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court or any

Section 1. The respective circuit courts in this State shall have power to issue writs of mandamus. Appeals may be taken from the decision of the said courts, upon such terms as the said circuit courts shall prescribe ; or, writs of error may be prosecuted, whenever the

supreme

of the judges thereof in vacation, upon being presented with a copy of the record, shall certify that there is reasonable cause for the bringing of such writ; and the said supreme court, or judge in vacation, may impose such terms and conditions upon the party wishing to prosecute such writ of error, as the said court or judge may deem reasonable. The allowance of a writ of error shall operate, after notice thereof, as a stay of proceedings in the circuit court until the determination of such writ of error.

Sec. 2. When any writ of mandamus shall be issued out of any court of this State, directed and delivered to any person or persons, who, by the laws of this State, are required to make return of such writ, such person or persons shall make his or their return to the first writ of mandamus.

Sec. 3. When any writ of mandamus shall issue out of any court of this State, and return shall be made thereunto, it shall be lawful for the person or persons suing or prosecuting such writ, to plead to or traverse all or any of the material facts contained in such return; to which the person or persons making such returns shall reply, take issue or demur, and such further proceedings shall be had therein, and in such manner, for the determination thereof, as might have been had if the person or persons suing out such writ had brought his or their action on the case for a false return. If any issue shall be joined upon such proceedings, the person or persons suing such writ, shall and may try the same in such place, as an issue joined on such action on the case should or might have been tried. In case a verdict shall be found for the person or persons suing such writ, or judgınent given for him or them upon a demurrer, or by nihil dicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs, in such manner as he or they might have done in an action on the case as aforesaid ; such damages and costs shall and may be levied by execution, as in other cases, and a peremptory writ of mandamus shall be granted without delay for him or them for whom judgment shall be given, as might have been if such return had been adjudged insufficient. In case judgment shall be given for the person or persons making

such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid.

Sec. 4. If any damages shall be recovered by virtue of the provisions of this chapter, against any person or persons making such returns to such writ as aforesaid, he or they shall not be liable to be sued in any other action or suit for the making of such return, any law, usage or custom to the contrary notwithstanding.

Sec. 5. It shall and may be lawful to and for the court issuing any writ of mandamus, to ailow to such person or persons respectively, to whom such writ shall be directed, or to the person or persons who shall sue or prosecute the same, such convenient time, respectively, to make return, plead, reply, rejoin or demur, as to the court shall seem just and reasonable, anything herein contained to the contrary notwithstanding.

APPROVED: March 3, 1845.

CHAPTER LXVIII.

MARKS AND BRANDS,

SECTION
1. Every person having stock, may have separate

car mark, which shall be recorded.
2. Clerk of county commissioners' court to keep

record of marks; his fees.

SECTION

3. How disputes to be settled.
4. Persons purchasing stock, may change marks in

presence of witnesses.

Section 1. Every person in this State, who hath cattle, horses, hogs, sheep or goats, may have an ear mark and brand, and but one of each, which shall be different from the ear mark and brand of his neighbors ; which ear mark and brand may be recorded by the clerk of the county court where such cattle, horses, hogs, sheep or goats shall be.

Sec. 2. It shall be the duty of the county clerks, in the respective counties of this State, to keep a well bound book, in which they shall record the marks and brands of each individual who may apply to them for that purpose; for which they shall be entitled to demand and receive the sum of twelve and a half cents; and the book in which the same are recorded, shall be open to the examination of every citizen of the county at all reasonable office hours, free of charge.

Sec. 3. If any dispute shall arise about any ear mark or brand, it shall be decided by reference to the book of marks and brands kept by the county clerk, but such book shall be prima facie evidence only.

Sec. 4. Any person purchasing or acquiring horses, cattle, hogs, sheep or goats, when he brands or marks the same in his brand or mark, after the acquisition of the same, may do it in the presence of one or more of his neighbors, who are authorized to certify to the fact of the marking or branding being done, when done, and in what brand or mark the same were, previously, and in what brand or mark they were re-branded or re-marked. Such certificate shall not be deemed evidence of property in the animal branded, but only prima facie evidence of the facts therein certified to.

APPROVED: March 3, 1845.

CHAPTER LXIX.

MARRIAGES.

SECTION
1. At what age persons may contract marriage;

when consent of parents necessary.
2. Persons of different color not permitted to con.

tract marriage; penalty for; clerk issuing li-
cense to such persons, and officers solemni.

zing their marriage, how punished.
3. Who, in religious societies, may solemnize mar-

riages according to their custom. 4. What declaration of parties sufficient; before

whom such declaration may be made.
5. Person celebrating marriage, to file certificate

thereof in office of clerk of county commis.
sioners' court.

