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CHAPTER LXXII.

NE EXEAT AND INJUNCTIONS.

SECTION

| SECTION 1. Writs of ne ereat republica may issue whether 7. On return of writ, how court to proceed to exdemand be actually due or not.

amine, 2. Co-obligor or joint debtor may have writ to 8. Ne crent and injunction, who may grant; writ not compel payment or securing of proportion due

to issue for less than twenty dollars. from debtor about to remove; security may

9. Return of writ, into what court. also have this writ against principal.

10. In case of injunction to stay judgment at law, 3. No writ granted without bill or petition filed, where proceedings may be had; subpæna may and bond given ; suit on bond.

issue to any county. 4. Writ to be issued by judge or clerk of circuit 11. Ellect of injunction; not to issue without bond; court, and made returnable thereto.

conditions of bond. 5. Writ sluall be a summons to appear and answer 12. Punishment for disobeying injunction.

bill; defendant to give bond not to leave the 13. On tiling answer, court may dissolve injunction; State; temporary absence not a breach.

may hear proof; on dissolution of injunction, 6. Security may surrender principal in discharge of complainant may have time to prove answer his liability:

1

untrue ; testimony, how taken and read.

Section 1. Writs of ne ereat republica may hereafter be granted, as well in cases where the debt or demand is not actually due, but exists fairly and bona fide in expectancy, at the time of making application, as in cases where the demand is due; and it shall not be necessary to authorize the granting of such writ of ne ereat that the applicant should show that his debt or demand is purely of an equitable character, and only cognizable before a court of equity.

Sec. 2. In case of joint, or joint and several obligors or debtors, if one or more of them be about to remove without the jurisdictional limits of this State, taking their property with them, leaving one or more co-obligors or co-debtors bound with them for the payment of any sum of money, or for the delivery of any article of property, or for the conveyance of land at a certain time, which time shall not have arrived at the time of such intended removal, such co-obligor or co-debtor who remains, shall be entitled on application, to a writ of ne exeat, to compel the co-obligor or co-debtor who is about to remove, to secure the payment of his part of the sum to be paid, or of the delivery of the property, or to convey or to join in the conveyance of the land. Also, in cases of security, the writ of ne exeat may issue on application of a security, against the principal or co-security, when the obligation or debt shall not be yet due, and the principal or co-security is about removing out of the State.

Sec. 3. No writ of ne exeat shall be granted but upon bill or petition filed, and affidavit to the truth of the allegations therein contained; upon the granting of any such writ, the court or judge granting the same, shall indorse or cause to be indorsed on the bill or petition, in what penalty bond and security shall be required of the defendant; and shall also, before issuing the said writ, take bond of the complainant, with good and suflicient security, in such sum as the said court or judge shall deem proper, conditioned that the said complainant will prosecute his bill or petition with effect; and that he will reimburse to the defendant, such damages and costs as he shall wrongfully sustain by occasion of the said writ. If any defendant to such

writ of ne ereat shall think himself aggrieved, he may bring suit on such bond; and is, on trial, it shall appear that such writ of ne exent was prayed for without a just cause, the person injured shall recover damages, to be assessed as in other cases on penal bonds.

Sec. 4. All writs of ne ereat shall be returnable into the circuit court of the proper county; and when granted by a judge in vacation, may be issued under the hand of the judge; or the judge may direct the clerk of the said circuit court to issue the said writ, and to take bond of the complainant as is above required.

Sec. 5. The writ of ne exeat shall contain a summons for the defendant to appear in the circuit court and answer to the said petition or bill, and upon the same being served upon the said defendant, he shall give bond with surety, in the sum indorsed on such writ, conditioned that he will not depart the State without leave of the said court, and that he will render himself in execution to answer any judgment or decree which the said court may render against him; and in default of giving such security, he may be committed jail as in other cases, for the want ot bail ; no temporary departure of the defendant from the State shall be considered as a breach of the condition of the said bond, if he shall return before personal appearance shall be necessary to answer or perform any judgment, order or decree of the said court. Sec. 6. The surety in any

bond for the defendant as aforesaid, may, at any time before the said bond shall be forfeited, surrender the said defendant in exoneration of himself in the same manner that bail may surrender their principal, and obtain the same discharge.

Sec. 7. On the return of the writ of ne ereat, if the same shall have been duly served, the court shall proceed therein as in other cases in chancery, if the matters alleged in said bill be purely of an equitable character, and the time of performance of the duty or obligation of the defendant has expired ; if not, then the proceedings shall be stayed until it has expired ; but the court may, nevertheless, proceed to determine whether the said writ ought not to be quashed or set aside.

