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this State, shall be and hereby is obliged to render to the commissioner appointed in said county, if required, a true account, to the best of his or her knowledge, of every person belonging to such family, respectively, according to the several descriptions aforesaid, on pain of forfeiting twenty dollars, to be sued for and recovered, by action of debt, by such commissioner, for the use of the proper county: Provided, That in all cases where any such fine shall be assessed against any minor or minors, the same shall be paid by his, her or their parent or guardian; and in case of his or her refusal to pay the same, an attachment may be issued to enforce the payment thereof. Sec. 11. Each of said commissioners shall receive at the rate of two dollars for
hundred persons returned, for the first two thousand; at the rate of one dollar and seventy-five cents for each hundred persons returned, over two and not exceeding three thousand; at the rate of one dollar and fifty cents for the fourth thousand; at the rate of one dollar and twenty-five cents for the fifth thousand ; and at the rate of one dollar for each hundred over and above five thousand; to be paid out of the State treasury, out of any moneys not otherwise appropriated.
Sec. 12. The secretary of State shall receive and file such returns in his office, and return the same to the speaker of the House of Representatives, on or before the second day of the next session after such enumeration is made; and the adjutant general shall file the returns to be made to him of the number of persons subject to militia duty, as aforesaid, in his office; and shall immediately thereafter make out a statement of the whole number of such persons, and report the same to the secretary at war of the United States.
APPROVED: March 3, 1845.
and recorded, and possession by mortgages.
dum; his fee. 3. Mortgage when recorded and bona file, good for
two years; proviso as to possession.
nal be lost.
ished. 7. Provisions to extend to all conveyances opera
ting as chattel mortgages.
Section 1. No mortgage on personal property shall be valid as against the rights and interests of any third person or persons, unless possession of such personal property shall be delivered to, and remain with the mortgagee, or the said mortgage be acknowledged and recorded, as hereinafter directed.
Sec. 2. Any mortgagor of personal property, may acknowledge such mortgage before any justice of the peace in the justice's district in which he may reside ; and said justice shall certify the same in substance as follows: “This mortgage was acknowledged before me, by A. B., (the mortgagor,) this day of
18 ;' and the said justice shall also keep on his docket a memorandum of the same, in
substance as follows, viz: "A. B. to C. D., mortgage of (here describe the property,) acknowledged this day of 18 ," inserting the name of the mortgagor in place of A. B., and the name of the mortgagee in place of C. D., and the justice may receive therefor a fee of twenty-five cents.
Sec. 3. Any mortgage of personal property, so certified, shall be admitted to record by the recorder of the county in which the mortgagor shall reside at the time when the same is made, acknowledged and recorded; and shall thereupon, if bona fide, be good and valid from the time it is so recorded, for a space of time not exceeding two years, notwithstanding the property mortgaged or conveyed by deed of trust, may be left in possession of the mortgagor: Provided, That such conveyance shall provide for the possession of the property so to remain with the mortgagor. Sec. 4. A
any such mortgage made, acknowledged and recorded as aforesaid, certified by the proper recorder from the proper record, may be read in evidence in any court of this State, without any further proof of the execution of its original, if said original be lost or out of the power of the person wishing to use it.
Sec. 5. For recording any such mortgage, the recorder recording the same, shall receive eight cents for every one hundred words, and for copies thereof, the same compensation only.
Sec. 6. Any person having conveyed any article of personal property to another by mortgage, who shall, during the existence of the lien or title created by such mortgage, sell the said personal property to a third person, for a valuable consideration, without informing him of the existence and effect of such mortgage, shall forfeit and pay to such purchaser, twice the value of such property so sold; which forfeiture may be recovered in an action of debt in any court having jurisdiction thereof, or if the amount claimed does not exceed one hundred dollars, before any justice of the peace.
Sec. 7. The provisions of this chapter shall be deemed to extend to all such bills of sale, deeds of trust and other conveyances of personal property as shall have the effect of a mortgage or lien upon such property.
