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by dikes, hedges and ditches, all such walls and fences to be in height at least five feet from the ground; and all dikes to be at least three feet in height from the bottom of the ditch, and planted and set with thorn and other quickset, so that such inclosures shall fully answer and secure the several purposes meant to be answercd and secured by this law: Provided, That such walls or fences of timber, other than those heretofore mentioned, and dikes, hedges and ditches, shall be subject to all provisions, inspections and restrictions, to which by this chapter, any other inclosure or fence is made liable, according to the true intent and meaning hereof.
Sec. 15. If any horse, mare, gelding, colt, mule or ass, sheep, lamb, goat, kid, bull, cow, heifer, steer or calf, or any hog, shoat or pig, shall break into any person's inclosure, the fence being good and sufficient, the owner of such animal or animals, shall be liable in an action of trespass, to make good all damages to the owner or occupier of the inclosure, for the first offence single damages only, and ever afterwards double the damages sustained.
Sec. 16. The condition of the fence at the time the trespass was committed, may be proven upon trial, and on complaint made by the party injured before any justice of the peace of the county wherein such trespass shall be made, such justice is hereby authorized and required to issue a summons without delay, to three respectable householders of the neighborhood, noways related to either of the parties, nor interested concerning the trespass, reciting the complaint and requiring them to view the fence where the trespass is complained of, and threir testimony in such case, shall be good evidence touching the sufficiency of the fence.
Sec. 17. If any person injured for want of such sufficient fence, shall hurt, wound, kill, lame or destroy, or shall cause to be hurt, wounded, killed, lamed or destroyed, by shooting, hunting with dogs or otherwise, any of the aforesaid animals, he or she so offending, shall satisfy or pay the owner of the same, the damages with costs, recoverable as aforesaid : Provided, That if the party liable to damages as aforesaid, in either case, will abide and pay what may be deemed reasonable by three neighbors, indifferently chosen to assess the same, it shall be a bar against such suit.
Sec. 18. All animals trespassing, the owners of the same (if known) shall be notified thereof, and if they shall refuse to secure the said animals and prevent their trespassing, the persons on whom the trespass was committed, shall be authorized to secure the same, supplying the aforesaid animals with provender and water, for which they shall receive a compensation from said owner: Provided, That if said animals shall receive any abuse or damage from said persons, they shall be barred from any compensation for the aforesaid services.
Sec. 19. When any person or persons may, by mistake, erect and make a fence or inclosure on the land of another person, then, and in that case, when the line or lines are legally run by the proper authority, and the fence and inclosures are known to be on the land of such other person, the person or persons making such fence or fences as aforesaid, through mistake, shall be empowered and authorized by this chapter to enter into the said land of another, doing as little damage as possible, and tåke away the rails, posts, wood and stones of which said fence or fences are made and erected, within one year from the time said line or lines may be legally run. Sec. 20. The owner or owners of any land whereon a fence or fences may
have been made by mistake, shall not throw down, nor in any manner disturb the said fence or fences for one year from the time such mistake is found out.
Sec. 21. When either the owner of the rails, or the owner of the land is desirous of having the line or lines run, dividing such land, then, in that case, the person wishing such survey, shall give the other person notice in writing, ten days before such survey is made, of the time and place of making such survey.
APPROVED: March 3, 1845.
proceeded against by ca. 8a.
charge. 3. Duty of officer to take prisoner before court of
probate. 4. Duty of probate justice; property to be given
up; form of oath to be taken. 5. Creditor may resist application; trial may be
had. 6. Examination may be adjourned. 7. Assignee to be appointed; property of debtor to
be assigned to him. 8. Debtor to be then discharged. 9. Creditor aggrieved, may appeal to circuit court,
on giving bond. 10. If probate justice refuse to discharge the appli.
cant, he may appeal, on giving bond. 11. Property not to be sold by assignee, unless per
ishable. 12. Circuit court may try and dispose of case.
by a jury of seven householders.
tried. 16. Duty of assignee, as to property. 17. Power of assignee to sell lands; effect of such
conveyances. 18. When assignee shall settle estate; assets, how
disposed of in payment of debts; when there
is overplus. 19. Head of family may retain same amount of pro
perty as is exempt from execution. 20. Compensation of assignee. 21. Fees of probate justice in such cases. 22. In case of insolvency of probate justice, coun
ty commissioner to act.
Section 1. Whenever any debtor shall refuse to surrender his or her estate, lands, tenements, goods or chattels, for the satisfaction of any execution which may be issued against the property of any such debtor, it shall and may be lawful for the plaintiff in such execution, or his or her attorney or agent, to make affidavit of such fact before any justice of the peace of the county; and upon filing such affidavit with the clerk of the court from which the execution issued, or with the justice of the peace who issued such execution, it shall be lawful for such clerk or justice of the peace, as the case may be, to issue a ca. sa. against the body of such defendant in execution.
