applied 
to the use of the person injured, and the other half to the use of the county. 

Sec. 161. If any keeper of a public house, or retailer of spirituous liquors, 
shall receive, harbor, entertain or trust any minor or apprentice within the age of 
twenty-one years, or any servant or slave, knowing them to be such, after having 
been cautioned or warned to the contrary by the parent, guardian, master or mis- 
tress of such minor, apprentice, servant or slave, in the presence of one or more 
credible witnesses ; every such keeper of a public house, or retailer of spirituous 
liquors as aforesaid, so offending, shall, upon conviction thereof, be fined in the sum 
of twelve dollars, and shall, moreover, forfeit his or her license. 



CRIMINAL JURISPRUDENCE. 181 



DIVISION XV. CONSTRUCTION OF THIS CHAPTER, 
ANDDUTYOF COURTS. 



Section 

162. Indictment, form of. 

163. Exceptions to form of indictment. 

164. Civil actions may be maintained for offences un- 



der this chapter. termine the same. 



Section 

169. Offences herein defined, how prosecuted and 

punished. 

170. When punishment discretionary, court shall de- 



165. Judges of supreme court, their duty under this 

chapter. 

166. Death, punishment of, how inflicted. 

1 67. Body of criminal, how may be disposed of. 

168. Females, provisions of this chapter extended to. 



171. Fines, how disposed of. 

172. Benefit of clergy abolished. 

173. Power of court in cases of fine. 

174. Infamous, what crimes deemed, and disabilities 

therefor. 



Section 162. Every indictment or accusation of the grand jury, shall be 
deemed sufficiently technical and correct, Avhich states the offence in the terms and 
language of this code, or so plainly that the nature of the offence may be easily un- 
derstood by the jury. The commencement of the indictment shall be in substance 
as follows : 

State of Illinois, > ( Of the term of the circuit court, in the 

county, ) '' year of our Lord, 18 

The grand jurors, chosen, selected and sworn, in and for the county of in 

the name and by the authority of the people of the State of Illinois, upon their oaths 
present, &e. (here insert the offence, and time and place of committing the same, 
with reasonable certainty.) 

Sec 163. All exceptions which go merely to the form of an indictment, shall 
be made before trial, and no motion in arrest of judgment, or writ of error, shall 
be sustained, for any matter not affecting the real merits of the offence charged in 
such indictment. No indictment shall be quashed for want of the words " with 
force and arms, ' : or of the occupation or place of residence of the accused, nor 
by reason of the disqualification of any grand juror or grand jurors. 

Sec 164. Nothing in this chapter contained, shall be so construed as to prevent 
the party or parties injured, from having and maintaining a civil action for all damages 
and losses, that he, she or they may have sustained in consequence of the commis- 
sion of any criminal offence herein punished ; and no court shall allow or entertain 
the plea that the private injury is merged in the crime, or in any manner affected 
thereby : Provided, however, The record of conviction shall not be used as evi- 
dence in any civil action brought on any forged writing, or to recover the damages 
and losses sustained by the commission of any such criminal offence. 

Sec 165. It shall be, and is hereby declared to be the duty of the judges of the 
supreme and circuit courts, to make a special report biennially to the legislature, of 
all such defects, omissions or imperfections in this code, as experience may suggest. 

Sec 166. The manner of inflicting the punishment of death, shall be by hang- 
ing the person convicted by the neck until death, at such time as the court shall 
direct, not less than fifteen, nor more than twenty-five days from the time sentence 
is pronounced, unless for good cause, the court or governor may prolong the time. 



182 CRIMINAL JURISPRUDENCE. 

Sec. 167. The court may order, on the application of any respectable surgeon or 
surgeons, that the body of the convict shall, after death, be delivered to such sur- 
geon or sursreons for dissection. 

Sec. 168. This chapter shall extend to females committing any of the offences 
made punishable by this chapter, although they may not be expressly named. In 
all cases where the punishment shall be by confinement in the penitentiary, the 
jury shall say in their verdict for what term the offender shall be confined ; and 
the court in pronouncing sentence, shall designate the portion of time such offender 
shall be confined to solitary imprisonment, and what portion to hard labor. Persons 
under the age of eighteen years shall not be punished by confinement in the peni- 
tentiary for any offence except robbery, burglary or arson ; in all other cases, 
where a penitentiary punishment is or shall be provided, such person under the 
age of eighteen years, shall be punished by imprisonment in the county jail, for any 
term not exceeding eighteen months, at the discretion of the court. 

Sec 169. All offences herein defined, shall be prosecuted and punished as by 
this chapter is prescribed, and not otherwise ; and all other offences maybe punished 
by fine and imprisonment in the discretion of the court : Provided, The fine shall in 
no case exceed one hundred dollars, and the imprisonment six months. 

Sec 170. Whenever the punishment for any crime or misdemeanor is discre- 
tionary as to the extent or amount thereof, the court shall determine and affix the 
same, whether the punishment consist of corporeal punishment, imprisonment or 
fine. 

Sec 171. All fines imposed by virtue of any of the laws of this State, for the 
punishment of crimes and misdemeanors, shall, when collected, be paid into the 
treasury of the county where the offence shall be tried, for the use of such county, 
unless otherwise expressly directed : Provided, however, That nothing in this sec- 
tion contained, shall be so construed as to found or constitute a cause of challenge 
or objection to any grand or petit juror. 

Sec 172. The benefit of clergy, appeals of felony and trials by battle, shall be 
and are hereby forever abolished. 

Sec 173. The court shall have power in all cases of conviction under this 
chapter, when any fine is inflicted, to order, as part of the judgment of the court, 
that the offender shall be committed to jail, there to remain until the fine and costs 
are fully paid or otherwise legally discharged. 

Sec 174. Each and every person who may hereafter be convicted of the crime 
of rape, kidnapping, wilful and corrupt perjury or subornation of perjury, arson, 
burglary, robbery, sodomy or the crime against nature, incest, larceny, forgery, 
counterfeiting or bigamy, shall be deemed infamous, and shall forever thereafter be 
rendered incapable of holding any office of honor, trust or profit, of voting at any 
election, of serving as a juror, and of giving testimony. 



CRIMINAL JURISPRUDENCE. 



183 



DIVISION XVI. OF PROCESS, INDICTMENT, AR- 
RAIGNMENT, TRIAL, JUDGMENT, EXECUTION, 
AND WRIT OF ERROR. 



Section 

175. Recognizance, how taken. 

176. Capias shall be issued when indictment found a 

true bill. 

177. Subpoenas shall be issued, &c; penalty for refusal 

to obey subprenas; attachments for witnesses, 

how issued. 
173. Venire not necessary in criminal cases, tales 

may be o rdered when pannel exhausted. 
179. Prosecutor to be indorsed on "true bill" found 

by grand jury, except in certain cases ; 

when prosecution deemed malicious, prosecu- 
tor liable for costs. 
ISO. Persons charged with crime, to be furnished 

with copy of indictment and list of jurors and 

witnesses. 

181. Prisoner may plead "not guilty." 

182. When prisoner stands mute, plea of "not guil- 

ty" to be entered. 

183. When prisoner pleads "guilty" court shall ex- 

plain consequences, and if prisoner persists, 
court may render judgment. 

184. Challenge of jurors allowed. 

185. Jury de mediatate Knguee not allowed. 

186. Offence committed on county line, may be tried 

in either county. 

187. Grand jury to hear witnesses on behalf of peo- 

ple only, and may find indictment on oath of 



189. 



191 
192 



Section 

one witness, except in cases of treason and 
perjury. 
188. Courts to be governed by common law, except 
otherwise provided in this chapter. 
When jury retires, constable or other officer 
shall attend; provided, in certain cases, jury 
may return sealed verdict. 
190. Liability of officer while attending jury, and of 
other persons conversing with jury. 
Offenders to pay costs when convicted. 
Property of persons convicted under provisions 
of this chapter, bound from time of arrest, and 
execution shall issue for fines. 

193. Judgment for fine and costs may be replevied. 

194. Executions may be issued into any county. 

195. When person confined in jail for criminal of- 

fence has no estate, may be discharged, ex- 
cept as otherwise provided. 

196. Sureties may be released in certain cases, and 

defendant delivered into custody of officer. 

197. Bill of exceptions shall be allowed. 

198. Writ of error may be allowed upon terms spe- 

cified in this section. 
Writs of error considered writs of right, but 
shall not be a supercedeas unless allowed by 
supreme court, or one of the justices thereof; 
proceedings on such application. 



199. 



Section 175. It shall be the duty of the circuit court, when any indictment shall 
be found as a true bill, to make an order, fixing the amount of bail to each offence 
bailable by law, to be indorsed on the process by the clerk ; and the sheriff, coro- 
ner or other officer who shall arrest the indicted person or persons, shall let such 
indicted person or persons to bail, upon his, her or their entering into a recogni- 
zance, with one or more securities, in the sum or sums specified on said process : 
which recognizance shall be made to the people of the State, conditioned for the 
appearance of the indicted person or persons, on the first day of the next cir- 
cuit court to be holden in and for such county, to answer the said indictment and 
not depart the court without leave ; which recognizance shall be signed by the 
persons entering into the same, and certified by the officer taking it. Every re- 
cognizance so taken, is hereby declared to be valid and binding, and shall not be set 
aside or adjudged insufficient for want of form. 

Sec. 176. It shall be the duty of the clerks of the circuit courts of each 
county of this State, to issue process of capias for the apprehension of all persons 
indicted in said courts respectively, to be directed to the sheriff, coroner and con- 
stable of the county where such indicted person or persons shall then be ; and it 
shall be the duty of the sheriff, or in case of his absence or inability, of the coro- 
ner or some one of the constables of the county to which said capias is directed, 
to arrest the person or persons therein named, and to let him or them to bail, where 
the offence is bailable ; or if the offence be not bailable, or not sufficient bail be 
offered, then the officer making the arrest shall bring his, her or their bodies to 



184 CRIMINAL JURISPRUDENCE. 

the jail of the county where said capias is returnable, and deliver such accused 
person or persons, together with the capias, to the keeper of the jail, there to remain 
until discharged by due course of law. It shall also be the duty of any officer who 
shall take any recognizance in pursuance of this section, to return the same to the 
clerk by the first day of the court to which it may be returnable. It shall be law- 
ful for any officer who has the custody of any prisoner or prisoners by virtue of 
this section, to pass through any counties which lie in his route between the place 
of arrest and the county to which he is taking such prisoner or prisoners, and to 
lodge or deposit said prisoner or prisoners in any jail on his route, for safe custody, 
for one night or more, as occasion may require ; and it is hereby made the duty of 
the county commissioners' court of the county where such indictment shall be 
found, to pay to the officer who shall bring any offender or offenders from another 
county, his reasonable charges for such service : Provided, That nothing contained 
in this or the preceding section, shall prevent a capias from being issued without 
such indorsement, returnable instanter ; which capias shall authorize and require 
the accused to be arrested and immediately brought into court, when he or she shall 
be either committed, bailed or tried, at the term at which the indictment shall be 
found. 

Sec. 177. It shall be the duty of the clerks of the circuit courts, to issue sub- 
poenas, either on the part of the people or of the accused in any indictment, direc- 
ted as in the preceding section, to any county in this State. And every witness 
who shall be duly subpoenaed, and shall neglect or refuse to attend any circuit 
court, pursuant to the requisitions of such subpoena, shall be proceeded against 
and punished for contempt of the court. And attachments against witnesses who 
live in a different county from that where such subpoena is returnable, may be serv- 
ed in the same manner as capiases are directed to be served, out of the county from 
which they issue, in the preceding section. 

Sec 178. It shall not be necessary to issue a venire in any criminal case. And 
in all criminal cases where the pannel of jurors shall be exhausted, by challenges 
or otherwise, and whether any juror has been elected and sworn or not, it shall 
be competent for the court to order on their minutes a tales for any number of jurors, 
not exceeding twenty-four, returnable instanter, out of which persons so ordered to 
be summoned, it shall be lawful to empannel a jury for the trial of any criminal 
case ; but should the tales ordered be insufficient, by reason of challenges or other- 
wise, to form an impartial jury, the court may, from time to time, make such 
further orders on their minutes for additional tales men, returnable instanter, until a 
full jury shall be obtained. 

Sec 179. No bill of indictment for false imprisonment, or wilful and malicious 
mischief, shall be found "a true bill" by any grand jury, unless a prosecutor is 
indorsed thereon by the foreman of the grand jury, with the consent of the prosecu- 
tor, except the same shall be found upon the information and knowledge of two or 
more of the grand jury, or upon the information of some public officer in the neces- 
sary discharge of his duty ; in which case it shall be stated at the end of the indict- 
ment how the same is found, and then no prosecutor shall be required ; but in cases 
where a prosecutor is indorsed on the indictment, and the defendant shall be 
acquitted on trial, the petit jury acquitting such defendant shall find, in addition to 
the verdict of "not guilty," whether the prosecutor had acted maliciously by insti- 
tuting the prosecution or not ; and whenever the petit jury shall return with a 



CRIMINAL JURISPRUDENCE. 185 

verdict of "not guilty," that the prosecutor had acted maliciously in the premises, 
the court shall enter judgment for costs against the prosecutor, including a fee of 
three dollars to the attorney general or circuit attorney, and award execution for 
the same, as is done in civil cases : Provided, That nothing herein contained shall 
render the prosecutor incompetent to be a witness, either before a grand or petit 

j' ur y- 

Sec. 180. Every person charged with treason, murder or other felonious crime, 
shall be furnished, previous to his arraignment, with a copy of the indictment, and 
a list of the jurors and witnesses. In all other cases he or she shall, at his or her 
request, or the request of his or her counsel, be furnished with a copy of the indict- 
ment and a list of the jurors and witnesses. 

Sec 181. Upon the arraignment of a prisoner, it shall be sufficient, without 
complying with any other form, to declare, orally, by himself or herself, or his or 
her counsel, that he or she is not guilty ; which declaration or plea shall be imme- 
diately entered upon the minutes of the court by the clerk, and the mention of the 
arraignment and such plea shall constitute the issue between the people of the 
State and the prisoner ; and if the clerk should neglect to insert in the minutes the 
said arraignment and plea, it may and shall be done at any time by order of the 
court, and then the error or defect shall be cured. 

Sec 182. In all cases where the party indicted shall, on being arraigned, obsti- 
nately stand mute, or refuse to plead, standing mute or refusing to plead, shall be 
adjudged and taken to be a denial of the facts charged in the indictment, and the 
court shall order the plea of "not guilty" to be entered on the minutes, and the 
trial, judgment and execution shall proceed in the same manner as it would have 
done if the party had pleaded "not guilty." 

Sec 183. In all cases where the party indicted shall plead "guilty," such plea 
shall not be entered until the court shall have fully explained to the accused the 
consequences of entering such plea ; after which, if the party indicted persist in 
pleading "guilty," such plea shall be received and recorded, and the court shall 
proceed to render judgment and execution thereon, as if he or she had been found 
guilty by a jury. In all cases where the court possess any discretion as to the 
extent of the punishment, it shall be the duty of the court to examine witnesses as 
to the aggravation and mitigation of the offence. 

Sec 184. Every person arraigned for any crime punishable with death, shall 
be admitted on his trial, to a peremptory challenge of twenty jurors, and no more ; 
and every person arraigned for any offence, that may be punished by imprisonment 
for a term exceeding eighteen months, shall be admitted to a peremptory challenge 
often jurors ; and in all other criminal trials, the defendant shall be allowed a per- 
emptory challenge of six jurors. The attorney prosecuting on behalf of the people, 
shall be admitted to a peremptory challenge of one-half of the number of jurors that 
the accused is entitled to. 

Sec 185. In no case shall the right to a trial by jury de mtdiatate lingua, be 
allowed in criminal prosecutions. 

Sec 186. Where an offence shall be committed on a county line, the trial may 
be in either county divided by such line ; and where any offence shall be committed 
against the person of another, and the person committing the offence shall be in one 
county, and the person receiving the injury shall be in another county, the trial may 
be had in either of said counties. 



1S6 CRIMINAL JURISPRUDENCE. 

Sec 187. In all complaints exhibited before the grand jury of any county, they 
shall hear the witnesses on behalf of the people only ; and may find an indictment 
on the oath of one witness only, or upon the information of two of their own body, 
except in cases of treason or perjury, where at least two witnesses to the same fact 
shall be necessary ; and in finding a bill of indictment, at least sixteen of the grand 
jury shall be present, and at least twelve of them shall agree to the finding. The 
foreman of the grand jury may swear or affirm all witnesses that may come before 
the jury. 

Sec 188. All trials for criminal offences shall be conducted according to the 
course of the common law, except when this chapter points out a different mode, 
and the rules of evidence of the common law, shall also, unless changed by this chap- 
ter be binding upon all courts and juries in criminal cases. Juries in all cases shall 
be judges of the law and the fact. 

Sec. 189. When the jury shall retire to consider of their verdict in any crim- 
inal case, a constable or other officer, shall be sworn or affirmed to attend the jury 
to some private and convenient place, and to the best of his ability, keep them to- 
gether without meat or drink, water excepted, unless by leave of the court, until 
they shall have agreed upon their verdict, nor suffer others to speak to them, and 
that when they shall have agreed on their verdict, he will return them into court : 
Provided, however, That in any cases of misdemeanor only, if the prosecutor for 
the people, and the person on trial, by himself or counsel, shall agree, which agree- 
ment shall be entered upon the minutes of the court, to dispense with the attendance 
of an officer upon the jury, or that the jury, when they have agreed upon their ver- 
dict, may write and seal the same, and after delivering the same to the clerk, may 
separate : it shall be lawful for the court to carry into effect any such agreement, and 
receive any such verdict, so delivered to the clerk, as the lawful verdict of any such 
jury. 

Sec 190. If any officer sworn to attend upon a jury, shall knowingly violate 
his oath or affirmation, or shall so negligently perform his duties, that the jury shall 
separate without leave of the court, or obtain food or drink, (except water,) or if. 
any person not belonging to the jury, shall hold conversation with any of the jury, 
every person and officer so offending, shall be punished for a contempt of the court 
by fine and imprisonment, or both, in the discretion of the court. 

Sec 191. In all cases where any person or persons shall be convicted of any 
crimes or misdemeanors specified in this chapter, or of any offences at common law, 
the court shall give judgment that the offender or offenders so convicted shall pay 
the costs of the prosecution. 

Sec 192. The property, real and personal, of every person who shall be con- 
victed of any of the offences punished by this chapter, shall be bound; and a Lien 
is hereby created on the property, both real and personal, of every such offender, 
from the time of his or her arrest, if he or she be arrested before indictment, if not, 
then from the time of finding the indictment, at least so far as will be sufficient to 
pay the fine and costs of prosecution. And it shall be the duty of the clerk of the 
circuit court, at the end of each term, to issue an execution for every fine which 
shall have been imposed during the term, and which remains unpaid, and for all 
costs of conviction in criminal cases ; in which execution shall be stated, the day 
on which the arrest was made, or indictment found, as the case may be, which exe- 
cution shall be delivered to the sheriff or coroner, and shall be by him levied on all 
the estate, real and personal, which the defendant or defendants possessed, as- his 



CRIMINAL JURISPRUDENCE. 187 

or her own real or personal estate, on the day mentioned in such execution, and any 
property, real and personal, subsequently acquired by him or her ; which property, 
so to be levied upon, shall be advertised as in civil cases, and sold for what it will 
bring. It shall be no objection to the selling of any property under such execution, 
that the body is in custody for said fine and costs. 

Sec. 193. It shall and may be lawful for any person or persons, convicted of 
any criminal offence, to replevy the judgment for the fine and costs, or the costs 
only when no fine shall be imposed, by such convicted person or persons, with one 
or more good and sufficient freeholders entering into a recognizance before the cir- 
cuit court, to the people of this State, for the payment of such fine and costs, or 
costs only, within five months from the date of the acknowledgment ; which recog- 
nizance, so taken, is hereby declared valid in law, and to create a lien on the real 
estate of all such persons as shall acknowledge the same, and upon the breach there- 
of, the clerk is hereby authorized to issue an execution against the goods and chat- 
tels, lands and tenements of the persons who entered into recognizance, in the same 
manner as if it had been a judgment of the court, which execution shall be collec- 
ted in the same manner as is prescribed in the preceding section. No scire facias 
shall be necessary previous to issuing such execution. In all cases where the per- 
son or persons, convicted as aforesaid, shall replevy the fine and costs, as is provi- 
ded in this section, then no execution shall issue for said fine and costs, as is pre- 
scribed in the next preceding section ; and further, such person or persons, after 
replevying the fine and costs, as aforesaid, shall not be imprisoned for such fine and 
costs, but such person or persons shall be wholly discharged from any imprisonment 
in consequence of any conviction, unless where imprisonment is by this chapter made 
a part of the punishment; in that case, such convicted person or persons, shall be 
discharged from his or her, or their imprisonment, at the expiration thereof, if he, 
she or they have replevied the fine and costs as aforesaid. 

Sec. 194. Executions for fines and costs of prosecution, and on recognizances 
taken in pursuance of the preceding section, may be issued into any county in this 
State. 

Sec 195. Whenever it shall be made satisfactorily to appear to the circuit 
court, after all legal means have been exhausted, that any person who is confined 
in jail for any fine or costs of prosecution, for any criminal offence, hath no estate 
wherewith to pay such fine and costs, or costs only, it shall be the duty of the said 
court to discharge such person from further imprisonment for such fine and costs ; 
which discharge shall operate as a complete release of such fine and costs : Pro- 
vided, That nothing herein shall authorize any person to be discharged from im- 
prisonment before the expiration of the time for which he or she may be sentenced 
to be imprisoned, as part of his or her punishment. 

Sec 196. In all cases of bail for the appearance of any person or persons 
charged with any criminal offence, the security or securities of such person or per- 
sons may, at any time before judgment is rendered upon scire facias to show cause 
why execution should not issue against such security or securities, seize and sur- 
render such person or persons, charged as aforesaid, to the sheriff of the county 
wherein the recognizance shall be taken ; and it shall be the duty of such sheriff, 
on such surrender and the delivery to him of a certified copy of the recognizance 
by which such security or securities are bound to take such person or persons, so 
charged as aforesaid, into custody, and by writing acknowledge such surrender, and 
thereupon the security or securities shall be discharged from any such recognizance, 
upon payment of all costs occasioned thereby. 



188 CRIMINAL JURISPRUDENCE. 

Sec. 197. In the trial of any person or persons, for any crime or misdemeanor, 
it shall be the duty of the judge before whom such trial is pending, to sign and seal 
any bill of exception tendered to the court during the progress thereof: Provided, 
The truth of the case be fairly stated in such bill of exceptions ; and thereupon 
the said exceptions shall, by the clerk of the said court, be entered in the record of 
such trial, and become, to all intents and purposes, a part thereof. 

Sec. 198. The party aggrieved by manifest and material error, appearing of re- 
cord, in any capital prosecution by indictment, may be relieved by writ of error, upon 
complying with the following terms, to-wit : The party complaining that error has 
been committed, shall obtain a certified copy of the record from the clerk, and from 
the judge of the circuit court, or from the person who acted as prosecuting attorney 
on the trial, a certificate expressive of an opinion that said record contains a full 
and true history of the proceedings on said trial ; which record, together with an 
assignment of the errors relied on for the reversal of the judgment, shall be pre- 
sented to the supreme court, or to one of the justices thereof, in vacation ; and if, 
after inspecting such transcript, the court or justice aforesaid, shall be of opinion 
that there is reasonable cause for allowing a writ of error, the same shall be granted 
by order indorsed on the back of said transcript. The allowance of such writ of 
error shall be sufficient authority to the clerk of the supreme court, to issue a su- 
persedeas to stay the execution of the sentence of death, but not the discharge of 
the prisoner from jail. Where any judgment, the execution whereof has been 
stayed by writ of error, as aforesaid, shall be affirmed, the supreme court shall, by 
order, fix the time when the original sentence of death shall be executed, a copy of 
which order shall be sufficient authority to the sheriff for the execution of any 
prisoner therein mentioned, at the time specified. 

Sec. 199. Writs of error in all criminal cases not capital, shall be considered 
as writs of right and issue of course ; but no writ of error shall be a supersedeas, 
unless the supreme court or one of the justices thereof, in vacation, after inspecting 
a copy of the record, certified as in the preceding section, together with an assign- 
ment of the errors relied on for a reversal of the judgment, shall be of opinion that 
there is reasonable cause for allowing a writ of error, then the writ shall be 
granted, by order indorsed on the back of such record, in which case the clerk of 
the supreme court shall issue a supersedeas, which shall have the effect to stay exe- 
cution of the sentence, but not to discharge the prisoner from custody. If the party 
applying for such writ of error shall at the time be in custody, under the authority 
of the judgment prayed to be superseded and the said court or justice shall be of 
opinion that the party obtaining such writ of error ought to be bailed until the de- 
termination of such writ of error, the said supreme court or justice may make an 
order to discharge such prisoner from custody, upon the prisoners entering into a 
recognizance to the people of the State, before the sheriff of the county where he or 
she shall be imprisoned, in such sum and with such security as said court or justice 
shall prescribe ; which recognizance shall be conditioned that the prisoner will ap- 
pear at the next circuit court, to be holden in the county where the trial of such 
prisoner took place, and at each subsequent term of the circuit court on the first 
days, until the determination of such writ of error, and that he will be present 
and submit to such order as the supreme court shall make in the premises, and 
will not, at any of the terms of said court, in which he shall be bound to appear by 
said recognizance, depart the court without leave. The recognizance so taken, shall 
be returned to the next circuit court, and there entered of record, and such pro- 



CRIMINAL JURISPRUDENCE. 



189 



ceedings may be thereon had, in case of a breach of the condition of such recogni- 
zance, as shall be according to the course of the common law : Provided, however, 
That in cases where corporeal punishment is inflicted, the prisoner shall in no case 
be bailed upon the affirmance of any judgment brought into the supreme court, by 
virtue of this section; the said court shall order and direct the circuit court to carry 
into effect the judgment of the court below. In case of affirmance, judgment shall 
be given for costs against the party prosecuting such writ of error, and execution 
shall issue thereupon from the supreme court. 



DIVISION XVII. LIMITATIONS OF INDICTMENTS 
AND PENAL ACTIONS. 



Section 

200. Limitation of time of finding indictment, ex- 
cept for treason, murder, arson and forgery ; 



Section 

when time fixed by statute ; proceedings when 
indictment quashed. 



Section 200. No person or persons shall be prosecuted, tried or punished, for 
any offence denominated by the common law felony, (treason, murder, arson and for- 
gery excepted) unless the indictment for the same shall be found by a grand jury, 
within three years next after the offence shall have been done or committed. Nor 
shall any person be prosecuted, tried or punished for any misdemeanor, or other 
indictable offence below the grade of felony, or for any fine or forfeiture under any 
penal statute, unless the indictment, information or action for the same, shall be 
found or instituted within one year and six months from the time of committing the 
offence, or incurring the fine or forfeiture : Provided, That nothing herein con- 
tained shall extend to any person fleeing from justice : And -provided, also, That 
where any suit, information or indictment, for any crime or misdemeanor, is limi- 
ted by any statute, to be brought or exhibited within any other time than is hereby 
limited, then the same shall be brought or exhibited within the time limited by such 
statute : Provided, also, That where any indictment, information or suit, shall be 
quashed, or the proceedings on the same set aside or reversed, on writ of error, 
the time during the pendency of such indictment, information or suit, so quashed, 
set aside or reversed, shall not be reckoned within this statute, so as to bar any new 
indictment, information or suit, for the same offence. 



DIVISION XVIII. GENERAL PROVISIONS. 



Section 

201. Conservators of the peace, who are constituted 

under the provisions of this chapter, their duties. 

202. Duty of officers, when felonious offence is com- 

mitted. 

203. How and by whom offender may be arrested, 

and his examination. 



Section 

204. Recognizance of prosecutor. 

205. Recognizance?, how taken. 

200. Recognizances may be taken in vacation, ex- 
cept in certain cases. 

207. Warrant, by whom shall be issued, and what of- 
ficers shall execute. 



190 



CRIMINAL JURISPRUDENCE. 



Section 

208. Any person, not an officer, may be authorized to 

execute warrant. 

209. Prisoner may be conveyed from place of arrest, 

through other counties, to county where otfence 
was committed. 

210. Warrant valid, if not under seal. 

211. Search warrant, when may be issued, and dis- 

position of stolen goods, when found. 



Section 

213. When offender committed to jail, names, &c, 
of witnesses to be indorsed on warrant. 

213. When copy of warrant of commitment demand- 

ed by prisoner, duty of officers, &c. 

214. Habeas corpus, when issued, duty of court or 

judge. _ 

215. On hearing of habeas corpus, judge to examinq 

witnesses. 



Section 201. The judges of the supreme and circuit courts in their respective 
circuits, and justices of the peace, in their respective counties, shall jointly and sev- 
erally be conservators of the peace within their respective jurisdictions, as herein 
designated, and shall have full power to enforce, or cause to be enforced, all laws 
that now exist, or that shall hereafter be made, for the prevention and punishment 
of offences, or for the preservation and observance of the peace. They shall have 
power to cause to be brought before them, or any of them, all persons who shall 
break the peace, and commit them to jail, or admit them to bail, as the case may 
require, and to cause to come before them, or any of them, all persons who shall 
threaten to break the peace, or shall use threats against any person within this 
State, concerning his or her body, or threaten to injure his or her property, or the 
property of any person whatever ; and also all such persons as are not of good 
fame, and the said judge or justice of the peace, being satisfied, by the oath of one or 
more witnesses, of his or her bad character, or that he or she had used threats, as 
aforesaid, shall cause such person or persons to give good security for the peace, or 
for their good behavior towards all the people of this State, and particularly to- 
wards the individual threatened. If any person against whom such proceedings 
are had, shall fail to give a recognizance with sufficient security, it shall be the 
duty of the judge or justice of the peace before whom he or she shall be brought, 
to commit such person or persons to the jail of the proper county, until such securi- 
ty be given, or until the next term of the circuit court. Such judge or justice of 
the peace shall also take recognizances for the appearance of all witnesses at such 
courts. All recognizances to be taken in pursuance of this section, shall be re- 
turnable to the next circuit court, to be holden in the proper county, where all 
such recognizances shall be renewed or dismissed, as the said circuit court shall, 
upon examination of the witnesses, deem to be just and right. And where the 
person or persons committed, are in jail at the sitting of such circuit court, the 
court shall examine the witnesses, and either continue the imprisonment, bail the 
prisoner, or discharge him or her, as to the said court shall appear to be right, 
having due regard to the safety of the citizens of this State. 

Sec. 202. When any felonious offence shall be committed, public notice thereof 
shall be immediately given, in all public places near where the same was commit- 
ted, and fresh pursuit shall be forthwith made after every person guilty thereof, 
by sheriffs, coroners, constables, and all other persons who shall be by any of them 
commanded or summoned for that purpose: every such officer who shall not do his 
duty in the premises shall be punished by fine, in a sum not exceeding one hundred 
dollars, or imprisonment, not exceeding three months. 

Sec. 203. It shall be lawful for any of the aforenamed judges or justices of the 
peace, upon oath or affirmation being made before him, that any person or persons 
have committed any criminal offence in this State, or that a criminal offence has been 
committed, and that the witness or witnesses have just and reasonable grounds to 
suspect that such person or persons have committed the same, to issue his warrant 
under his hand, commanding the officer or person charged with the execution 



CRIMINAL JURISPRUDENCE. 191 

thereof, to arrest the person or persons so charged, and bring him, her or them be- 
fore the officer issuing said warrant, or in case of his absence, before any other 
judge or justice of the peace ; the said judge or justice of the peace, before whom 
any person shall be brought in pursuance of such warrant, or shall be brought 
without warrant, and charged with any criminal offence, before he shall commit 
such prisoner to jail, admit to bail, or discharge him or her from custody, shall in- 
quire into the truth or probability of the charge exhibited against such prisoner or 
prisoners,.by the oath of all the witnesses attending; and shall, upon consideration, 
of the facts, and circumstances, then proved, either commit such person or persons, so 
charged, to jail, admit him, her or them, to bail, or discharge him, her or them, from 
custody. No justice of the peace shall admit to bail, any person or persons, charged 
with treason, murder, or any offence, punishable with death : And, provided, That 
in all cases where the charge is for sodomy, rape, arson, burglary, robbery, forgery 
or counterfeiting, it shall be the duty of any justice of the peace, whenever any per- 
son or persons shall be brought before him, for the same or either of them, to asso- 
ciate with himself some neighboring justice of the peace previous to the examination 
of the witnesses, and they two shall have power to bail such prisoner or prisoners, 
or commit him, her or them to jail, in case no good and sufficient bail is offered, or 
discharge the prisoner or prisoners, according to the proof that is adduced, and the 
law arising thereon. All recognizances taken in pursuance of this section, shall 
require the accused to appear at, and on the first day of the next circuit court, or if 
the court be then sitting, on some day of the term, to be therein designated. 

Sec. 204. It shall be the duty of the judge or justice of the peace who shall 
commit any offender to jail as aforesaid, or admit him to bail, to bind by recogni- 
zance, the prosecutor, and all such as do declare any thing material to prove the 
offence charged, to appear before the next circuit court on the first day thereof, or 
if the said court shall be then sitting, on same day to be therein designated, (and 
in all cases at the same time and place as the person or persons accused by said 
witnesses shall be bound to appear,) to give evidence touching the offence so charg- 
ed, and not depart the court without leave. If any person, upon being required to 
enter into recognizance as aforesaid, shall refuse, it shall be lawful for such judge 
or justice of the peace to commit him or her to jail, there to remain until he or she 
shall enter into such recognizance or be otherwise discharged by due course of law. 

Sec 205. All recognizances that have any relation to criminal matters, shall 
be taken to the people of this State, shall be signed by the person or persons enter- 
ing into the same, be certified by the judge, justice of the peace or other officer 
taking the same, and delivered to the clerk of the circuit court, on or before the 
day mentioned therein for the appearance of the witness or accused therein bound. 
Recognizances taken in courts of record need not be signed or certified as aforesaid* 
Recognizances for assaults, batteries and affrays, shall be for the appearance of the 
accused before the justice of the peace taking the same, or before some other justice 
of the county, on the day appointed by the justice for the trial of the offender. 

Sec 206. Where any person shall be committed to jail on a criminal charge, 
for want of good and sufficient bail, except for treason, murder, or other offence 
punishable with death, or for not entering into a recognizance to appear and testify, 
any judge, or any two justices of the peace, may take such bail or recognizance in 
vacation, and may discharge such prisoner from his or her imprisonment. It shall 
be the duty of the judge or justice committing such person to jail, to indorse on the 
warrant of commitment, in bailable cases, in what sum bail ought to be taken. 



192 CRIMINAL JURISPRUDENCE. 

Sec 207. When a charge shall be exhibited upon oath, before any judge or 
justice of the peace, against any person for a criminal offence, it shall be the duty of 
the judge or justice of the peace before whom the charge shall be made, to issue his 
warrant for the apprehension of the offender, directed to all sheriffs, coroners and 
constables within the State ; and it shall be the duty of any sheriff, coroner or con- 
stable, into whose hands any such warrant shall come, to execute the same within 
their respective counties, and if the offender shall be found therein, to arrest and 
convey such offender before the judge or justice of the peace who issued the war- 
rant, or before some other justice of the peace of the same county. When any such 
sheriff, coroner or constable, or other person called to the assistance of such sheriff, 
coroner or constable, shall be in pursuit of any offender, having a warrant for the 
apprehension of such offender, and the offender shall cross the line into the adjoining 
county, such sheriff, coroner or constable, or other person, may pursue such offen- 
der into such adjoining county and make the arrest, as if such offender had been 
found in the county of the officer in pursuit. 