Sec. 8. The supreme and circuit courts, in term time, and any judge thereof in vacation, shall have power to grant writs of ne ereat and injunction. No writ of injunction shall be granted to stay proceedings under a judgment obtained before a justice of the peace, for a sum not exceeding twenty dollars besides the costs.

Sec. 9. When an injunction shall be granted by the supreme court, or a judge thereof, it shall be made returnable into the circuit of the proper county.

Sec. 10. When an injunction shall be granted to stay a suit or judgment at law, the proceedings shall be had in the county where the judgment was obtained, or the suit is pending; and the writ of subpæna may be sent in the first instance into any county within this State where the defendant resides.

Sec. 11. No injunction shall be granted to stay any judgment at law, for a greater sum than the complainant shall show himself equitably not bound to pay, and so much as shall be suflicient to cover costs : every injunction when granted, shall operate as a release of all errors in the proceedings at law, that are prayed to be enjoined. No injunction shall be issued, unless the complainant shall have previously executed a bond with sufficient surety, to the defendant, approved by the court or judge granting such injunction, and filed with the clerk, in double the sun, directed to be enjoined, conditioned for the payment of all money and costs due, or to be due to the plaintiff in the action at law; and also, all such costs and damages as shall be awarded against the complainant, in case the injunction shall be dissolved, or

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such bond may be entered into before the clerk of the circuit court of the county where the writ is required to be issued, the court or judge granting the injunction, having first approved the security. If the injunction be dissolved in the whole or in part, the complainant shall pay, exclusive of legal interest and costs, such damges as the court shall award, not exceeding ten per centum, on such part as may be released from the injunction; and the clerk shall issue execution for the same, when he issues execution upon such judgment.

Sec. 12. If any person against whom a writ of injunction shall be issued, shall, after the service thereof, be guilty of disobedience to and breach of the said injunction, it shall be lawful for the judge granting the same, or if the same were granted in open court, then for any judge of that court in vacation, to issue an attachment against the said person for a contempt. Upon his being brought before the said judge, unless he shall disprove or purge the said contempt, the said judge may, in his discretion, commit him to jail until the sitting of the court in which the said injunction is pending, or take bail for his appearance in the said court at the next term thereof, to answer for the said contempt, and to abide the order of the court thereon.

Sec. 13. Upon the filing of an answer, it shall be in order at any time in term, to move for the dissolution of the injunction; and upon such motion it shall be lawful for the parties to introduce testimony to support the bill and answer : the court shall decide such motion upon the weight of testimony, without being bound to take the answer as absolutely true. If, after such dissolution is moved for, the plaintiff in the bill will satisfy the court by his own affidavit, or the affidavit of any disinterested person, that the answer, or any material part thereof, (to be specified in such affidavit,) is untrue, and that he has witnesses whose testimony he believes he can procure by the next term of the court, who will disprove the said answer, or such material part thereof as shall be specified as aforesaid, and that he has had no opportunity to procure such testimony since the coming in of the answer, it shall be lawful for the court to grant a continuance of the said motion, until the next term. The testimony to be heard on such motions, aside from the bill and answer, shall be by depositions in writing, taken as in other cases in chancery proceedings, except the affidavits which may have been filed with the bill or answer, which may be read on such motion as heretofore; and the depositions taken to dissolve an injunction, may be read on the final hearing of the cause in which they have been taken.

APPROVED : March 3, 1845.

CHAPTER LXXIII.

NEGOTIABLE INSTRUMENTS.

SECTION
1. Ten per cent. damages on foreign bills protest-

ed.
2. Five per cent. damages on inland bills protest-

ed. 3. Construction and effect of note, &c., in writing. 4. Notes, &c., assignable by indorsement. 5. Assignees of notes, &c., may bring suit in his

own name or otherwise. 6. Payment by maker to payee after assionment,

not to be alleged as a defence against as.

signees.
7. Assignor, how liable; due diligence necessary

in collecting from the maker; proviso, if suit
against maker would be unavailing, need not
be brought in order to make indorser liable.

SECTION
8. If note, &c., be indorsed over after it is due,

deniands against original payee may be set ofl. 9. Payments made on note, &c., before due, may

be set off against assignee, if he had notice of

such payment. 10. Failure of consideration, in whole or in part,

may be pleaded; right of bona fide assignee

not affected by failure of consideration. 11. Fraud in procuring note may be pleaded in bar. 12. If note, &c., be for the delivery of property,

how delivery or tender may be made. 13. Legal tender to discharge maker from liability ;

property vested in payee; what, if property le perishable.