Sec. 2. The courts of probate, in the several counties in this State, shall have the sole power, in the first instance, to hear and determine all applications for discharge from imprisonment for debt under this chapter.
Sec. 3. When any person shall be arrested for debt on execution, or on original process, for the purpose of being held to bail, and shall be desirous of releasing his or her body from such arrest or imprisonment, by delivering up his or her property, it shall be the duty of the sheriff, or other officer having the custody of such debtor, to convey him or her before the judge of probate of the county in which such arrest is made.
Sec. 4. It shall be the duty of the probate justice of the peace before whom any such debtor shall be brought as aforesaid, to require of such debtor a full, fair and complete schedule of all his or her estate, real or personal, including money, notes, bonds, bills, obligations and contracts for money or property of any and every description or kind, name or nature whatsoever, together with a true and perfect account of all the debts which he or she shall or may be owing at the time; which schedule shall be subscribed by the debtor, who shall also take the following oath or affirmation, to-wit: “I do solemnly swear (or affirm, as the case may be,) that the schedule now delivered, and by me subscribed, contains, to the best of my knowledge and belief, a full, true and perfect account and discovery of all the estate, lands, tenements, hereditaments, goods, chattels and effects unto me in anywise belonging, and such debts as are unto me owing, or unto any person or persons for me, or in trust for me, and of all securities and contracts whereby any money may become due or payable, or any advantage or benefit accrue to me or to my use, or to any person or persons for me or in trust for me; that I have not lands, money or any other estate, real or personal, in possession, reversion or remainder, which is not set forth in this schedule ; nor have I, at any day or time, directly or indirectly, sold, lessened in value, or otherwise disposed of, all or any part of my lands, money, goods, stock, debts, securities, contracts or estate, whereby to secure the same, or to receive, or expect to receive, any profit or advantage therefrom, to defraud any creditor or creditors, to whom I am indebted in anywise whatsoever; and also, that this schedule contains a true and perfect account of all the debts which I owe to any and every person whatsoever.” Which oath or affirmation shall be subscribed by the debtor, and certified by the probate justice of the peace, as may all oaths or affirmations, which it may he necessary for him to administer in the discharge of the duties assigned him by this chapter.
Sec. 5. Any creditor of such debtor shall have the right to appear before the probate justice of the peace, and contest the truth of such schedule; and may for that purpose
call such witnesses as he or she shall deem necessary; and the court shall issue subpænas, and compel the attendance of witnesses, in the same manner as the judges of the circuit courts do in term time.
Sec. 6. The probate justice of the peace shall have power to adjourn or continue the examination of any such debtor to any convenient time, not exceeding thirty days, upon the said debtor giving security for his appearance, and also for the surrender of all the goods, chattels and estate mentioned in his schedule, at the day or time to which such examination may stand continued or adjourned.
Sec. 7. If, after full investigation and fair examination of the debtor and the witnesses, if any, it shall appear to the probate justice of the peace that the proceedings on the part of the said debtor are fair, just and honest, it shall be the duty of the court to name some fit person to act as assignee of the said debtor; and such debtor shall immediately, by indorsement on the back of said schedule, assign all or so much of his property therein mentioned, as will, in the opinion of the court, be sufficient to pay all the debts, interest, costs and charges, in such schedule mentioned, to the person so named as assignee; and such assignment, so made, shall absolutely vest in such assignee, all the interest of such debtor in and to the said estate so assigned for the use of the creditor or creditors of such debtor.
Sec. 8. Whenever the said debtor shall produce to the court a receipt of the assignee of such debtor, certifying that he has received all the estate, property, goods, chattels ard effects so assigned to him, then it shall be the duty of the court
to give to such debtor a discharge, in writing, from imprisonment; and the officer having the custody of the said debtor, shall, on the production of such discharge, forth with liberate such debtor from arrest or imprisonment; and such discharge, from arrest or imprisonment, shall exempt the said debtor from arrest on account of any
debt mentioned in said schedule, until the same shall be vacated by due course of law.
Sec. 9. Any creditor thinking himself or herself aggrieved by any such discharge, shall and may be allowed an appeal to the next circuit court to be held in the county, upon his or her giving bond, with security, to prosecute the said appeal at the next circuit court, and to pay all costs and damages which may accrue to the party seeking such discharge; which bond shall be made payable to the probate justice or his successor in office, as shall all other bonds which may be given by authority of this chapter; and the said bond shall be filed with the probate justice.