Sec 208. Any judge or justice of the peace, issuing any such warrant, may 
make an order thereon, authorizing a person to be named in such warrant to execute 
the same, and the person named in such order may execute such warrant any where 
in the State, by apprehending and conveying such offender before the judge or jus- 
tice, issuing such warrant, or before some other justice of the same county; and 
all sheriffs, coroners and constables, and others, when required, in their respective 
counties, to be aiding and assisting in the execution of such warrant. 

Sec. 209. Any person or persons, officer or officers, who may have the custody 
of any offender or offenders, by virtue of either of the two preceding sections, may 
take or carry such prisoner or prisoners into any other county which may be situ- 
ated on his or their way back to the county from which the said prisoner or prison- 
ers fled, and may deposit such prisoner or prisoners in any jail on his or their 
route, for safe custody, for one night or more, as occasion may require. Upon 
their arriving in the county to which the prisoner or prisoners is or are sent, under 
the last preceding section, such officer or officers, person or persons, shall deliver 
such prisoner or prisoners into the custody of the sheriff or jailer, together with 
the warrant of the said judge or justice, which shall be a sufficient justification to 
the said sheriff or jailer, to receive and detain such prisoner or prisoners, until he, 
she or they obtain bail, if the offence be bailable, or be otherwise discharged by 
due course of law. 

Sec. 210. It shall not be necessary to the validity of any warrant for the appre- 
hension of any person charged with an offence, or warrant of commitment, or search 
warrant, that it be under the seal of the judge or justice of the peace granting or 
issuing the same ; but every such warrant under the hand of the judge or justice 
of the peace, shall be as valid in law as if a seal were affixed. And no person 
shall be discharged on habeas corpus from his imprisonment merely by reason of 
defect of legal precision, or want of technical form in the warrant of commitment, 
but the court or judge awarding such habeas corpus shall, in all such cases, proceed 
and determine as if the mittimus had all legal and technical form : Provided., Suffi- 
cient appear on the face of the mittimus to ascertain for what crime or offence such 
prisoner or prisoners shall have been committed. 

Sec 211. It shall be lawful for any judge or justice of the peace, upon com- 
plaint made before him upon oath or affirmation, that a larceny has been committed, 
and that the person affirming or swearing does verily believe that the stolen goods 



CRIMINAL JURISPRUDENCE. 193 

or other property, are or is concealed in any dwelling house, out-house, garden, 
yard or other place or places, to issue a warrant under his hand commanding every 
such dwelling house or place to be searched in the day time j and if any of the 
goods described in any such warrant, be found therein, then that the said goods 
be seized or brought before the judge or justice issuing said warrant. If, upon 
examination of witnesses before the judge or justice ol the peace who issued said 
warrant, it shall be determined by such judge or justice, that the goods so brought 
before him have been stolen, it shall be the duty of such judge or justice, either 
to keep possession of, or to deliver, or cause to be delivered, such goods to the 
sheriff of the proper county, there to remain until the conviction of the thief, or 
the claimant's right be otherwise legally ascertained. If the thief shall not be indict- 
ed at the next circuit court after the goods shall be seized, and an action shall not 
be commenced against the person or persons in whose possession such goods shall 
have been found, for the recovery thereof, within one month after a circuit court 
shall have been held after such seizure, the said circuit court shall, at their next 
session, order such goods to be re-delivered to the person in whose possession they 
were found, which order shall be obeyed by the person in whose possession 'such 
goods may, at the time, be. In case the judge or justice of the peace shall, upon 
such examination as aforesaid, determine that such goods so seized had not been 
stolen, then the goods shall be immediately restored to the person from whose pos- 
session they were so taken. 

Sec 212. It shall be the duty of the judge or justice of the peace who shall 
commit any offender to jail, either because such offender is unable to procure bail 
for his appearance at court, or because the offence is not by law bailable, to write 
on the warrant of commitment the names and residences of the principal witnesses 
by whom the crime was proved before said judge or justice. 

Sec 213. Whenever any prisoner in the custody of the sheriff or jailer of any 
county, on any warrant of commitment as aforesaid, shall demand of said sheriff or 
jailer, a copy of said warrant of commitment, said sheriff or jailer shall indorse on 
the said copy the names of the witnesses written thereon as aforesaid, and any jus- 
tice or judge who shall neglect to write the name or names of the witnesses afore- 
said, on the warrant of commitment, or any sheriff or jailer shall neglect to indorse 
the name of said witness or witnesses on any copy of said commitment, each jus- 
tice, judge, sheriff or jailer offending in the premises, shall Le fined in the sum of 
twenty dollars, to be recovered by action of debt, in the name of, and for the us*e of 
any person who shall sue for the same in any court of record. 

Sec 214. Whenever a habeas corpus shall be issued to, bring the body of 
any prisoner committed as aforesaid, unless the court or judge issuing the same, 
shall deem it wholly unnecessary and useless, the said court or judge shall 
issue a subpoena to the sheriff of the county where said person shall be confined, 
commanding him to summon the witness or witnesses therein named, to appear 
before such judge or court, at the time and place when and where such habeas cor- 
pus shall be returnable : it shall be the duty of such sheriff to serve said subpoena if 
it be possible, in time to enable such witness or witnesses to attend. It shall be the 
duty of the witness or witnesses thus served with said subpoena to attend and give 
evidence before the judge or court issuing the same on pain of being guilty of a 
contempt, and shall be proceeded against accordingly by said judge or court. 

Sec 215. On the hearing of any habeas corpus issued as aforesaid, it shall be 
the duty of the judge or court who shall hear the same, to examine the witness or 
13 



194 



CUMBERLAND ROAD. 



witnesses aforesaid, and such other witnesses as the prisoner may request, touch- 
ing any offence mentioned in the warrant of commitment as aforesaid, whether said 
offence be technically set out in said commitment or not, and upon which hearing, 
said judge or court may either re-commit, bail or discharge the prisoner according 
to the facts of the case. 

Approved : March 3, 1845. 



CHAPTER XXXI. 

CUMBERLAND 110AD. 



Section 
i . Removing materials from road, or injuring 
works on same, how punished. 

2. Trespass upon road, what deemed, and penalty 

therefor. 

3. Arrests, how made. 



Section 

4. Jurisdiction of justices and courts, and right of 

appeal. 

5. County commissioners to have jurisdiction over 

roads. 

6. Supervisors, their jurisdiction and duties. 



Section 1. If any person or persons shall be guilty of removing any materials 
for the construction of the Cumberland road, in this State, now made or hereafter 
to be made and constructed ; or deface, injure or destroy any of the works ; or 
steal or destroy any tool, instrument or materials belonging to the United States, or 
to any person for the use of said road, he or they shall be deemed guilty and pun- 
ished under the laws then existing and in force for the punishment of similar offen- 
ces on individual and State property. 

Sec. 2. If any person or persons shall store any combustible or other matter in 
or near any of the culverts or bridges, or obstruct them in any manner whatever, 
or encamp or build fires within or near them, or obstruct or damage any of the cul- 
verts, ditches, grades or drains ; remove or deface any mile stones, or stop with teams 
to feed on the road, he or they shall be deemed guilty of trespass, and shall be held 
accountable under the existing laws ; and suits may be brought against said trespas- 
sers by any agent of the government or any other person who may take upon him- 
self to attend to the same for all such offences. 

Sec 3. In cases arising under the provisions hereof, the individual may be ta- 
ken by capias or warrant founded on affidavit, and held to bail, or committed to jail. 

Sec. 4. Suits may be brought before any justice of the peace or court having 
competent jurisdiction to try and hear such cases ; and the right of appeal to the 
circuit court is reserved as in similar cases provided by law. 

Sec. 5. The county commissioners' courts in each county through which the 
Cumberland road now passes, or may hereafter pass, shall have supervisory control 
over the same, whenever the same shall not be under the care or supervision of 
some person or persons authorized by the United States, and cause the same to be 
kept in repair, in the same manner as prescribed by the laws of this State for keep- 
ing in repair the State and county roads in the several counties in this State, and 
may make such order, and regulation concerning the same as they shall deem neces- 
sary and proper for the repair and preservation of the same. 



DETINUE. 195 

Sec. 6. It shall be the duty of the supervisor in each road district, whenever 
the county commissioners' court of the county shall direct, according to the provis- 
ions of this chapter, to cause the said road to be kept in repair through his road dis- 
trict, in the same manner as is provided by law for keeping in repair other State 
and county roads, and shall cause the same to be worked upon by the persons re- 
siding in his road district ; and if such supervisor shall fail, neglect or refuse to do 
so, he shall be liable to the same penalties for such failure, neglect or refusal, as is 
provided by law on other roads in his. district. And if any person subject to work 
upon public roads in any such road district, shall fail, neglect or refuse, when requi- 
red by the supervisor of such road district, to work on said road, he shall be liable 
to the same penalties for such failure, neglect or refusal, as is provided for like 
cases on other public roads, and to be recovered in the same manner, to be collected 
and paid as in other cases of public roads in this State. 

Approved : March 3, 1845. 



CHAPTER XXXII. 

DETINUE. 



Section 

1. Actions of detinue, how brought. 

2> Defendant may give bond. 

3. Sheriff made defendant in certain cases. 



Section 

4. When bond forfeited, remedy of parties interested. 

5. Court or judge may reduce bail, accept surren- 

der of defendant, and cancel bond. 

6. Actions, how proceeded on. 



Section 1. In all actions of detinue, where the plaintiff shall file in the office 
of the clerk of the court in which such action is to be commenced, an affidavit on 
the oath or affirmation of the plaintiff or some other credible person, stating that the 
property, to recover which such action is about to be commenced, is the property 
of the plaintiff, stating the value thereof, and that the defendant unlawfully detains 
the same, the clerk shall issue a writ of capias in detinue, and indorse the amount 
so sworn to, and direct the sheriff to take bail in double that sum. 

Sec. 2. It shall be the duty of any sheriff to whom a writ of capias in detinue 
shall be directed, to take the body of the defendant and commit him to the common 
jail of the county, unless he shall enter into a bond to the plaintiff, conditioned that 
if judgment shall be rendered in such action against him, he will deliver to the 
plaintiff the property which shall be thereby recovered, and pay all damages which 
shall be assessed for the detention thereof, and costs of suit : the sheriff shall return 
such bond with the writ, as in other cases. 

Sec 3. If any sheriff shall return any such writ executed, and shall not have 
the body of the defendant according to the command of the writ, or return a bond 
as is provided in the preceding section, or the bond returned shall be adjudged 
insufficient by the court, and the defendant shall fail to perfect his bail if ruled 
thereto, the sheriff shall be made a co-defendant and may defend the suit upon the 
pleas of the defendant, and shall be subject to the same judgment and recovery as 



196 



DIVORCES. 



the defendant, and be joined therein. All questions concerning the sufficiency of 
such bond shall be determined during the return term. 

Sec. 4. When any bond as aforesaid shall be forfeited, the plaintiff shall have 
the same remedy against the bail, and the bail shall have the same remedy against 
the principal, and the sheriff, when made a co-defendant, shall have the same remedy 
against the principal and bail, as is or may be provided by law in cases of bail in 
other civil causes, and the same proceedings shall be had thereon. 

Sec 5. Any court out of which any writ as aforesaid shall issue, or any judge 
thereof in vacation, may reduce the sum for which bail is demanded, and the court 
may accept the surrender of the defendant, and cancel such bond, in the same manner, 
for the like causes, and with the like effect, as in other cases of bail in civil actions. 

Sec 6. All actions commenced in manner aforesaid, shall be conducted and 
proceeded on in all things according to the principles and usages of law in actions 
of detinue. If any verdict for the plaintiff shall omit the price, or value or damages 
for detention, the court may, at any time, award an inquiry to ascertain the same. 

Approved : March 3, 1845. 



CHAPTER XXXIIL 

DIVOKCES. 



Divorces, for what causes, maybe decreed. 

Jurisdiction of court in such cases ; proceed- 
ings, nature of, and when had. 

Who entitled to divorce. 

When court may refuse to grant divorce. 

Suits for divorce, how tried ; when confession 
of party may be used ; how marriage proved. 



Section 

6. Alimony and support of children, when court 

may provide for. 

7. Poor woman may prosecute for divorce, with- 

out paying costs. 

8. Power of courts of this State to try suits 

brought for causes not provided for by law ; to 
decree alimony, and provide for children. 



Section 1. In every case in which a marriage has been, or hereafter may be 
contracted and solemnized between any two persons, and it shall be adjudged in the 
manner hereinafter provided, that either party, at the time of such marriage, was 
and continues to be, naturally impotent ; or that he or she had a wife or husband 
living at the time of such marriage ; or that either party has committed adultery 
subsequently to the marriage ; or has wilfully deserted and absented himself or 
herself from the husband or wife, without any reasonable cause, for the space of 
two years, or has been guilty of extreme and repeated cruelty or habitual drunken- 
ness for the space of two years ; or has been convicted of felony or other infamous 
crime, it shall be lawful for the injured party to obtain a divorce and dissolution of 
such marriage contract; but no such divorce shall, in anywise, affect the legitimacy 
of the children of such marriage, except in cases where the marriage shall be de- 
clared void on the grounds of a prior marriage. 

Sec 2. The circuit court, sitting as a court of chancery, shall have jurisdic- 
tion in all cases of divorce and alimony by this chapter allowed ; and the like pro- 
cess, practice and proceedings shall be had, as are usually had in other cases in 



DIVORCES. 197 

chancery, except as is hereinafter provided, and except that the answer of the de- 
fendant need not be on oath. The proceedings shall be had in the county where 
the complainant resides, and the process may be directed to any county in the 
State. 

Sec. 3. No person shall be entitled to a divorce in pursuance of the provisions 
of this chapter, who has not resided in the State one whole year previous to filing 
his or her bill or petition, unless the offence or injury complained of was commit- 
ted within this State, or whilst one or both of the parties resided in this State. 

Sec 4. If it shall appear to the satisfaction of the court, that the injury com- 
plained of, was occasioned by collusion of the parties, or done with the assent of 
the complainant for the purpose of obtaining a divorce, or that the complainant was 
consenting thereto, or that both parties have been guilty of adultery, when adultery 
is the ground of complaint, then no divorce shall be decreed. 

Sec 5. In all cases for a divorce, where the defendant shall appear and deny 
the charges in the complainant's bill or petition alleged, the same shall be tried by 
a jury ; but if the bill or petition shall be taken for confessed, the court may pro- 
ceed to a hearing of the cause, by examination of witnesses in open court; and no 
confession of the defendant shall be taken as evidence, unless the court or jury 
shall be satisfied that such confession was made in sincerity, and without fraud or 
collusion, to enable the complainant to obtain a divorce. But any marriage which 
may have been celebrated or had in any foreign State or country, may be proved by 
the acknowledgment of the parties, their co-habitation, and other circumstantial tes- 
timony. 

Sec 6. When a divorce shall be decreed, it shall and may be lawful for the 
court to make such order touching the alimony and maintenance of the wife, the 
care, custody and support of the children, or any of them, as from the circum- 
stances of the parties and the nature of the case, shall be fit, reasonable and just. 
And in case the wife be complainant, to order the defendant to give reasonable se- 
curity for such alimony and maintenance, or may enforce the payment of such ali- 
mony and maintenance in any other manner consistent with the rules and practice 
of the court. And the court may, on application, from time to time, make such al- 
terations in the allowance of alimony and maintenance, as shall appear reasonable 
and proper. 

Sec 7. Any woman sueing for a divorce, who shall make it appear satisfactorily 
to the court, that she is poor and unable to pay the expenses of such suit, shall be 
allowed by the court to prosecute her complaint without costs, and in such cases, no 
fees shall be charged by the officers of the court. 

Sec 8. In addition to the causes herein before provided, for divorces from the 
bands of matrimony, courts of chancery in this State shall have full power and au- 
thority to hear and determine all causes for a divorce, not provided for by any law 
of this State. The same rule of proceeding shall be had as in other cases in chan- 
cery, and upon hearing of the bill, or bill and answer, and proofs and exhibits, if the 
court shall be satisfied of the expediency of decreeing a dissolution of the bands of 
matrimony, it shall have power to do so, and to make such order with regard to the 
costs as it may deem right, and also to make such order with regard to the children 
(if any) and the right of alimony, as it may think proper. 

Approved : March 3, 1845. 



CHAPTER XXXIV. 

DOWEE. 



Section 

1. Right of dower, how acquired. 

2. Widow of alien entitled to dower. 

3. Right of dower in mortgaged premises. 

4. When lands mortgaged for purchase money, 

widow not entitled to dower as against mort- 
gagee. 

5. Widow entitled to one-third of surplus when 

lands of deceased husband sold under mort- 
gage. 

6. Exception to right of dower. 

7. Jointure, how acquired, and its effect. 

8. Assent of wife to jointure, how evinced. 

9. Wife may elect whether she will take jointure 

or dower, but shall not be entitled to both. 
1 0. Dower in lands and share in personal estate 

barred by demise, unless otherwise expressed 

in will ; but wife may elect which she will 

take. 
1 1 Jointure, how may be relinquished, and dower 

substituted. 

12. Divorce, its effects on right to jointure and 

dower. 

13. Adultery of wife, dower forfeited thereby. 

14. Wife's right to jointure or dower can not be di- 

vested, except by her own act. 

15. Widow entitled to half the estate in certain 

cases. 
10. When husband exchanges lands for other lands, 
choice of dower, how made. 



Section 

17. Dower, by whom and when to be set off'. 
13. Remedy of widow when dower not assigned as 
required by law. 

19. Widow claiming dower, how to proceed, and 

duty of clerk. 

20. Unknown persons interested, how proceeded 

against, and their remedy in certain cases. 

21. When claim to dower contested, what proceed- 

ings to be had. 

22. Guardians, when may be appointed. 

23. Petitions for dower, how determined. 

24. Commissioners, how appointed, and their duties. 

25. Extent of right of widow to dower when le- 

gally set oil'. 

26. When widow has claim to dower in lands in 

different counties, how to proceed. 

27. Widow's right till assignment of dower. 

28. When estate not susceptible of division, how 

to proceed. 

29. Reports of commissioners, and order of court 

thereon. 

30. Waste, penalty therefor. 

3 1 . Who may petition for assignment of dower. 

32. Compensation of commissioners. 

33. On death of widow, how dower disposed of. 

34. Dower not relinquished by widow as execu- 

trix or administratrix of husband's estate, un- 
less specified in deed of conveyance. 



Section ] . A widow shall be endowed of the third part of all the lands whereof 
her husband was seized of an estate of inheritance, at any time during the marriage, 
unless the same shall have been relinquished in legal form. Equitable estates shall 
be subject to the widow's dower, and all real estate of every description contracted 
for by the husband in his life time, the title to which may be completed after his 
decease. 

Sec 2. The widow of an alien shall be entitled to dower of the estate of her 
husband, in the same manner as if such alien had been a native born citizen of the 
United States. 

Sec. 3, Where a person seized of an estate of inheritance in land, shall have 
executed a mortgage of such estate before marriage, his widow shall, nevertheless 
be entitled to dower out of the lands mortgaged, as against every person, except the 
mortgagee, and those claiming under him. 

Sec. 4. Where a husband shall purchase lands during coverture, and shall 
mortgage such lands to secure the payment of the purchase money thereof, his 
v/idow shall not be entitled to dower out of such lands, as against the mortgagee or 
those claiming under him, although she shall not have united in such mortgage ; but 
she shall be entitled to her dower as against all other persons. 

Sec 5. When, in the cases specified in the two preceding sections, the mort- 
gagee or those claiming under him, shall, after the death of such husband, cause the 



DOWER. 199 

land mortgaged to be sold, either under a power contained in the mortgage, or by- 
virtue of the judgment or decree of a court, and any surplus shall remain, after 
the payment of the moneys due on such mortgage, and the costs and charges of sale, 
such widow shall be entitled to the interest or income of one-third part of such sur- 
plus, for life, as her dower. 

Sec. b". A widow shall not be endowed of lands conveyed to her husband by 
way of mortgage, unless he have acquired an absolute estate during the marriage. 

Sec 7. When an estate in land shall be conveyed to a person and his intended 
wife, or to such intended wife alone, or to any person in trust for such person and 
his intended wife, or in trust for such intended wife alone, for the purpose of crea- 
ting a jointure for such intended wife, and with her assent, to be taken in lieu of 
dower, such jointure shall be a bar to any right or claim for dower of such wife, in 
any land of her husband. 

Sec 8. The assent of the wife to such jointure, shall be evinced, if she be of 
full age, by her becoming a party to the conveyance by which it shall be settled; if 
she be an infant, by her joining with her father or guardian in such conveyance. 

Sec. 9. If, before her marriage, but without her assent, or if, after her marriage, 
land shall be given or assured for the jointure of a wife, in lieu of dower, she shall 
make her election, whether she will take such jointure, or whether she will be en- 
dowed of the lands of her husband, but she shall not be entitled to both. 

Sec 10. Every devise of land, or any estate therein, by will, shall bar her 
dower in lands, or of her share in personal estate, unless otherwise expressed in 
the will ; but she may elect whether she will take such devise or bequest, or whether 
she will renounce the benefit of such devise or bequest, and take her dower in the 
lands, and her share in the personal estate of her husband. 

Sec 11. W 7 hen a woman shall be entitled to an election under either of the two 
last preceding sections, she shall be deemed to have elected to take such jointure 
or devise unless within one year after the authentication or probate of the will, she 
shall deliver or transmit to the court of probate of the proper county, a written re- 
nunciation, which may be in the following form, to-wit : " I, A. B., widow of C. 
D., late of the county of and State of , do hereby renounce and quit all 

claim to the benefit of any jointure, bequest or devise made to me by the last will 
and testament of my said deceased husband, which has been exhibited and proved ac- 
cording to law, (or otherwise, as the case may be,) and I do elect to take in lieu thereof, 
my dower or legal share of the estate of my said husband." Which said letter of 
renunciation shall be filed in the office of the probate justice of the peace, and shall 
operate as a complete bar against any claim which such widow may afterwards set 
up, to any provision which may have been thus made for her in such jointure, or in 
the will of any such testator, in lieu of dower ; and by thus renouncing all claims, 
as aforesaid, such widow shall thereupon be entitled to dower in the lands, or share 
in the personal estate of her husband. 

Sec 12. If any woman shall be divorced from her husband for the fault or 
misconduct of such husband, except where the marriage w T as void from the begin- 
ning, she shall not thereby lose her dower, nor the benefit of any such jointure ; but 
if such divorce be for her fault or misconduct, she shall forfeit the same ; and when 
a divorce is obtained for the fault and misconduct of the husband, he shall lose 
his right to be tenant by the curtesy in the wile's lands, and also any estate granted 
therein by the laws of this State. 



200 DOWER. 

Sec 13. If a wife voluntarily leave her husband and commit adultery, she shall 
be forever barred her dower, and of the benefit of any such jointure, unless her 
husband be ^voluntarily reconciled to her, and suffer her to dwell with him. 

Sec 14. No act, deed or conveyance, performed or executed by the husband, 
without the assent of his wife, evinced by the acknowledgment thereof, in the 
manner required by law, shall pass the estate of a married woman; and no judg- 
ment or decree confessed or recovered against him, and no laches, default, covin, 
forfeiture or crime of the husband, shall prejudice the right of his wife to her 
dower or jointure, or preclude her from the recovery thereof, if otherwise entitled 
thereto. 

Sec 15. If a husband die, leaving a widow, but no children, nor descendants 
of children, such widow may, if she elect, have in lieu of her dower in the estate 
of which her husband died seized, whether the same shall have been assigned or 
not, absolutely and in her own right, as if she were 'sole, one-half of all real estate 
which shall remain after the payment of all just debts and claims against the de- 
ceased husband : Provided, That in case dower in such estate shall have been 
already assigned, she shall make such new election, within two months after being 
notified of the payment of such debts and claims. 

Sec 16. If a husband, seized of an estate of inheritance in lands, exchange it 
for other lands, his widow shall not have dower of both, but shall make her elec- 
tion as hereinbefore provided, to be endowed of the lands given, or of those taken 
in exchange ; and if such election be not evinced, by the commencement of pro- 
ceedings for the recovery and assignment of her dower of the lands given in 
exchange, within one year after the death of her husband, she shall be deemed to 
have elected to take her dower of the lands received in exchange. 

Sec 17. It shall be the duty of the heir at law, or other person, having the 
next estate of freehold or inheritance in any lands or estate of which the widow 
is entitled to dower, to lay off and assign such dower as soon as practicable offer 
the death of the husband of such widow. 

Sec 18. If such heir or other person shall not within one month next after 
the decease of said husband, assign and set over to the widow of the deceased to 
her satisfaction, her dower in, and to all lands, tenements and hereditaments, 
whereof by law she is or may be dowable according to the true intendment of law, 
then such widow may sue for, and recover the same, in the manner hereinafter pre- 
scribed, against such heir or other person having the next immediate estate of free- 
hold or inheritance, or tenant in possession, or other person or persons claiming 
right or possession in said estate. 

Sec 19. Every widow claiming dower, may file her petition in chancery, in 
the circuit court of the county, against the parties aforesaid, stating their names, if 
known, setting forth the nature of her claim, and particularly specifying the lands, 
tenements and hereditaments in which she claims dower, and praying that the same 
may be allowed to her ; and the clerk shall thereupon issue a summons to the par- 
ties to appear at the next term of the said court to answer the complaint, which 
shall be served by the sheriff as other writs and process. If the parties do not 
reside in the county, said clerk shall cause an advertisement to be published, as pro- 
vided in sections eight, forty -one, and forty-two of chapter twenty-cne of the Revised 
Statutes, notifying said parties that such petition is filed, and requiring them or any 
of them to appear at the next term of the circuit court and show cause why such 
dower should not be assigned; and which publication shall be deemed due notice, 



DOWER. 201 

and the parties aforesaid or any other person interested therein, may appear and 
contest the widow's right to dower. 

Sec. 20. If there be persons interested in the same, whose names are unknown, 
it shall be lawful to make such persons parties to such suits or proceedings, by the 
name and description of persons unknown, or unknown heirs or devisees of any 
deceased person who may have been interested in the subject matter of the suit 
previous to his or her death; but in all such cases, an affidavit shall be filed b} the 
party desiring to make any unknown person a party, stating that the names of such 
persons are unknown ; and process shall be issued against all parties by the name 
and description given as aforesaid ; and notices given by publication, as is required 
in the preceding section, shall be sufficient to authorize the court to hear and deter- 
mine the suit as though all parties had been sued by their proper names ; and all 
decrees, orders, judgments and proceedings had or made under the provisions of 
this chapter, respecting such unknown persons as aforesaid, shall be as binding and 
conclusive upon the persons and parties interested, as though they had been sued 
by their proper names : Provided, That if any person residing out of this State as 
aforesaid, against whom a decree is, or shall be made, his heirs, devisees, executor, 
administrator or -assigns, as the case may require, shall, within one year after notice 
in writing given him or them of such decree, or within three years after such de- 
cree, if no such notice shall have been given as aforesaid, appear in open court and 
petition to be heard touching the matter of such decree, and shall pay such costs as 
the court shall deem reasonable in that behalf, the person so petitioning, may appear 
and answer the complainant's bill, and thereupon, such proceedings shall be had as 
if the defendants had appeared in due season, and no decree had been made. The 
decree shall, after three years from the making thereof, if not set aside in manner 
aforesaid, be deemed and adjudged confirmed against such non-resident defendant, 
and all persons claiming under him by virtue of any act done subsequent to the 
commencement of such suit ; and at the end of the said three years, the court may 
make such further order in the premises as shall be required, and shall be just. 

Sec 21. Answers to such petition shall be sworn to; and in all cases where 
the claim of the widow to dower may be contested, the parties contesting the same 
shall be required to enter their appearance to the action, and the court shall there- 
upon proceed to try the cause, or direct an issue for that purpose, as the circum- 
stances of the case may require. 

Sec. 22. Where any of the parties defendants are minors, and under age, and 
without guardians, the court shall appoint guardians ad litem for such minors. 

Sec 23. Petitions for the recovery and assignment of dower, shall be heard and 
determined by the court, upon the petition, answer, exhibits and other testimony, 
without the necessity of formal pleading. 

Sec 24. Where the court adjudges that the widow shall recover dower, it shall 
be so entered of record, together with a description of the land out of which she 
is to be endowed ; and said court shall thereupon appoint three commissioners, not 
connected with any of the parties, either by consanguinity or affinity, and entirely 
disinterested ; each of whom shall take the following oath, to be administered by 
the court, or some justice of the peace : "I do solemnly swear, that I will fairly 
and impartially allot and set off to A. B., widow of C. D., her dower, out of the 
lands and tenements described in the order of the court for that purpose, if the 
same can be made, consistent with the interest of the estate, according to the best 
of my judgment, so help me God." 



202 DOWER. 

Sec. 25. The commissioners shall set off and allot to said widow her dower by- 
metes and bounds, according to quality and quantity of all the lands, tenements and 
hereditaments described in said order of court : Provided, The widow shall have 
the homestead or dwelling house of the husband, if she desire it 5 and make return 
in writing under their hands and seals to said court ; which, if approved by said , 
court, shall vest in her an estate in the lands and tenements so set off and allotted to 
her, for and during her natural life ; or if such estate shall have been set off and 
allotted to said widow by virtue of section fifteen of this chapter, such estate shall 
be vested in her absolutely, in fee simple, and of inheritance forever, subject to her 
absolute use, control and disposition, as though her interest therein had been acquir- 
ed by her when sole. 

Sec. 26. When a widow has claim to dower in lands lying in different counties, 
she may proceed in the circuit court of the county where the lands lie; or if such 
lands lie in different counties, then in the county in which the major part of such 
lands lie ; but if the major part thereof do not lie in any one county, then in any 
county in which any of the lands lie: and make recovery in the manner as is herein 
directed ; and in all cases when the report assigning dower shall be approved, the 
court shall forthwith cause the widow to have possession, by a writ directed to the 
sheriff for that purpose, and such widow shall also be entitled to reasonable damages, 
to be awarded her from the time of her demand, and refusal to assign her her 
reasonable dower; which may be assessed by the court; or a jury, if required, 
shall be impanneled for that purpose, and execution may issue therefor. 

Sec 27. The widow may, in all cases, retain the full possession of the dwelling 
house in which her husband most usually dwelt next before his death, together with 
the out-houses and plantation thereto belonging, free from molestation and rent until 
her dower be assigned. 

Sec. 23. If the commissioners aforesaid, shall report that the lands or other 
estate is not susceptible of a division without great injury thereto, a jury shall be 
impanneled to inquire of the yearly value of the widow's dower therein, and shall 
assess the same accordingly ; and the court shall thereupon render a judgment, that 
there be paid to such widow as an allowance in lieu of dower, on a day therein 
named, the sum so assessed, as the yearly value of her dower, and the like sum on 
the same day in every year thereafter, during her natural life ; and such jury shall, 
moreover, if the same has been done, assess the damages which may have accrued, 
down to the time of rendering the verdict. 

Sec. 29. Commissioners appointed to assign dower, may make reports to the 
court during the same term at which they were appointed ; and the court may, at 
such term, make all such orders upon such reports, as may be necessary to a final 
disposition of the case. 

Sec. 30. No woman that shall be endowed of any lands, tenements and heredit- 
aments, shall wantonly or designedly commit or suffer any waste thereon, on penalty 
of forfeiting that part of the estate whereupon such waste shall be made, to him or 
them that have the immediate estate of freehold or inheritance in remainder or 
reversion, (and in case of negligent or inadvertent waste,) by her done or suffered ; 
the damages that may be assessed for such waste, to be recovered by action of 
waste. 

Sec. 31. Heirs, or if under age, their guardians, or any other persons interes- 
ted in lands, tenements or hereditaments, may also petition the court to have the 
widow's dower assigned, which shall be proceeded in in the same manner as is 
prescribed in other cases 



DROVERS. 



203 



Sec. 32. Commissioners appointed to assign dower, shall be allowed each one 
dollar per day, to be taxed as other costs. 

Sec. 33. At the death of any widow who hath dower in lands or estate of her 
deceased husband, such lands or estate shall descend in accordance with the will of 
such husband ; or if the husband shall have died intestate, then to descend in accor- 
dance with the law providing for the distribution of intestates' estates. 

Sec. 34. No widow who shall, as executrix or administratrix, sell and convey 
by order of court, for the payment of debts, real estate of her husband, in which she 
shall be by law entitled to dower, shall be deemed to relinquish her right of dower 
therein, by reason of such conveyance, unless her relinquishment shall be specified 
in such deed or conveyance. 

Approved : March 3, 1845. 



CHAPTER XXXV, 

DKOYERS. 



Section 

1. Drovers driving away stock, how punished. 

2. Suit may be commenced by capias, on affidavit 

tiled } effect of affidavit. 



Section 
3. After judgment, fieri facias may issue without 
affidavit. 



Section 1. Whenever any drover or other person or persons engaged in driving 
horses, cattle, mules, hogs or sheep through any part of the State of Illinois, shall 
drive off, or shall knowingly and willingly suffer or permit to be driven oft* from 
the premises of any citizen of said State, or from the range in which the stock of 
any such citizen usually run, to any distance, exceeding five miles from such prem- 
ises or range, any horses, mules, neat cattle, hogs or sheep, belonging to such citi- 
zen, it shall be lawful for the owner of any such stock so driven off, to follow and 
reclaim the same wherever it may be found ; and for the taking and driving away, 
or suffering or permitting' to be driven away, of such stock, the said owner shall be 
entitled to recover of and from said drover or other person or persons guilty thereof, 
for each head of horses, mules, neat cattle, hogs or sheep, so driven away, twice 
the value thereof, to be recovered in an action of debt before any justice of the peace 
of the proper county, or any court having competent jurisdiction thereof : Provided, 
however, That if the drover shall not pass any habitation within said five miles, and 
shall separate said cattle or other stock from the drove at the next habitation, in 
such case, said action shall not accrue to the owner of the said property. 

Sec 2. In any action commenced under the preceding section, a capias may 
issue against the defendant or defendants, upon the plaintiff" stating on oath that he 
believes some one or more of his cattle or other stock has been driven off by a 
drover, and that he believes the same to be of a certain value, to be indorsed on 
the writ, and the proceedings thereon shall be the same as in other actions com- 
menced by capias : Provided, however, That no exception shall betaken to the form 
of the oath aforesaid. 



204 



EJECTMENT. 



Sec. 3. Whenever judgment shall be rendered against any person or persons, 
under the provisions of this chapter, by any justice of the peace, a fieri facias may 
issue thereon against the goods and chattels of any such defendant or defendants, 
without affidavit as required in other cases. 

Approved : March 3, 1845. 

[Amended: — See Appendix, Act, No. 13.] 



CHAPTER XXXVI. 

EJECTMENT. 



10. 



Section 

1 . Actions of ejectment, how brought. 

2. Writ of right may be brought, by widow to re- 

cover dower. 

Valid interest necessary to authorize suit. 

Occupant made defendant, and if no occupant, 
then supposed owner. 

Action, how commenced. 