APPROVED: March 3, 1815.
make rules of practice.
defendants are non-residents; in case of bills
for injunctions. 3. Set-off allowed in certain cases. 4. Infants may sue by guardian, &c. 5. Summons to issue on filing bill; how served
when defendants reside in different counties. 6. Summons, how tested, sealed, signed, dated and
when returnable. 7. Service of summons to be by delivery or leaving
copy ten days before returnable.
made by publication, in newspaper; contents
tion. 9. If no service nor timely publication be made,
cause continued; but if otherwise, and no
defence made, bill may be taken for confessed. 10. If cause be continued, same proceedings had. 11. If return be made without service, alus, płu.
ries, &c., to issue without order.
copy of bill thirty days before return.
make and enforce decree; how enforced. 14. Decree for money a lien on real estate. 15. Parties not served or notified, or their heirs, &c.,
may petition to be heard; re-hearing; such
parties barred after three years. 16. If defendant be brought into court for contempt,
solicitor to be appointed by court, and cause
may proceed. 17. Courts may establish rules of proceeding. 18. Rule respecting time for pleading, answering,
&c. 19. If bill is taken for confessed, plaintiff may be
required to produce proof. 20. Answer to be on oath, by whom oath may be
administered and authenticated. 21. When bill is not for discovery only, oath may be
waived. 22. If answer be insufficient, defendant may be
ruled to file additional answer, and punished for
refusal. 23. Answer to be full. 2. Defendant may file cross bill, which plaintiff'must
answer. 25. Plaintiff' to answer cross bill as if original; ef
fect of his answer. 26. If plaintiff do not answer cross bill, his bill may
be dismissed, or decree entered against him. 27. How defendant may bring in new parties by his
filing cross bill. 28. Bill not to be dismissed without consent, after
filing cross bill. 29. Plaintiff need not answer cross bill until defend
ant has answered his original bill. 30. Exceptions to testimony, how tiled, argued and
disposed of. 31. Replications to be general ; when filed. 32. Cause when at issue; when answer taken as
true, 33. Disclosures made in answer, not conclusive, but
may be rebutted.
covery may be filed in aid of suit at law.
transfers; answers not to be read in evidence on trial of defendant for the fraud charged in
the bill. 38. If one of several complainants or defendants
die, cause may proceed against survivors. 39. When party dies and his interest vests in oth
ers, they may be made parties; in what manner
and to what extent they may be bound. 40. When parties die, suit not to abate, but may be
revived by legal representatives. 41. How unknown parties may be notified; publi
cation. 42. How such unknown persons affected by de
cree. 43. When party neglects to comply with order of
court to make deed, court may appoint a commissioner to execute the same, with like
effect. 44. Court may prescribe terms of sale. 45. Decrees respecting real estate shall be a lien
thereon ; extent of lien in other cases. 46. When there is no officer to execute decree,
sherifl may execute same; remedy against sherifl' for neglect, and against parties for not
complying with order. 47. Court may appoint guardian ad litem for infant or
insane defendant; guardian not liable for costs;
his compensation. 48. Courts may appoint masters in chancery; their
term of office. 49. Masters to file with clerk a bond, and oath of
ottice. 50. Powers of masters in chancery. 51. When there is no master, or he be disqualified
from acting, court may appoint substitute. 52. Fees of masters in chancery. 53. Property exempt from execution, not liable
Section 1. The several circuit courts of this State, in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode hereinafter prescribed ; and where no provision is made by this chapter, according to the general usage and practice of courts of equity, or agreeably to such rules as may be established by the said courts in that behalf.
Sec. 2. The mode of commencing suits in equity, shall be by filing a bill, setting forth the nature of the complaint, with the clerk of the circuit court of the county, within whose jurisdiction the defendants, or the major part of them, if inhabitants of this State, reside; or if the suit may affect real estate in the county where the same or greater part thereof shall be situated: If the defendants are all non-residents, then with the clerk of the circuit court of any county. Bills for injunctions to stay proceedings at law, shall be filed in the office of the circuit court of the county in which the record of the proceedings had, shall be.
Sec. 3. In suits for the payment or recovery of money, set-offs shall be allowed in the same manner, and with the like effect, as in actions at law.
Sec. 4. Suits in chancery may be commenced and prosecuted by infants, either by guardian or next friend.
Sec. 5. Upon the filing of every bill as aforesaid, the clerk of the court aforesaid shall thereupon issue a summons directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of this State, requiring him to appear, and answer the bill on the return day of the summons; and where there
are several defendants residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein.
Sec. 6. Every summons shall be tested in the name of the clerk of the court out of which it may issue; shall bear the seal of the court and the signature of its clerk; shall be dated of the day it issues, and be made returnable to the next term of the court, after the date thereof, unless the suit be brought within ten days immediately preceding any term, in which case the summons shall be returnable to the next term thereafter.
