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thereof, to arrest the person or persons so charged, and bring him, her or them before 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 inquire 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 person or persons shall be brought before him, for the same or either of them, to associate 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. 201. 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 recognizance, 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 charged, 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 entering 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 suflicient 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.

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 constable, 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 warrant, 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 offender 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 justice 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 situated on his or their way back to the county from which the said prisoner or prisoners fled, and may deposit such prisoner or prisoners in any jail on his or their route, for safe custody, for one night or more, az 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 apprehension 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. 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, Sufficient 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 complaint 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

And no person

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; 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 of 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 indicted 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 possession 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 justice or judge who shall neglect to write the name or names of the witnesses aforesaid, 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 justice, judge, sheriff or jailer offending in the premises, shall be fined in the sum of twenty dollars, to be recovered by action of debt, in the name of, and for the use 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 subpæna 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 corpus shall be returnable : it shall be the duty of such sheriff to serve said subpæna 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 subpæna 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

witnesses aforesaid, and such other witnesses as the prisoner may request, touching 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 ROAD.

SECTION
1. 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 punished under the laws then existing and in force for the punishment of similar offences 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 culverts, 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 trespassers by any agent of the government or any other

person

who
may
take upon

himself to attend to the same for all such offences.

Sec. 3. In cases arising under the provisions hereof, the individual may be taken by cupias 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,

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 keeping 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 necessary and proper for the repair and preservation of the same.

or

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 provisions of this chapter, to cause the said road to be kept in repair through his road district, 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 residing 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 required 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

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