Use of fictitious names, &c, abolished. 

Averment, what to contain. 

Declaration, what it shall state. 

When action not brought to recover dower, dec- 
laration may contain several averments. 

Notice in writing, what to contain. 

1 1 . Copy of declaration to be left with occupant. 

12. When premises not occupied, declaration to be 

left with defendant named therein. 

13. Rule may be entered, requiring defendant to ap- 

pear in twenty days. 

14. Authority to bring suit, when to be exhibited. 

1 5. Authority and evidence thereof. 

16. When application maybe dismissed at defend- 

ant's costs. 

17. Defendant may demur, or plead general issue, 

and effect thereof. 

18. Consent rule abolished. 

19. Right to premises, how may be proved. 

20. Lease, &c, need not be proved, but rules of evi- 
dence not impaired. 

When action brought by co-tenants, what shall 

be proved. 
When joint possession proved, verdict shall be 

against all defendants in action. 

23. When defendants occupy distinct parcels, plain- 

tiff may elect which to proceed against. 

24. Verdict, how rendered in certain cases. 

25. Verdict, how made when plaintiff's right ex- 

pires after commencement of suit. 

26. Death, actions shall not abate by reason of. 

27. Judgment, effect of, in certain cases. 

28. Writ of possession, form of. 
Judgment conclusive as to title, subject to ex- 
ceptions. 

Judgment may be vacated, and new trial granted. 
Judgment by default conclusive after two years. 
32. Exceptions, wherein actions may be brought af- 
ter two years. 



21. 



22. 



29. 



30. 

31. 



Section 

33. Heirs miy commence action in certain cases 

after time above limited. 

34. Right of plaintiff to possession, not affected by 

vacations of judgment; but if defendant re - 
recover in new trial, shall be entitled to writ 
of possession. 

35. Right of defendant when new trial granted. 

36. Plaintiff recovering judgment, entitled to dam- 

ages for rents and profits. 

37. Mesne profits, when claimed, how to be recov- 

ered. 

Suggestion for claim of mesne profits, form of, 
and how served. 

Defendant may plead general issue of non-as- 
sumpsit, &.C. 

Issue of fact, how tried, and effect of. 

Right of parties to recover mesne profits ; im- 
provements. 

Writ of inquiry shall be issued in certain ca- 
ses. 
43. Upon execution of writs of inquiry, how par- 
ties to proceed. 

Plaintiff in ejectment dying, personal represen- 
tatives may proceed. 

Dower, in action to recover, how plaintiff to 
proceed; dower how assigned. 

Compensation of commissioners. 

47. When person is evicted from land; having ti- 

tle deduced from record, shall be exempt from 
prosecution for profits, &c. 

48. Judgment of eviction, w T hen given, court shall 

appoint seven persons, who shall assess val- 
ue of improvements, damages, &.c. 

49. Assessors as aforesaid, their further duties. 

50. Commissioners shall estimate value of lands in 

dispute. 

51. Commissioners shall take oath, and have power 

to call witnesses for profits, &c. 

52. Estimate of value to be made separately ; com- 

pensation of commissioners, how allowed ; 
improvements, proviso concerning. 

53. Power of court further defined. 

54. Notice of adverse claim, how may be given. 

55. Effect of notice. 

56. Waste, court may issue precepts to stay. 

57. Lessee of United States may maintain action of 

ejectment. 



38. 



39. 



40. 

41. 



42. 



44. 



45. 



16. 



Section 1. The action of ejectment shall be retained, and may be brought in 
the cases and the manner heretofore accustomed, subject to the provision herein- 
after contained. 



EJECTMENT. 205 

Sec 2. It may also be brought — 

1st. In the same cases in which a writ of right may now be brought by law to 
recover lands, tenements or hereditaments, and by any person claiming an estate 
therein in fee or for life, either as heir, devisee or purchaser. 

2d. By any widow entitled to dower, or by a woman so entitled and her hus- 
band, after the expiration of six months from the time her right accrued, to re- 
cover her dower of any lands, tenements or hereditaments. 

Sec 3. No person shall recover in ejectment, unless he has, at the time of com- 
mencing the action, a valid subsisting interest in the premises claimed, and a right 
to recover the same, or to recover the possession thereof, or of some share, interest 
or portion thereof, to be proved and established at the trial. 

Sec. 4. If the premises for which the action is brought, are actually occu- 
pied by any person, such actual occupant shall be named defendant in the declara- 
tion ; if they are not so occupied, the action shall be brought against some person 
exercising acts of ownership on the premises claimed, or claiming title thereto, or 
some interest therein, atlhe commencement of the suit. 

Sec 5. The action shall be commenced by the service of a declaration, in which 
the names of the real claimants shall be inserted as plaintiffs ; and all the provisions 
of law concerning lessors of a plaintiff, shall apply to such plaintiffs. 

Sec 6. The use of fictitious names of plaintiffs or defendants, and of the names 
of any other than the real claimants and the real defendants, and the statements of 
any lease or demise to the plaintiff, and of an ejectment by a casual or nominal 
ejector, are hereby abolished. 

Sec 7. It shall be sufficient for the plaintiff to aver in his declaration that (on 
some day therein to be specified, and which shall be after his title accrued) he 
was possessed of the premises in question, (describing them as hereinafter provi- 
ded) and being so possessed thereof, that the defendant afterwards, (on some day 
to be stated) entered into such premises, and that he unlawfully withholds from 
the plaintiff the possession thereof, to his damage any nominal sum the plaintiff 
shall think proper to state ; and the premises so claimed shall be described in such 
declaration with convenient certainty, so that, from such description, possession of 
the premises claimed, may be delivered. If such plaintiff claims any undivided 
share or interest in any premises, he shall state the same particularly in such 
declaration. 

Sec 8. If the action be brought for the recovery of dower, the declaration shall 
state that the plaintiff was possessed of the one undivided third part of the premises, 
as her reasonable dower, as widow of her husband, naming him. In every other 
case the plaintiff shall state whether he claims in fee, or whether he claims for his 
own life, or the life of another, or for a term of years, specifying such life or the 
duration of such term. 

Sec 9. In any case other than where the action shall be brought for the recov- 
ery of a dower, the declaration may contain several counts, and several parties may 
be named as plaintiffs jointly in one count, and separately in others. 

Sec 10. To such declaration there shall be subjoined a notice, in writing, by 
the plaintiff or his attorney, addressed to the defendant, and notifying him — ■ 

1st. That the said declaration will be filed on some day in the then next term of 
the court in which the action is brought, specifying such day; or, if the same be 
served during the term of any court, that it will be filed on some day in such term, 
specifying the same. 



206 EJECTMENT. 

2d. That, upon filing the same, a rule will be entered requiring such defen- 
dant to appear and plead to such declaration, within twenty days after the entry of 
such rule; and, 

3d. That, if he neglect so to appear and plead, a judgment by default will be 
entered against him, and the plaintiff will recover possession of the premises. 

Sec. 11. If the premises are actually occupied, the declaration shall be served 
by delivering a copy thereof, with the notice above prescribed, to the defendant 
named therein who shall be in the occupancy thereof, or by leaving the same with 
some white person of the family, of the age of ten years or upwards, at the dwelling 
house of such defendant, if he be absent. 

Sec 12. If the premises claimed are not actually occupied, the declaration and 
notice shall be served on the defendant named therein, or, if he can not be found, by 
leaving the same with some white person, of the age of ten years or upwards, at the 
residence of the defendant ; but where the declaration shall have been served in any 
other manner than upon the defendant personally, no rule to plead shall be entered 
without the special order of the court. 

Sec. 13. Instead of the rule to appear and enter into the consent rule as here- 
tofore accustomed, the plaintiff, on the day specified for that purpose in the notice 
aforesaid, or on some day thereafter, upon filing the declaration with an affidavit of 
the service of a copy thereof, and of the notice hereinbefore required, shall be enti- 
tled to enter a rule requiring the defendant to appear and plead within twenty days 
after the entering of such rule ; and in case the defendant shall neglect so to appear 
and plead within such time, his default shall be entered. 

Sec 14. A defendant in ejectment may, at any time before pleading, apply to 
the court, or to any judge thereof in vacation, to compel the attorney for the plain- 
tiff to produce to such court or officer, his authority for commencing the action in 
the name of any plaintiff therein. Such application shall be accompanied by an affi- 
davit of the defendant, that he has not been served with proof, in any way, of the 
authority of the attorney to use the name of the plaintiff stated in the declaration. 

Sec 15. Upon such application, the court or officer shall grant an order requi- 
ring the production of such authority, and shall stay all proceedings in the action 
until the same shall be produced. Any written request of such plaintiff or his 
agent to commence such action, or any written recognition of the authority of the 
attorney to commence the same, duly proved by the affidavit of such attorney, or 
other competent witness, shall be sufficient presumptive evidence of such authority. 
Sec 16. If it shall appear that, previous to such application by any defendant, 
he was served with a copy of the affidavit of the plaintiff's attorney, showing his 
authority to bring such action, such application shall be dismissed; and such defen- 
dant shall be liable for the costs of such application, the payment of which may be 
compelled by attachment as in other cases, which may be issued upon proof of diso- 
bedience to the order of the court or officer directing the payment of such costs. 

Sec 17. The defendant may demur to the declaration as in personal actions, or 
he shall plead the general issue only, which shall be that the defendant is not guilty 
of unlawfully withholding the premises claimed by the plaintiff, as alleged in the 
declaration ; and the filing of such plea or demurrer shall be deemed an appearance 
in the cause ; and upon such plea, the defendant may give the same matter in evi- 
dence, and the same proceedings shall be had, as upon the plea of not guilty in the 
present action of ejectment, except as herein otherwise provided. The defendant 
may likewise give in evidence any mattef, which if pleaded in the present writ of 
right, or action of dower, would bar the action of the plaintiff. 



EJECTMENT. 207 

Sec. 18. The consent rule heretofore used is hereby abolished. 

Sec. 19. It shall not be necessary for the plaintiff to prove an actual entry under 
title, nor the actual receipt of any of the profits of the premises demanded ; but it 
shall be sufficient for him to show a right to the possession of such premises at the 
time of the commencement of the suit, as heir, devisee, purchaser or otherwise. 

Sec 20. It shall not be necessary on the trial for the defendant to confess, nor 
for the plaintiff to prove lease, entry and ouster, or either of them, except as provi- 
ded in the next section; but this section shall not be construed to impair, nor in any 
way to affect any of the rules of evidence now in force in regard to the maintenance 
and defence of the action. 

Sec 21. If the action be brought by one or more tenants in common, or joint 
tenants against their co-tenants, the plaintiff, in addition to all other evidence which 
he may be bound to give, shall be required to prove, on the trial of the cause, that 
the defendant actually ousted such plaintiff, or did some other act amounting to a 
total denial of his right as such co-tenant. # 

Sec 22. If the action be brought against several defendants, and a joint posses- 
sion of all be proved, the plaintiff shall be entitled to a verdict against all, whether 
they shall have pleaded separately or jointly. 

Sec 23. When the action is against several defendants, if it appear on the 
trial, that any of them occupy distinct parcels in severalty or jointly, the plaintiff 
shall elect, at the trial, against which he will proceed ; which election shall be made 
before the testimony in the cause shall be deemed to be closed ; and a verdict shall 
thereupon be rendered for the defendants not so proceeded against. 

Sec 24. In the following cases the verdict shall be rendered as follows : 

1st. If it b*e shown on the trial, that all the plaintiffs have a right to recover the 
possession of the premises, the verdict in that respect shall be for the plaintiffs ge- 
nerally. 

2d. If it appear that one or more of the plaintiffs have a right to the possession 
of the premises, and that one or more have not such right, the verdict shall specify 
for which plaintiff the jury find, and as to which plaintiff they find for the defendant. 

3d. If the verdict be for any plaintiff, and there be several defendants, the verdict 
shall be rendered against such of them as were in possession of the premises, or as 
claimed title thereto at the commencement of the action. 

4th. If the verdict be for all the premises claimed, as specified in the declara- 
tion, it shall, in that respect, be for such premises generally. 

5th. If the verdict be for a part of the premises described in such declaration, 
the verdict shall particularly specify such part, as the same shall have been proved, 
with the same certainty hereinbefore required, in the description of the premises 
claimed. 

6th. If the verdict be for an undivided share or interest in the premises claim- 
ed, it shall specify such share or interest ; and if for an undivided share in a part 
of the premises claimed, it shall specify such share, and shall describe such part of 
the premises as hereinbefore required. 

7th. The verdict shall also specify the estate which shall have been established 
on the trial, by the plaintiff in whose favor it shall be rendered, whether such estate 
be in fee, for his own life, or for the life of another, stating such lives ; or whether 
it be for a term of years, and specifying the duration of such term. 

Sec 25. If the right or title of a plaintiff in ejectment expire after the com- 
mencement of the suit, but before trial, the verdict shall be returned according to 



20S EJECTMENT. 

the fact, and judgment shall be entered that he recover his damages by reason of 
the withholding of the premises by the defendant, to be assessed : and that as to 
the premises claimed, the defendant go thereof without day. 

Sec. 26. The action of ejectment shall not be abated by the death of any plain- 
tiff, or of one of several defendants, after issue and before verdict and judgment, 
but the same proceedings may be had as in other actions, to substitute the names of 
those who may succeed to the title of the plaintiff so dying ; in which case the is- 
sue shall be tried as between the original parties ; and in case of the death of a 
defendant, the cause shall proceed against the other defendants. 

Sec. 27. In cases where no other provision is made, the judgment in the action, 
if the plaintiff prevail, shall be, that the plaintiff recover the possession of the 
premises according to the verdict of the jury, if there was such verdict ; or, if the 
judgment be by default, according to the description thereof in the declaration, with 
costs to be taxed. 

Sec. 28. The plaintiff recovering^ judgment shall be entitled to a writ of pos- 
session, which shall be substantially in the following form : 
The People, &c, to the Sheriff, &c. : 

"Whereas, A. B. has lately, in the circuit court held in and for the county of 
by the judgment of the said court, recovered against C. D., one mes- 
suage, &c, (describing the premises recovered with the like certainty as above pro- 
vided,) which said premises have been and are still unjustly withheld from the said 
A. B. by the said C. D., whereof he is convicted, as appears to us of record ; and 
forasmuch as it is adjudged in the said court that the said A. B. have execution upon 
his said judgment against the said C. D., according to the force, form and effect of 
his said recovery : Therefore, we command you, that, without delay, you deliver 
to the said A. B. possession of the premises so recovered, with the appurtenances ; 
and that you certify to, &c, at, &c, on, &c, in what manner you shall have execu- 
ted this writ. (If there be costs to be collected, the proper clause may be here 
inserted, or a separate execution may be issued therefor.)" 

"Witness, &c." 

Sec. 29. Every judgment in the action of ejectment, rendered upon a verdict, 
shall be conclusive as to the title established, in such action, upon the party against 
whom the same is rendered, and against all persons claiming from, through or un- 
der such party, by title accruing after the commencement of such action, subject to 
the exceptions hereinafter named. 

Sec 30. The court in which such judgment shall be rendered, at any time 
within one year thereafter, upon the application of the party against whom the 
same was rendered, his heirs or assigns, and, upon the payment of all costs and 
damages recovered thereby, shall vacate such judgment, and grant a new trial in 
such cause ; and the court, upon subsequent application made within one year after 
the rendering of the second judgment in said cause, if satisfied that justice will 
thereby be promoted, and the rights of the parties more satisfactorily ascertained 
and established, may vacate the judgment, and grant another new trial; but no 
more than two new trials shall be granted under this section. 

Sec 31. Every judgment in ejectment, rendered by default, shall, from and 
after two years from the time of entering the same, be conclusive upon the defen- 
dant, and upon all persons claiming from or through him by title accruing after the 
commencement of the action ; but within two years after the entering of such judg- 
ment, on the application of the defendant, his heirs or assigns, and upon the payment 



EJECTMENT. 209 

of all costs and damages recovered thereby, the court may vacate such judgment and 
grant a new trial, if such court shall be satisfied that justice will be promoted, and 
the rights of the parties more satisfactorily ascertained and established. 

Sec 32. But if the defendant in such declaration, at the time of the entering of 
the judgment by default, be either, 1st, within the age of twenty-one years ; or, 2d, 
insane ; or, 3d, imprisoned on any criminal charge, or in execution upon seme 
conviction of a criminal offence for any term less than for life ; or, 4th, a married 
woman, the time during which such disability shall continue, shall not be deemed 
any portion of the said two years ; but any such person may bring an action for 
the recovery of such premises after that time, and within two years after such disa- 
bility shall be removed, but not after that period. 

Sec. 33. If the person entitled to commence such action shall die during the 
continuance of any disability specified in the preceding section, and no determination 
or judgment be had of or upon the title, right, or action so to him accrued, his heirs 
may commence such action after the time above limited for that purpose, and within 
two years after his death. 

Sec. 34. If the plaintiff shall have taken possession of the premises by virtue 
of any recovery in ejectment, such possession shall not in any way be affected by 
the vacating of any judgment as herein provided ; and if the defendant recover in 
any new trial hereby authorized, he shall be entitled to a writ of possession, in the 
same manner as if he were plaintiff. 

Sec 35. Upon any new trial granted as herein provided, the defendant may 
show any matters, in bar of a recovery, which he might show to entitle him to the 
possession of the premises if he were plaintiff in the action. 

Sec 36. The plaintiff recovering judgment in ejectment in any of the cases in 
which such action may be maintained, shall also be entitled to recover damages 
against the defendant for the rents and profits of the premises recovered. 

Sec 37. Instead of the action of trespass for mesne profits heretofore used, the 
plaintiff seeking to recover such damages, shall, within one year after the entering 
of the judgment, make and file a suggestion of such claim, which shall be entered, 
with the proceedings thereon, upon the record of such judgment, or be attached 
thereto, as a continuation of the same. 

Sec 38. Such suggestion shall be substantially in the same form as is now in 
use for a declaration in an action of assumpsit for the use and occupation, as near 
as may be ; and it shall be served on the defendant in the same manner hereinbe- 
fore prescribed respecting the service of a declaration in ejectment ; and the same 
rules of pleading thereto shall be observed as upon declarations in personal actions. 

Sec 39. The defendant may plead the general issue of non-assumpsit, and, 
under such plea, may give notice of, or may plead specially, any matter in bar of 
such claim, except such as were or might have been controverted in such action of 
ejectment; but he may plead or give notice of a recovery by such defendant, or any 
other person, of the same premises, or of part thereof, subsequent to the verdict 
in such action of ejectment, in bar or in mitigation of the damages claimed by the 
plaintiff. 

Sec 40. If any issue of fact be joined on such suggestion, it shall be tried as 
in other cases ; and if such issue be -found for the plaintiff, the same jury shall as- 
sess his damages to the amount of the mesne profits received by the defendant since 
he entered into possession of the premises, subject to the restrictions hereinafter 
contained. 

14 



210 EJECTMENT. 

Sec. 41. On the trial of such issue, the plaintiff shall be required to establish, 
and the defendant may controvert, the time when such defendant entered into the 
possession of the premises, the time during which he enjoyed the mesne profits 
thereof, and the value of such profits ; and the record of the recovery in the action 
of ejectment shall not be evidence of such time. On such trial, the defendant shall 
have the same right to set off any improvements made on the premises, to the 
amount of the plaintiff's claim, as is now or shall hereafter be allowed by law ; 
and in estimating the plaintiff's damages, the value of the use by the defendant of 
any improvements made by him shall not be allowed to the plaintiff. 

Sec. 42. If no issue of fact be joined on such suggestion, or if judgment there- 
on be rendered against the defendant by default, on demurrer or otherwise, a writ 
of inquiry, to assess the value of such mesne profits, shall be issued, of the execu- 
tion of which the same notice shall be given to the defendant, or his attorney, as in 
other cases. 

Sec. 43. Upon the execution of such writ, the plaintiff shall be required to es- 
tablish the same matters hereinbefore required in the case of an issue being joined, 
and the del'endant may in like manner controvert the same, and make any set-off 
to which he shall be entitled ; and the jury shall assess the damages in the same 
manner. The same proceedings shall be had on such writ, and it shall be returned 
as in other cases, with the inquisition taken thereon. Upon such inquisition, or 
upon the verdict of the jury in the case of the issue being joined, the court shall 
render judgment, as in actions of assumpsit, for use and occupation, which shall 
have the like effect in all respects. 

Sec 44. If the plaintiff in ejectment shall have died after issue joined or judg- 
ment therein, his personal representatives may enter a suggestion of such death, of 
the granting letters testamentary or of administration to them, and may suggest 
their claim to the mesne profits of the premises recovered, in the same manner, and 
with the like effect, as the deceased ; and the same proceedings in all respects shall 
be had thereon. 

Sec 45, If the action be brought to recover the dower of any widow, which 
shall not have been admeasured to her before the commencement of such action, 
instead of a writ of possession being issued, such plaintiff shall proceed to have 
her dower assigned to her in manner following: 

1. Upon the rendition of judgment, the court, upon the motion of the plaintiff, 
shall appoint three respectable and disinterested freeholders, commissioners for the 
purpose of setting off and allotting to the plaintiff her dower out of the lands de- 
scribed in the record; and the commissioners so appointed shall proceed in like 
manner, possess the like powers, and be subject to the like obligations and control, 
as commissioners appointed pursuant to law to make assignment of dower, and par- 
tition of real estate. 

2. Upon the approval of the report of the commissioners by the court, a writ of 
possession shall be issued to the sheriff of the proper county, describing the prem- 
ises assigned for the dower, and commanding the sheriff to put the plaintiff in pos- 
session thereof. 

Sec 46. The commissioners to be appointed under this chapter shall be allow- 
ed, as a compensation for their services, the sum of two dollars per day each, to be 
taxed as other costs. 

Sec 47. Every person who may hereafter be evicted from any land for which 
he can show a plain, clear and connected title in law or equity, deduced from the 



EJECTMENT. 211 

record of some public office, without actual notice of an adverse title in like man- 
ner derived from record, shall be exempt and free from all and every species of 
action, writ, or prosecution for, or on account of any rents or profits, or damages, 
which shall have been done, accrued or incurred at any time prior to receipt of 
actual notice of the adverse claim, by which the eviction may be effected, provided 
such person obtained peaceable possession of the land. 

Sec. 48. The court, who shall pronounce and give judgment of eviction, either 
in law or equity, shall, at the time nominate seven fit persons, any five of whom 
shall have power, and it shall be their duty to go on the premises, and after view- 
ing the same, on oath or affirmation, to assess the value of all such lasting and val- 
uable improvements which shall have been made thereon, prior to the receipt of 
such notice as aforesaid ; and also, to assess all damages the land may have sustain- 
ed by the commission of any kind of waste, or by deduction of soil by cultivation, 
or otherwise during the occupancy of the person evicted, and subtract the same 
from the estimated value of the said improvements, which assessment, signed and 
sealed by the persons making the same, shall be by them lodged with the clerk of 
the court wherein they were nominated, before the next ensuing term, or as soon 
thereafter as may be convenient ; and at the next court, after such assessment, it 
shall be entered up as a judgment in favor of the person evicted, and against the 
successful claimant of the land, by the clerk ; upon which judgment, execution shall 
immediately be issued by the clerk, if directed by the person evicted, unless the 
successful claimant shall give bond and security to be judged of by the court, to the 
person evicted, and to be taken at the time of entering up such judgment, condi- 
tioned to pay the same within twelve months from the date thereof, with five per 
cent, interest thereon : Provided, The balance shall ultimately be in favor of such 
occupying claimant, according to the directions and provisions of this chapter, which 
bond shall have the force of a judgment, and at the expiration of twelve months 
aforesaid, an execution shall be issued upon the same by the clerk of the court in 
which it was taken, at the request of the party entitled thereto, on oath being made 
that the same is yet due. Should the balance be in favor of the successful claim- 
ant, judgment in like manner shall be entered up in his favor, against the other 
party, for the amount of the same, upon which execution may be issued as afore- 
said, unless bond and security be given to such claimant, which may be acted upon 
in the manner before directed, and to declare what shall be the law between ad- 
verse claimants, under distinct titles of the kinds aforesaid after notice. 

Sec 49. The persons nominated by the court as aforesaid, when making an 
assessment, shall carefully distinguish between such improvements, as were made 
on the land prior to notice, and those which were made after notice ; and when 
making an assessment, they shall also take into consideration all such necessary and 
lasting improvements as shall have been made on the lands, after the receipt of 
such notice as aforesaid, and shall ascertain the amount of the value thereof; and 
they shall also take into consideration and ascertain the amount of the rent and 
profits arising from the whole of the improvements on the land from the time that 
notice of such adverse claim was received by such occupying claimant, and then 
after taking the amount of one from the other, the balance shall be added or sub- 
tracted from the amount of the value of the improvements which shall have been 
made before the receipt of the notice aforesaid, as the nature of the case shall 
require. 



212 EJECTMENT. 

Sec 50. The commissioners shall also estimate the value of the lands in dispute, 
exclusive of any improvements that shall have been made thereon, and make report 
of the amount of such valuation to the court, and if the value of the improvements 
shall exceed such estimated value of the land in dispute, in that case it shall and 
may be lawful for the proprietor of the better title, to transfer or convey, as the 
nature of the case may require, his better title to the occupying claimant, and there- 
upon judgment shall be entered up in his favor, against the occupying claimant, for 
such estimated value, upon which an execution may issue, unless the occupying 
claimant shall give bond and security to he approved by the court, to pay the 
amount of such judgment, within one year after the person transferring or convey- 
ino- as aforesaid, with interest from the date, which bond shall have the force of a 
judgment, and if not paid at the expiration of the year, an execution may issue, in 
the manner before directed by this chapter: Provided, That the proprietor of the 
better title shall, in every such case, at the time of entering up judgment in his 
favor, give bond and security to be approved by the court, to the occupying 
claimant, to refund the amount of such judgment, in case the land so transferred or 
conveyed, shall ever thereafter be taken from him by any other prior or better 
claim. 

Sec 51. The persons nominated by the court, by virtue of this chapter, shall 
be called commissioners, and shall respectively take an oath or affirmation to do 
equal right to the parties in controversy ; and shall also have power and authority 
to call witnesses, and administer the necessary oaths, and to examine them for the 
ascertainment of any fact material in the inquiry and assessment by this chapter 
directed. 

Sec 52. The said commissioners in making every estimate of value by virtue 
of this chapter, shall state separately the result of each, and the court shall have 
power to make such allowance to the said commissioners in any case, as shall seem 
just, which allowance shall be taxed and collected as costs : Provided, That this 
chapter shall not be extended to affect or impair the obligation of contracts, or to 
authorize the occupying claimant to be twice paid for his improvements ; and in all 
cases where the occupying claimant is paid for his improvements by any other per- 
son than the proprietor of the better title, such person shall have the same redress 
as is allowed to the occupying claimant. 

Sec 53. The court shall have the same power to proceed by appointing com- 
missioners to assess the value of improvements, and the damages by the commission 
of any kind of waste, by reduction of soil, by cultivation or otherwise, during the 
occupancy of the person evicted in case of arbitration, or by consent of the par- 
ties, on motion without suit. 

Sec 54. Notice of any adverse claim or title to the land within the meaning 
of this chapter, shall have been given by bringing a suit either in law or equity, 
for the same, by the one or other of the parties, and may hereafter be given by 
bringing a suit as aforesaid, or by delivering an attested copy of the erjtry, survey 
or patent, from which he derives his title or claim, or leaving any such copy with 
the party, his wife, or other free person above the age of sixteen years, on the 
plantation : Provided, however, That notice given by the delivery of an attested copy 
as aforesaid, shall be void, unless suit is brought within one year thereafter: Pro- 
vided, That in no case shall the proprietor of the better title be obliged to pay to the 
occupying claimant for improvements made after notice, more than what is equal to 
the rents and profits aforesaid. 



ELECTIONS. 



213 



Sec. 55. Notice to any occupying claimant shall bind all those claiming from, 
by or through such occupying claimant, to the extent of such claim. 

Sec 56. Nothing herein contained shall be construed so as to prevent any court 
from issuing a precept to stay waste, and ruling the party to give bond and security 
in such manner as such court may think right. 

Sec. 57. In all cases in which any person has heretofore entered upon and 
occupied, or shall hereafter enter upon and occupy, any lands, tenements or heredit- 
aments within this State, by virtue of any lease or permit, from the United States 
or this State, such person, his, her or their heirs or assigns, may have and maintain 
an action of ejectment against any person who has or may enter upon such lands, 
tenements or hereditaments, without the consent of such lessee, his, her or their 
heirs or assigns; and proof of the right of possession shall be sufficient to authorize 
a recovery. ' 

Approved: March 3, 1845. 



CHAPTER XXXVII. 

ELECTIONS. 



Section 

1. Electors of Presilent and Vice President, when 

to he voted for, and number of; and election, 
how conducted, and returns made. 

2. Abstract of votes for electors to be transmitted 

to Governor, &.c, who, with secretary of State, 
auditor ana treasurer shall open and canvass 
returns, and declare who are elected; and in 
case of tie, proceedings thereon. 

3. Result to be published, and certificates trans- 

mitted to persons elected. 

4. Electors, when and where shall meet, and their 

compensation. 

5. Vacancy in electoral college, how filled. 

6. General elections, when held. 

7. Precincts, how formed; and judges, how ap- 

pointed. 

8. Judges, when shall be appointed, and number for 

each precinct. 
8. Clerks of elections, how chosen, and tenure of 

judges and clerks. 
10. Clerks of county commissioners' courts to issue 

notices of election, and form thereof. 
IT. Vacancy in office of judge, how filled. 

12. Qath of judges and clerks. 

13. Judges may administer oaths in certain cases. 

14. Polls, time of opening and closing. 

15. Manner of voting. 

16. Where electors may vote. 

17. Penalty for voting more than once at the same 

election. 

18. Voters, qualifications of. 

19. Oath of voter shall entitle him to vote, unless 

proved false. 

20. Penalty for illegal voting. 

21. Order at the polls, how preserved, and penalty 

for violation. 

22. County commissioners may appoint constable 

to preserve order. 



Section 

23. Poll books, how made out, and form thereof. 

24. Disposition of poll books, and penalty for neg- 

lect of duty. 

25. Abstract of votes, how made, and clerk to give 

certificate of election. 

26. When two or more counties are in one district, 

votes to be compared in senior county ; clerks 
to give certificate of election ; and expenses 
of election, how paid. 

27. Compensation of judges and clerks, how made 

out and paid. 

28. Tie, in case of, how decided. 

29. Abstract of votes, copy of, to be sent to secre- 

tary of State. 

Representatives to Congress, votes for, by whom 
canvassed, and Governor to give certificate of 
election. In case of tie, to be decided by lot. 

When returns not received by secretary of State, 
messenger to be sent, and compensation there- 
for. 

32. Vacancy in office of senator or representative, 

how filled. 

33. When vacancy occurs during session of the le- 

gislature, what notice may be given. 

34. Governor, vacancy in office of, how and when 

filled. 

35. Sheriff or coroner, office of, when vacant, Gov- 

ernor to issue writ of election. 

36. Representative to Congress, office of, when va- 

cant, Governor to appoint day of election. 

37. Judges and clerks of election, violation of duty 

of, how punished. 

38. Voter swearing falsely, judges may refuse vote, 

and penalty for receiving vote without oath, 
when challenged. 

39. Penalty for judge refusing to receive vote of le- 

gal voter, when ottered under provisions of 
eighteenth section. 



30. 



31. 



214 



ELECTIONS. 



Section 

40. Penalty for clerk neglecting or refusing to per- 

form duty. 

41. Poll book, for injuring or destroying, how pun- 

ished. 

42. When election contested, how decided. 

43. Contested election, duty of defendant and jus- 

tices of the peace. 

44. Justices may subpoena witnesses, and penalty of 

witness for non-attendance. 

45. Attachments may issue against witnesses, and 

justices shall take their testimony. 
4G. Penalty for justice refusing to act. 



Section 

47. Duty of justices further defined. 

48. Testimony of contesting party must relate to 

points specified in notice ; power of justices. 

49. Costs of contest for county officers to be paid 

by unsuccessful party ; appeal allowed. 

50. Proceedings in contested elections further de- 

fined. 

51. Elections by General Assembly, how conducted. 

52. Betting, penalty therefor. 

53. Money, property or thing wagered not necessary 

to be put up to constitute olience, as defined 
in this chapter. 



Section 1. There shall be elected by general ticket, on the first Monday of 
November, preceding the expiration of the term of each President of the United 
States, as many electors of President and Vice President of the United States, as 
this State may be entitled to elect, which election shall be conducted and returns 
thereof made as hereinafter provided : Provided, That should Congress have fixed 
a different day, or shall hereafter fix a different day for such election, then the 
election for electors shall be held on such day fixed or to be fixed by act of 
Congress. 

Sec. 2. The clerks of the several county commissioners' courts, shall, within 
eight days next after holding an election for electors as is provided for in this chap- 
ter, make three copies of the abstract of votes for electors, and transmit by mail one 
of said copies to the Governor or person administering the government, another to 
the office of the secretary of State, and retain the third in his office, to be sent for 
by the Governor, in case both the others should be mislaid. Within twenty days after 
the holding of such election, and sooner if all the returns are received by either the 
Governor or person administering the government, or by the secretary of State, the 
secretary of State, auditor of public accounts and treasurer, or any two of them, shall, 
in the presence of the Governor or person administering the government, proceed to 
open and canvass said election returns, and to declare the persons having the highest 
number of votes elected; but should any two or more persons be returned with an 
equal and the highest vote, the said secretary of State shall cause a notice of the 
same to be published in the paper printed by the public printer, which notice shall 
name some day and place, not less than five days from the time of the publication of 
such notice, upon which the said secretary, auditor and treasurer, will decide by 
lot which of said persons so equal and highest are elected ; and upon the day and 
at the place so appointed in said notice, the said secretary, auditor and treasurer, or 
any two of them, shall, in the presence of the Governor or person administering the 
o-overnment, decide by lot which of the persons so equal and highest shall be 
elected. 

Sec 3. The Governor or person administering the government, shall cause 
the result of the said election to be published in the paper printed by the public 
printer, and shall transmit by mail to the persons elected, certificates of their 
election. 

Sec 4. The electors chosen as aforesaid, shall meet at the seat of government 
of this State, at the time appointed by the laws of the United States, and give their 
votes in the manner therein provided, and perform such duties as are or may be 
required by law. Each elector shall receive for every twenty miles necessary 
travel in going to the seat of government to give his vote, and in returning to his 
re.-idence, to be computed by the most usual route, the sum of three dollars, to be 
paid on the warrant of the auditor, out of any money in the treasury, not otherwise 
appropriated. 



ELECTIONS. 215 

Sec 5. In case any person, declared duly elected an elector of President and 
Vice President of the United States, shall fail to attend at the state house, at the 
seat of government of this State, at or before the hour of twelve o'clock at noon, of 
the day on which his vote is required to be given, it shall be the duty of the elector or 
electors of President and Vice President, attending at that time and place, to appoint 
a person or persons to fill such vacancy : Provided, That should the person or 
persons, chosen by the people as aforesaid, arrive at the place aforesaid, before the 
votes for President and Vice President are actually given, the person or persons 
appointed to fill such vacancy, shall not act as elector of President and Vice 
President. 