Sec. 7. Service of summons shall be made by delivering a copy thereof to the defendant, or leaving such copy at his usual place of abode, with some white person of the family, of the age of ten years or upwards, and informing such person of the contents thereof, which service shall be at least ten days before the return day of such summons.
Sec. 8. Whenever any complainant shall file in the office of the clerk of the court in which his suit is pending, an affidavit showing that any defendant resides or hath gone out of this State, or on due inquiry can not be found, or is concealed within this State, so that process can not be served upon him, the clerk shall cause publication to be made in some newspaper printed in his county, and if there be no newspaper published in his county, then in a newspaper published in this state, containing notice of the pendency of such suit, the names of the parties thereto, the title of the court, and the time and place of the return of summons in the case; such publication to be made for four successive weeks, the first of which shall be at least sixty days before the return day of such summons. But this proceeding shall not dispense with the usual exertion on the part of the sheriff, to serve the summons.
Sec. 9. If sixty days shall not intervene between filing such affidavit and the return day of the summons, and the summons shall not be served, the cause shall be continued to the next term. If sixty days shall intervene, as aforesaid, or if service of process shall be made, and the defendant shall not appear on the return day of the summons, the bill may be taken for confessed.
Sec. 10. If, for want of due publication or service, the cause shall be continued, then the same proceedings shall be had at the succeeding term of the court, as may have been had at the term to which said summons shall be returnable.
Sec. 11. If, in any suit in chancery, the process shall not be returned executed on the return day thereof, the clerk, if required, shall issue an alias, pluries, or other process, without an order of the court therefor.
Sec. 12. The complainant may cause a copy of the bill or petition, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this State, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, by the oath or deposition of any person competent to be a witness in the cause, shall be as effectual as if such service had been made in the usual form, within the limits of this State.
Sec. 13. When any bill is taken for confessed, the court may make such decree thereon, as may be just, and may enforce such decree, cither by sequestration of real and personal estate, by attachment against the person, by causing possession of real and personal estate to be delivered to the party entitled thereto, or by ordering the demand of the complainant to be paid out of the effects or estate sequestered, or which are included in such decree; and by the exercise of such other powers as pertain to courts of chancery, and which may be necessary for the attainment of justice.
Sec. 14. A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law.
Src. 15. When any final decree shall be entered against any defendant who shall not have been summoned or notified to appear as required by this chapter, and such person, his heirs, devisces, executor, administrator or other legal representatives, 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 pay 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, the court may make such further order in the premises as shall be required, and shall be just.
Sec. 16. If the defendant shall be brought into court by virtue of any process. being in contempt for refusing to appear, and shall continue to refuse or neglect to enter his appearance, or appoint a solicitor of the court to do it for him, according to the provisions of this chapter, or the rules of said court, then, and in that case, the court may appoint a solicitor to enter an appearance of such defendant, and such further proceedings may be had in the said cause, as if the party had actually appeared.
Sec. 17. The judges of the circuit courts, in their respective circuits, may establish rules of proceeding in chancery, and make all needful orders and regulations, consistent with the practice of courts of chancery, in cases not provided for by law.
Sec. 18. Every defendant who shall be summoned according to the provisions of this chapter shall file his exceptions, plea, demurrer, or answer to the bill at the time to which the process or summons shall be returnable ; if he fail to do so, the bill may be taken for consessed; but for good cause shewn, the court may extend the time for excepting or pleading, and the court may thereupon enter an interlocutory decree, which may be made absolute at the next term, and carried into effect as other final decrees. Ii the defendant shall appear at the next term and offer to file his answer to the bill, the court may permit him to do so, upon his showing sufficient cause, and paying the costs of the preceding terms; in such case, the decree shall be vacated, and the cause may be proceeded in as in other
Sec. 19. Where a bill is taken for confessed, the court, before a final decree is made, is deemed requisite, may order the .complainant to produce documents and witnesses to prove the allegations of his bill, or may examine him on oath or affirmation, touching the facts therein alleged; such decree shall be made in cither case as the court shall consider equitable and proper.
Sec. 20. Every answer shall be verified by an oath or affirmation, taken before and certified by a judge or justice of the peace in this State, or the clerk of the court in which the action is pending, or before a judge or justice of the peace or