Sec. 10. Upon application of any debtor for a discharge from imprisonment under this chapter, and refusal of the court to make an assignee, or to grant a discharge from imprisonment, the said applicant shall be allowed to appeal to the next circuit court to be held in said county, upon said applicant's entering into bond with security, in such śum as the court shall require, to appear on the first day of the next term of the circuit court, and abide the decision thereof; and also, that he or she will not sell or dispose of, or remove or lessen in value, any or all of the estate or property mentioned in the schedule of such applicant, but that the same shall be forthcoming, and subject to the order of the said court; and upon such debtor entering into such bond, it shall be the duty of the said probate justice to certify the whole of the proceedings which have been had before him, to the said circuit court, on the first day of the term thereof. All appeals shall be prayed before the probate justice of the peace at the time of trial, or within ten days thereafter.
Sec. 11. No assignee shall sell any property assigned to him by any debtor as aforesaid, during the pendency of any appeal to the circuit court, unless the same be of a perishable nature, and such as will be materially injured in its value by delay.
Sec. 12. The circuit court, at the term to which the proceedings shall be returned, shall (unless for good cause) proceed to hear and determine the matter, and shall impannel a jury to find the facts, at the request of either party, admitting all necessary evidence; and shall make such order therein as justice and equity may require, affirming or reversing the whole or any part of the proceedings of probate justice, and doing all things that may be necessary to effect the objects of this chapter.
Sec. 13. In every case, where a debtor is arrested on affidavit, charging such debtor with fraud, and being desirous of releasing his or her body from arrest or imprisonment, it shall be the duty of the sheriff, or other officer having the custody of such debtor, forthwith to convey him or her before the probate justice of the peace of the county, whose duty it shall be to issue a venire to the sheriff or other officer having custody of such debtor, commanding him forth with to summon seven reputable householders of the neighborhood, to assemble before the said court as a jury, who shall be sworn to try the fact of fraud with which such debtor shall stand charged.
Sec. 14. If, after full hearing of the parties, the jury shall find a verdict of “guilty of fraud,” against such debtor, he or she shall be imprisoned until he or she shall comply with the requisitions of the fourth section of this chapter : but if the jury find such debtor “ not guilty of fraud,” then the maker of such affidavit,
as aforesaid, shall pay all such costs as may have accrued in consequence of such arrest or imprisonment, and the debtor shall be discharged from such arrest or imprisonment: Provided, always, That either party shall have the right to an appeal upon the same conditions as in other cases under this chapter.
Sec. 15. Every debtor arrested on any civil suit or process, shall, upon going before the probate justice of the peace if he shall desire the same, be allowed a jury of seven householders of the neighborhood, who shall be sworn to try the fact of refusal to surrender the property of such debtor for the benefit of his or her creditor; and if the jury return or find a verdict of “guilty of such refusal,” then such debtor shall be compelled to surrender his or her property, or schedule his or her property as provided in the fourth section of this chapter; but if the jury find such debtor " not guilty” of refusing to surrender, then such debtor shall be forthwith discharged.
Sec. 16. Every assignee, appointed by authority of this chapter, shall, within the space of thirty days after the assignment of the property mentioned in the schedule or inventory of any insolvent debtor, advertise all the personal property, goods or chattels, mentioned in such schedule, at the door of the court house, and in three other public places in the county, giving twenty days' notice of the time and place of such sale; at which time and place such assignee shall proceed to sell all such personal property, goods and chattels, for the highest price which can be obtained, on a credit of nine months, for which he shall take bond, with sufficient security; and the said assignee shall also advertise at the same places, as above required for personal property, the lands and tenements contained in such schedule, which shall be sold at the door of the court house, on the first day of the circuit court next to be holden in the said county, between the hours of eleven in the morning, and sun setting of the said day; but if the said circuit court should not sit on such day so appointed for its sitting, then such lands and tenements shall be sold in the same manner as if said court had been held at the time appointed, to the highest bidder, on a credit of twelve months, the said assignee taking bond, with sufficient security, for the payment of the same.
Sec. 17. It shall be the duty of every assignee, who shall sell any lands or tenements, by or under authority of this chapter, upon payment of the purchase money being made by the purchaser, to make and execute to such purchaser, his heirs, executors, administrators or assigns, a deed of conveyance for the same, which shall be acknowledged in the same manner as deeds are acknowledged by sheriffs, and such deed shall vest in the purchaser, all the rights of the assignor, to such lands and tenements.
Sec. 18. It shall be the duty of every assignee of any insolvent debtor, within eighteen months after such assignment, to make a settlement of the estate of such insolvent debtor before the court of probate, giving thirty days' public notice of the time of making such settlement ; and the probate justice shall make such order concerning the distribution thereof, as is made in cases of insolvency of deceased persons; and such assignee shall pay the creditors of such insolvent debtor, the amount of their several dividends, within thirty days after such settlement; and if the whole amount of debts shall not have been collected at the time of making such settlement, then such assignee shall continue to collect such outstanding debts, and, from time to time, make dividends of such sums as shall come to his possession, until the whole is collected and paid, first deducting such charges and fees as are by law allowed; and if any thing shall remain in the hands of any such assignee, after paying all such debts as are mentioned in such schedule, together with the