Sec. fa*. All general elections for the election of Governor, Lieutenant Governor, 
representatives to Congress, senators and representatives to the General Assem- 
bly, and county officers, shall be held on the first Monday of August, in each year 
in which the said officers are hereinafter directed to be chosen ; which elections 
shall be conducted as hereinafter prescribed. 

Sec 7. The county commissioners' courts of the several counties in this State, are 
hereby authorized to divide their respective counties into as many election precincts, 
for all general and special elections, as they may think expedient for the convenience 
of the voters of said county, and to appoint as many sets of judges of elections, to 
receive votes at the county seats, as they may think necessary ; and shall designate 
the house or place in each precinct, and in the precinct including the county seat, 
the house or houses, place or places, at which elections are to be holden ; and the 
precincts and places of holding elections, so established, shall so remain until 
changed by the county commissioners' court : And all general and special elections 
shall be held at the places so designated, until changed as aforesaid : Provided, 
always, That it shall be the duty of the county commissioners' court at any time, to 
change any place of holding elections, upon a petition of a majority of voters resi- 
ding within the precinct. 

Sec 8. The said county commissioners' courts shall, respectively, at the last 
stated term preceding any election, appoint three capable and discreet persons, pos- 
sessing the qualifications of electors, to act as judges of the election in each election 
precinct ; and the clerk of the said court shall make out and deliver to the sheriff 
of the county, immediately after the appointment of said judges, a notice thereof in 
writing, directed to the judges so appointed; and it shall be the duty of the said 
sheriff, within twenty days after the receipt of said notice, to serve said notice upon 
each of the said judges of election. 

Sec 9. The said judges of the election shall choose two persons, having similar 
qualifications with themselves, to act as clerks of the election. The said judges 
of the election shall be and continue judges of all elections of civil officers to be 
held within their precinct, until other judges shall be appointed as hereinbefore di- 
rected ; and the said clerks of election may continue to act as such during the plea- 
sure of the judges of the election. And the county commissioners' courts shall, 
from time to time, fill all vacancies which may take place in the office of judge of 
the election, in any election precinct within their respective counties. 

Sec 10. The clerks of the several county commissioners' courts shall, at least 
thirty days previous to any general election, and at least twenty days previous to 
any special election, make out and deliver to the sheriff of his county, three written 
notices thereof for each precinct, said notices to be, as nearly as circumstances will 
admit, as follows, to-wit: " Notice is hereby given, that on Monday, the day 



216 ELECTIONS. 

of next, at the house of in precinct, in the county of an 

election will be held for Governor, one Lieutenant Governor, one representative to 
the Congress of the United States, one senator, three representatives in the General 
Assembly of this Stale, one sheriff, one coroner, three county commissioners, &c, 
(as the case may require,) which election will be opened at eight o'clock in the 
morning, and will continue open until six o'clock in the afternoon of the same day. 
Dated at this day of in the year of our Lord one thousand eight 

hundred and A. B., 

clerk of the county commissioners' court of countv." 

And the said sheriff to whom such notices shall be delivered as aforesaid, shall post 
up in three of the most public places in each precinct, the three notices referring to 
such precinct, at least fifteen days before the time of holding any general election, 
and at least eight days before the time of holding any special election. 

Sec. 11. If any person appointed to act as a judge of the election as aforesaid, 
shall neglect or refuse to be sworn or affirmed to act in such capacity, the place of 
such person shall be filled by any justice of. the peace, residing within the precinct, 
to be nominated by the other judge or judges of the election; and if there be no 
other justice present to act as judge, the other judge or judges of the election shall 
nominate one or more capable and. discreet elector or electors, residing within the 
precinct, to fill such vacancy or vacancies ; and if there be no judge of the election 
present to fill such vacancy or vacancies by nomination, then such vacancy or vacan- 
cies shall be filled by the votes of such qualified electors, residing within the pre- 
cinct, as may then be present at the place of election; and the justice or justices, 
person or persons, so elected or nominated to fill such vacancy or vacancies, shall 
be, and are hereby vested with the same power as if appointed by the county com- 
missioners' court. 

Sec 12. Previous to any votes being taken, the judges and clerks of the elec- 
tion shall severally take an oath or affirmation, in the following form, to-wit : "■ I, 
A. B., do solemnly swear, (or affirm, as the case may be,) that I will perform the 
duties of judge, (or clerk, as the case may be,) according to law and the best of rat- 
ability; that I will studiously endeavor to prevent fraud, deceit and abuse, in con- 
ducting the same." 

Sec 13. In case there shall be no judge or justice of the peace present at the 
opening of the election, or in case such judge or justice shall be appointed a judge 
or clerk of the election, it shall be lawful for the judges of the election, and they are 
hereby empowered to administer the oaths or affirmations to each other, and to the 
clerks of the election ; and the person administering such oaths or affirmations, shall 
cause an entry thereof to be made and subscribed by him, and prefixed to the poll- 
books. 

Sec 14. At all elections to be held under this chapter, the polls shall be opened 
at the hour of eight in the morning, and continue open until six o'clock in the after- 
noon of the same day, at which time the polls shall be closed : Provided, however, 
That if no judge shall attend at the hour of eight in the morning, and it shall be 
necessary for the electors present to appoint judges to conduct the election, as here- 
inbefore prescribed, the election may, in that case, commence at any hour before the 
time for closing the polls shall arrive, as the case may require : And, provided also, 
That the judges of the election may, if they shall deem it necessary, for the pur- 
pose of receiving the votes of all the electors wishing to vote, postpone the closing 
of the polls until twelve o'clock at night. And upon opening the polls, one of the 



ELECTIONS. 217 

clerks, under the direction of the judges, shall make proclamation of the same, and 
thirty minutes before the closing of the polls, proclamation shall be made in like 
manner that the polls will be closed in half an hour. 

Sec 15. Electors shall vote, by first announcing their own names to the judges 
and clerks of the election, and then the names of the persons for whom they wish 
to vote ; and the clerk shall enter their names and votes accordingly : Provided, 
That a voter may vote by presenting an open ticket to the judges, containing the 
names of the persons for whom he votes, and the offices ; and the said judges shall 
read the same to the voter, and the clerks, with the assent of the voter, set the 
same down in their books, as in other cases. 

Sec. 16. It shall be lawful for any elector to vote for Governor, Lieutenant Go- 
vernor and electors of President and Vice President of the United States, at any 
place of holding an election within' this State ; for representative to Congress, e.t any 
place of holding an election within the congressional district in which such elector 
resides ; for senator and representatives to the General Assembly, at any place of 
holding an election within the senatorial or representative district in which he resides ; 
for sheriff, coroner and county commissioners, at any place of holding an election 
in the county in which he resides : But for justices of the peace and constables, 
he shall not vote out of the precinct in which he resides. 

Sec 17. If any elector shall vote more than once at any election held under the 
authority of (his chapter, he shall be fined, in the sum of one hundred dollars, to be 
recovered by indictment before any court of competent jurisdiction; and the whole 
of such fine shall be appropriated to the use of the county in which the offence may 
have been committed. 

Sec 18. At any and all elections held in this State, all white male inhabitants 
above the age of twenty-one years, and having resided in the State six months next 
preceding such election, shall enjoy the right of an elector, whether such elector 
has been naturalized or not : Provided, That when any such person shall present 
himself to give his vote, and either of the judges shall suspect that such person 
does not possess the aforesaid qualification of age and residence, or either, or if his 
vote shall be challerged by any elector who has previously voted at such election, 
the judges of the election shall tender to such person the oath or affirmation in the 
following form: "I, A. B., do solemnly swear, (or affirm, as the case may be,) 
that I am a resident of the county of , in the State of Illinois, that I have resi- 

ded in this State for the period of six months immediately preceding this election, 
that I have, to the best of my knowledge and belief, attained to the age of twenty- 
one years, and that I have not voted at this election." 

Sec 19. If any person so offering his vote at such election, shall take such oath 
or affirmation, or shall offer to take such oath or affirmation, as prescribed in the 
preceding section, his vote shall be received, unless it shall be proved by evidence 
satisfactory to a majority of the judges that such oath or affirmation is false; and if 
such person shall refuse to take such oath or affirmation, his vote shall be rejected ; 
and if any person shall take the oath or affirmation as is before named, knowing such 
oath or affirmation to be false, he shall be deemed guilty of wilful and corrupt per- 
jury, and punished accordingly. 

Sec 20. If any person shall vote at any election, who is not a qualified voter, 
he shall forfeit and pay any sum not exceeding fifty dollars, nor less than twenty- 
five, to be recovered in the same manner as other penalties under this chapter. 



218 ELECTIONS. 

Sec 21. For the preservation of order, as well as the security of the judges 
and clerks of the election from insult and abuse, it shall be the duty of any consta- 
ble or constables residing within the precinct, who shall be designated for the purpose, 
by the judges of the election, to attend at all elections within such precinct; and 
should no constable attend at such election, the judges of election are hereby authori- 
zed and empowered to appoint one or more special constables to assist in preserving 
order during the election : and the judges are hereby empowered to impose a fine, not 
exceeding twenty dollars, on any person or persons who shall conduct in a diso: - - 
derly and riotous manner, and persist in such conduct after having been warned of 
its consequences ; and on refusal to pay the same, to commit him or them to the 
common jail of the county, for any time, not exceeding twenty days, or until the fine 
shall be paid; and the constable to whom the order shall be directed, and the jailer 
of the county, are hereby required to execute such order, and receive such person 
or persons so committed, as though it had been issued or delivered by a magistrate 
in due form of law. 

Sec 22. The county commissioners' court in each county, may, if necessary, 
appoint some constable to attend each precinct, and {'reserve order during said elec- 
tion ; and the said constable shall have authority to call to his aid a sufficient num- 
ber of citizens to suppress any riot or other disorderly conduct during said election, 
and there shall be paid to said constable out of the county treasury, a sum not ex- 
ceeding one dollar a day for said services. 

Sec 23. When the votes shall have been examined and counted, the clerks 
shall set down in their poll books, the name of every person voted for, written at 
full length, the office for which such person received such vote or votes, and the 
number he did receive, the number being expressed in words at full length ; such 
entry to be made as nearly as circumstances will admit, in the following form, to- 
wit : " At an election held at the house of in precinct, in the county of 

and State of Illinois, on the day of in the year of our Lord one thousand 

eight hundred and , the following named persons received the number of votes 
annexed to their respective names, for the following described offices, to-wit : 
A B had fifty-three votes for Governor. 
C D had fifty-one votes for Governor. 
E F had sixty-two votes for Lieutenant Governor. 
G H had sixty votes for Lieutenant Governor. 
I K had eighty votes for representative in Congress. 
L M.had seventy -three votes for senator. 
N O had sixty-five votes for representative. 
P Q had fifty-nine votes for representative. 
R S had fifty-seven votes for sheriff. 
T U had twenty-two votes for coroner. 
V W had thirty votes for county commissioner : 
(and in the same manner for any other persons or officers, voted for.) 
" Certified by us, 

A B, 1 

C D, s Judges of the election. 

E F, ) 

Attest : G H, ) " . . .. . ,. . „ 

t j > Clerks oi the election. 

Sec 24. The judges of the election shall then inclose and seal one of the poll 
books, under cover, directed to the clerk of the county commissioners' court of the 



ELECTIONS. 219 

county in which such election is held ; and the packet thus sealed, shall be convey- 
ed by one of the judges or clerks of the election, to be determined by lot if they 
can not otherwise agree, and delivered to the said clerk of the county commission- 
ers' court at his office, within four days from the close of the polls ; and the other 
poll book shall be deposited with one of the judges of the election, to be deter- 
mined as aforesaid ; and the poll book shall be subject to the inspection of any. 
elector who may wish to examine it. And if any judge or clerk of an election, 
after having been deputed by the judges of the election at which he shall have 
served as judge or clerk, to carry the poll book of such election to the clerk of the 
county commissioners' court of the county, shall fail or neglect to deliver such poll 
book to the said clerk within the time prescribed by law, safe, with the seal un- 
broken, he shall, for every such offence, forfeit and pay the sum of five hundred 
dollars for the use of the county, to be recovered in the name of the commissioners 
of the county, by an action of debt in the circuit court. 

Sec. 25. On the seventh day after the close of the election, or sooner, if all 
the returns be received, the clerk of the county commissioners' court, taking to 
his assistance two justices of the peace of his county, shall proceed to open the 
said returns, and make abstracts of the votes in the following manner: the abstract 
of the votes for Governor and Lieutenant Governor shall be on one sheet, and the 
abstract of votes for representatives to Congress shall be on another sheet, and the 
abstract of votes for senator and representatives to the General Assembly shall be 
on another sheet, and the abstract of votes for county officers shall be on another 
sheet ; or if the election shall have been holden for Presidential electors, the ab- 
stract of votes shall be on one sheet j and it shall be the duty of the said clerk of 
the county commissioners' court, immediately to make out a certificate of election 
to each of the persons having the highest number of votes for senator and repre- 
sentatives to the General Assembly, and county officers, respectively, and to de- 
liver such certificate to the person entitled to it, on his making application for that 
purpose to the clerk at his office. 

Sec 26. But where two or more counties are united in one senatorial or rep- 
resentative district, the clerk of the county commissioners' court of the county last 
established, shall, within twelve days after the day of the election, attend at the office 
of the clerk of the county commissioners' court of the senior county, and there, in 
conjunction with the clerk or clerks of the senior county or counties, shall com- 
pare the votes given in the several counties composing such senatorial or represen- 
tative district; and said clerks shall immediately make out a certificate of the elec- 
tion of the person or persons having the highest number of votes in such coun- 
ties for senator or representative to the General Assembly : which certificate shall 
be delivered to the person entitled to it, on his application to the clerk of the 
county commissioners' court of the senior county, at his office ; and it shall be the 
duty of the county commissioners' court of the county where the polls are so 
compared, to compute the number of miles each clerk or other person shall travel 
in going and returning from the county where he is so appointed, to the place of 
comparing the polls ; and it shall be the duty of the county commissioners' court, 
where the polls are so compared, to make an allowance to said clerks or other 
persons who may take the vote of each county as aforesaid, a compensation, not 
exceeding six cents per mile, going to and returning from said place of comparing, 
to be paid equally out of the county treasuries of the respective counties in which 
said clerk or other person may be appointed ; and it shall be the further duty of the 



220 ELECTIONS. 

county commissioners' courts when the polls are so compared, to make an estimate of 
all the expense so incurred by the counties respectively voting together, and divide 
the same among said counties so voting, respectively, and shall give to each clerk or 
other person a certified statement of the same, under the seal of said court ; and it 
shall be the duty of the county commissioners' court of the county where said 
elerk or other person shall be appointed, on the production of said certified state- 
ment, to pay to said clerk or other person the amount which appears to be due him 
out of the county treasury. 

Sec. 27. It shall be the duty of the clerk of the county commissioners' 
court in each county, on the receipt of the election returns of any general or special 
election, to make out his certificate, stating therein the compensation to which the 
judges and clerks of each election may be entitled for their services, and lay the 
same before the next commissioners' court of the county ; and the said court shall 
order the compensation aforesaid to be paid out of the county treasury. 

Sec 28. If the requisite number of senators or representatives, or county 
officers, shall not be elected by reason of any two or more persons having an equal 
and the highest number of votes for one and the same office, the clerk or clerks 
whose duty it is to compare the polls, shall give notice to the several persons so 
having the highest and an equal number of votes, to attend at the office of the proper 
clerk, at a time to be appointed by the said clerk or cleiks, who shall then and 
there proceed publicly, to decide by lot, which of the persons so having an equal 
number of votes shall be declared duly elected ; and the said clerk or clerks shall 
make out and deliver to the person thus declared duly elected, a certificate of his 
election as herein before provided. 

Sec. 29. The clerk of the county commissioners' court, immediately after making 
out abstracts of votes given in his county, shall make a copy of each of said 
abstracts, and transmit it by mail to the office of the secretary of State ; the abstract 
of votes for Governor and Lieutenant Governor being addressed to the speaker of 
the house of representatives, and inclosed with the other abstracts to the secretary's 
office as aforesaid; and it shall be the duty of the secretary of State, at the opening 
of the succeeding session of the General Assembly, to deliver all such abstracts of 
votes for Governor and Lieutenant Governor, or for either of them, to the speaker 
of the house of representatives. 

Sec 30. The secretary of State, auditor, treasurer and attorney general, or any 
two of them, in the presence of the Governor, shall proceed, within fifty days after 
the election, and sooner if all the returns be received, to canvass the votes given 
for representatives to Congress ; and the Governor shall grant a certificate of elec- 
tion to the person or persons having the highest number of votes, and shall also 
issue a proclamation, declaring the election of such person or persons. In case 
there shall be no choice, by reason of any two or more persons having an equal 
number of votes, the election shall be determined by lot, under the direction of the 
Governor, in the manner prescribed in the twenty-eighth section of this chapter. 

Sec 31. If the returns of the election of any county in this State, shall not be 
received at the office of the secretary of State, within thirty days alter the day of 
election, the said secretary shall forthwith send a messenger to the clerk of the 
county commissioners' court of such county, whose duty it shall be to furnish the 
said messenger with a copy of such returns ; and the said messenger shall be paid 
out of the State treasury the sum of ten cents for each mile he shall necessarily 
travel in going to, and returning from the office of the said clerk. 



ELECTIONS. 221 

Sec. 32. When any vacancy shall happen in the office of senator or represen- 
tative to the General Assembly, by death, removal or otherwise, it shall be the 
duty of the clerk of the county commissioners' court of the county, if one county 
only compose the senatorial or representative district, as soon as he shall have been 
informed thereof, to notify the Governor of such vacancy, and if there be more than 
one county comprised within the limits of such senatorial or representative district, 
it shall be the duty of the clerk of the county commissioners' court of the senior 
county in such district, so to notify the Governor, and the Governor shall issue a 
writ of election, directed to the sheriif of the county in which such vacancy shall 
happen, commanding him to notify the several judges of election in his county, to 
hold a special election to fill such vacancy or vacancies, at a time to be appointed by 
the Governor : Provided, That if there is to be no session of the General Assembly 
between the happening of such vacancy and the time of the general election, it 
shall not be necessary to order a special election to fill such vacancy. 

Sec. 33. Elections to fill vacancies in either branch of the General Assembly, 
occuring during the sessions of the Legislature, may be held on such notice, not less 
than five nor more than twenty days, as the Governor may direct in the writ of 
election issued to fill such vacancy. 

Sec 34. If any vacancy shall happen in the office of Governor by death, resig- 
nation, removal from office, or refusal by the Governor elect to take the requisite 
oath of office, it shall be the duty of the secretary of State to notify the clerks of 
the county commissioners' courts of the several counties in this State, that at the 
next succeeding general election of members of the General Assembly, or electors of 
President and Vice President, (as the case may be,) an election will be held to fill 
such vacancy : Provided, however, That the secretary shall not give such notice, 
nor shall such special election of Governor take place unless the vacancy shall have 
happened at least forty days previous to such general election for members of the 
General Assembly, or of electors of President and Vice President of the United 
States, nor unless a regular session of the General Assembly shall intervene be- 
tween the time when such vacancy shall have happened and the succeeding quad- 
rennial election of Governor. 

Sec. 35. When any vacancy shall happen in the office of sheriff or coroner, 
either by death, resignation or otherwise, the clerk of the county commissioners* 
court in which such vacancy shall happen, shall immediately notify the Gover- 
nor of such vacancy ; and it shall be the duty of the Governor to issue a writ of 
election, and* direct the time when such election shall be held, the said writ to be 
directed to the said clerk. 

Sec 36. When any vacancy shall happen in the office of representative to Con- 
gress from this State, it shall be the duty of the Governor to issue his proclamation, 
appointing a day to hold a special election to fill such vacancy. 

Sec 37. If any judge of the election, or clerk, or any other officer or person 
in any manner concerned in conducting the election, shall wilfully neglect, impro- 
perly delay or refuse to perform any of the duties required by this chapter, after 
having undertaken to perform such duties, he shall forfeit and pay to the State the 
sum of forty dollars ; and if any such judge of the election, clerk or other officer 
or person, in anywise concerned in conducting the election, shall knowingly admit 
any person to vote, not qualified according to law, or shall knowingly receive and 
count more than one vote from one person, at the same election for one office, or 
shall be guilty of fraud, corruption or partiality, or manifest misbehavior, in any 



222 ELECTIONS. 

matter or thing relating to said election, each and every person so offending shall 
forfeit and pay to the county the sum of one hundred dollars, to be recovered in 
any court of record in the State, in the name of the State for the use of the county, 
in an action of debt, with costs of suit, or at the suit of any person who may sue 
for the same, one-half for the use of the person sueing and the other half for the 
use of the county ; and every such person so offending as aforesaid, shall moreover, 
on conviction, be rendered incapable of holding any office within this State for the 
term of ten years thereafter. 

Sec. 38. Nothing in this chapter shall be so construed, as to prevent the 
judges of election from refusing to receive the vote of any person when it shall be 
proved to the satisfaction of a majority of them, that in taking the said oath he shall 
have sworn falsely. And if any judge of election shall order to be received the 
vote of any person who, being challenged, shall not take the oath or affirmation pre- 
scribed by law, such judge of election, so offending, shall forfeit and pay the sum of 
fifty dollars, to be recovered by action of debt, in the name of the State, or of any 
person sueing therefor, the one-half of said fine for the use of the county, and the 
other half for the use of the person sueing. 

Sec. 39. If any judge or judges of election shall refuse to receive the vote of 
any such person so residing in this State, six months before election, and being at 
the time of offering his vote, twenty-one years of age, as stated in the eighteenth 
section of this chapter, and he shall comply or offer to comply with the eighteenth 
section of this chapter, then every judge, or the judges so refusing or neglecting 
to receive the vote of the person aforesaid, and to record it as a legal vote, shall be 
liable to be indicted, and on conviction, shall be fined five hundred dollars, and im- 
prisoned, not exceeding thirty days, in the county jail ; and such judge or judges 
may also be sued in an action on the case, by the person aforesaid, and upon proof 
of such refusal or neglect in said judge or judges to receive and record the vote of 
such person so offering to vote, damages may be recovered of such judge or judges, 
not exceeding five hundred dollars. 

Sec 40. If the clerk of the county commissioners' court shall neglect or re- 
fuse to. perform the duties as pointed out in this chapter, he shall be liable to be in- 
dicted, and on conviction shall be fined, in a sum not exceeding five hundred dollars, 
and imprisoned, not exceeding thirty days, and may be sued in an action of tres- 
pass on the case, for damages, not exceeding five hundred dollars, by the person 
injured by reason of the neglect or refusal of such clerk. 

Sec 41. If any person shall mutilate or erase any name or figure, or word, in 
a poll book taken or kept at any election, or if any person shall take away such 
poll book from the place where it has been deposited for safe keeping, with an in- 
tention of destroying the same, or to procure or prevent the election of any person, 
or if any person shall destroy any poll book so taken and kept at any election, he 
or she shall be liable to be indicted, and on conviction, shall be fined five hundred 
dollars, and imprisoned, not exceeding sixty days in the county jail. 

Sec 42. When any candidate shall desire to contest the validity of any election, 
or the right of any person declared duly elected, to hold the office to which such 
candidate claims the right, such candidate shall give notice of his intention in wri- 
ting, to the person whose election he intends to contest, or leave a notice thereof 
at his usual place of residence, within thirty days after the day of election, expres- 
sing the points on which the same will be contested, the name of one of the 
justices of the peace who will attend at the taking of the depositions, the place 



ELECTIONS. 223 

where, and the time when the said depositions will be taken ; which time so fixed 
upon for the taking of the depositions, shall not exceed sixty days from the day of 
election. 

Sec. 43. The party whose election is contested, may select another justice of 
the peace to attend at the trial. Should the party whose election is contested, refuse 
or neglect to select a justice as aforesaid, the justice chosen by the person contes- 
ting the election as aforesaid, shall make such selection for him. The two justices 
so selected or chosen, shall make choice of a third justice ; and if they can not 
agree upon a third justice to act with them, they shall make such selection by lot ; 
and the three justices thus selected, or either of them, shall have power, and they 
are hereby authorized and required, to issue subpoenas and such other process as 
may be necessary to secure the attendance at such trial, of all persons whose testi- 
mony may be required by either party, in the same manner as is provided in other 
cases of proceedings before justices of the peace. 

Sec. 44. The said justices, or any one of them, shall, in all such cases, have 
power to issue subpoenas for witnesses to any county in this State, directed to the 
sheriff of such county, who shall make service and return as in other cases. And 
any witness, duly subpoenaed, refusing or neglecting to appear and testify, shall, in 
addition to the penalties otherwise imposed by law, forfeit and pay a fine of fifty 
dollars, to be recovered by action of debt, in any court having cognizance thereof, 
one-half to the county, and one-half to the person sueing for the same. 

Sec 45. The said justices, or any one of them, may issue attachments for wit- 
nesses so neglecting or refusing to attend, who may be brought before them ; and 
at any time before the day for the decision of the question between the contesting 
parties, the said justices shall, at the request of either, after giving notice to the other 
party of five days, if resident in their county, or ten days, if residing out of their 
county, proceed to take the testimony of such witnesses, to be used in the case. 

Sec. 46. If any justice of the peace selected as aforesaid, to attend at the tak- 
ing of the depositions, shall, without reasonable excuse, fail or refuse to attend at 
the time and place appointed, after having undertaken to attend, he shall forfeit and 
pay a fine of fifty dollars, to be recovered by action of debt, in any court having 
cognizance thereof, one-half to the county, and the other half to the person who 
will sue for the same. 

Sec 47. The said justices shall hear and examine all the evidence offered on 
either side. If the contest be respecting any county office, they shall decide 
which of the said candidates shall have been duly elected, and certify the same to 
the clerk of the county commissioners' court of (he proper county, who shall there- 
upon make out and deliver to the successful party a certificate of his election. If 
such contest be respecting a seat in the Senate or House of Representatives of this 
State, the said justices shall hear and reduce to writing, all the testimony taken in 
the case, and certify and transmit the same under seal, together with all other pa- 
pers and documents pertaining to the case, to the speaker of the Senate or House 
of Representatives as the case may be. 

Sec 48. No testimony shall be heard by the said justices on the part of the 
person contesting the election, which does not relate to the points specified in the 
notice. Such justices shall have power to appoint a clerk, and may adjourn from 
day to day, until their duties shall be completed. They shall have the same power 
to preserve order, and to punish disorders and contempts, as justices of the peace 
may exercise, when holding court. 



224 ELECTIONS. 

Sec. 49. In all contests for county offices, in which the justices hearing the 
case, are authorized to decide, they shall enter judgment on the docket of the jus- 
tice last chosen, for all the costs of such contest, against the unsuccessful party, 
upon which execution may issue as in other cases. Either party may appeal from 
the decision of such justices to the circuit court as in other cases of appeal from the 
judgment of a justice of the peace, the decision of which court shall he final. 

Sec 50. In all contests other than for county offices, the proceedings for taking 
testimony hereinbefore provided, may be had in each county in which it is neces- 
sary to take testimony, and the like returns shall in each case be made. In those 
cases in which the justices examining, do not decide the contest, they shall not be 
compelled to certify or transmit the testimony and documents pertaining to the case, 
until the reasonable costs of the examination and of certifying the same, are tender- 
ed or paid ; and the party who is finally unsuccessful shall be liable for such costs, to 
the person who shall have paid the same. But if neither party shall require or 
cause such testimony and documents to be transmitted, then judgment may be en- 
tered and execution had, as before provided, against the party at whose instance 
sucli examination was instituted. 

Sec 51. In all elections by the General Assembly, or by either house thereof, 
(elections of justices of the supreme court, and judges of inferior courts except- 
ed,) the members shall vote viva voce, and their votes shall be entered upon the 
journals. Elections by joint vote of the two houses shall be made in the hall of 
the house of representatives, at such time as shall have been previously appointed 
by juint resolution of the two houses ; and at all such joint meetings, the speaker 
of the house of representatives shall preside. Elections of justices of the supreme 
court and judges of inferior courts shall be made by joint ballot of both houses, in 
the hall of the house of representatives, the speaker of which shall appoint a mem- 
ber of each house to act as tellers. No person shall be declared duly elected by 
the General Assembly, or either branch thereof, until he shall have received a ma- 
jority of all the votes given, blank votes included. 

Sec 52. If any person shall, at any time hereafter, bet or wager any money, 
property or other valuable thing, upon the result of any election which may be 
held under the constitution or laws of this State, or shall bet or wager money, 
property or other valuable thing, upon the number of votes which may be given 
to any one or more persons, at any election held as aforesaid, or upon who will re- 
ceive the greatest number of votes at any such election ; or if any person shall 
agree to pay to any other person, any money, property or other valuable thing, in 
the event that any election as aforesaid shall result in one way, or in the event that 
any one or more persons shall or shall not be elected, or shall receive a greater 
number of votes than others, such person shall be liable to indictment, and, upon 
conviction thereof, shall be fined, in any sum not exceeding one thousand dollars. 

Sec 53. It shall not be necessary to the commission of the offenee specified in 
the foregoing section, that the money, property or valuable thing, bet or wagered, 
shall be exhibited or staked at the time of making such bet or wager, or at any other 
time. 

Approved: March 3, 1845. 



CHAPTER XXXVIII. 

ESCHEATS. 



Section 

l. ( Real estate, when may vest in the State. 

2. When lands escheat to State, duty of circuit at- 

torney and circuit court. 

3. Claimants may appear and plead ; other proceed. 

ings defined. 

4. Disposition of lands, when judgment rendered 

iii favor of State. 



Section 

5. Appeal, right of parties to. 

6. Auditor to keep accounts of moneys and lands ; 

how and in what time may recover money ; 
how lands may be recovered by claimants ; 
within what time application must be made ; 
rights of infants, married women, &.C., re- 
served. 



Section 1. If any person shall die seized-of any real or personal estate, with- 
out any devise thereof, and leaving no heirs or representatives capable of inheriting 
the same, or the devisees thereof be incapable of holding the same ; and in all cases 
where there is no owner of real estate capable of holding the same, such estate shall 
escheat to, and vest in the State. 

Sec 2. When the attorney general or any circuit attorney shall be informed, or 
have reason to believe, that any real estate within his district hath escheated to the 
State, by reason that any person hath died seized thereof, without devising the 
same, and leaving no heir capable of inheriting the same ; or by reason of the in- 
capacity of the devisee to hold the same, and such estate shall not have been sold 
according to law, within five years after the death of the person last seized, for the 
payment of the debts of the deceased ; or when he shall be informed, or has cause to 
believe, that any such estate within his district hath otherwise escheated to the State, 
it shall be his duty to file an information in behalf of the State, in the circuit court 
of the county in which such estate is situate, setting forth a description of the estate, 
the name of the person last lawfully seized, the names of the terre tenants and per- 
sons claiming such estate, if known, and the facts and circumstances in consequence 
of which such estate is claimed to have escheated, and alleging that by reason 
thereof, the State of Illinois hath right by law to such estate : Whereupon such 
court shall award and issue a scire facias against such person or persons, bodies 
politic or corporate, as shall be alleged in such information, to hold, possess or 
claim such estate, requiring them to appear and show cause why such estate should 
not be vested in the State, at the next term of such court; which scire facias shall 
be served at least fifteen days before the return day thereof; and the court shall 
moreover, make an order, setting forth briefly the contents of such information, and 
requiring all persons interested in the estate, to appear and show cause, if any they 
have, at the next term of the said court, why the same should not be vested in the 
State ; which order shall be published for six weeks successively in some newspa- 
per printed in this State, and in or nearest to the county in which such proceeding 
is had ; the last insertion to be at least two weeks before the commencement of the 
term at which the parties are required to appear. 

Sec. 3. All persons, bodies politic and corporate, named in such information as 
terre tenants or claimants to the estate, may appear and plead to such proceedings, 
and may traverse or deny the facts stated in the information, the title of the State. 
15 



226 ESCHEATS. , 

to the lands and tenements therein mentioned, at any time, on or before the third 
day of the return of such scire facias ; and any other person claiming an interest in 
such estate, may appear and be made a defendant, and plead as aforesaid, by motion 
for that purpose in open court, within the time allowed for pleading as aforesaid ; 
and if no person shall appear and plead, or appearing, shall refuse to plead within 
the time, then judgment shall be rendered that the State be seized of the lands and 
tenements in such information claimed ; but if any person shall appear, and deny the 
title set up by the State, or traverse any material facts in the information, an issue 
or issues shall be made up and tried, as other issues of fact, and a survey may be 
ordered and entered as in other actions, where the title or boundary of lands is 
drawn in question ; and if, after the issues are tried, it shall appear from the facts 
found or admitted, that the State hath good title to the lands and tenements in the 
information mentioned, or any part thereof, judgment shall be rendered, that the 
State be seized thereof, and recover costs of suit against the defendant. 

Sec. 4. When any judgment shall be rendered, that the State be seized of any 
land, tenements or hereditaments, such judgment shall contain a certain description 
of such estate, and shall be effectual for vesting the title in the State ; and a writ 
shall be issued, directed to the sheriff of the same county, commanding him to seize 
and take the lands, tenements and hereditaments so vested in the State, into his 
hands ; and upon the return of such writ of seizure, the attorney general or circuit 
attorney prosecuting such information, shall cause the record and process to be 
exemplified under the seal of the court, and deposit the same in the office of the 
auditor of public accounts, and shall also cause a transcript of the judgment to be 
recorded in the office of the recorder of the county in which the land lies ; and such 
judgment shall preclude all parties and privies thereto, their heirs and assigns, so 
long as such judgment shall remain in force. 

Sec 5. Any party who shall have appeared to any proceeding as aforesaid, and 
the attorney general or circuit attorney, on behalf of the State, shall respectively 
have the same right to prosecute an appeal or writ of error upon any judgment as 
aforesaid, as parties in other cases. 

Sec 6. The auditor of public accounts shall keep just and true accounts of all 
moneys paid into the treasury, and of all lands vested in the State as aforesaid ; and 
if any person shall appear within ten years after the death of the intestate, and claim 
any money paid into the treasury as aforesaid, as heir or legal representative, such 
person may file a petition to the circuit court, as a court of chancery for the county 
in which the seat of government may be, stating the nature of his claim, and praying 
such money may be paid to him; a copy of which petition shall be served upon the 
attorney general, who shall put in an answer to the same, and the court shall there- 
upon examine the said claim, and the allegations and proofs, and if it shall find that 
such person is entitled to any money paid into the treasury, such court shall, by 
an order, direct the auditor of public accounts to issue his warrant on the treasurer 
for the payment of the same, but without interest or costs ; a copy of which order, 
under the seal of the court, shall be a sufficient voucher for the issuing such war- 
rant. And if any person shall appear and claim any lands vested in the State as 
aforesaid, within five years after the judgment was rendered, it shall be lawful for 
such person (other than such as were served with a scire facias or appeared to the 
proceeding, their heirs or assigns,) to file his petition in the circuit court, (as a 
court of chancery,) of the county in which the lands claimed, lie, setting forth the 
nature of his claim, and praying that the said lands may be relinquished to him ; a 



ESTRAYS. 