Section 1. When any foreign bill of exchange, which may be drawn for any sum of money, expressed that the value has been received, shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, the drawer or indorser thereof, due notice being given of such non-acceptance or nonpayment, shall

pay said bill, with legal interest from the time such bill ought to have been paid, until paid, and ten per cent. damages, in addition, together with the costs and charges of protest.

Sec. 2. If any bill of exchange drawn upon any person, or body politic or corporate, out of this State, but within the United States or their territories, for the payment of money, and expressed to be value received, shall be duly presented for acceptance or payment, and protested for non-acceptance or non-payment, the drawer or indorser thereof, due notice being given of such non-acceptance or non-payment, shall pay said bill, with legal interest from the time such bill ought to have been paid, until paid, and five per cent. damages, in addition, together with costs and charges of protest.

Sec. 3. All promissory notes, bonds, due-bills and other instruments in writing, made or to be male, by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledge any sum of money or article of personal property to be due to any other person or persons, shall be taken to be due and payable; and the sum of money or article of personal property therein mentioned, shall, by virtue thereof, be due and payable to the person or persons to whom the said note, bond, bill or other instrument in writing is made.

Sec. 4. Any such note, hond, bill or other instrument in writing, made payable to any person or persons, shall be assignable, by indorsement thereon, under the hand or hands of such person or persons, and of his, her or their assignee or assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof, in each and every assignce or assignees successively.

Sec. 5. Any assignee or assignees, to whom such sum of money or personal property is, by such indorsement or indorsements, made payable, or in case of the death of such assignee or assignees, his, her or their executors or administrators, may, in his, her or their own name or names, institute and maintain the same kind of action for the recovery thereof, against the person or persons who made and executed any such note, bond, bill or other instrument in writing, or against his, her or their heirs, executors or administrators, as might have been maintained against him, her or them, by the obligee or payee, in case the same had not been assigned ; and in every such action, in which judgment shall be given for the plaintiff or plaintiffs, he, she or they shall recover his, her or their damages and costs of suit, as in other cases.

Sec. 6. No maker of any such note, bond, bill or other instrument in writing, or other person liable thereon, shall be allowed to allege payment to the payee, made after notice of such assignment, as a defence against such assignee or assignees.

Sec. 7. Every assignor or assignors, or his, her or their heirs, executors or administrators, of every such note, bond, bill or other instrument in writing, shall be liable to the action of the assignee or assignees thereof, or his, her or their executors or administrators, if such assignee or assignees shall have used due diligence, by the institution and prosecution of a suit against the maker or makers of such assigned note, bond, bill or other instrument of writing, or against his, her or their heirs, executors or administrators, for the recovery of the money or property due thereon, or damages in lieu thereof: Provided, That if the institution of such suit would have been unavailing, or that the maker or makers had absconded, or left the State, when such assigned note, bond, bill or other instrument in writing became due, such assignee or assignees, or his or her executors or administrators, may recover against the assignor or assignors, or against his or their heirs, executors or administrators, as if due diligence by suit had been used.

Sec. 8. If any such note, bond, bill or other instrument in writing, shall be indorsed after the day on which the money or property therein mentioned, becomes due and payable, and the indorsee shall institute an action thereon against the maker and signer of the same, the defendant being maker and signer, shall be allowed to set up the same defence that he might have done, had the said action been instituted in the name and for the use of the person or persons to whom the said note, bond, bill or other instrument in writing was originally made due and payable.

Sec. 9. If any such note, bond, bill or other instrument of writing shall be indorsed before the day the money or property therein mentioned, becomes due and payable, and the indorsee shall institute an action thereon, the defendant may give in evidence at the trial, any money or property actually paid on the said note, bond, bill or other instrument in writing, before the said note, bond, bill or other instrument in writing was indorsed or assigned to the plaintiff, on proving that the plaintiff had sufficient notice of the said payment, before he or she accepted or received such indorsement.

Sec. 10. In any action commenced, or which may hereafter be commenced, in any court of law in this State, upon any note, bond, bill or other instrument in writing, for the payment of money or property, or the performance of covenants or conditions by the obligee or payee thereof, if such note, bond, bill or instrument in writing was made or entered into without a good or valuable consideration; or, if the consideration upon which such note, bond, bill or instrument in writing was made or entered into, has wholly or in part failed, it shall be lawful for the defen

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