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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 by 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 determine 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 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
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, 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 thereupon proceed to try the cause, or direct an issue for that purpose, as the circumstances 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.”
the court may
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; 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 acquired 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 is 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 wonan that shall be endowed of any lands, tenements and hereditaments, 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 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 interested 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
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 accordance 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.
1. Drovers driving away stock, how punished.
filed; effect of 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 off 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 premises or range, any horses, mules, neat cattle, hogs or sheep, belonging to such citizen, 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 commenced by capias : Provided, however, That no exception shall be taken to the form of the oath aforesaid.
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 facius 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.]
1. Actions of ejectment, how brought. 2. Writ of right may be brought, by widow to re
cover dower. 3. Valid interest necessary to authorize suit. 4. Occupant made defendant, and if no occupant,
then supposed owner. 5. Action, how commenced. 6. Use of fictitious names, &c., abolished. 7. Averment, what to contain. 8. Declaration, what it shall state. 9. When action not brought to recover dower, dec.
laration may contain several averments. 10. Notice in writing, what to contain. 11. 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. 15. Authority and evidence thereof. 16. When application may be 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. 21. When action brought by co-tenants, what shall
be proved. 22. 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. 29. Judgment conclusive as to title, subject to ex
ceptions. 30. Judgment may be vacated, and new trial granted. 31. Judgment by default conclusive after two years. 32. Exceptions, wherein actions may be brought af
ter two years.
SECTION 33. Heirs muy commence action in certain cases
after time above limited. 34. Right of plaintiff' to possession, not affected by
vacations of judgment; but if defendant rerecover 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. 38. Suggestion for claim of mesne profits, form of,
and how served. 39. Defendant may plead general issue of non-as
sumpsit, &c. 40. Issue of fact, how tried, and effect of. 41. Right of parties to recover mesne profits; im.
provements. 42. Writ of inquiry shall be issued in certain ca
ses. 43. Upon execution of writs of inquiry, how par.
ties to proceed. 44. Plaintiff in ejectment dying, personal represen.
tatives may proceed. 45. Dower, in action to recover, how plaintiff to
proceed; dower how assigned. 46. 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, when 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. 61, Commissioners shall take oath, and have power
to call witnesses for protits, &c. 52. Estimate of value to be made separately; com
pensation of commissioners, how allowed;
improvements, proviso concerning. 63. 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. 67. Lessee of United States may maintain action of
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 hereinafter contained.
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 husband, after the expiration of six months from the time her right accrued, to recover her dower of any lands, tenements or hereditaments.
Sec. 3. No person shall recover in ejectment, unless he has, at the time of commencing 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 occupied by any person, such actual occupant shall be named defendant in the declaration ; 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, at the 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 aier 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 provided) 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 recovery 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.