227 



copy of which petition shall be served on the attorney general, or circuit attorney of 
the district, who shall put in an answer, and the court thereupon shall examine said 
claim, and the allegations and proofs ; and if it shall appear that such person is 
entitled to the lands claimed, the court shall decree accordingly, which shall be 
effectual for divesting the interest of the State in or to the lands ; but no costs shall 
be adjudged against the State ; and all persons who shall fail to appear and lile 
their petitions within the times limited aforesaid, shall be forever barred ; saving, 
however, to infants, married women and persons of unsound mind, or persons be- 
yond the limits of the United States, the right to appear and file their petitions as 
aforesaid, at any time within five years after their respective disabilities are re- 
moved : Provided, however, That the General Assembly may cause such lands to 
be sold at any time after seizure, in such manner as may be provided by law. In 
which case the claimants shall be entitled to the proceeds, in lieu of the land, upon 
obtaining a decree or order as aforesaid. 

Approved: March 3, 1845. 



CHAPTER XXXIX. 

ESTRAYS. 



Section 

1. Estrays, persons taking up, how to proceed. 

2. Appraisements, how made. 

3. Taker up, and justice of the peace, their duties. 

4. Duty of county commissioners' clerk. 

6, Two or more estrays may be included in one 
entry. 

6. Neat cattle, sheep, hog or goat not to be taken 

up from first April to first November ; fees for 
taking up. 

7. Proof of taking up, how made. 

8. When estray proved and taken away before ap- 

praisement, charges to be paid. 

9. Estrays not to be used before advertising, ex- 

cept in certain cases. 

10. Advertisement of estray horse, mare or colt, 

mule or ass, to be made in paper of public 
printer. 

11. When no owner appears, property vested in 

taker up. 

12. Penalty for trading, selling, or taking away es- 

tray before one year ; and how disposed of 
when not claimed within one year. 



Section 1, 



Section 

13. Estray horse, mare, colt, mule or ass, running 

at large out of the settlements, may be taken 
up, and how disposed of. 

14. When owner does not claim within one year, 

property may be sold; nevertheless, owner 
may appear within two years and claim bal- 
ance due from such sale. 

15. Justice of the peace, penalty for failing to pay 
over money for estray sold. 

If estray dies before owner claims, taker up not 
liable ; and penalty for illegal taking up, or 
failing to comply with requisitions of this 
chapter. 

Boat or water craft, taker up how to proceed, 
and duty of justices of the peace. 

How taker up to proceed when value does not 
exceed twenty dollars; but when value ex- 
ceeds twenty dollars, duty of clerk. 

Fees, to whom and how paid, and amount of. 
20. Penalty, when not otherwise herein specified ; 
its amount ; in whose name and before whom 
suits may be brought. 



1C. 



17. 



1! 



19. 



Every person who shall take up any estray horse, mare, colt, mule 
or ass, after having given not less than ten nor more than fifteen days' notice, by 
posting up notices in three of the most public places in the justice's district in 
which he resides, shall take the same before some justice of the peace of the county 
where such estray shall be taken up, and make oath before such justice, that the 
same was taken up at his or her plantation or place of residence in said county, and 
that the marks or brands have not been altered since the taking up. 



223 ESTRAYS. 

Sec. 2. The said justice shall then issue his warrant to three disinterested 
housekeepers in the neighborhood, unless they can otherwise be had, causing them 
to come before him to appraise said estray, after they or any two of them being 
sworn to appraise such estray, without partiality, favor or affection; which apprais- 
uient, together with the marks, brands, stature, color and age of such horse, mare 
or colt, mule or ass, shall be entered in a book to be kept by such justice, and cer- 
tified under his hand, and transmitted to the clerk of the county commissioners' 
court of such county, within fifteen days after the same is taken up. 

Sec. 3. Any person who shall take up any head of neat cattle, sheep, hog or 
goat, after having given the notice required in section one of this chapter, shall go 
with some householder before a justice of the peace of the county, and make oath 
before him as is required in taking up an estray horse, mare or colt, mule or ass, 
and then such justice shall take from such housekeeper, upon oath, a particular 
description of the marks, brands, color and age of every such neat cattle, sheep, 
hog or goat, and said justice shall cause the said estrays to be appraised, in like 
manner as is required to be done in case of a horse, mare or colt, mule or ass ; 
which description and valuation shall be entered by such justice in a book to be 
kept by him as aforesaid, and by such justice transmitted to the clerk of the county 
commissioners' court of the county, to be by him kept as before directed : Provi- 
ded, That in all cases where the value of such neat cattle, sheep, goat or hog, does 
not exceed five dollars, said justice shall not be required to make a return to the 
clerk as aforesaid ; but shall enter in his estray book the description and appraise- 
ment value of such sheep, hog or goat, and advertise the same in three of the 
most public places in his neighborhood. 

Sec 4. Every such clerk shall cause a copy of such description and valuation 
of every neat cattle, sheep, hog and goat returned to him, to be publicly affixed at 
the court house door of his county, w r ithin five days after the same shall be trans- 
mitted to him as aforesaid, for which he shall receive the same fee as for entering 
the same in a book. 

Sec 5. If two or more estrays of the same species, are taken up by the same 
person at the same time, they shall be included in one entry and one advertisement, 
and in such case, such justice and clerk shall receive no more pay than for one of 
such species. 

Sec 6. No person shall be allowed hereafter to take up and post any head of 
neat cattle, sheep, hog or goat, between the month of April and the first day of No- 
vember, unless the same may be found in the lawful fence or inclosure of the taker 
up, having broken in the same ; and for a reward of taking up, there shall be paid 
by the owner, one dollar for every horse, mare or colt, mule or ass ; and for every 
head of neat cattle, fifty cents ; and for every hog, sheep or goat, twenty-five cents, 
together with all reasonable charges. 

Sec 7. Proof of the giving of notice as required in the first and third sections 
of this chapter, may be made by the oath of the person advertising, or a credible 
witness, previous to the appraisement. 

Sec 8. If the owner of any such animals shall prove and take them away, be- 
fore the appraisement thereof, he shall pay to the person who has care of the same, 
all reasonable charges for taking up and keeping the same. 

Sec 9. It shall not be lawful for persons taking up estrays, to use the same 
previous to advertising them, unless it be to milk cows, and the like, for the benefit 
and preservation of such animals. 



ESTRAYS. 229 

Sec. 10. It shall be the duty of the clerk of the county commissioners' court, 
when the description and valuation of any estray horse, mare or colt, mule or ass, 
shall be transmitted to him by the justice as aforesaid, and in ten days thereafter 
make out a copy thereof, and transmit the same to the public printer of the State, 
and indorse thereon, "Estray papers," together with the sum of one dollar, to pay 
the said printer ; which sum the taker up is required to deposit with the clerk 
prior to the expiration of said ten days. It shall be the duty of the public printer 
to publish said advertisement, and transmit one copy of each number of his paper 
to each of the clerks of the county commissioners' court of the several counties 
of this State, free of charge, which shall be regularly filed by said clerks in their 
respective offices for the examination of those who may desire it. 

Sec. 11. And if no owner appear and prove his property within one year 
after such publication, the property shall be vested in the taker up ; nevertheless, 
the former owner may, at any time thereafter, by proving his property, recover the 
valuation money, upon payment of costs and all reasonable charges. 

Sec 12. And if any person shall trade, sell,- or take away any such estray or 
estrays out of the State, for any purpose whatever, before the expiration of said 
one year, he or she so offending, shall be liable to indictment in the circuit court of 
the proper county, and on conviction thereof, shall be fined in a sum double the 
value of the property, one-half to the owner thereof, and the other half to the county 
treasury ; and when the owner of any estray head of neat cattle, sheep, hog or 
goat, does not prove his propertjr within twelve months after the same has been 
published at the door of the court house as aforesaid, and when the valuation does 
not exceed five dollars, the property shall be vested in the taker up ; but when the 
valuation shall exceed five dollars, and no owner appear within the time aforesaid, 
the property shall also be vested in the taker up; nevertheless, the former owner 
may, at any time, by proving his property, recover the valuation thereof, upon pay- 
ment of all reasonable costs and charges ; and if the taker up and the owner can 
not agree upon the charges, they shall call upon three disinterested householders, 
whose decision shall be binding on both parties ; and it shall not be lawful for any 
person to take up any estray, (except such as shall be hereinafter excepted,) un- 
less he shall be a freeholder or a housekeeper. 

Sec 13. Any person finding a stray horse, mare, colt, mule or ass, running at 
large without any of the settlements of this State, may take up the same, and shall 
immediately take such estray or estrays before the nearest justice of the peace, and 
make oath that he has not altered the marks or brands of such estray, since taking 
up ; and if such taker up shall be a freeholder or housekeeper within that county, 
it may and shall be lawful for him, to post such estray or estrays as hereinbefore 
directed in this chapter, as if the same had been taken up on his plantation or place 
of residence ; and when the taker up shall not be qualified as aforesaid, he shall 
take the oath before required, and deliver such estray or estrays to the said justice, 
who shall cause the same to be dealt with as directed by this chapter. 

Sec 14. If no owner appear to prove his property within one year, such 
estray or estrays' shall be sold to the highest bidder, giving public notice of such 
sale twenty days previous thereto, the purchaser giving a bond and approved secu- 
rity, payable to the county commissioners' court of the county where such estray 
shall be taken up ; and after paying the taker up all reasonable charges, the bal- 
ance shall be put into the county treasury by the said justice, who shall take a re- 
ceipt for the same from the county treasurer ; nevertheless, the former owner, at 



230 ESTRAYS. 

any time within two years after taking up, by proving his property before the clerk 
of the county commissioners' court of said county, or before the justice of the peace 
before whom the property was taken up, and obtaining a certificate thereof, from 
the clerk of said court or justice of the peace, to the treasurer, shall receive the 
balance aforesaid. 

Sec. 15. And when any justice of the peace shall fail to pay any money for 
any estray or estrays to be sold agreeably to this chapter, into the county treasury, 
within three months after selling such estray or estrays, such justice shall forfeit 
and pay the sum of twenty dollars, with costs, to be recovered by action of debt, 
before any justice of the peace of the county, or other court having jurisdiction 
thereof, the one-half for the use of the county, and the other half for the use of 
any person suing for the same ; and moreover, be liable to pay the price of such 
estray or estrays., with interest thereon. 

Sec. 16. If any estray or estrays, taken up as aforesaid, shall die or get 
away before the owner shall claim his or her right, the taker up shall not be liable 
for the same ; and if any person shall take up any estray or estrays, at any other 
place within the inhabited parts of this State than his or her plantation or place of 
residence, or without being qualified as required by this chapter, he shall forfeit 
and pay the sum of ten dollars, with costs, recoverable before any justice of the 
peace of the county where the offence shall have been committed, and not having 
property sufficient to pay such fine, he shall be liable to be confined one month in 
the jail of the county where he may be found, being found guilty of such offence 
according to law ; and any person taking up any estray or estrays out of the limits 
of the settlements of this State, and failing to comply with the requisitions of this 
chapter, shall be liable to the same penalties ; and if any person, taking up any 
estray or estrays of any species, fail to comply with the requisitions of this chap- 
ter, he shall, for every such offence, forfeit and pay to the informer, the sum of ten 
dollars with costs, recoverable before any justice of the county where such offence 
shall be committed ; one-half to the use of the county, and the other half to the use 
of the person suing for the same. 

Sec 17. If any person or persons shall hereafter stop or take up any keel 
or flat boat, ferry flat, batteau, pirogue, canoe, or other vessel or water craft, or raft 
of timber, or plank found adrift on any water course within the limits or upon the 
borders of this State, and the same shall be of the value of five dollars or upwards, 
it shall be the duty of such person or persons, within five days thereafter, (provi- 
ded the same shall not before that time be proven and restored to the owner,) to go 
before some justice of the peace of the proper county, and make affidavit in writ- 
ing, setting forth the exact description of such vessel or craft, when and where the 
same was found, whether any, and if so, what cargo was found on board, and that 
the same has not been altered or defaced, either in whole or in part, since the tak- 
ing up, either by him, her or them, or by any other person or persons, to his, her or 
their knowledge ; and the said justice shall thereupon issue his warrant, directed 
to some constable of his county, commanding him forthwith, to summon three re- 
spectable householders of the neighborhood, if they can not otherwise be had, whose 
duty it shall be, after being sworn by said justice, to proceed without delay to 
examine and appraise such boat or vessel, and cargo, if any, and make report there- 
of, under their hands and seals, to the justice issuing such warrant, who shall enter 
such appraisement, together with the affidavit of the taker up, at large in his estray 
book } and it shall be the further duty of said justice, within ten days after the said 



ESTRAYS. 231 

proceedings shall have been entered in his estray book as aforesaid, to transmit a cer- 
tified copy thereof to the clerk of the county commissioners' court of his county, 
to be by him recorded in his estray book, and tiled in his office. 

Sec. 18. In all cases where the appraisement of such boat or water craft, in- 
eluding her cargo, shall not exceed the sum of twenty dollars, the taker up shall 
advertise the same on the door of the court house, and in three of the most public 
places in the county, within ten days after the justice's said certificate shall have 
been entered on the records of the county commissioners' court ; and if no person 
shall appear to prove and claim such boat or water craft, within six months from 
the time of taking up as aforesaid, the property in the same shall vest in the taker 
up ; but if the value thereof shall exceed the sum of twenty dollars, it shall be the 
duty of the clerk of the county commissioners' court, within twenty days from the 
time of the reception of the justice's said certificate at his office, to cause an ad- 
vertisement to be set up on the door of the court house, and also a notice thereof 
to be sent to the public printer as aforesaid, who shall publish the same as afore- 
said; and if the said vessel be not claimed and proven within six months from said 
advertisement, the same shall be vested in the taker up ; nevertheless, the former 
owner may, at any time thereafter, recover the valuation money by proving his 
property and allowing to the taker up a reasonable compensation for his trouble, 
and costs and charges. 

Sec. 19. In all cases where services shall be performed by any officers or other 
person or persons under this chapter, the following fees or compensation shall be 
allowed, to-wit : To the justice of the peace for administering oath to the taker up 
or finder, making an entry thereof, with the report of the appraisers, and making 
and transmitting a certificate thereof to the clerk of the county commissioners' 
court, fifty cents ; to the clerk or justice for taking proof of the ownership of, and 
granting a certificate of the same, twenty-five cents ; for registering each certifi- 
cate transmitted to him by any justice as aforesaid, twelve and a half cents ; for 
advertisements, including the newspaper publications, fifty cents in addition to the 
cost of such publication ; to the constable for each warrant so served on appraisers, 
twenty-five cents ; and to each appraiser the sum of twenty-five cents 5 which said 
fees shall be paid by the taker up to the person entitled thereto, whenever said 
services shall be rendered. All which costs and charges shall be reimbursed to 
the taker up or finder, in all cases where restitution of the property shall be made 
to the owner, in addition to the reward to which such person may be entitled for 
taking up as aforesaid. 

Sec 20. If any person shall act contrary to the duties enjoined by this chap- 
ter, for which no penalty is hereinbefore pointed out, the person so offending shall, 
on conviction thereof, forfeit and pay for every such offence, not less than five 
nor more than one hundred dollars, to be sued for in the name of the proper county, 
before any justice of the peace or other court having cognizance thereof. 

Approved : March 3, 1845. 



CHAPTER XL. 
EVIDENCE AND DEPOSITIONS. 



Section 

1. Statutes of the United States, State and Terri- 

tories, shall be evidence, when printed by 
proinjr authority. 

2. Authorized reports of decisions may be read in 

evidence. 

3. Copies of proceedings and judgments before 

justices of the peace, when duly certified, 
may be read in evidence. 

4. Official certificate of register or receiver of land 

office of United States, deemed evidence in 
certain cases. 

5. Land patent, its effect as evidence of title in 

patentee. 

6. Laws of other States and Territories, exemplifi- 

cations of, by secretaries of State, admissible 
as evidence. 

7. In suits against partners, names of individuals 

not necessary to be proved in certain cases. 

8. Proof of joint liability of defendants, or their 

christian or surnames, when not required. 

9. Certified copies of proceedings of corporations, 

prima facie evidence. 
10. Non-resident witnesses, depositions of, how to 
be obtained. 



Section 

11. Resident witnesses, depositions of, how to be 

obtained. 

12. Depositions, how taken. 

13. Deemed good and competent evidence. 

14. Witnesses, by whom and how maybe called and 

examined. 

15. Compensation of witnesses, and by whom paid. 
lt>. Party interested in event of suit, not permitted 

to dictate, write, or draw up deposition; eflect 

of so doing. 
17. Seal not to be broken, unless by permission of 

court ; penalty therefor. 
IS. When and by whom depositions may be read. 

19. Dedimus potestatem, when may be sued out, 

and proceedings thereon. 

20. Previous notice to be given of taking deposi- 

tions, before suing out dedimus, and further 

proceedings defined. 
Before whom depositions maybe taken, and who 

may attend ; further proceedings relative 

thereto. 
After death of deponent, deposition may be used 

as evidence. 
Negro, mulatto or Indian shall not be witness, 

and who deemed mulatto. 



21. 



22. 



•23. 



Section 1. The printed statute books of the United States, and of this State, 
and of the several States ; of the teritories and late territories of the United States, 
printed under the authority of said States and territories, shall be evidence in all 
courts and places in this State, of the acts. therein contained. 

Sec 2. The books of reports of decisions of the supreme court and other 
courts of the United States, of this State, and of the several States and the ter- 
ritories thereof, published by authority of such courts, may be read as evidence of 
the decisions of such courts. 

Sec 3. Copies of the proceedings and judgments before justices of the peace, 
certified by the justice or justices under his or their hands and seals, before whom such 
proceeding or judgment is had, shall be received as evidence of such proceeding or 
judgment. Where such certified copy is to be used as evidence in any county other 
than that in which the justice or justices so certifying shall reside, the same shall 
not be received as evidence, unless a certificate from the clerk of the county com- 
missioners' court, (with the seal of the court,) shall be annexed thereto, certify- 
ing that on the day on which such proceeding was had, or judgment rendered, such 
justice so granting the same, was a justice of the peace, duly commissioned and 
sworn. 

Sec 4. The official certificate of any register or receiver of any land office of 
the United States, to any fact or matter on record in his office, shall be received 
in evidence in any court in this State, and shall be competent to prove the fact so 
certified. The certificate of any such register, of the entry or purchase of any 
tract of land within his district, shall be deemed and taken to be evidence of title 



EVIDENCE AND DEPOSITIONS. 233 

in the party who made such entry or purchase, or his heirs or assigns, and shall 
enable such party, his heirs or assigns, to recover the possession of the land de- 
scribed in such certificate, in any action of ejectment or forcible entry and detainer, 
unless a better legal and paramount title be exhibited for the same. 

Sec 5. A patent for land, shall be deemed and considered a better legal and 
paramount title in the patentee, his heirs or assigns, than the official certificate of 
any register of a land office of the United States, of the entry or purchase of the 
same land. 

Sec 6. An exemplification by the secretary of this State, of the laws of the 
other States and territories, which have been, or shall hereafter be transmitted by 
order of the executive or legislatures of such otber States or territories, to the 
Governor of this State, and by him deposited in the office of said secretary, shall 
be admissible as evidence in any court of this State. 

Sec 7. In trials of actions upon contracts, express or implied, where the 
action is brought by partners, or by joint payees or obligees, it shall not be neces- 
sary for the plaintiff, in order to maintain any such action, to prove the co-partner- 
ship of the individuals named in such action, or to prove the christian or surnames 
of such partners, or joint payees or obligees ; but the names of such co-partners, 
joint payees or obligees shall be presumed to be truly set forth in the declaration, 
petition or bill : Provided, That nothing herein contained, shall prevent the defen- 
dant in any such action, from pleading in abatement as heretofore, or of proving on the 
trial, either that more persons ought to have been plaintiffs, or that more persons 
have been made plaintiffs than have a legal right to sue, or that the christain or sur- 
name is other and different from the one stated in the declaration, petition or bill ; 
in which event the defendant's rights shall be as at common law. 

Sec 8. In actions upon contracts express or implied, against two or more 
defendants, alleged to have been made or executed by such defendants, as partners 
or joint obligors or payors, proof of the joint liability or partnership of the defendants, 
or their christain or surnames, shall not, in the first instance, be required to entitle 
the plaintiff to judgment, unless such proof shall be rendered necessary by plead- 
ing in abatement, or the filing of pleas denying the execution of such writing, veri- 
fied by affidavit, as required by law. 

Sec 9. Copies of all papers, books or proceedings, or parts thereof, apper- 
taining to transactions in their corporate capacity, of any town or city heretofore 
incorporated, or now incorporated, or that may hereafter be incorporated, under a 
general or special law of this State, certified to be true copies by the clerk or the 
keeper of the same under the seal of said town or city, or under the private seal 
of said clerk or keeper if there be no public seal ; the said clerk or keeper also 
certifying that he is entrusted with the safe keeping of the originals of which he 
gives certified copies, shall be received as prima facie evidence of the facts so 
certified, in all the courts of this State, in any suit or proceeding pending before 
them. 

Sec 10. When the testimony of any non-resident witness or witnesses shall be 
necessary in any civil cause depending in any court of law or equity in this State, it 
shall be lawful for the party wishing to use the same, on giving to the adverse party 
or his attorney, ten days previous notice, together with a copy of the interrogatories 
intended to be put to such witness or witnesses, to sue out from the proper clerk's 
office a dedimus poUstatem or commission, under the seal of the court, directed to 
any number of persons, not exceeding three, as commissioners, or to any judge or 



234 EVIDENCE AND DEPOSITIONS. 

justice of the peace of the county or city in which such witnesses may reside, 
authorizing and requiring him or them to cause such witness or witnesses to come 
before him or them, at such time and place as he.or they may designate and appoint, 
and faithfully to take his, her or their deposition or depositions upon all such inter- 
rogatories as may be inclosed with, or attached to said commission, both on the 
part of the plaintiff and defendant, and none others ; and to certify the same when 
thus taken, together with the said commission and interrogatories, into the court in 
which such cause shall be depending, with the least possible delay. 

Sec 11. When the testimony of any resident witness or witnesses shall be 
necessary in any suit in chancery in this State, it shall be lawful for the party 
wishing to use the same, to cause the deposition or depositions of such witness or 
witnesses, to be taken before any justice of the peace, or clerk of the circuit or 
county commissioners' court of the county wherein such witness or witnesses shall 
reside, without being required to sue out a commission, or to file interrogatories for 
such purpose, on giving to the adverse party or his attorney, reasonable notice of 
the time and place of taking the same. And it shall also be lawful, upon satisfac- 
tory affidavit being filed, to take the depositions of witnesses residing in this State, 
to be read in suits at law, in like manner as is above provided, in all cases where 
such witness or witnesses shall reside in a different county from that in which 
the court shall be held, is or are about to depart from the State ; is or are confined 
in jail on legal process ; or is or are unable to attend such court on account of ad- 
vanced age, sickness, or other bodily infirmity : Provided, That such reasonable 
notice shall be intended to mean at least ten days in all cases, and one day in addi- 
tion thereto, (Sundays inclusive,) for every thirty miles travel from the place of 
holdino- the court, to the place where such deposition or depositions shall be taken. 

Sec. 12. Previous to the examination of any witness whose deposition is about 
to be taken as aforesaid, he or she shall be sworn (or affirmed) by the person or 
persons authorized to take the same, to testify the truth in relation to the matter 
in controversy, so far as he or she may be interrogated ; whereupon, the said com- 
missioner or commissioners, judge, justice of the peace or clerk, (as the case may 
be,) shall proceed to examine such witness upon all such interrogatories as maybe 
inclosed with, or attached to any such commission as aforesaid, and which are di- 
rected to be put to such witness, or where no such commissioner shall be ne- 
cessary, upon all such interrogatories as may be directed to be put by either 
party litigant ; and shall cause such interrogatories, together with the answers 
of the witness thereto, to be reduced to writing in the order in which they 
shall be proposed and answered, and signed by such witness. After which. 
it shall be the duty of the person or persons taking such deposition, to annex 
at the foot thereof, a certificate subscribed by himself or themselves, stating 
that it was sworn to and signed by the deponent, and the time and place, when 
and where the same was taken. And every such deposition, when thus taken and 
subscribed, and all exhibits produced to the said commissioner or commissioners, 
judge, justice of the peace or clerk as aforesaid, or which shall be proved or refer- 
red to by any witness, together with the commission and interrogatories, if any, 
shall be inclosed, sealed up and directed to the clerk of the court in which 
the action shall be pending, with the names of the parties litigant indorsed 
thereon : Provided, That when any deposition shall be taken as aforesaid, by any 
judge or justice of the peace out of this State, such return shall be accompanied by 
a certificate of his official character under the great seal of the State, or under the 



EVIDENCE AND DEPOSITIONS. 235 

seal of the proper court of record of the county or city wherein such deposition 
shall be taken. 

Sec. 13. Every examination and deposition which shall be taken and returned 
according to the provisions of this chapter, may be read as good and competent evi- 
dence in the cause in which it shall be taken, as if such witness had been present 
and examined by parol in open court on the hearing or trial thereof. 

Sec 14. Each and every commissioner or commissioners, judge, justice of the 
peace, or clerk of the circuit or county commissioners' court, who may at any time 
be required to take depositions in any cause pending in any of the courts of law 
or equity in this State, or by virtue of any commission issued out of any court of 
record in any other State or territory, shall have power and authority to issue 
subposnas, if necessary, to compel the attendance of all such witnesses as shall be 
named in the commission, or by the parties litigant, where no commission is neces- 
sary, in the same manner and under the same penalties as is prescribed in other 
cases, where witnesses are directed to be subpoenaed. 

Sec. 15. Every witness attending before any commissioner, judge, justice of 
the peace or clerk as aforesaid, to be examined as aforesaid, shall be entitled to a 
compensation for his time and attendance and traveling expenses at the same rate 
for the time being, as is, or shall be allowed by law to witnesses attending courts of 
record in this State ; and the party requiring such examination shall pay the expen- 
ses thereof, but may, if successful in the suit, be allowed for the same in the taxa- 
tion of costs. 

Sec 16. The party, his attorney, or any person who shall in anywise be inter- 
ested in the event of the suit, shall not be permitted to dictate, write or draw up 
any deposition or depositions which may at any time be taken under this chapter ; 
and every deposition so dictated, written or drawn up, or that shall be returned to 
the court unsealed, or the seal of which shall be broken, shall be rejected by the 
court as informal and insufficient : Provided, Such seal shall have been broken pre- 
vious to its reception by the clerk, to whom it shall be directed. 

Sec 17. It shall not be lawful for any party litigant or the clerk of the court 
into which any deposition may be returned as aforesaid, to break the seal of the same, 
either in term time, or in vacation, unless by permission of the court. And if any 
such person or clerk shall presume to open any such deposition when taken and 
returned as aforesaid, without such permission as aforesaid, he shall be considered 
guilty of a contempt of court, and may be punished accordingly : Provided, That it 
shall not be considered an offence for the clerk to break open any such deposition 
as aforesaid, where it is doubtful from the indorsements made thereon, whether the 
same be a deposition or not ; but in such case, it shall not be proper for such clerk 
to permit any person to examine any deposition, which may be thus opened by mis- 
take, until permission shall have been first given by the court as aforesaid. 

Sec 18. All depositions taken in pursuance of this chapter, when returned 
into court, may be read by either party, on the trial of the causes to which they relate. 
Sec 19. In all cases hereafter, where any person or persons shall desire to 
perpetuate the remembrance of any fact, matter or thing, which may relate to the 
boundaries or improvements of land, name, or former name of water courses ; the 
name or former name of any portion or district of country ; regarding the an-, 
cient customs, laws or usages of the inhabitants of this country, as far as the same 
may relate to the future settlement of the land claims ; or touching the marriage or 
pedigree of any person or persons, or in relation to the title to slaves or servants j 



236 EVIDENCE AND DEPOSITIONS. 

or any other matter or thing necessary to the security of any estate, real or per- 
sonal, or mixed, or any private right whatever, it shall be lawful for such person or 
persons, upon filing a petition supported by affidavit, in the circuit court of the 
proper county, setting forth particularly the fact or facts intended to be established, 
to sue out from such court a dzdimus potestatem or commission, directed to any 
two justices of the peace, or to any clerk of the circuit or county commissioners 1 
court of the county wherein such testimony is to be taken, and may, thereupon, 
proceed to take such deposition or depositions as shall be prayed for in said pe- 
tition. 

Sec. 20. It shall be the duty of the person or persons suing out such dedimus 
as aforesaid, before proceeding to take such deposition as aforesaid, to give at 
least four weeks previous notice of the time and place when and where the 
same is to be taken, together with a copy of the petition annexed thereto, to 
each and every person who may be known to be interested in the subject mat- 
ter of such deposition, or to his, her or their attorney, or in case the person 
be a feme covert, to her husband; or if a minor or minors, to his, her or their 
guardian or guardians ; or if such guardian or guardians should be interested, to 
such guardian or guardians as shall be appointed by the court to defend the inter- 
ests of such infant or infants ; or in lieu of such written notice as aforesaid, such 
petitioner or petitioners shall cause a notice in form as aforesaid, with a copy of the 
petition thereto annexed as aforesaid, addressed to such persons as may be known 
to be interested as aforesaid, as well as to all others whom it may concern, to be 
published for four weeks successively in some public newspaper printed in this 
State, at least eight weeks previous to the day of taking such deposition or dep- 
ositions. 

Sec. 21. The said justices of the peace or clerk as aforesaid, shall attend at the 
time and place appointed, where each and every person who may think himself or 
herself interested in the deposition about to be taken, may attend, by themselves or 
attorneys, and may examine and cross examine such deponent or deponents ; and 
all such questions as may be proposed, together with the answers thereto by the 
witness, shall be reduced to writing in the English language, or in the language of 
the witness, (provided he or she shall not understand English,) as near as pos- 
sible, in the exact words of such deponent, which said questions and answers, 
when reduced to writing as aforesaid, shall be distinctly read over to the witness ; 
and if found to be correct, shall be signed by him or her, in the presence of the 
said justice, (or clerk as the case may be,) who shall thereupon administer an 
oath or affirmation to such witness, as to the truth of the deposition so taken as 
aforesaid, and shall annex at the foot thereof a certificate subscribed by himself or 
themselves, stating that it was sworn to and signed by the deponent, and the time 
and place when and where the same was taken ; and all such depositions, when 
thus taken, shall be carefully sealed up, and transmitted to the clerk of the circuit 
court of the county from which such dedimus shall have been issued, within thirty 
days from the time of taking the same ; who shall thereupon enter the same at large 
upon the records in his office, and shall certify on the back of such deposition that 
the same has been duly recorded, and return it to the person or persons for whose 
benefit it shall have been taken. 

Sec. 22. All depositions taken in manner and form as is provided in the two 
foregoing sections, or a duly certified copy of the record of any such deposition, 
may, in case of the death of any such deponent, or in case of inability to give tes- 
timony, in consequence of his, her or their insanity or imbecility of mind or body, 



FEES AND SALARIES. 



237 



or where such witness shall be rendered incompetent by judgment of law, or in 
the event of his, her or their removal, so that their testimony can not be obtained 
in the ordinary way, on trial, may be used as evidence in any case to which the 
same may relate : Provided, That nothing herein contained, shall be so construed as 
to prevent any legal exception being made and allowed to the reading of any such 
deposition in any trial at law or in equity, in which the same may be introduced 
as evidence. 

Sec 23. A negro, mulatto or Indian shall not be a witness in any court, or in 
any case, against a white person. A person having one-fourth part negro blood 
shall be adjudged a mulatto. 

Approved : March 3, 1845. 

[Amended: — See Appendix, Acts No. 14 and 15.] 



CHAPTER XLI. 

FEES AND SALARIES. 



Section 

1. Salaries of governor, secretary of State, audi- 

tor, the treasurer, the chief justice and asso- 
ciate justices, attorney general, circuit attor- 
neys and adjutant grneral, how paid. 

2. Members and officers of the General Assembly, 

compensation of. 

3. Incidental expenses of public offices, what shall 

constitute. 

4. Incidental expenses, how paid. 

5. Secretary of State, fees of. 

6. Auditor and treasurer, fees of, in certain cases. 

7. Clerk of the supreme court, fees of. 

8. Clerks of circuit courts, fees of. 

9. Probate justice, fees of. 

10. Clerks of county commissioners' courts, fees of. 

1 1 . Attorney general and circuit attorneys, fees of. 

12. Successful party at law, fees of. 

13. Sheriff's fees. 

14. Sheriffs fees further defined. 

15. Coroner's fees. 

16. Justice's fees in criminal cases. 

17. Justice's fees in civil cases. 

18. Constable's fees in criminal cases. 

19. Constable's fees in civil cases. 

20. Witness's fees. 

21. Juror's fees. 

22. Arbitrator's fees. 

23. Recorder's fees. 



Section 

24. Notaries public, fees of. 

25. County surveyor's fees. 

26. Guarding jail, fees for, and how established. 

27. Illegal fees, penalty for talcing, and how re- 

covered. 

28. Clerks of supreme and circuit courts to keep 

record of fees of their respective courts, and 
how collected. 

29. Neglect to make returns of fee bill, penalty for. 

30. Clerks of supreme and circuit courts, record of, 

what shall contain. 
Persons who have heretofore been, or are now 

sheriff's, may collect fees in certain cases. 
Clerks of courts to provide books, &.C., allowan- 

ances therefor, how made. 
Office rooms for clerks, how provided. 
Bills of costs, how made out and collected. 
Duty of officers in issuing executions, penalty 

for neglect of. 

36. Table of fees, clerks, probate justices, and jus- 

tices of the peace, to set up, and penalty for 
neglect of. 

37. County commissioners' clerks not to charge 

fees in certain cases, but courts may allow ex 

ojficio fees. 
3S. Acknowledgment of deeds, fee for. 
39. Clerk of circuit court, duty of, to collect and 

pay over fees to predecessor. 



31. 

32. 

33. 
34. 

35. 



Section 1. The salaries, fees and compensation of the several persons herein- 
after named, shall be as follows : 

To the Governor, per annum, together with house rent, two thousand dollars. 

To the secretary of State, exclusive of fees, per annum, and inclusive of clerk 
hire, eight hundred dollars. 

The auditor of public accounts, inclusive of clerk hire, per annum, one thou- 
sand six hundred dollars. 

State treasurer, inclusive of clerk hire, per annum, eight hundred dollars. 



238 FEES AND SALARIES. 

The chief justice and each associate justice of the supreme court, respectively, 
per annum, one thousand five hundred dollars ; excepting justices elected or ap- 
pointed, subsequent to February twelve, one thousand eight hundred and forty- 
five, who shall receive, each, one thousand dollars. 

The attorney general, per annum, five hundred dollars. 

Each circuit attorney, per annum, two hundred arid fifty dollars. 

The adjutant general; per annum, fifty dollars. 

All of which salaries shall be paid to the persons entitled thereto, in quarter 
yearly instalments, on the warrant of the auditor, out of any moneys in the trea- 
sury not otherwise appropriated. 

Compensation of the members of Assembly, &c. 

Sec. 2. There shall be allowed to the speaker of the senate and house of 
representatives, respectively, per day, four dollars. 

To each member of the senate and house of representatives, per day, three 
dollars. 

To each speaker and member, in addition for every twenty miles' travel in 
going to, and returning from the place of session, three dollars. 

To the secretary of the senate, and principal clerk of the house of representa- 
tives, respectively, per day, five dollars. 

To the enrolling and engrossing clerks of the senate and house of representa- 
tives, respectively, per day, three dollars. 

To the door-keeper of the senate and house of representatives, respectively, 
per day, three dollars. 