SECTION
6. Clerk to keep registry thereof; copies to be evi-

dence.
7. Clerk refusing to register marriage, how pun-

ished. 8. Penalty for neglecting to file certificate; penalty

for celebrating marriage contrary to law. 9. Two weeks' publication, or a license, required

before marriage. 10. License, when necessary; its contents; con

sent of parents and guardians, when necessary; penalty if clerk issue license to minors without such consent; how sued for and recovered; how fact of age ascertained.

and white person,

Section 1. All male persons over the age of seventeen years, and females over the age of fourteen years, may contract and be joined in marriage: Provided, In all cases where either party is a minor, the consent of parents or guardians be first had, as is hereinafter required.

Sec. 2. No person of color, negro or mulatto, of either sex, shall be joined in marriage with any white person, male or female, in this State ; and all marriages or marriage contracts, entered into between such colored

person shall be null and void in law; and any person so marrying or contracting to marry, shall be liable to pay a fine, be whipped in not exceeding thirty-nine lashes, and be imprisoned, not less than one year; and shall be held to answer in no other than a criminal prosecution, by information or indictment. And any clerk who shall knowingly issue a license to any such colored person, negro or mulatto, or to any white person to be joined to a negro or mulatto, in manner aforesaid, or if any officer or person authorized to solemnize marriages in this state, shall join any such colored person, negro or mulatto in marriage with a white person, such magistrate or other person so offending as aforesaid, on conviction thereof, shall be fined, in a sum not less than two hundred dollars, to be sued for and recovered in any court of record in this State, the one-half for the use of the county in which said suit is brought, and the other half to the person suing for the same; and thereafter be ineligible to any office in this State.

Sec. 3. All persons belonging to any religious society, church or denomination, may celebrate their marriage according to the rules and principles of such religious society, church or denomination ; and a certificate of such marriage, signed by the regular minister, or if there be no minister, then by the clerk of such religious society, church or denomination, registered as hereinafter directed, shall be evidence of such marriage.

Sec. 4. Any persons wishing to marry, or be joined in marriage, may go before any regular minister of the gospel, authorized to marry, by the custom of the church or society to which he belongs, any justice of the supreme court, judge of any inferior court, or justice of the peace, and celebrate or declare their marriage, in such manner and form as shall be most agreeable.

Sec. 5. Any minister of the gospel, justice of the supreme court, judge or justice of the peace, who shall celebrate any marriage, shall make a certificate of such marriage, and return the same, with the license, to the clerk of the county commissioners' court, who issued such license, within thirty days after solemnizing such marriage.

Sec. 6. The clerk of the county commissioners' court, after receiving such certificate, shall make a registry thereof, in a book to be kept by him for that purpose only; which registry shall contain the christian and surnames of both the parties, the time of their marriage, and the name of the person certifying the same : and said clerk shall, at the same time, indorse on such certificate, that the same is registered, and the time when ; which certificate shall be carefully filed and pregerved; and the same, or a certified copy of the registry thereof, shall be evidence of the marriage of the parties.

Sec. 7. If any clerk shall, for more than one month, refuse or neglect to register any marriage certificate, which has been, or may hereafter be delivered to him for that purpose, (his fee therefor being paid,) he shall be liable to be removed from office, and shall moreover pay the sum of one hundred dollars, to the use of the party injured, to be recovered by action of debt in any court having cognizance of the

same.

Sec. 8. If any minister, justice of the supreme court, judge or justice of the peace, having solemnized a marriage, or clerk of any religious socięty, as the case may be, shall not make return of a certificate of the same, as required, within the time limited, to the clerk of the commissioners' court of the county in which such marriage was solemnized, he shall forfeit and pay one hundred dollars for each case so neglected, to go to the use of the county, to be recovered by indictment. And if any minister of the gospel, justice of the supreme court, judge or any other officer or person, except as hereinbefore excepted, shall solemnize and join in marriage any couple without a license as aforesaid, he shall, for every such offence, forfeit and pay one hundred dollars, to the use of the county, to be recovered by indictment,

Sec. 9. No persons shall be joined in marriage as aforesaid, unless their intention to marry, shall have been published at least two weeks previous to such marriage, in the churclror congregation to which the parties, or one of them belong; or unless such persons have obtained a license, as herein provided.

Sec. 10. In all cases when publication of such intention to marry has not been made, as before described, the parties wishing to marry, shall obtain a license from the clerk of the county commissioners' court of the county where such marriage is to take place; which license shall authorize any regular minister of the gospel, authorized to marry by the church or society to which he belongs, any justice of the supreme court, judge or justice of the peace, to celebrate and certify such marriage; but no such license shall be granted for the marriage of any male under twenty-one years of age, or female under the age of eighteen years, without the consent of his or her father, or if he be dead or incapable, of his or her mother or guardian, to be noted in such license. And if any clerk shall issue license for the marriage of any such minor, without consent as aforesaid, he shall forfeit and pay

the sum of three hundred dollars, to the use of such father, mother or guardian, to be sued for and recovered in any court having cognizance thereof; and for the purpose of ascertaining the age of the parties, such clerk is hereby authorized to examine either party, or other witness, on oath.