And the said compensation, when due to the officers and members of the senate 
as aforesaid, shall be certified by the secretary thereof, with the exception of his 
own compensation, which shall be certified by the speaker; and the compensation 
that may be due to the officers and members of the house of representatives, shall 
be certified by the principal clerk thereof, and that of the clerk, by the speaker ; 
which said certificates, when made out as aforesaid, shall be sufficient evidence to 
the auditor of each person's claim, respectively, who shall issue his warrant on 
the treasury for the amount to which such person shall be entitled as aforesaid, to 
be paid out of any moneys in the treasury not otherwise appropriated. 

Incidental Expenses, &c. 

Sec. 3. The incidental expenses of the offices of the auditor of public accounts, 
State treasurer and secretary of State, shall include postage on all public papers 
sent to or from said offices relative to the business thereof, furniture for the same, 
the necessary fuel, and all such books, blanks and other stationery as shall be con- 
sidered necessary for the convenient transaction of business in said departments 
respectively. 

Sec. 4. For the purpose of defraying the incidental expenses aforesaid, it 
shall be the duty of said officers respectively, from time to time, as said expenses 
may be incurred, to lay proper vouchers for the same before the Governor, whose 
duty it shall be, if such accounts shall appear to be reasonable, to allow the same, 
and to certify the amount thereof to the auditor, who shall thereupon be required 
to issue his warrant for the same, to the person entitled thereto; to be paid out 
of any moneys in the treasury not otherwise appropriated. 



FEES AND SALARIES. 239 

Fees of Secretary of State. 

Sec. 5. There shall be allowed to the secretary of State, in addition to his salary, 
the following fees, to-wit: 

For copies or exemplification of records, for every seventy-two words, fifteen 
cents. 

Affixing State seal, with certificate of authentication, one dollar. 

Copy of any law, for every seventy-two words, fifteen cents. 

Official certificate without seal, when not required for public use, twenty-five 
cents. 

Provided, That he shall in no case be entitled to any fees whatever, when any 
services are performed for the State, in discharge of the duties of his office, nor 
for copying laws, memorials or resolutions. 

Sec 6. The auditor and treasurer, when required to give copies of, or to au- 
thenticate records or papers in their respective offices, shall be entitled to the same 
fees allowed to the secretary of State. 

Fees of the Clerk of the Supreme Court: 

Sec 7. For each writ of error and seal, with supersedeas, one dollar. 

For each writ of error and seal, without supersedeas, seventy-five cents. 

For each bond, when not furnished by the party, fifty cents. 

Filing each paper, excepting records and papers on appeals and writs of error, 
six and a fourth cents. 

Filing each record and accompanying papers, on appeals and writs of error, as 
returned by the inferior courts, twenty cents. 

Docketing cause, twelve and a half cents. 

Entering each rule or order of court, each entry being considered as one order, 
twenty-five cents. 

Execution and seal, fifty cents. 

Entering sheriff's return on any writ or execution, twelve and a half cents. 

For each subpoena and seal, fifty cents. 

For each scire facias, mandamus and other special process, for every seventy 
two words, eighteen cents. 

Sealing the same, twenty-five cents. 

Bringing any particular record into court of a suit, matter or thing not before 
the court, twenty-five cents. 

Copy of a record or other proceedings, for every seventy-two words, fifteen 
cents. 

Entering judgment or decree, for every seventy-two words, eighteen cents. 

Entering each continuance from one term to another, twelve and a half cents. 

Making complete record, when directed by the party, for every seventy-two 
words, fifteen cents. 

For each official certificate and seal, other than to the process of the court, fifty 
cents. 

Each official certificate, as aforesaid, without seal, twenty-five cents. 

Entering attorney on the roll, administering oath, and certifying the same, one 
dollar. 

Making bill of costs for execution, and entering the same in the cost book, thir- 
ty-seven and a half cents. 



240 FEES AND SALARIES. 

Copy of the same when requested by either party, twenty-live cents. 
Administering each oath, twelve and a half cents. 

Clerk's Fees in the Circuit Courts : 

Sec 8. For each capias, summons, subpoena and other process not herein 
specified, and sealing the same, fifty cents. 

Provided, That only one subpoena shall be charged for every four witnesses, 
unless actually made out on request in writing. 

For filing each paper in the progress of a suit, and appertaining to the same, 
excepting papers on appeal from justices of the peace, six and a fourth cents. 

Filing the papers on appeals from justices of the peace, taking appeal bond and 
issuing injunction thereon, fifty cents. 

Taking bond for costs, twenty-five cents. 

Filing and opening each deposition, twelve and a half cents. 

Entering each suit on the docket for trial, twelve and a half cents. 

Entering each order or rule of court for continuance, default to plead, or any 
order actually entered in the progress of a suit, and counting the whole as one 
entry, twenty-five cents. 

For each discontinuance, retraxit, or non suit, twenty-five cents. 

For each dedimus or commission to take depositions, fifty cents. 

Bringing any particular record into court of a suit, matter or thing not properly 
before the court, twenty-five cents. 

Calling and swearing each jury, eighteen and three-fourths cents. 

S wearing each witness on the trial of a cause six and a fourth cents. 

Swearine any person to an affidavit, twelve and a half cents. 

Receiving and entering the verdict of a. jury, twelve and a half cents. 

Entering each decree or final judgment in a cause, twenty-five cents. 

Issuing each writ of habeas corpus, certiorari or procedendo, fifty cents. 

Assessing the damages on any bond, note or other instrument for the payment 
of money, by order of the court, and making a report thereof in writing, twenty- 
five cents. 

Entering special bail on record, in each case, twenty-five cents. 

Makin^ a list of jurors when requested, twelve and a half cents. 

Swearing constable to take charge of a jury, six and a fourth cents. 

Issuing execution, fifty cents. 

Docketing the same, twelve and a half cents. 

Entering sheriff's return on each execution, twelve and a half cents. 

Entering satisfaction of judgment, twenty-five cents. 

Entering the report of commissioners or referees, or the award of arbitrators, and 
all other special entries, for every seventy-two words, twelve and a half cents. 

For each official certificate and seal, other than the process of the court, fifty 
cents. 

Taking bond in cases of foreign or domestic attachment, fifty cents. 

Taking injunction bond in chancery, fifty cents. 

Taking bond in cases of appeal to the supreme court, fifty cents. 

Entering appearance of attorney, but once in each suit, twelve and a half cents. 

Entering plaintiff's or defendant's appearance, but once in each cause, twelve 
and a half cents. 



FEES AND SALARIES. 241 

For each attachment for a witness, or other person, fifty cents. 

For each vtnire facias, or a jury warrant, when actually issued, thirty-seven 
and a half cents. 

Making bill of costs for each execution, and entering the same of record, being 
one charge, thirty-seven and a half cents. 

Copy of the same, when requested by either party, twenty-five cents. 

Making complete record of proceedings and judgment, when directed by the 
court, for every seventy-two words, twelve and a half cents. 

Copy of bill, answer, declaration, pleadings, judgment, or other proceeding, for 
every seventy-two words, twelve and a half cents. 

Certifying and sealing the same when requested in writing, fifty cents. 

For each commission, scire facias, or other special writ or process, and sealing 
the same, for every seventy -two words, fifteen cents. 

Taking depositions when requested, for every seventy-two words, twelve and a 
half cents. 

Taking acknowledgment of a sheriff's deed, twenty-five cents. 

Entering the acknowledgment of the sheriff to a deed, when made in open court, 
twenty-five cents. 

Making entry of naturalization of record, for every seventy-two words, fifteen 
cents. 

Taking each recognizance, and entering the same, thirty-seven and a half cents. 

Arraigning prisoner at the bar, fifty cents. 

Entering the pleadings in a criminal cause, twenty-five cents. 

For each copy of an indictment,- when requested, for every seventy-two words, 
fifteen cents. 

Entering judgment of conviction, twenty-five cents. 

Entering discharge of recognizance, twelve and a half cents. 

For a copy of the list of grand or petit jurors, when requested, in a criminal cause, 
twenty-five cents. 

For swearing jurors, witnesses and all other persons, the same fees shall be allowed 
as in civil cases : and in all criminal cases, where the defendant shall be acquitted 
or otherwise legally discharged without payment of costs, the clerk shall receive 
such compensation, as the county commissioners shall order, not exceeding thirty 
dollars per annum. 

For filing declaration of intention to become a citizen, six and a fourth cents. 

Swearing the applicant to declaration, six and a fourth cents. 

For certifying declaration under seal of court, twenty-five cents. 

For filing final application for oath of allegiance, together with accompanying 
affidavits, twelve and a half cents. 

Administering each oath in such case, twelve and a half cents. 

Making out final certificate of naturalization, or copy of record of naturalization 
under seal, fifty cents. 

Fees of Probate Justice : 

Sec 9. Taking proof of a last will or testament, fifty cents. 
Indorsing certificates of probate thereon, twelve and a half cents. 
Recording last will and testament, for every seventy-two word,s fifteen cents. 
Issuing letters testamentary or of administration, affixing seal thereto and re- 
cording the same, one dollar and fifty cents. 
16 



242 FEES AND SALARIES. 

Taking bond of the executor or administrator, seventy-five cents. 

Administering oath to each executor or administrator, twelve and a half cents. 

For each citation, twenty-five cents. 

Taking and filing renunciation of the widow or next of kin, twenty-five cents. 

Taking proof of a codicil, proved separately, fifty cents. 

Indorsing certificate of probate on codicil, twelve and a half cents. 

Recording the same, for every seventy-two words, fifteen cents. 

Examining and approving each inventory, sale bill, or account current, filed by 
executors or administrators, fifty cents. 
% Entering the settlement of executors or administrators on the order book, sev- 
enty-five cents. 

Each copy of the settlement of executors or administrators, with certificate and 
seal, one dollar. 

For each decree, limiting the time for exhibiting the claims of creditors, twen- 
ty-five cents. 

For each order of distribution, fifty cents. 

For each order on an executor or administrator to pay out of the estate to cred- 
itors, in proportion to their debts, twenty-five cents. 

For copies of exemplifications of records, every seventy-two words, fifteen cents. 

Official certificate and seal, fifty cents. 

Making out order for publication, twenty-five cents. 

For allowing an appeal to the circuit court, twenty-five cents. 

For issuing each special writ or summons with seal, twenty-five cents. 

For administering oath to each witness, six and a fourth cents. 

Swearing any person to an affidavit, twelve and a half cents. 

Issuing order for writ of certiorari, twenty-five cents. 

Examining petition and application for writ of certiorari, twenty-five cents. 

Issuing injunction, ne exeat or any special writ, fifty cents. 

Issuing subpoena, attachment or other process, under seal, twenty-five cents. 

Entering each decree, order or judgment, except orders allowing claims for 
or against an estate, twenty-five cents. 

Recording appraisement, sale bill, and all other exhibits and writings required 
to be recorded, (wills and codicils excepted,) for every hundred words, figures 
inclusive, ten cents. 

Filing each paper belonging to the settlement of any estate, six and a fourth 
cents. 

Issuing letters of guardianship and recording the same, one dollar. 

Taking bond of guardian, fifty cents. 

Taking any bonds not before specified, fi'ty cents. 

Revoking letters testamentary, administration or guardianship, fifty cents. 

Swearing each jury, twenty-five cents. 

Writing indenture, to be paid by master, fifty cents. 

Clerk's Fees in the County "Commissioners' Court : 

Sec. 10. For each writ, summons, subposna or other process, with seal, fifty 
cents. 

Filing each paper, six and a fourth cents. 

Entering each order of court, twelve and a half cents. 

Administering each oath, six and a fourth cents. 



FEES AND SALARIES. 243 

Each certificate and seal to any paper, other than to process, fifty cents. 

Official certificate without seal, twenty-five cents. 

For each license, and taking bond for a ferry, toll bridge or turnpike road, one 
dollar. 

For each tavern license and taking bond, one dollar. 

For each marriage license, one dollar. 

For each copy of rates for a ferry, toll bridge, turnpike road or tavern, twenty- 
five cents. 

Filing and recording marriage certificate, twelve and a half cents. 

Making each bill of costs and copy, twenty-five cents. 

For each writ of ad quod damnum, fifty cents. 

For copies of all records and proceedings, when made out on request, for everv 
seventy-two words, twelve and a half cents. 

Taking depositions when requested, for every seventy-two words, twelve and a 
half cents. 

For taking proof in cases of estrays, and granting certificate of the same, 
twenty-five cents. 

For registering each certificate transmitted to him by a justice of the peace, in 
cases of estrays, twelve and a half cents. 

For advertisements in such cases, including the copy for newspaper publica- 
tion, fifty cents. 

For trying and sealing weights and measures by the county standard, twelve and 
a half cents. 

For every certificate of magistracy under seal, twenty-five cents. 

Fees of the Attorney General and Circuit Attorneys : 

Sec 11. For each conviction in a criminal cause, where the crime is infa- 
mous, and the offender subject to corporeal punishment, ten dollars. 

For each conviction where the crime is not infamous, and the defendant is 
subject to fine or imprisonment only, five dollars. 

Fees of the successful party at law : 

Sec 12. There shall be allowed to the successful party in each civil action in 
the circuit and supreme courts, the following docket fees, to-wit : 

In each suit in which the title to lands shall come in question, two dollars and 
fifty cents. 

In each suit where the title to lands does not come in question, one dollar and 
twenty-five cents. 

In each chancery suit, two dollars and fifty cents. 

No docket fee shall be charged where final judgment or decree shall be for costs 
only ; nor when the case shall be decided without impanneling a jury : nor in 
suits which do not originate in the circuit court. The above fees shall be taxed in 
the bill of costs against the unsuccessful party, whether plaintiff or defendant : 
Provided, That not more than one docket fee shall be taxed against the same per- 
son in any one cause in the same court. 



244 FEES AND SALARIES. 

Sheriff's Fees: 

Sec. 13. For serving a writ or summons on each defendant, fifty cents. 

Taking special bail, twenty-five cents. 

For serving a subpoena on each witness, twenty-five cents. 

For summoning jury, (grand jury excepted,) each case, fifty cents. 

Advertising property for sale, twenty-five cents. 

Returning each writ or other process, twelve and a half cents. 

Mileage for each mile of necessary travel, to serve any su£h writ or process as 
aforesaid, calculating from the place of holding the court to the place of residence 
of the defendant or witness, for going only, six and a fourth cents. 

Calling the jury in each cause, twelve and a half cents. 

For levying an execution, fifty cents. 

Returning the same, twelve and a half cents. 

Serving and returning a scire facias to revive a judgment, to foreclose a mortgage, 
or against bail, sixty-two and a half cents. 

For committing each person to jail, thirty-seven and a half cents. 

Discharging each person out of jail, thirty-seven and a half cents. 

Dieting each prisoner, per day, thirty-seven and a half cents. 

For attending before a judge with a prisoner, on a writ of habeas corpus, one 
dollar. 

For each mile of necessary tra\el in taking such prisoner before the judge as 
aforesaid, six and a fourth cents. 

Serving a writ of possession, with the aid of the posse comitatus, two dollars. 

Serving the same without such aid, one dollar. 

Mileage in either case, for each mile of necessary travel from the place of hold- 
ing court to the place where such is served, for going only, six and a fourth cents. 

Executing a writ of ad quod damnum, attending the inquest, and returning the 
writ with the verdict of the jury, two dollars. 

For summoning a jury in a case of forcible entry and detainer, and attending 
the trial, two dollars. 

For attending the circuit and county commissioners' courts, to be allowed and 
paid out of the county treasury, one dollar. 

For summoning each appraiser to value property, twenty-five cents. 

For swearing each appraiser when summoned, six and a fourth cents. 

For executing and acknowledging a deed, on sale of real estate, one dollar and 
fifty cents. 

For making certificate of sale previous to the execution of the deed, twenty-five 
cents. 

For taking a replevin, replevy or forthcoming bond, fifty cents. 

For taking each bail bond or recognizance in a criminal cause, when required 
by law, fifty cents. 

For executing a capias on a defendant in a criminal cause, where the offence is 
infamous, one dollar. 

For executing a capias where the offence is not infamous, fifty cents. 

Mileage for each mile of necessary travel from the place of holding court to the 
place of making the arrest, six and a fourth cents. * 

Serving a declaration in ejectment on each defendant, and making affidavit of 
service, sixty-two and a half cents. 



FEES AND SALARIES. 245 

Mileage for each mile of travel, from the place of holding court to the place of 
residence of such defendants, six and a fourth cents. 

For conveying each prisoner from his own county to the jail of a foreign 
county, for each mile of travel, going only, ten cents. 

For committing each prisoner to jail under the laws of the United States, to 
be paid by the marshal, or other persons requiring his confinement, thirty-seven 
and a half cents. 

Dieting such prisoner, per day, thirty-seven and a half cents. 

For each month's use of the jail during the confinement of such prisoner, to be 
advanced as aforesaid, and paid into the county treasury, fifty cents. 

For discharging such prisoner, thirty-seven and a half cents. 

In addition to the above fees, there shall be allowed to the several sheriffs in 
this State, a commission of five per centum on the amount of all sales of real and 
personal estate, which shall be made by virtue of any execution issued in pursuance 
of law, where the money arising from such sales shall not exceed the sum of two 
hundred dollars ; but in all cases where the amount of any such sale shall exceed 
that sum, a commission of two and a half per centum on the excess only shall be 
allowed : Provided, That in all cases where the execution shall be settled by the 
parties, replevied, stopped by injunction, or paid, or where the property levied upon 
shall not be actually sold, the sheriff shall be allowed fifty cents for levying, and 
six and a fourth cents per mile for going to and returning from the place of ex- 
ecution and sale. 

Sec. 14. And no other fees or compensation whatever shall be allowed on any 
execution, except the necessary expenses for keeping perishable property, to be 
ascertained and allowed by the court out of which the same shall have issued. 
In all cases where any of the sheriffs in this State shall be required by law to ex- 
ecute any sentence of punishment, other than imprisonment, for which no fee is 
allowed by this chapter, it shall be the duty of the county commissioners' court of 
the proper county, to allow a reasonable compensation for the same, to be paid out 
of the county treasury. It shall be the duty of each sheriff, entitled to mileage 
under this chapter, to indorse on each writ, summons, subpoena, or other process, 
that he may execute, the distance he may travel to execute the same, ascertaining 
the distance, and the charge properly allowable therefor, in conformity with the 
foregoing regulations. In all criminal cases where the defendant shall be acquitted, 
or otherwise legally discharged, without payment of costs, the sheriff shall not be 
allowed any fees ; but the commissioners' court shall annually allow the sheriff 
such compensation for ex officio services, not exceeding thirty dollars, as they shall 
think proper. 

Coroner's Fees : 

Sec 15. For holding an inquest over a dead body, when required by law, five 
dollars. 

For summoning the jury, seventy-five cents. 

For burial expenses, &c, ten dollars. 

All of which fees shall be certified by the coroner, and paid out of the county 
treasury, when the same can not be collected out of the estate of the deceased. 
And whenever the coroner shall be required by law to perform any of the duties 
appertaining to the office of sheriff, he shall be entitled to the like fees and com- 



246 FEES AND SALARIES. 

pensation, as shall be at the time being, allowed by law to the sheriff for the per- 
formance of similar services. 

Justice's Fees in Criminal Cases : 

Sec. 16. For taking each complaint in writing, under oath, twenty-five cents. 

For taking the examination of the accused, and the testimony of witnesses in 
cases of felony, and returning the same to the circuit court, for every seventy- 
two words, twelve and a half cents. 

For each warrant, twenty-five cents. 

Taking recognizance, and returning the same, fifty cents. 

For each subpoena, twenty-five cents. 

Administering each oath, six and a fourth cents. 

For each jury warrant in a trial of assault and battery, twenty-five cents. 

For entering the verdict of the jury, twelve and a half cents. 

For each order or judgment thereon, twenty-five cents. 

For each mittimus, twenty-five cents. 

For each execution, twenty-five cents. 

For entering each appeal, twenty-five cents. 

For transcript of judgment and proceedings in cases of appeal, fifty cents. 

But in all cases where the defendant shall be acquitted, or otherwise legally 
discharged, without the payment of costs, the justice shall not be entitled to any 
fees. 

Justice's Fees in Civil Cases : 

Sec 17. For every warrant, summons or subpoena, eighteen and three-fourths 
cents. 

For eaeh continuance, twelve and a half cents. 

Administering an oath, six and a fourth cents. 

Issuing dedimus to take depositions, twenty-five cents. 

Taking each deposition when required, for every seventy -two words, twelve 
and a half cents. 

Entering judgment, twenty-five cents. 

Issuing execution, twenty-five cents. 

Entering security on docket, twenty-five cents. 

Scire facias to be served on security, twenty-five cents. 

Notification to each referee, twenty-five cents. 

Entering the award of referees, thirty-seven and a half cents. 

Entering appeal from justice's judgment, twenty-five cents. 

For each transcript of the judgment and proceedings before the justice on appeal, 
twenty-five cents. 

Issuing process of attachment, and taking bond and security, seventy-five cents. 

Entering judgment on the same, twenty-five cents. 

Docketing each suit, twelve and a half cents. 

Taking the acknowledgment or proof of a deed or other instrument of writing, 
twenty-five cents. 

For each precept, on forcible entry and detainer, fifty cents. 

On trial, per day, two dollars. 

Making complete copy of proceedings thereon, two dollars. 

For each jury warrant, twenty-five cents. 

For each marriage ceremony performed, one dollar. 



FEES AND SALARIES. 247 

For each certificate thereof, twenty-five cents. 

For administering the oatli to the finder or taker up in cases of estrays, &c, 
making an entry thereof, with the report of the appraisers, and making and trans- 
mitting a certificate thereof to the clerk of the county commissioners' court, fifty 
cents. 

Constable's Fees in Criminal Cases : 

Sec. 18. For serving a warrant on each person named therein, twenty-five 
cents. 

Mileage, to be computed from the office of the justice who may have issued the 
same, to the place of service, for each mile, six and a fourth cents. 

Serving each subpoena, twelve and a half cents. 

Mileage from the justice's office to the residence of the witness, per mile, six 
and a fourth cents. 

Taking each person to jail when committed, twenty-five cents. 

Mileage from the justice's office to the jail, per mile, six and a fourth cents. 

For summoning jury in case of assault and battery, fifty cents. 

But in all cases where the defendant shall be acquitted, or otherwise discharged, 
without the payment of costs, the constable shall not be entitled to any fees. 

Constable's Fees in Civil Cases: 

Sec 19. Serving and returning each warrant or summons, twenty-five cents. 

Serving and returning each subpoena, twelve and a half cents. 

Serving and returning execution, fifty cents. 

Advertising property for sale, twenty-five cents. 

Commission on sales not exceeding ten dollars, ten per centum; and. on all 
sales exceeding that sum, six per centum. 

Attending trial before a justice in each jury cause, twenty-five cents. 

Serving jury warrant in each case, fifty cents. 

Each day's attendance on the circuit court, when required to be paid out of the 
county treasury, one dollar. 

Mileage, when serving a warrant, summons or subpoena, from the justice's 
office to the residence of the defendant or witness, per mile, five cents. 

For serving warrant on appraisers in cases of estrays, &c, twenty-five cents. 

Witnesses' Fees: 

Sec 20. Every witness attending in his own county, on trial, per day, fifty 
cents. 

Attending in a foreign county, going and returning, per day, accounting twenty 
miles for each day's travel, one dollar. 

Every witness, when attending for the purpose of having his deposition taken, 
per day, fifty cents. 

Provided, That no allowance or charge shall be made for the attendance of wit- 
nesses as aforesaid, unless the witness shall make affidavit of the number of days 
he or she actually attended ; and that such attendance was at the instance of one 
or both of the parties, or his, her or their attorney. 

Juror's Fees : 

Sec 21. To every juror sworn in each civil action in the circuit court, twenty- 
five cents. 



248 FEES AND SALARIES. 

To each juror sworn in a civil case, before a justice of the peace, twenty-five 
cents. 

For attending an inquest over a dead body, when summoned by the coroner, 
to be paid out of the county treasury, twenty-five cents. 

Arbitrator's Fees : 

Sec. 22. To each arbitrator for every day he shall be necessarily employed in 
performing the duties of his appointment, where the award is to be made the judg- 
ment of the circuit court, two dollars. 

For every arbitrator or referee, for each day he shall be necessarily employed 
in making up his award in cases before justices of the peace, one dollar. 

Recorder's Fees : 

Sec. 23. For recording all deeds, mortgages and other instruments of writing, 
for every one hundred words, fifteen cents. 

For copies of the same, when requested, for every one hundred words, twelve 
and a half cents. 

For every search of record, twelve and a half cents. 

Official certificate, with seal, when requested, thirty-seven and a half cents. 

For each certificate without seal, twenty-five cents. 

For entering each tract of land over five in each deed or conveyance, six and a 
fourth cents. 

Fees of Notaries Public : 

Sec 24. For noting a bond, promissory note or bill of exchange for protest, 
twenty-five cents. 

For protesting and recording the same, fifty cents. 
For noting without protest, twenty-five cents. 
For notice to indorsers, &c, each, twenty-five cents. 
For affixing the seal notarial, twenty-five cents. 
For each certificate, twenty-five cents. 

County Surveyor's Fees: 

Sec 25. For establishing each quarter-section of landj two dollars and fifty 
cents. 

For establishing each half-quarter section of land, two dollars. 

For each town lot over ten, and not exceeding forty in number, thirty-seven and 
a half cents. 

For each town lot over forty, and not exceeding one hundred, twenty-five cents. 

For each lot over and above one hundred, eighteen and three fourths cents. 

For laying off land, under a writ of ad quod damnum, two dollars and fifty cents. 

And each surveyor shall be allowed the sum of two dollars per day in full com- 
pensation for traveling expenses, when necessarily engaged in the discharge of 
the duties of his office. 

Fees for Guarding Jail : 

Sec. 26. To each man, for every twenty-four hours guarding jail when requir- 
ed, on producing the certificate of tho jailer, sheriff, coroner or justice of the 
peace, of the same, to be paid out of the county treasury, one dollar. 



FEES AND SALARIES. 249 

And to the end that all persons chargeable with the fees aforesaid, due to the 
several above named officers, (except such as are to be paid by the respective 
counties,) may certainly know for what the same are charged, none of the fees 
hereinbefore mentioned, shall be payable to any such officer, until a bill of the 
same shall have been presented to the person chargeable with the same, stating 
the particulars of the said bill, and signed by the officer to whom the same are 
payable ; or until a fee bill shall have been issued by* the clerk, as hereinafter 
provided. 

Sec. 27. If any or either of the aforesaid officers shall charge, claim, demand, 
exact or take, any other or greater fees than are hereinbefore set down and allow- 
ed for any of the services specified in this chapter, or shall charge, demand or 
take any of the said fees when the services for which such fees are charged, shall 
not have been actually performed, such officer shall pay to the party injured two 
dollars for every item so charged and exacted, to be sued for and recovered in any 
court having cognizance of the same : Provided, always, That if any person against 
whom any fee bill shall be charged, shall conceive himself or herself aggrieved by 
any such charges, that the same is overcharged, or contains charges for services not 
actually rendered by such officer, it shall be lawful for such person, after paying 
the same, or having replevied the said fee bill, by giving bond, with sufficient secu- 
rity, to pay the same at the next ensuing circuit court of his county, (and it shall 
be the duty of the sheriff, or other officer, to take such bond and allow said replev- 
in,) to present the said fee bill to the circuit court of the county where the person 
so charged therewith shall reside, whose duty it shall be to inspect the said fee bill ; 
and if it appear that any item or charge is contained in said fee bill not authorized 
by law, or for services not actually rendered, the said judge shall proceed to quash 
such fee bill and bond, if one be given ; and if the money has been collected thereon, 
he shall order the clerk to restore the same, and shall impose a fine on such clerk 
in favor of the party injured, of not less than one dollar, nor more than three dol- 
lars, for every item erroneously charged in said fee bill by said clerk ; and shall 
grant to the party injured, process of attachment, to recover back the amount of 
such fee bill when paid, and also the fine or fines so imposed ; but if it shall appear to 
the said judge that such fee bill is correct, the party charged with the same shall 
pay to such clerk, an interest on the amount of such bill, at the rate of ten per cen- 
tum per annum, from the time of the delivery of such bill till the same be paid. 

Sec. 28. The clerks of the supreme and circuit courts, and the judges of probate 
shall, at or after every term of their respective courts, make and set down, in a 
book to be kept for that purpose, a fee bill in each cause in which costs shall have 
been adjudged, including the costs of sheriffs and other officers of court, setting 
down the costs of the plaintiff and defendant ; which book shall be a public record ; 
and for the purpose of collecting such costs, it shall and may be lawful for such 
clerk, and it is hereby made his duty, when required by any officer of the court, 
interested in the same, to make out a copy or transcript of such bill of costs and 
deliver the same to the sheriff or any constable of the county where the person or 
persons chargeable with the same, shall reside or have property ; which fee bill, so 
issued, shall have the force and effect of an execution, and be collected in the same 
manner : Provided, Nothing herein contained shall be so construed as to prevent 
the collection of such costs by execution, on final judgments. 

Sec 29. If any sheriff or other officer, to whom any such fee bill shall have 
been delivered, shall neglect to make return thereof, or to pay the amount of such 



250 FEES AND SALARIES. 

fee bill, except his own fees, it shall and may be lawful for any party interested in 
such fee bill, to obtain a rule of court against such sheriff or other officer, and pro- 
ceed against him by attachment, and recover the same according to the rules and 
practice of the court where such costs may have accrued. 

Sec. 30. Clerks of the supreme and circuit courts shall not be required to make 
up or certify a complete record, except in capital criminal cases, and cases in which 
the title to land is in question, or by special order of the court ; but such record 
shall only contain the declaration, plea, demurrer, rejoinder or other pleadings in 
the suit, together with the judgment of the court below given thereupon ; nor unless 
directed by a party to insert such pleadings or papers as he may deem necessary, 
in which case, such party shall pay the additional costs ; and if in any cause, where 
the clerk is not required by law, either party shall require a complete record, the 
party so requiring it, shall pay the cost of the same. 

Sec 31. Any person who has heretofore been, or who is at this time the sher- 
iff of any county in this State, and in whose hands the clerks of their respective 
counties, have, agreeably to the statute of this State in such cases made and provi- 
ded, put their fees for collection, and which fees, the sheriffs as aforesaid, have not 
collected, are hereby fully authorized to go on and make such collections, as if they 
had clone so in strict conformity with the law ; together with all fees which may be 
due to them for services as sheriffs rendered : Provided, That no division of a 
county shall, in any instance, interfere with such collections. 

Sec. 32. The clerks of the circuit and county commissioners' courts, shall pro- 
vide all the necessary books for their respective offices, and a safe press or presses, 
with locks and keys for the safe keeping of the archives of their respective offices ; 
and the countv commissioners' courts shall make allowances for the same, and for 
articles of stationery necessary for their respective courts, out of the county treas- 
ury, from time to time;* and the clerk of the supreme court shall also procure the 
necessary books, stationery and presses, for the safe deposit of the archives of his 
office ; which shall be certified by the said court to the auditor of public accounts, 
who shall draw a warrant or warrants on the State treasury for the amount of the 
same. 

Sec. 33. It shall be the duty of the county commissioners' court in each county, 
as soon as the same shall be practicable, to cause a suitable room or rooms to be 
provided at the court house in their respective counties, for the offices of the clerks 
of the circuit courts, and county commissioners' courts ; and when the same shall 
be so provided, the clerks shall keep their offices at the place so provided. 

Sec. 34. In all cases on judgments, on which execution may, or shall hereafter 
issue, from any court of record, the clerk of the court from which the same shall 
issue, shall at the time of issuing thereof, make out under his signature, and deliv- 
er to the sheriff or coroner, as the case may be, with the execution, a detailed bill 
of the costs in the said suit, from its commencement to its termination, in order that 
the party paying the same may certainly know with and for what he is chargeable ; 
which said bill, the said officer to whose hands the execution may so come, shall 
deliver to the party against whom the execution may be ; and upon his replevying 
or paying the same, together with his certificate thereon, that the same was so re- 
plevied or paid by the said person. 

Sec. 35. Should any officer concerned in issuing or executing any execution, 
hereafter to be issued as aforesaid, fail in the duty enjoined on him in the preceding 
section hereof, he shall forfeit and pay to the party injured, the sum of fifty dollars 



FERRIES AND TOLL BRIDGES. 



251 



with costs, to be recovered in any court of record in this State, and no imparlance 
or delay shall be allowed therein. 

Sec. 36. The clerks of the several courts aforesaid, probate justices and justices 
of the peace, respectively, shall be required to set up in some conspicuous place in 
each of their offices, and there continually keep a fair and complete table of their fees, 
allowed by this chapter ; and if any such officer shall fail to comply with the provis- 
ions of this section, or shall, at any time hereafter, for ten days together, not have 
such table continually kept up as aforesaid, he shall forfeit and pay for every such 
neglect, the sum of ten dollars, to be recovered before any justice of the peace of 
the proper county, to the use of any person or persons who may inform and sue 
for the same. 

Sec. 37. The clerks of the courts of county commissioners shall not charge 
any fees for issuing writs of election, comparing election returns, issuing notices to 
supervisors of roads, issuing certificates of allowances made to individuals by the 
court, or for any other services rendered the county; but the courts shall allow their 
respective clerks such reasonable compensation as they may think right, as an ex 
officio fee, not exceeding twenty dollars per annum, exclusive of a reasonable allow- 
ance per day, for their attendance on the courts in term time. 

Sec 38. Every officer authorized by law to take proofs or acknowledgments of 
deeds, is allowed a fee of twenty-five cents, for each deed proved or acknowledged 
before him. 

Sec. 39. It shall be the duty of the clerk of any circuit court in this State, in 
all cases where fees are remaining, belonging to and unpaid, in cases in the said 
court, whether disposed of or not, to the predecessor of said clerk, upon request of 
the said predecessor, his heirs or legal representatives, to issue his fee bill or exe- 
cution therefor, as the case may be, under the seal of said court, and said fee bill 
shall have the force and effect of an execution ; and the said clerk shall have no 
claim upon his said predecessor for the fees of issuing said fee bill or execution, 
but shall look to the party in the case liable therefor. 

Approved : March 3, 1845. 

[Amended: — See Appendix, Act No. 16.] 



CHAPTER XLII. 

EERI1IES AND TOLL BRIDGES . 



Section 

1 . Ferry or toll bridge, when application made for, 

■ duty of county commissioners : Provided, no- 
tice of intention be given. 

2. When established, license to be granted; Pro- 

vided, tax assessed be paid, and bond entered 
into. 

3. Boats, ferrymen, landing, &c. 

4. Toll bridge or turnpike to be kept in good re- 

pair. 

5. Duty of keeper; public messengers to pass 

free ; who considered such ; penalty for neg- 
lect of keeper ; damages, how collected ; keep- 



Section 

er excused in case of high water, &c; jury- 
men, when entitled to pass free. 

6. Rates of toll, how fixed, and penalty for over- 

charging. 

7. List of rates to be posted up, and penalty for 

neglect or refusal. 

8. Order of crossing; penalty for violation ofj 

who shall be first when all can not go. 

9. Rights of owners or keepers. 

10. Ferries and toll bridges heretofore established 

and continued, declared further established. 

11. Penalty for running boat without license. 



252 



FERRIES AND TOLL BRIDGES. 



Section 

12. Keepers of ferries, toll bridges and turnpike 

gates exempt from military duty, road labor, 
and serving on jury. 

13. Proprietor of ferry, toll bridge or turnpike 



Section 

road, to show cause why same shall not be 
discontinued for neglect of duty. 

14. Annual tax, amount of, and how assessed. 

15. County may purchase. 

16. Keeping without license, penalty for. 



Section 1. Whenever it shall be considered necessary to establish a ferry or 
toll bridge across any lake, river, creek, or any other water course within the lim- 
its or upon the borders of this State, or to turnpike or causeway any public road 
or highway, it shall be the duty of the county commissioners' court of the proper 
county, on due application being made by any qualified person or persons, to estab- 
lish and confirm the same by a special order, to be made for that purpose, under 
such regulations, restrictions and forfeitures as are hereinafter directed and pointed 
out : Provided, That no such application shall avail any such person or persons as 
aforesaid, unless his, her or their intention in relation thereto, shall have been pre- 
viously published in some public newspaper printed in this State, or advertised on 
the door of the court house, and in three other of the most public places in the 
county, in which such ferry, toll bridge or turnpike road is proposed to be estab- 
lished, for at least four weeks successively, next preceding the sitting of the court 
at which the same shall be made : And, provided further, That the proprietor or 
proprietors of the lands adjoining to, or embracing such water course as aforesaid, 
over which any such ferry or toll bridge shall be proposed to be established as 
aforesaid, or where any such turnpike road shall pass as aforesaid, shall, at all 
times, have the preference in establishing or erecting the same, in all cases where 
application shall be made for that purpose, before such privilege shall have been 
granted to any other person or persons as aforesaid. 

Sec 2. When any ferry, toll bridge or turnpike road shall be established as 
aforesaid, it shall be the duty of the court establishing the same, to direct their clerk 
to issue to the proprietor or proprietors thereof, a license under the seal of such 
court, to keep the same according to law : Provided, That such proprietor or pro- 
prietors as aforesaid, to whom any such license may be directed to be issued as 
aforesaid, shall, before the issuing thereof, pay into the county treasury, or to such 
person or persons as shall be authorized to receive the same, the amount of the first 
year's tax, which may be assessed upon such ferry, toll bridge or turnpike road, by 
said court, and specified in the order establishing the same, and enter into bond 
with one or more sufficient securities, to be approved by the court, in a sum not 
less than one hundred, nor more than five hundred dollars ; payable to the county 
commissioners of the proper county, and their successor in office, for the use of 
such county, with a condition therein contained, that he, she or they, will keep 
such ferry, toll bridge, or turnpike road according to law ; and if default shall, at 
any time, be made in the condition of said bond, damages, not exceeding the penal- 
ties therein mentioned, may be sued for, and recovered in the name of the county 
commissioners for the use of the county wherein such ferry, toll bridge or turnpike 
road shall have been established, in any court having competent jurisdiction. 

Sec 3. Each ferry-keeper shall be furnished and provided with a good tight 
boat or boats, if more than one be necessary, and other small craft of sufficient num- 
ber, dimensions, strength and steadiness, for the safe and speedy transportation of 
all passengers, their teams, horses, cattle and other animals, as well as their goods, 
chattels and effects ; and the said boat or boats, and other small craft shall, at all 
times, be well furnished with suitable oars, setting poles, rigging and other imple- 



FERRIES AND TOLL BRIDGES. 253 

ments necessary for the service thereof; and also with men of sufficient number, 
strength, discretion and skill to manage the same ; and such ferry-keeper shall, at 
all times, keep the place of embarking and landing in good repair, by cutting away 
the banks and erecting wharves and causeways when necessary, so that passengers, 
their teams, horses, cattle and other property, may be embarked and landed without 
danger or unnecessary delay. 

Sec. 4. Every keeper of a toll bridge or turnpike road, shall, in like manner, 
be required to keep the same at all times in good repair, so as to afford a safe and 
speedy passage to all persons, their teams, horses, cattle and other animals, who 
may have occasion to use the same. 

Sec 5. Every keeper of a ferry, toll bridge or turnpike road as aforesaid, shall 
give constant and diligent attention to the same, from daylight in the morning until 
dark in the evening of each day, and shall give passage to all public messengers 
and expresses, to all grand and petit jurors, when going to and returning from 
court, without any fee or reward whatever : Provided, That no messenger or ex- 
press shall be considered as being sent on public service, within the meaning of 
this chapter, unless he shall have been dispatched by a commander-in-chief, major 
or brigadier general, colonel, lieutenant-colonel, major or commandant of some mil- 
itary post or establishment, to the governor or commander-in-chief of the militia 
of this State, or vice versa ; and the dispatch carried by such messenger or express, 
be indorsed, "on public service," and signed by the officer sending the same. And 
all such keepers of ferries, toll bridges and turnpike roads as aforesaid, shall also be 
obliged at any hour of the night, if required, except in cases of evident danger, to 
give passage to all public messengers and expresses as aforesaid ; and also to all 
other persons requiring the same, on their paying or tendering double the rate of 
ferriage or toll allowed to be taken during the day time. And if any such keeper 
of a ferry, toll bridge or turnpike road as aforesaid shall, at any time, neglect or 
refuse to give passage to such person or persons, or their property as aforesaid, he 
or she so offending, shall forfeit and pay five dollars for every such offence to the 
party aggrieved, before any justice of the peace of the county wherein such offence 
shall be committed, and shall also be liable to an action on the case, for any special 
damage which any such person may sustain in consequence of such neglect or re- 
fusal. But no ferryman shall be required to put off from shore, or to attempt to 
pass any such water course as aforesaid, when it manifestly appears to be hazar- 
dous so to do, by reason of any flood, storm, tempest or ice ; nor shall any keeper 
of a ferry, toll bridge, or turnpike road as aforesaid, be compellable, (except as is 
hereinbefore excepted,) to give passage to any person or persons, or to his, her or 
their property as aforesaid, until the fare or toll properly chargeable by such keeper, 
shall have been fully paid or tendered ; and every juryman, to entitle him to the 
benefit of this section, shall produce to the ferry-keeper, &c, the certificate of the 
sheriff of his county, that he has been duly summoned to serve on the grand or 
petit jury at the term of the court, to or from which he is going. 

Sec 6. The county commissioners' courts in their respective counties, are au- 
thorized and required to fix, from time to time, the rates, fare or toll, which each 
keeper of any ferry, toll bridge or turnpike road, shall hereafter demand for the 
passage of all persons, wagons, carts, carriages, horses, cattle, sheep, hogs and other 
property, having due regard to the breadth and situation of the stream or water 
course over which such ferry or bridge shall be established, the dangers and diffi- 
culties incident thereto, the length, breadth and quality of the road, and the pub- 






254 FERRIES AND TOLL BRIDGES. 

licity of the place at which the same shall have been established. And every such 
keeper of a ferry, toll bridge or turnpike road as aforesaid, who shall, at any time, 
demand and take, more than the fare or toll so stated and allowed as aforesaid, shall 
forfeit and pay to the party aggrieved, for every such offence, the sum of five dollars 
over and above the amount which shall be thus illegally demanded and taken, to be 
recovered before any justice of the peace of the county wherein such offence shall 
be committed. 

Sec. 7. Each keeper of a ferry, toll bridge or turnpike road, which now is or 
shall hereafter be established in this State, shall be required to set or post up in 
some conspicuous place, immediately adjoining his or her ferry landing, toll bridge 
or turnpike gate, a painted, printed or written list of the several rates or fares, 
which shall be chargeable at such ferry, toll bridge or turnpike gate, so that the 
same shall not exceed those which shall, from time to time, be allowed by law ; 
which said lists of fares or rates as aforesaid, shall at all times, be painted, printed or 
written in a plain, legible manner, and posted up so near the place or places where 
persons shall pass across such ferry, toll bridge or turnpike road as aforesaid, that 
the same shall be open and legible to all such passengers : And if, at any time, 
any such keeper as aforesaid, shall refuse or neglect to put up such list of rates or 
fares as aforesaid, it shall not be lawful to charge any ferriage or toll, or to take 
any compensation whatever, at any such ferry, toll bridge or turnpike gate, dur- 
ing such delinquency. 

Sec. 8. All persons shall be received into such ferry boats or other vessels 
as aforesaid, and conveyed across the water course over which the same shall be 
established, according to their arrival or first coming to the said ferry : And if any 
ferry-keeper shall act contrary to this regulation, he shall forfeit and pay the sum 
of three dollars for every such offence, to the party aggrieved, recoverable before 
any justice of the peace of the county wherein such offence shall have been com- 
mitted : Provided, That all public officers, or such as go on public or urgent occa- 
sion, as post riders, couriers, physicians, surgeons and midwives, shall, in all 
cases, be the first carried over, where all can not go at the same time. 

Sec. 9. The owner or owners, keeper or keepers, at all ferries and toll bridges, 
which now are, or hereafter shall be established by law, and kept agreeably to this 
chapter, shall have the exclusive privilege of the transportation or passage of all 
persons, their teams, horses, cattle and other property over or across the same, and 
be entitled to all the fare by law arising therefrom : Provided, That nothing herein 
contained shall be construed to prevent any person or persons from crossing any 
stream or water course, over which any such ferry or toll bridge shall be estab- 
lished as aforesaid, in his or her own boat or other craft, on his or her own busi- 
ness ; and also to take in and cross his neighbors where the same is done without 
fee, and not with intention to injure any ferryman near. 

Sec 10. All ferries heretofore established and confirmed over the river Ohio, 
to the proprietor or proprietor of land on the western shore of said river, by the 
county commissioner' courts of any of the counties bounded by or situate upon said 
river, as well as all other ferries and toll bridges which have, at any time, been es- 
tablished over any other of the lakes, rivers, creeks or other water courses, within 
the limits or upon the borders of this State, and where the same have been kept in 
operation or repair, from time to time, according to law ; and have not at any time 
since their establishment been discontinued or abandoned, shall be, and they are 



FERRIES AND TOLL BRIDGES. 255 

hereby declared to be established ferries and toll bridges, within the meaning of 
this chapter. 

Sec. 11. If any person or persons except those whose ferries or toll bridges 
are established and confirmed by this chapter, or shall hereafter be established and 
licensed by some county commissioners 1 court under the provisions of this chapter, 
shall, at any time, run any boats or other craft, for the purpose of conveying pas- 
sengers or their property across any such water course as aforesaid, within three 
miles of any ferry or toll bi'idge which now is, or hereafter shall be established as 
aforesaid, except as is hereinbefore allowed, he, she or they so offending, shall for- 
feit every such boat or boats, or other craft to the owner or proprietor of the ferry 
or toll bridge within three miles of which the same shall be run as aforesaid ; and 
the owner or proprietor of such ferry or toll bridge may, at any time after such 
forfeiture shall have accrued, enter upon and take possession of such boat or boats, 
or other craft, to his or her own use ; and such offender shall, moreover, pay to the 
proprietor of such ferry or toll bridge as aforesaid, who may be aggrieved as afore- 
said, the sum of fifteen dollars for each person who may be thus unlawfully carried 
or conveyed across any such water course as aforesaid, to be recovered by motion 
before any justice of the peace of the proper county, upon giving to such offender 
five days' notice of the time and place of making such motion ; which notice may be 
served on such person or persons, either in or out of the State, by delivering or 
tendering a copy thereof. 

Sec 12. For the encouragement of ferry-keepers, and the keepers of the gates 
of toll bridges and turnpike roads, and in consideration of their giving a free pas- 
sage to public messengers and others exempted by this chapter, all men necesi irily 
attending on ferries, toll bridges or turnpike gates in this State, shall be free from 
military duty, of opening and repairing highwaj^s, so far as personal service is re- 
quired, and from serving on juries. 

Sec 13. If any ferry or ferries which now are, or hereafter may be esta 1 "shed 
as aforesaid, shall not be furnished with sufficient boat or boats, or other craft, with 
the necessary oars, setting poles, rigging, and other implements for the service there- 
of, and also w T ith a sufficient number of able bodied and skilful ferrymen, as is pro- 
vided in the third section of this chapter, within three months from the establish- 
ment thereof, or if any toll bridge or turnpike road, which now is, or hereafter 
shall be established as aforesaid, shall not be erected and completed agreeably to 
the terms and conditions imposed by the county commissioners' court, within 
twelve months after the establishment thereof, or if any such ferry, toll bridge or 
turnpike road shall not, at any time hereafter, be kept in good condition and repair, 
agreeably to the provisions of this chapter, or if the same shall, at any time be 
abandoned, disused or unfrequented for the space of six weeks, it shall and maybe 
lawful for the county commissioners' court of the proper county, on complaint being 
made, to summon the proprietor or proprietors of such ferry, toll bridge or turn- 
pike road, to show cause why the same should not be discontinued, and their license 
revoked ; and decide thereon according to the testimony adduced, and as shall be 
agreeable to equity and justice j which decision, when made, shall be valid in law 
to all intents and purposes, but subject to appeal to the circuit court, as in other 
cases. 

Sec 14. All ferries, toll bridges and turnpike roads, which now are, or here- 
after may be established as aforesaid, shall be subject to an annual tax of not less 
than two, nor more than one hundred dollars, in the discretion of the county com- 



256 FORCIBLE ENTRY AND DETAINER. 

missioners' court of the county in which the same shall be located ; which tax, 
when assessed, shall be collected and paid over as the other taxes are, and shall 
constitute a part of the county revenue. 

Sec 15. If the county in which any toll bridge or turnpike road shall be estab- 
lished and erected as aforesaid, shall, at any time, pay or cause to be paid to the 
proprietor or proprietors thereof, the original cost of such toll bridge, or turnpike 
road as aforesaid, with ten per cent, interest thereon, then the said bridge or road 
shall cease to be private property, and shall become a public bridge or highway. 

Sec 16. No person shall establish, keep or use any ferry, toll bridge, or turn- 
pike road as aforesaid, for the conveyance or passage of persons and their proper- 
ty as aforesaid, for profit or hire, unless he or she shall be licensed as directed by 
this chapter, under the penalty of five dollars for each offence, recoverable before 
any justice of the peace of the county wherein such offence shall be committed ; the 
one-half thereof shall go to the person suing for the same, and the other half to the 
county ; and if any person or persons not licensed as aforesaid shall, at any time, pass 
any person or persons, or their property as aforesaid, except as is provided in 
the ninth section hereof, over any lake, river, creek or any other water course, 
where any ferry or toll bridge shall, at the time, be established and kept as aforesaid, 
or within three miles thereof, either with or without compensation, with intent to 
injure the keeper or proprietor of such ferry or toll bridge, he, she or they shall 
incur the same forfeitures, and may be proceeded against in the same manner as is 
provided in the eleventh section : Provided, That it shall not be considered illegal 
for any person or persons to pass any person or his property without compensation, 
in cases where it shall be made to appear that such established ferry or toll bridge 
was not, at the time, in actual operation, or in sufficient repair to have afforded to 
such person or his property a safe and speedy passage. 

Approved : March 3, 1845. 



CHAPTER XLIII. 

FORCIBLE ENTRY AND DETAINER. 



Section ; Section 

1. What deemed forcible entry and detainer. oath; jus'tces shall keep record of procee- 

2. Actions to be brought before justices of the dings; effect of judgment. 

peace; proceedings in such cases; how jury ; 5. Appeal to circuit court allowed ; how taken and 

summoned. tried. 

3. Duty of sheriff; if defendant do not appear, J 6. Appeal bond to provide for payment of rents ; 

exparte trial may be had. effect of judgment in circuit court. 

4. No indictment requisite ; complaint to be under I 

Section 1. If any person shall make any entry into any lands, tenements or 
other possessions, except in cases where entry is given by law, or shall make any 
such entry by force, or if any person shall wilfully and without force, hold over 
any lands, tenements or other possessions, after the determination of the time for 
which such lands, tenements or possessions were let to him, or to the person under 



FORCIBLE ENTRY AND DETAINER. 257 

whom he claims, after demand made in writing for possession thereof, by the person 
entitled to such possession, such person shall be adjudged guilty of a forcible entry 
and detainer, or a forcible detainer, as the case may be, within the intent and mean- 
ing of this chapter. 

Sec. 2. Any justice of the peace of any county in this State, shall have juris- 
diction of any case arising under this chapter, and on complaint upon oath of the 
party aggrieved, or his authorized agent, shall issue his summons directed to the 
sheriff, (or coroner, if the sheriff be interested,) of his county, commanding him, 
to summon the person against whom the complaint is made, to appear before such 
justice at a time and place to be stated in such summons, not more than twelve, nor 
less than six days from the time of issuing such summons, and which shall be 
served at least five days before the return day thereof, by reading the same to the 
defendant, or leaving a copy at his place of abode; and the said justice shall, also, 
at the same time, issue a precept to the s her i ft* or coroner, commanding him to sum- 
mon a jury of twelve good and lawful men of the county, to appear before him at 
the return of such summons, to hear and try the said complaint. And if any part 
of the jurors shall fail to attend, or be challenged, the said justice may order the 
sheriff or coroner to complete the number, by summoning and returning others 
forthwith. 

Sec. 3. The sheriff or coroner shall return to the said justice the summons and 
precept as aforesaid, on the day assigned for trial, and shall state on the back of 
said summons how the same was served, and on the back of said precept, a list of 
the names of the jurors. And if the defendant does not appear, the justice shall 
proceed to try the said cause, ex parte, or may, in his discretion, postpone the trial 
for a time not exceeding ten days ; and the said justice shall also issue subpoenas for 
witnesses, and proceed in the trial of said cause, as in other cases of trial by jury. 

Sec 4. No indictment or inquisition shall be necessary in any case arising 
under this chapter ; but the justice shall set down in writing, the complaint, under 
oath, particularly describing the lands, tenements or possessions" in question, and 
shall keep a record of the proceedings had before him ; and if the jury shall find the 
defendant guilty, he shall give judgment thereon, for the plaintiff to have restitution 
of the premises and his costs, and shall award his writ of restitution ; and if a ver- 
dict be given for the defendant, judgment shall be given against the plaintiff for 
costs and execution issued therefor. 

Sec. 5. If either party shall feel aggrieved by the verdict of the jury or the 
decision of the justice on any trial had under this chapter, he or she may have an 
appeal to the circuit court, to be obtained in the same manner and tried in the same 
way as appeals from justices of the peace in other cases. 

Sec. 6. If the defendant or defendants appeal, he or they shall also insert in the ap- 
peal bond, a clause conditioned for the payment of all rents becoming due, if any, from 
the commencement of the suit, until the final determination thereof. If the appeal 
be taken within five days after the trial had before the justice, no writ of restitution 
or execution shall be issued by him; and the circuit court, on giving judgment for 
the plaintiff, shall award a writ of restitution, and execution for costs, including the 
costs before the justice ; and if judgment be for the defendant, he shall recover 
costs, in like manner, and have execution for the same. 

Approved : March 3, 1845. 

[Amended: — See Appendix, Act No. 18.] 

17 



CHAPTER XLIV. 

FRAUDS AIs T D PERJURIES 



ion Section 

When action brought, promise or agreement to 8. When personal estate of ancestor insufficient to 

be in writing and signed by ihe party charged, pay debts, real estate in hands of heirs or de- 

or other authorized person. visees may be taken in execution. 



2. Conveyances of real and personal estate, in what 

cases shall be deemed fraudulent. 

3. Bona fide conveyances, when good considera- 

tion, not deemed fraudulent. 

4. Trusts in relation to real estate, not in writing, 

void; exceptions as to resulting trusts. 

5. Fraudulent devises in real estate declared void. 

6. Person making fraudulent devise, his heirs, &c, 

subject to same action, as he might be, if living. 

7. Guardian, ad litem, when may be appointed. 



In action against heir or devisee, he may plead 
riensper descent; reply of plaintiff thereto; how 
issue tried and damages assessed. 

10. If, on judgment against executor, sufficient pro- 

perty of deceased be not found, suit may b& 
brought against heir or devisee. 

11. If estate be not administered upon within one 

year after death, separate suit may be main- 
tained against heir or devisee. 

12. Facts shall be distinctly set forth in declaration. 



Section 1. No action shall be brought, whereby to charge any executor or ad- 
ministrator upon any special promise to answer any debt or damages out of his own 
estate, or whereby to charge the defendant upon any special promise to answer for 
the debt, default, or miscarriage of another person ; or to charge any person upon 
any agreement made upon consideration of marriage, or upon any contract for the 
sale of lands, tenements or hereditaments, or any interest in, or concerning them T 
for a longer term than one year ; or upon any agreement that is not to be performed 
within the space of one year from the making thereof, unless the promise or agree- 
ment upon which such action shall be brought, or some memorandum or note there- 
of, shall be in writing, and signed by the party to be charged therewith, or some 
other person thereunto by him lawfully authorized. 

Sec 2. Every gift, grant or conveyance of lands, tenements, hereditaments, 
goods or chattels, or of any rent, common or profit of the same, by writing or oth- 
erwise ; and every bond, suit, judgment or execution had and made, or contrived 
of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder 
or defraud creditors of their just and lawful actions, suits, debts, accounts, damages, 
penalties or forfeitures, or to defraud or deceive those who shall purchase the same 
lands, tenements or hereditaments, or any rent, profit or commodity out of them, 
shall be from thenceforth deemed and taken only as against the person or persons, 
his, her or their heirs, successors, executors, administrators or assigns, and every 
of them, whose debts, suits, demands, estates and interests by such guileful and 
covinous devices and practices as aforesaid shall, or might be, in anywise disturbed, 
hindered, delayed or defrauded, to be clearly and utterly void ; any pretence, color, 
feigned consideration, expressing of use, or any other matter or thing to the con- 
trary notwithstanding ; and moreover, if a conveyance be of goods and chattels, and 
be not, on consideration, deemed valuable in law, it shall be taken to be fraudulent, 
unless the same be by will, duly proved and recorded, or by deed in writing, ac- 
knowledged or proved, if the same deed includes land, also, in such manner as con- 
veyances of land are by law directed to be acknowledged or proved ; or if it be 
goods and chattels only, then acknowledged or proved by two witnesses, before any 



FRAUDS AND PERJURIES. 259 

court of record in the county wherein one of the parties lives, within eight months 
after the execution thereof, or unless possession shall really and bona fide remain 
with the donee.; and in like manner where any loan of goods and chattels shall be 
pretended to have been made to any person, with whom or those claiming under 
him, possession shall have remained for the space of five years, without demand 
made and pursued by due process at law, on the part of the pretended lender, or 
where any reservation or limitation shall be pretended to have been made of an use, 
or property by way of condition, reservation, remainder or otherwise, in goods or 
chattels, the possession whereof shall have remained in another as aforesaid, the 
same shall be taken as to creditors and purchasers of the person aforesaid, so re- 
maining in possession, to be fraudulent, and that the absolute property is with the 
possession, unless such loan, reservation, or limitation of use or property were de- 
clared, by will or deed in writing, proved and recorded as aforesaid. 

Sec. 3. This chapter shall not extend to any estate or interest in any lands, 
goods or chattels, or any rents common or profit, out of the same, which shall be 
upon good consideration, and bona fide lawfully conveyed, or assured to any person 
or persons, bodies politic or corporate. 

Sec. 4. All declarations or creations of trusts or confidences of any lands, ten- 
ements or hereditaments, shall be manifested and proved by some writing signed 
by the party, who is by law enabled to declare such trust, or by his last will in 
writing ; or else they shall be utterly void and of no effect : Provided, That result- 
ing trust or trusts created by construction, implication, or operation of law, need 
not be in writing, and the same may be proved by parol. 

Sec. 5. All wills and testaments, limitations, dispositions or appointments of, 
or concerning any lands and tenements, or of any rent, profit, term or charge, out 
of the same, whereof any person or persons at the time of his, her or their decease, 
shall be seized in fee simple, in possession, in reversion, or remainder, or have 
power to dispose of the same by his, her or their last will and testament, shall be 
deemed and taken (only as against the person or persons, his, her or their heirs, 
successors, executors, administrators or assigns, and every of them whose debts, 
suits, demands, estates and interests, by such will, testament, limitation, disposition 
or appointment as aforesaid, shall, or might be in anywise disturbed, hindered, de- 
layed or defrauded,) to be fraudulent, void and of none effect, any pretence, color, 
feigned or presumed consideration, or any other matter or thing to the contrary not- 
withstanding. 

Sec 6. Any person or persons, his, her or their heirs, devisees, executors, 
administrators, successors or assigns, and every of them, who shall or may have 
any debts, suits or demands against any person or persons who shall make any frau- 
dulent devise as aforesaid, or who have any debts, suits or demands against any 
person or persons who shall die intestate, and have real estate to his, her or their 
heirs, to descend according to the laws of this State, shall, and may have and main- 
tain the same action or actions, which lie against executors and administrators upon 
his, her or their bonds, specialities, contracts, agreements and undertakings, against 
the executors or administrators, and the heir or heirs, or against the executors or 
administrators, and the devisee or devisees, or may join the executors or adminis- 
trators, the heir or heirs, and the devisee or devisees of such obligor or obligors, 
undertaker or undertakers as aforesaid, and shall not be delayed for the non-age of 
any of the parties. 



2G0 FRAUDS AND PERJURIES. 

Sec. 7. When any suit or action in law or equity, shall be brought against any 
heir or heirs, devisee or devisees, who shall be of non-age, it shall be lawful for 
the court to appoint a guardian, ad litem, lor such infant heir or heirs, devisee or 
devisees' and may compel the person so appointed to act : Provided, That by such 
appointment, such person shall not be rendered liable to pay any costs of suit. 

Sec 8. When any lands, tenements or hereditaments, or any rents or profits 
out of the same shall descend to any heir or heirs, or be devised to any devisee or 
devisees, and the personal estate of the ancestor of such heir or heirs, or devisor 
of such devisee or devisees, shall be insufficient to discharge the just demands 
against such ancestor, or devisor's estate, such heir or heirs, devisee or devisees, 
shall be liable to the creditor of their ancestor or devisor, to the full amount of the 
lands, tenements or hereditaments, or rents and profits out of the same as may de- 
scend, or be devised to the said heir or heirs, devisee or devisees ; and in all cases 
where any heir or heirs, devisee or devisees, shall be liable to t pay the debt or debts 
of his executor or devisor, in regard of any lands, tenements or hereditaments, or 
anj' rent or profit arising out of the same, descending or being devised to him, her 
or them, and shall sell, alien or make over the same before any action brought, or 
process sued out against him, her or them, such heir or heirs at law, devisee or de- 
visees, shall be answerable for such debt or debts to the value of the said lands, 
tenements and hereditaments, rents or profits, so by him, her or them sold, aliened 
or made over ; and executions may be taken out upon any judgment so obtained 
against such heir or heirs, devisee or devisees, to the value of the said lands, tene- 
ments and hereditaments, rents and profits, out of the same, as if the same were his, 
her or their own proper debt or debts, saving and excepting that the lands and ten- 
ements, rents and profits, by him, her or them bona fide aliened, before the action 
brought, shall not be liable to such execution. 

Sec 9. When any action or suit is brought against any heir or heirs, devisee or 
devisees, he, she or they may plead riens per descent, at the time of the commence- 
ment of the action or suit, and the plaintiff in such action may reply, that he, she 
or they had lands, lenements or hereditaments, or rents or profits out of the same, 
from his, her or their ancestor, or devisor, before the commencement of the action 
or suit, and if upon issue joined thereupon, it be found for the plaintiff, the jury 
shall inquire of the value of the lands, tenements, hereditaments, or rents and pro- 
fits out of the same, so descended or devised, and thereupon judgment shall be given 
and execution awarded as aforesaid ; but if judgment be given against such heir or 
heirs, devisee or devisees, by confessing of the action without confessing the assets 
descended or devised, or upon demurrer or nihil dicit, or default, said judgment 
shall be given for the plaintiff, without any writ to inquire of the lands, tenements 
or hereditaments, or rents and profits out of the same, so descended or devised. 

Sec. 10. In all cases where a judgment has been obtained against the executor 
or executors, administrator or administrators, of a deceased person, on a contract 
or undertaking, on which a joint action might have been maintained against the ex- 
ecutor or executors, administrator or administrators, and the heir or heirs, devisee 
or devisees of the deceased person, if it shall appear by a judgment of record, or 
the return of a proper officer, that there is not property of the deceased person 
in the hands of the executor or executors, administrator or administrators, to satisfy 
such judgment, it shall be lawful to bring a separate suit or action against the heir 
or heirs, devisee or devisees on such contract or undertaking ; and the judgment 



FUGITIVES FROM JUSTICE. 



261 



against the executor or executors, administrator or administrators, if not satisfied, 
shall be no bar to the suit or action against the heir or heirs, devisee or devisees. 

Sec. 11. If no person shall administer on the goods and chattels of a deceased 
person, for the space of one year after his or her death, a separate suit or action 
may be maintained against the heir or heirs, devisee or devisees, on all the con- 
tracts and undertakings of such deceased person. 

Sec. 12. In all actions or suits commenced under the provisions of the preced- 
ing sections, the facts authorizing the suit to be brought separately against the heir 
or heirs, devisee or devisees, shall be distinctly set forth in the declaration. 

Approved : March 3, 1845. 



CHAPTER XLV. 

FUGITIVES FROM JUSTICE. 



Section 

1. Fugitive from justice, when demanded by ex- 

ecutive of another State, Governor shall issue 
warrant for his apprehension. 

2. When executive of this State shall demand fugi- 

tive from executive of another State, lie shall 
issue his warrant to messenger appointed to 
receive fugitive. 

3. Expenses, how paid. 

4. When judge or justice may issue warrant for 

apprehension of fugitives, if found guilty on 
examination, may he committed to jail, or 
may be bailed, if offence bailable ; examination 



Sect on 

to be reduced to writing, and returns thereof 
made to circuit court of the proper county; 
further proceedings defined. 

5. When party admitted to bail, and no demand 

made, how court may proceed. 

6. Forfeiture of recognizance, benefit of, to enure 

to State. 

7. When complaint made against fugitive, security 

to be given for costs ; further proceedings de- 
fined. 

8. When prisoner escapes, Governor may offer re- 

ward for apprehension. 



Section 1. Whenever the executive of any other State, or of any territory of 
the United States, shall demand of the executive of this State, any person as a fu- 
gitive from justice, and shall have complied with the requisitions of the act of Con- 
gress in that case made and provided, it shall be the duty of the executive of this 
State to issue his warrant under the seal of the State, to apprehend the said fugi- 
tive, directed to any sheriff, coroner, or constable of any county of this State, or 
other person whom the said executive may think fit to entrust with the execution of 
said process : Any of the said persons may execute such warrant any where within 
the limits of this State, and convey such fugitive to any place within this State, 
which the executive in his said warrant shall direct. 

Sec 2. Whenever the executive of this State shall demand a fugitive from jus- 
tice from the executive of any other State, he shall issue his warrant, under the 
seal of the State, to some messenger, commanding him to receive the said fugitive 
and convey him to the sheriff of the proper county where the offence was com- 
mitted. 

Sec 3. The expenses which may accrue under the two foregoing sections, 
being first ascertained to the satisfaction of the executive, shall, on his certificate, be 
allowed and paid out of the State treasury, on the warrant of the auditor. 



2G2 FUGITIVES FROM JUSTICE. 

Sec. 4. Whenever any person within this State shall be charged upon the oath 
or affirmation of any credible witness, before any judge or justice of the peace, 
with the commission of any murder, rape, robbery, burglary, arson, larceny, forge- 
ry or counterfeiting, in any other State or territory of the United States, and that 
the said person hath fled from justice, it shall be lawful for the said judge or jus- 
tice to issue his warrant for the apprehension of said person. If, upon examina- 
tion, it shall appear to the satisfaction of such judge or justice, that the said person 
is guilty of the offence alleged against him, it shall be the duty of the said judge or 
justice to commit him to the jail of the county; or if the offence is bailable accor- 
ding to the laws of this State, to take bail for his appearance at the next circuit 
court to be holden in that county. It shall be the duty of the said judge or justice 
to reduce the examination of the prisoner, and those who bring him, to writing, 
and to return the same to the next circuit court of the county where such exami- 
nation is had, as in other cases ; and shall also send a copy of the examination and 
proceedings to the executive of this State, so soon thereafter as may be. If, in the 
opinion of the executive of this State, the examination so furnished, contains suffi- 
cient evidence to warrant the finding of an indictment against such person, he 
shall forthwith notify the executive of the State or territory, where the crime is 
alleged to have been committed, of the proceedings which have been had against 
such person, and that he will deliver such person on demand, without requiring 
a copy of an indictment to accompany such demand ; when such demand shall be 
made, the executive of this State shall forthwith issue his warrant under the seal of 
the State, to the sheriff of the county where the said person is committed or bailed, 
commanding him to surrender him to such messenger as shall be therein named, to 
be conveyed out of this State. If the said person shall be out on bail, it shall be 
lawful for the sheriff to arrest him forthwith, any where within the State, and to 
surrender him agreeably to said warrrant. 

Sec. 5. In cases where the parties shall have been admitted to bail, and shall ap- 
pear at the circuit court according to the condition of his recognizance, and no 
demand shall have been made of him, it shall be in the power of the said court to 
discharge the said recognizance, or continue it, according to the circumstances of 
the case, such as the distance of the place where the offence is alleged to have 
been committed, the time that hath intervened since the arrest of the party j and the 
strength of the evidence against him. In no case shall such person be held in pris- 
on or to bail, longer than till the end of the second term of the circuit court after 
his caption. If no demand be made upon the sheriff for him within that time, he 
shall be discharged from prison, or exonerated from his recognizance, as the case 
may be. 

Sec 6. If the recognizance shall be forfeited, it shall enure to the benefit of 
the State. 

Sec 7. In all cases where complaint shall be made as aforesaid against any fu- 
gitive from justice, it shall be the duty of the judge or justice to take good and 
sufficient security for the payment of all costs which may accrue from the arrest and 
detention of such fugitive ; which security shall be by bond, to the clerk of the cir* 
cuit court, conditioned for the payment of costs as above ; which ' bond, together 
with a statement of the costs which may have accrued on the examination, shall be 
returned to the office of the clerk of the circuit court; and upon the determination of 
the proceedings against such fugitive within that county, the clerk shall issue a 
fee bill as in other cases, to be served on the persons named in the bond, or any of 



GAMING. 



2G3 



them; which fee bill shall be served and returned by the sheriff, for which he shall 
be allowed the same fees as are given him for serving notices. If the fees be not 
paid, on or before the first day of the next circuit court to be holden in and for that 
county, nor any cause then shown why they should not be paid, the clerk may issue 
an execution lor the same, against those parlies on whom the fee bill has been served ; 
and when the said fees are collected, shall pay over the same to the persons respec- 
tively entitled thereto. The clerk shall be entitled to fifty cents for his trouble in 
each case, besides the usual taxed fees which are allowed in other cases for like 
services : Nothing herein contained shall prevent the clerk from instituting suits 
on said bonds, in the ordinary mode of judicial proceedings, if he shall deem it 
proper. 

Sec. 8. If any person charged with, or convicted of treason, murder, rape, 
robbery, burglary, arson, larceny, forgery or counterfeiting, shall break prison, 
escape or flee from justice, or abscond and secrete himself, in such cases it shall be 
lawful for the Governor, if he shall judge it necessary, to offer any reward not ex- 
ceeding two hundred dollars, for apprehending and delivering such person into the 
custody of such sheriff or other officer, as he may direct. The person or persons so 
apprehending and delivering any such person as aforesaid, and producing to the Gov- 
ernor, the sheriff's or justice's receipt for the body, it shall be lawful for the Govern- 
or to certify the amount of such claim to the auditor, who shall issue his warrant on 
the treasury for the same. 