APPROVED : March 3, 1845.

CHAPTER LXX.

MILITIA.

SECTION 1. Who shall be enrolled in the militia; when, and

how enrolled; how to be armed; oificers how to

be armed; arms, &c.,exempt from execution. 2. Militia divided into divisions, brigades, regi

ments, battalions and companies; divisions,

&c., particularly defined. 3. Militia of the State, how officered. 4. What officers appointed by the Governor; their

rank. 5. Rank, how assigned ; numbers, how fixed. 6. Mode of proceeding in creating or changing

brigade, districts or dividing regiments; changes not to disturb commissions of otficers; chang

ing regimental districts, how accomplished. 7. Who may be officers of militia; oath to be ta

ken; officer elected, failing to take oath, to be

displaced; who may adininister oath. 8. One company of artillery, and one of cavalry to

each regiment, and one of grenadiers, &c.; pro

viso, as to number composing such company. 9. Independent companies, how armed and equip

ped; of what number of officers and privates they shall consist; may choose their own uni

formi. 10. Term and conditions of service of independent

companies. 11. Resignations, how made; how received; how va

cancies, thus occasioned, may be filled. 12. Manner of voting in elections of officers; votes,

how recorded; returns, how made; if election

be contested, to whom transmitted. 13. Contested elections, how decided. 14. Officers appointed to try contested election to be

notified; fined for failure to attend. 15. What officers shall attend at contested elections,

in the various grades of otficers. 16. How decision in contested case certified and re.

turned; successful party to be commissioned. 17. Witnesses may be examined, delinquent wit

nesses, how punished. 18. Oath of officers, form of. 19. Color bearers to be appointed to each battalion. 20. Officers serving seven years, being equipped, to

be exempt from militia duty. 21. If company be disorganized by failure to elect

officers, to be enrolled in next nearest com

pany. 22. Volunteer companies, when to equip. 23. Fine to be proportioned to delinquency of of

ficer. 24. Cause of resignations, how noted. 25. Regimental musters to be held once in each

year. 26. Battalion muster once in each year. 27. Company musters, when held; notices. 28. Regimental musters, by whom notice of to be

given. 29. Commanders of regiments to give notices, &c. 30. Brigadier General, his duty; brigade inspector,

to inspect arms and report.

SECTION 31. Regimental drill musters to continue two days;

officers to attend, and how armed, &c. 32. Fines, their amount ; for what assessed. 33. When regimental musters to be held at county

seats. 34. Who exempt from military duty on account of

conscientious scruples; commutation to be

paid. 35. Governor to furnish independent companies

with arms; to take bond for their safe return. 36. Governor to deliver arms to independent com.

panies. 37. Court martial, when held; its duty; its power

to assess fines; appeals, &c.; tines, how collected; form of warrant of collection; constable to collect and pay over; his fees for

collection. 38. Scale of forfeitures and penalties. 39. When officer charged with any oflence, how

complained of, arrested and tried. 40. Witnesses, how subpa naed; how compelled to

attend; penalty for failure to attend. 41. Courts to try officers of the respective grades,

how selected; officers, how punished. 42. Form of oaths to be taken by officers composing

court martial, and by witnesses. 43. Commander-in-chief, in what cases, and in what

order he may call out the militia. 44. Duty of inferior officers in such cases. 45. How men to be selected in certain cases. 46. In what cases men may be drafted. 47. Parents and guardians bound for minors. 48. Militiaman having served a tour of duty or paid

fine, exempt from service; fines, how applied. 49. Duty of several officers, when militia are called

into service. 50. Officers, how detailed for duty; term, manner

and order of service. 61. How persons disabled, may be exempted from

service. 52. Militia to serve six months; where to rendez.

vous; who to command them; how dis

charged. 53. Compensation of officers. 54. Additional persons exempt from militia duty. 55. Uniform prescribed to be worn. 56. Officers to appoint places and days for mus

ters; roll call; exercise; discipline prescri

bed. 57. Colors and musical instruments to be provided. 58. Additional duty of major generals. 59. Additional duty of brigadier generals. 60. Additional duties of colonels commanding regi

ments, and majors commanding odd battalions. 61. Additional duties of lieutenant colonels, and

majors commanding battalions. 02. Further duties of commandants of companies. 63. Vacant offices, how filled. 64. Subordination and preservation of order.

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