Approved : March 3, 1845. 



CHAPTER XLVI. 

' GAMING. 



Section 

1. Gaming contracts and loans void. 

2. Money lost by gaming may be recovered back, 

or sued for by another ; what actions may be 
brought. 

3. Judgments, conveyances, &c. } given in violation 

hereof, void. 



Section 

4. Assignment of obligation, &c. 5j not to dfefeat 

remedy. 

5. Discovery maybe enforced by bill; defendant 

discovering and restoring money, discharged. 



Sectiox 1. All promises, notes, bills, bonds, covenants, contracts, agreements, 
judgments, mortgages or other securities or conveyances, made, given, granted, 
drawn or entered into, or executed by any person or persons whatsoever, where 
the whole, or any part of the consideration thereof, shall be for any money, prop- 
erty or other valuable thing, won by any gaming, or playing at cards, dice, or any- 
other game or games, or by betting on the side or hands of any person gaming, or 
for the reimbursing or paying any money or property, knowingly lentjar advanced, 
at the time and place of such play, to any person or persons so gaming or betting, 
or that shall, during such play, so play or bet, shall be void and of no effect. 

Sec. 2. Any person who shall, at any time or sitting, by playing at cards, dice 
or any other game or games, or by betting on the side or hands of such as do game, 



/ 



284 GAMING, 

lose to any one or more persons, so playing or betting, any sum or sums of money 5 
or other valuable thing, amounting in the whole to the sum of ten dollars, and shall 
pay or deliver the same or any part thereof, the person or persons 'so losing and 
paying or delivering the same, shall be at liberty to sue for and recover the 
money, goods or other valuable thing, so lost and paid or delivered, or any part 
thereof, or the full value of the same, by action of debt, detinue, assumpsit or tro- 
ver, from the respective winner or winners thereof, with costs, in any court of 
competent jurisdiction : in which action it shall be sufficient for the plaintiff to de- 
clare generally, as in actions of debt or assumpsit, for money had and received by 
the defendant to the plaintiff's use: or as in actions of detinue or trover upon a 
supposed finding, and the detaining or converting the property of the plaintiff to 
the use of the defendant, whereby an action hath accrued to the plaintiff, according 
to the form of this chapter, without setting forth the special matter. In case the 
person or persons who shall lose such money or other thing, as aforesaid, shall not 
within six months, really and bona fide, and without covin or collusion, sue, and 
with effect prosecute, for such money or other thing, by him lost and paid or deliv- 
ered, as aforesaid, it shall be lawful for any other person to sue for, and recover 
treble the value of the money, goods, chattels and other things, with costs of suit, 
by special action on the case, against such winner or winners aforesaid ; one-half 
to the use of the county, and the other to the person suing. 

Sec. 3. All judgments, mortgages, assurances, bonds, notes, bills, specialities, 
promises, covenants, agreements, and other acts, deeds, securities or conveyances, 
given, granted, drawn or executed, contrary to the provisions of this chapter, may 
be set aside and vacated by any court of equity, upon bill filed for that purpose, by 
the person so granting, giving, entering into, or executing the same, or by his ex- 
ecutors or administrators ; or by any creditor, heir, devisee, purchaser or other per- 
son interested therein ; or if a judgment, the same may be set aside on motion of 
any person aforesaid, on due notice thereof given. 

Sec 4. No assignment of any bill, note, bond, covenant, agreement, judg- 
ment, mortgage, or other security or conveyance as aforesaid, shall, in any manner, 
;iffect the defence of the person giving, granting, drawing, entering into or exe- 
cuting the same, or the remedies of any person interested therein. 

Sec 5. In all actions or other proceedings commenced or prosecuted under 
the provisions of this chapter, the party shall be entitled to discovery as in other 
actions, and all persons shall be obliged and compelled to answer, upon oath, such 
bill or bills as shall he preferred against them for discovering the sum or sums of 
money, qr other thing so won as aforesaid. Upon the discovery and repayment of 
Ihe money or other thing, so to be discovered and repaid, the person or persons 
who shall discover and repay the same, as aforesaid, shall be acquitted, indemnified 
and discharged from any other or further punishment, forfeiture or penalty, which 
"he or they might have incurred, by the playing for, or winning such money or other 
1 hing. so discovered or repaid as aforesaid. 

Approved : March 3, 1845. 



CHAPTER XLVII. 

GUAKDIAN AND WARD, 



Section 

1 . Orphan minors over fourteen years of age, may 

choose guardians ; for those under that age, 
probate court shall choose. 

2. Minor over fourteen may be notified to appear 

and choose guardian ; if he do not, court of 
probate may appoint for him. 

3. When orphan has estate not derived from fa- 

ther, who may be guardian, and how appointed. 

4. Guardians may prosecute and defend for their 

wards. 

5. Probate court shall take bond from guardian ; 

its condition ; suit and recovery thereon. 

6. Court may compel person to account, and to 

give new security; may remove them for neg- 
lect. 

7. Further power to remove; to appoint; how re- 

moved guardian or representatives of de- 
ceased person, may be compelled to deliver 
papers, &c, to successor. 

8. Guardians, may collect money of ward; may 

loan money and lease real estate of ward; mi- 
nority of female to cease at the age of eighteen 
years. 

9. Guardian, to educate and support ward ; may 

pay out ward's money therefor ; what fund to 
be first used. 



Section 

10. When personal estate fails, real estate may he 

sold ; proceedings in such cases ; where ap- 
plication to be made if ward be resident; where, 
if non-resident. 

1 1 . Guardian to account for moneys on oath ; mon- 

eys, how disposed of. 

12. Appeals to circuit court, allowed. 

13. Minors may sue by next friend, who shall give 

bond for costs. 

14. Education of ward, when guardian removed for 

neglecting. 

15. Concerning the loaning of ward's money; bond 

may include several minors. 
1G. Compensation of guardian. 

17. Father may, by will, dispose of custody of liv- 

ing or posthumous cliild ; also, the mother, if 
sole. 

18. Rights and duties of person receiving such cus- 

tody. 

19. Rights and duties of such person respecting es- 

tate of minor. 

20. General supervision of probate court over guar- 

dians. 



Section 1. Courts of probate in their respective counties, shall admit orphan 
minors, above the age of fourteen years, the father being dead, to make choice of 
guardians, and appoint guardians for such as are under the age of fourteen years. 

Sec. 2. Whenever it shall be represented to said court, that any orphan minor, 
above the age of fourteen years, has not a guardian, it shall be the duty of said court 
to issue a notification to such minor, to appear before the said court, at a time 
therein specified, and choose a guardian ; and if such minor shall neglect or refuse 
to appear, or, on appearing, shall neglect to choose a guardian, the said court shall 
appoint one for such minor, as if said minor were under the age of fourteen years. 

Sec 3. When a minor, having a father living, shall be entitled to, or posses- 
sed of any estate, real or personal, not derived from his or her father, the said 
court of probate shall notify the father to appear and show cause why a guardian 
for such minor should not be appointed ; and if sufficient reason be not shown, 
may appoint the father, if he be a proper person, if not, then such other person as 
the minor, if of the age of fourteen years, may choose ; if such minor shall refuse 
or neglect, or be not of sufficient age to choose a guardian, the court shall appoint 
some fit person to be guardian for such minor. And when any person is appointed 
guardian, other than the father, he shall have the charge and management of the 
estate, but no control over the person of the minor. 

Sec 4. Guardians, by virtue of their office as such, shall be allowed in all 
cases, to prosecute and defend for their wards. 

Sec 5. The court of probate shall take of each guardian appointed under 
this chapter, bond with good security, in a sum double the amount of the minor's 



26G GUARDIAN AND WARD. 

estate, real and personal, conditioned as follows : " The condition of this obligation 
is such, that if the above bounden A. B., who has been appointed guardian for C. 
D., shall faithfully discharge the office and trust of such guardian according to 
law, and shall render a fair and just account of his said guardianship, to the court 
of probate for the county of , from time to time, as he shall be thereto re- 

quired by said court, and comply with all the orders of said court lawfully made, 
relative to the goods, chattels and moneys of such minor, and render and pay to 
such minor, all moneys, goods and chattels, title papers and effects, which may 
come to the hands or possession of such guardian, belonging to such minor, when 
such minor shall be thereto entitled, or to any subsequent guardian, [should such 
court so direct, then this obligation shall be void ; otherwise to remain in full force 
and virtue :" which bond shall be taken to the people of the State of Illinois, for 
the use of such minor, and shall not become void upon the first recovery, but may 
be put in suit from time to time, against all or any one or more of the obligors, in the 
name, and to the use and benefit of any person entitled, by a breach thereof, until 
the whole penalty shall be recovered thereon. 

Sec. 6. Courts of probate shall have power, in their respective counties, with 
or without previous complaint, by an order duly made and served, to oblige all 
guardians of minors, from time to time, to render their respective accounts upon 
oath, touching their guardianship, to said courts for adjustment, and shall have 
power to compel such guardians to give supplementary security whenever it shall 
judge proper, and, in default thereof, to remove such guardians. 

Sec 7. The court of probate, in all cases, shall have power to remove guar- 
dians for good and sufficient reasons, which shall be entered on record, and to 
appoint others in their place, or in the place of those who may die, who shall give 
bond and security for the faithful discharge of their duties as heretofore prescribed 
in this chapter ; and when any guardian shall be removed or die, and a successor 
be appointed, the court shall have power to compel such guardian, so removed, or 
the executors or administrators of a deceased guardian, to deliver up to such suc- 
cessor, all goods, chatties, moneys, title papers or other effects, belonging to such 
minor, which may be in the possession of such guardian, so removed, or of the 
executors or administrators of a deceased guardian, or on any other person or 
persons who may have the same, and upon failure, to commit the party offending 
to prison, until he, she or they comply with the order of the court. 

Sec 8. Guardians shall have power to demand, sue for and receive, all moneys 
belonging: to their wards, from executors and administrators, as soon as the same 
may be collected; or of any other person or persons in whose hands or possession 
the same may be : and it shall moreover be their duty to put to interest the moneys 
of their wards upon mortgage security, to be approved by the court ; which letting 
shall always be for one year, and at the end of each year, the interest shall be 
added to, and made part of the principal : and said guardians shall also have 
power to. lease the real estate of the ward, upon such terms and for such length of 
time as the court of probate shall direct : Provided, Such leasing shall never be for 
a longer time than during the minority of the ward ; and the minority of females 
shall cease at the age of eighteen years. 

Sec 9. The guardian shall have power, under the direction of the court of 
probate, to superintend the education and nurture of the ward; and for that purpose, 
may pay out such portions of the ward's money as the court of probate shall from 
time to time, by order, direct : Provided, That the rents and profits arising from his 



GUARDIAN AND WARD. 267 

estate, and next, the interest on the ward's money, shall always be first resorted to, 
for the education and nurture of the ward. 

Sec. 10. The circuit court may, for just and reasonable cause, being satisfied 
that the guardian has faithfully applied all the personal estate, order the sale of the 
real estate of tbe ward, on the application of the guardian, by petition in writing, 
stating the facts, and having given notice to all persons concerned, of such intended 
application, in some public newspaper printed in this State, or by setting up written 
notices in three of the most public places in the county, at least three weeks before 
the sitting of the court. Such order may enable the guardians to sell and convey 
the real estate for the support and education of the ward, or to invest the proceeds 
in other real estate. The court, in such order, shall direct the time and place of 
sale, the notice thereof to be given, and may direct the sale to be made on reasona- 
ble credit, and require such security of the guardian and purchaser, as the interest 
of the ward may require. It shall be the duty of the guardian making such sale, 
as soon as may be, to make return of such proceedings to the court granting the 
order, which, if approved by the court, shall be recorded, and shall vest in the pur- 
chaser or purchasers, all the interest the ward had in the estate so sold : applica- 
tion for the sale of such real estate shall be made in the county where the ward 
shall reside, although the estate may lie in a different county : but if the ward do 
not reside in this State, such application shall be made to the court of the county 
where the whole or a part of the estate shall be situated. 

Sec. 11. An account of all moneys received 'by any guardian for the sale of 
real estate of any minor, as aforesaid, shall be returned on oath by such guardian, 
to the court of probate of the county where letters of guardianship were obtained ; 
and such moneys shall be accounted for, and shall be subject to the order of the 
court of probate, in like manner as other moneys belonging to such minor. 

Sec 12. Appeals shall be allowed in all cases, from the order or judgment of 
the court of probate to the circuit court, the same in manner as is provided by law 
relative to wills and testaments, executors and administrators, and the settlement of 
intestates' estates. 

Sec 13. Minors may bring suits in all cases ' whatever, by any person that 
they may select as their next friend ; and the person so selected shall file bond 
with the clerk of the circuit court, or justice of the peace before whom the suit 
may be brought, acknowledging himself bound for all the costs that may accure and 
legally devolve upon such minor. And after bond shall have been so filed, said 
suit shall progress to final judgment and execution, as in other cases. 

Sec 14. Guardians shall educate their wards; and it is hereby made the duty of 
all civil county officers, to give information to the court of probate, neglect or 
omission of any guardian to his or her ward: Provided, When there are not mo- 
neys sufficient to teach the ward to read and write, and the ground rules of arithme- 
tic, and the guardian refuses and neglects to have him so educated, the court shall have 
power to put out to any other person the ward, for the purpose of having the same 
so educated. The judge of probate shall, in all cases, when information is made of the 
neglect of any guardian to educate his or her ward, and on the facts being estab- 
lished, remove such guardian, and appoint a suitable person to act as guardian and 
superintend the education of such minor orphan. 

Sec 15. Guardians shall have power to loan out the moneys of their wards at 
interest, in sums not exceeding one hundred dollars, on personal security, to be ap- 
proved by the judge of probate : Provided, It shall not be let for a longer time 



26S GUARDIAN AND WARD. 

than twelve months without a renewal, and an approval of the security by the court , 
and if neglected longer, it shall be at the responsibility of the guardian. In all 
cases of any person being appointed guardian for more than one ward at one time, 
the judge of probate shall include all in one bond. 

Sec 16. Guardians, on final settlement, shall be allowed such fees and compensa- 
tion for their services as shall seem reasonable and just to the judge of probate, not 
exceeding what are, or shall be allowed by law, to administrators. 

Sec 17. Every father of sound mind and memory, of a child likely to be born, 
or of any living child, under the age of twenty-one years and unmarried, may, by 
his deed or last will duly executed, dispose of the custody and tuition of such child 
during its minority, or for any less time, to any person or persons in possession or 
remainder ; and every mother of sound mind and memoiy, being sole, may, in like 
manner, dispose of the custody and tuition of a child living, if a father has made no 
such disposition, or in any other manner restrained the right of the mother. 

Sec 18. Every such disposition, from the time it shall take effect, shall invest in 
the person or persons to whom it shall be made, all the rights and powers, and sub- 
ject him or them to all the duties and obligation's of a guardian of such minor, 
and shall be vaild and effectual against every other person claiming the custody or 
tuition of such minor : Provided, That the rights, powers, duties and obligations of 
such person or persons may be restrained and regulated by the person making such 
deed or last will as aforesaid. 

Sec 19. Any person to whom the custody of any minor is so disposed of, may 
take the custody and tuition of such minor, and may maintain all proper actions 
for the wrongful taking or detention of the minor ; he shall also take the custody 
and management of the real and personal estate of such minor, unless restrained 
by the deed or will as aforesaid, during the time for which such disposition shall 
have been made, and bring such actions in relation thereto, as a guardian appointed 
under the provisions of the laws of the State. 

Sec. 20. Guardians appointed under the provisions of this chapter, shall be sub- 
ject to removal upon complaint of any person in behalf of the minor, to the circuit 
court of the county in which such guardian may reside, and proof made of mal- 
conduct or misbehavior in the performance of his duties, or of a failure to perform 
his duties, and upon the removal of a guardian, the said court is hereby vested with 
the power to appoint another guardian, and to make all such orders as may be ne- 
cessary to compel the guardian removed to deliver over to the successor the custody 
of the minor, and to account for the estate, and pay over all moneys belonging to 
the ward, and to compel such successor to execute a bond with good security, in 
such penalty, and with such conditions as the court may deem necessary for the se- 
curity of the rights of the minor, and the said court shall also have power, upon 
application of any person in behalf of the minor, to require all guardians appointed 
under the provisions of this chapter, by the father or mother, or by the court, to give 
bond and security in such penalty, and with such conditions as the court may deem 
necessary for the security and protection of the minors, and of his or her estate. 

Approved: March 3, 1845. 



CHAPTER XLVIII. 



HABEAS CORPUS 



Section 

1. In what cases writ of habeas cm-pits may be gran- 

ted ; by whom granted ; mode of making ap- 
plication ; writ, how to be directed, served, 
obeyed and returned. 

2. When person not charged with crime is detained, 

what proceedings had. 

3. On return of writ, allegations shall be heard; 

statement of grounds on which prisoner may 
be discharged. 

4. When bail is taken, bond to be given for appear- 

ance ; witnesses to be recognized to appear 

on trial; penalty if witness refuse to give 

bond; penalty if judge refuse to bind witness 

or prisoner, 
fi. Remanding of prisoner shall be by order of 

court ; proceedings in case of second writ of 

habeas corpus. 
G. Power of judge under second writ, toadmitpris- 

oner to bail, if offence is bailable, or if not 

bailable, to commit to prison. 

7. Person once discharged, not to be again com- 

mitted, unless again indicted, &.c,; when he 
may be again arrested. 

8. Cases in which the writ of habeas corpus may 

not be granted. 

9. When prisoner may be discharged from custody 



Section 

for want of prosecution ; continuance of cause 
when witnesses can not be had. 

10. Writ shall not be granted so as to delay trial in 

certain cases. 

11. Provisions as to removal of prisoner from one 

place or one jail to another; penalty for im. 
proper removal. 

12. Penalty if judge fail or delay to issue writ. 

13. Oilicer refusing to execute and return writ, pun- 
ished as for a contempt. 

Officer having prisoner in custody, removing or 

concealing him to evade sendee of writ, how 

punished. 
Officer having prisoner in custody, refusing to 

give him copy of warrant of commitment, how 

punished. 
Penalty for re-arresting prisoner for same cause, 

after one discharge. 
Pecuniary penalties herein imposed, to go to 

person for whose release writ issued. 

18. General issue may be pleaded. 

19. Recovery of penalties not to bar civil action for 

damages. 

20. Who may issue writ; for what purposes ; writ 

may run into any county ; return of prisoner 
to proper custody; compensation of officers. 



14. 



15. 



16. 



17. 



Section 1. If any person shall be committed or detained for any criminal or 
supposed criminal matter, it shall and may be lawful for him to apply to the supreme 
or circuit courts in term time, or any judge thereof in vacation, for a writ of habeas 
corpus, which application shall be in writing, and signed by the prisoner, or some 
person on his or her behalf, setting forth the facts concerning his imprisonment, and 
in whose custody he is detained ; and shall be accompanied by a copy of the warrant 
or warrants of commitment, or an affidavit that the said copy had been demanded of 
the person in whose custody the prisoner is detained, and by him refused or neg- 
lected to be given ; the said court or judge to whom the said application shall be 
made, shall, forthwith award the said writ of habeas corpus, unless it shall appear 
from the petition itself, or from the documents annexed, that the party can neither 
be discharged nor admitted to bail, nor in any ether maimer relieved. Which said 
writ, if issued by the court, shall be under the seal of the court ; if by a judge, 
under the hand of a judge; and shall be directed to the person in whose custody 
the prisoner is detained, and made returnable forthwith; to the intent that no officer, 
sheriff, jailer, keeper or other person, to whom such writ shall be directed, may 
pretend ignorance thereof, every such writ shall be indorsed with these words r 
"by the habeas corpus act ;" and whenever the said w r rit shall by any person be 
served upon the sheriff, jailer, keeper or other person whatsoever, to whom the 
same shall be directed, or being brought to him, or being left with any of his under 
officers or deputies at the jail, or place where the prisoner is detained, he, or some 



270 HABEAS CORPUS. 

of his under officers or deputies shall, upon payment or tender of the charges of 
bringing the said prisoner, to be ascertained by the court or judge awarding the 
said writ, and indorsed thereon, not exceeding ten cents per mile ; and upon suffi- 
cient security given to pay the charges of carrying him back, if he shall be remanded, 
make return of such writ, and bring, or cause to be brought, the body of the pris- 
oner before the court or judge who granted the said writ ; or in case of the adjourn- 
ment of the said court, or absence of the judge, then before any other of the judges 
aforesaid, and certify the true cause of his imprisonment within three days thereaf- 
ter, unless the commitment of such person be in a place beyond the distance of 
twenty miles from the place where the writ is returnable : if beyond the distance 
of twenty miles, and not above one hundred miles, then within ten days; and if 
beyond the distance of one hundred miles, then within twenty days after the de- 
livery of the writ as aforesaid, and not longer. 

Sec. 2. Where any person not being committed or detained for any criminal, or 
supposed criminal matter, shall be confined or restrained of his or her liberty, 
under any color or pretence whatever, he or she may apply for a writ of habeas 
corpus, as aforesaid : which application shall be in writing, signed by the party, or 
some person on his or her behalf, setting forth the facts concerning his or her im- 
prisonment, and wherein the illegality of such imprisonment consists, and in whose 
custody he or she is detained ; which application or petition, shall be verified by the 
oath or affirmation of the party applying, or some other person on his or her behalf; 
if the confinement or restraint is by virtue of any judicial writ or process, or order, 
a copy thereof shall be annexed thereto, or an affidavit made that the same had been 
demanded and refused ; the same proceedings shall thereupon be had in all respects, 
as are directed in the preceding section. 

Sec. 3. Upon the return of the writ of habeas corpus, a day shall be set for the 
hearing of the cause of imprisonment or detainer, not exceeding five days thereaf- 
ter, unless the prisoner shall request a longer time. The said prisoner may deny 
any of the material facts set forth in the return, or may allege any fact to show, 
either that the imprisonment or detention is unlawful, or that he is then entitled to 
his discharge ; which allegations or denials shall be made on oath. The said return 
may be amended, by leave of the court or judge, before or after the same is filed, 
as also may all suggestions made against it, that thereby material facts may be 
ascertained. The said court or judge shall proceed in a summary way to settle the 
said facts, by hearing the testimony and arguments, as well of all parties interested 
civilly, if any there be, as of the prisoner, and the person who holds him in custody, 
and shall dispose of the prisoner as the case may require. If it appear that the 
prisoner is in custody by virtue of process from any court, legally constituted, he 
can be discharged only for some of the following causes : first, where the court has 
exceeded the limits of its jurisdiction, either as to the matter, place, sum or person; 
second, where, though the original imprisonment was lawful, yet by some act, 
omission or event, which has subsequently taken place, the party has become enti- 
tled to his discharge ; third, where the process is defective in some substantial form 
required by law ; fourth, where the process, though in proper form, has been issued 
in a case, or under circumstances, where the law does not allow process, or orders 
for imprisonment or arrest to issue; fifth, where, although in proper form the pro- 
cess has been issued or executed by a person either unauthorized to issue or execute 
the same, or where the person having the custody of the prisoner under such pro- 
cess is not the person empowered by law to detain him ; sixth, where the process 
appears to have been obtained by false pretence or bribery ; seventh, where there is 



HABEAS CORPUS. 271 

no general law, nor any judgment, order or decree of a court, to authorize the pro- 
cess, if in a civil suit, nor any conviction, if in a criminal proceeding. No court or 
judge, on the return of a habeas corpus^ shall, in any other matter, inquire into the 
legality or justice of a judgment or decree of a court legally constituted. In all 
cases where the imprisonment is for a criminal, or supposed criminal matter, if it shall 
appear to the said court or judge, that there is sufficient legal cause for the com- 
mitment of the prisoner, although such commitment may have been informally 
made, or without due authority, or the process may have been executed by a person 
not duly authorized, the court or judge shall make a new commitment in proper form 
and directed to the proper officer, or admit the party to bail, if the case be bailable. 

Sec. 4. When any person shall be admitted to bail, on habeas corpus, he shall 
enter into recognizance with one or more securities, in such sum as the court or 
judge shall direct, having regard to the circumstances of the prisoner and the nature 
of the offence, conditioned for his or her appearance at the next circuit court, to be 
holden in and for the county where the offence was committed, or where the same 
is to be tried : where any court or judge shall admit to bail, or remand any prisoner 
brought before him or them, on any writ of habeas corpus, it shall be the duty of 
the said court or judge, to bind all such persons as do declare any thing material to 
prove the offence with which the prisoner is charged, by recognizance, to appear at 
the proper court having cognizance of the offence, on the first day of the next term 
thereof, to give evidence touching the said offence, and not to depart the said court 
without leave ; which recognizance, so taken, together with the recognizance entered 
into by the prisoner when he is admitted to bail, shall be certified and returned to 
the proper court on the first day of the next succeeding term thereof. If any such 
witness shall neglect or refuse to enter into a recognizance as aforesaid, when 
thereunto required, it shall be lawful for the court or judge to commit him to jail 
until he shall enter into such recognizance, or be otherwise discharged by due 
course of law: if any judge shall neglect or refuse to bind any such witness or 
prisoner, by recognizance as aforesaid, or to return any such recognizance, when 
taken as aforesaid, he shall be deemed guilty of a misdemeanor in office, and be pro- 
ceeded against accordingly. 

Sec 5. Where any prisoner, brought up on a habeas corpus, shall be remanded 
to prison, it shall be the duty of the court or judge remanding him, to make out and 
deliver to the sheriff, or other person, to whose custody he shall be remanded, an 
order in writing, stating the cause or causes of remanding him. If such prisoner 
shall obtain a second writ of habeas corpus, it shall be the duty of such sheriff or 
other person to whom the same shall be directed, to return therewith the order 
aforesaid ; and if it shall appear that the said prisoner was remanded for an offence 
adjudged not bailable, it shall be taken and received as conclusive, and the prisoner 
shall be remanded without further proceedings. 

Sec. 6. It shall not be lawful for any court or judge, on a second writ of ha- 
beas corpus, obtained by such prisoner, to discharge the said prisoner, if he is clear- 
ly and specifically charged in the warrant of commitment with a criminal offence ; 
but the said court or judge shall, on the return of such second writ, have power 
only to admit such prisoner to bail, where the offence is bailable by law, or remand 
him to prison where the offence is not bailable ; or being bailable, where such pris- 
oner shall fail to give the bail required. 

Sec 7. No person who has been discharged by order of a court or judge, on a 
habeas corpus, shall be again imprisoned, restrained or kept in custody for the same 
cause, unless he be afterwards indicted for the same offence, nor unless by the legal 



212 HABEAS CORPUS. 

order or process of the court wherein he is bound by recognizance to appear. The 
following shall not be deemed to be the same cause : First, if after a discharge for 
a defect of proof, or any material defect in the commitment in a criminal case, the 
prisoner should be again arrested on sufficient proof, and committed by legal pro- 
cess for the same offence : Second, If in a civil suit the party has been discharged 
for any illegality in the judgment or process, and is afterwards imprisoned by 
legal process for the same cause of action : Third, Generally, whenever the dis- 
charge has been ordered on account of the non-observance of any of the forms re- 
quired by law, the party may be a second time imprisoned, if the cause be legal 
and the forms required by law, observed. 

Sec 8. No person shall be discharged under the provisions of this chapter, 
■who is in custody under a commitment, for any offence exclusively cognizable by 
the courts of the United States, or by order, execution or process issuing out of 
such courts, in cases where they have jurisdiction; or who is held by virtue of 
any legal engagement or enlistment in the army ; or who being subject to the rules 
and articles of war, is confined by any one legally acting under the authority there- 
of; or who is held as prisoner of war under the authority of the United States ; or 
who is in custody for any treason, felony or other high misdemeanor, committed in 
any other State or territory of the United States, and who, by the constitution and 
laws of the United States, ought to be delivered up to the executive power of such 
State or territory ; nor shall any negro or mulatto, held as a slave within this State, 
try his right to freedom, or be discharged from slavery under the provisions of this 
chapter, but for that purpose shall be put to his suit for freedom. 

Sec. 9. If any person shall be committed for a criminal, or supposed criminal 
matter, and not admitted to bail, and shall not be tried on or before the second term 
of the court having jurisdiction of the offence, the prisoner shall be set at liberty 
by the court, unless the delay shall happen on the application of the prisoner. If 
such court at the second term, shall be satisfied that due exertions have been made 
to procure the evidence for, and on behalf of the people, and that there are reason- 
able grounds to believe that such evidence may be procured at the third term, they 
shall have power to continue such case till the third term. If any such prisoner 
shall have been admitted to bail for a crime other than a capital offence, the court 
may continue the trial of said cause to a third term, if it shall appear by oath or 
affirmation that the witnesses for the people of the State are absent, such witnesses 
being mentioned by name, and the court shown wherein their testimony is ma- 
terial. 

Sec. 10. To prevent any person from avoiding or delaying his trial, it shall 
not be lawful to remove any prisoner on habeas corpus under this chapter, out of 
the county in which he or she is confined, within fifteen days next preceding the 
term of the court at which such person ought to be tried, except it be to convey 
him or her into the county where the offence with which he or she stands charged, 
is properly cognizable. 

Sec. 11. Any person being committed to any prison, or in the custody of any 
officer, sheriff, jailer, keeper or other person, or his under officer or deputy, for 
any criminal, or supposed criminal matter, shall not be removed from the said prison 
or custody into any other prison or custody, unless it be by habeas corpus, or some 
other legal writ, or where the prisoner shall be delivered to the constable or other 
inferior officer, to be carried to some common jail, or shall be removed from one 
place to another, within the county, in order to his discharge or trial in due course 



HABEAS CORPUS. 273 

of law, or in case of sudden fire, infection or other necessity, or where the sheriff 
shall commit such prisoner to the jail of an adjoining county, for the want of a 
sufficient jail in his own county, as is provided in the chapter concerning jails and 
jailers, or where the prisoner, in pursuance of a law of the United States, may be 
claimed or demanded by the executive of any of the United States or territories. 
If any person or persons shall, after such commitment as aforesaid, make out, sign 
or countersign, any warrant or warrants for such removal, except as before excep- 
ted, then he or they shall forfeit to the prisoner or party aggrieved, a sum not ex- 
ceeding three hundred dollars, to be recovered by the prisoner or party aggrieved, 
in the manner hereinafter mentioned. 

Sec. 12. Any judge empowered by this chapter, to issue writs of habeas corpus, 
who shall corruptly refuse to issue such writ, when legally applied to, in a case 
where such writ may lawfully issue, or who shall, for the purposes of oppression, 
unreasonably delay the issuing of such writ, shall, for every such offence, forfeit to 
the prisoner or party aggrieved, a sum not exceeding five hundred dollars. 

Sec 13. If any officer, sheriff, jailer, keeper or other person, to whom any such 
writ shall be directed, shall neglect or refuse to make the returns as aforesaid, or to 
bring the body of the prisoner according to the command of the said writ, within 
the time required by this chapter, all, and every such officer, sheriff, jailer, keeper 
or other person, shall be deemed guilty of a contempt of the court or judge who 
issued said writ : whereupon, the said court or judge may, and shall issue an at- 
tachment against such officer, sheriff, jailer, keeper or other person, and cause him 
or them to be committed to the jail of the county, there to remain without bail or 
mainprize, until he or they shall obey the said writ ; such officer, sheriff, jailer, 
keeper or other person, shall also forfeit to the prisoner or party aggrieved, a sum, 
not exceeding five hundred dollars, and shall be incapable of holding or executing 
his said office. 

Sec 14. Any one having a person in his custody, or under his restraint, power 
or control, for whose relief a writ of habeas corpus is issued, who, with intent to 
avoid the effect of such writ, shall transfer such person to the custody, or place him 
or her under the control of another, or shall conceal him or her, or change the place 
of his or her confinement, with intent to avoid the operation of such writ, or with 
intent to remove him or her out of the State, shall forfeit for every such offence, one 
thousand dollars, and may be imprisoned, not less than one year, nor more than five 
years. In any prosecution for the penalty incurred under this section, it shall not 
be necessary to show that the writ of habeas corpus had issued at the time of the 
removal, transfer or concealment therein mentioned, if it be proven that the acts 
therein forbidden were clone with the intent to avoid the operation of such writ. 

Sec 15. Any sheriff or his deputy, any jailer or coroner, having custody of any 
prisoner, committed on any civil or criminal process of any court or magistrate, 
who shall neglect to give such prisoner a copy of the process, order or commitment, 
by virtue of which he is imprisoned, within six hours after demand made by said 
prisoner, or any one on his behalf, shall forfeit five hundred dollars. 

Sec 16. Any person who, knowing that another has been discharged by order 
of a competent judge or tribunal, on a habeas corpus, shall, contrary to the provis- 
ions of this chapter, arrest or detain him again for the same cause, which was shown 
on the return of such writ, shall forfeit five hundred dollars for the first offence, and 
one thousand dollars for every subsequent offence. 

18 



274 



HORSES. 



Sec. 17. All the pecuniary forfeitures incurred under this chapter, shall enure 
to the use of the party for whose benefit the writ of habeas corpus issued, and shall 
be sued for and recovered, with costs by the attorney general or circuit attorney, in 
the name of the State, by information ; and the amount, when recovered, shall, with- 
out any deduction, be paid to the party entitled thereto. 

Sec 18. In any action or suit for any offence against the provisions of this 
chapter, the defendant or defendants may plead the general issue, and give the 
special matter in evidence. 

Sec. 19. The recovery of the said penalties shall be no bar to a civil suit for 
damages. 

Sec 20. The supreme and circuit courts within this State, or the judges there- 
of, in vacation, shall have power to issue writs of habeas corpus, for the purpose of 
bringing the body of any person confined in any jail within the same, before them, 
to testify or be surrendered in discharge of bail. When a writ of habeas corpus 
shall be issued for the purpose of bringing into court any person to testify, or the 
principal to be surrendered in discharge of bail, and such principal or witness shall 
be confined in any jail in this State, out of the county in which such principal or 
witness is required to be surrendered or to testify, the writ may run into any county 
in this State, and there be executed and returned by any officer to whom it shall be 
directed ; and the principal, after being surrendered, or his bail discharged, or a 
person testifying as aforesaid, shall, by the officer executing such writ, be returned 
to the jail from whence he was taken by virtue of an order of the court, for the pur- 
poses aforesaid ; an attested copy of which, lodged with the jailer, shall exonerate 
such jailer from being liable for an escape. The party praying out such writ of 
habeas corpus, shall pay to the officer executing the same, such reasonable sum for 
his services, as shall be adjudged by the courts respectively. 

Approved : March 3, 1845. 



CHAPTER XLIX. 
HORSES. 



Section 

1 . Horses under one year old found running at 

large, to be taken up ; how disposed of. 

2. Horses over that age found running at large, how 

disposed of. 

3. If owner do not take away horse, how dispos- 

ed of. 



Section 

4. Diseased horse, &c, running at large, how dis- 

posed of; owner, how punished. 

5. Offences against public decency, &c, how pun- 

ishable. 

6. Penalties, how recovered. 



Section 1. It shall be lawful for any person to take up any stoned horse that 
may be found running at large out of the inelosure of the owner or keeper, more 
than one year old, and shall give notice thereof to the owner or keeper ; and if such 
owner or keeper shall not take away or secure the same, allowing him one