« ZurückWeiter »
other person authorized to administer an oath in the State, territory, kingdom or empire, in which the defendant may be, or reside; the official character of such officer, if out of this State, being attested by the seal of some court of record, within such State, territory, kingdom or empire.
Sec. 21. When a bill shall be filed in the court of chancery, other than for discovery only, the complainant may waive the necessity of the answer being made on the oath of the defendant; and in such cases, the answer may be made without oath, and shall have no other or greater force as evidence than the bill.
Sec. 22. When an answer shall be adjudged insufficient, the defendant shall file a further answer within such time as the court shall direct, and on failure thereof, the bill shall be taken as confessed; if such further answer shall be likewise adjudged insufficient, the defendant shall file a supplemental answer, and pay all costs attendant thereon; if that shall be adjudged insufficient, the defendant may be proceeded against for a contempt, and the like proceedings be had thereon to enforce the order of the court, as in other cases of contempt.
Sec. 23. Every defendant shall answer fully all the allegations and interrogatories of the complainant, except such as are not required to be answered, by reason of exceptions, plea or demurrer thereto allowed.
Sec. 24. Any defendant may, after filing his answer, exhibit and file his cross bill containing interrogatories to the complainant, and call upon him to file his answer thereto, in such time as may be prescribed by the rules of the court.
Sec. 25. The complainant shall in such case be held to except, plead, deinur or answer to such cross bill in the same manner that a defendant is required to except, plead, demur, or answer to an original bill, and his answer shall be evidence in the same manner as the defendant's answer to the bill.
Sec. 26. If the complainant shall fail to answer such interrogatories, his bill or petition shall be dismissed with costs, or the new matter set out in the defendant's cross bill shall be taken as' confessed, and a decree entered accordingly.
Sec. 27. Where it is necessary for the defendant to bring a new party before the court, he shall state it in his answer, and insert interrogatories for him in his answer; and a subpena shall be issued, and other proceedings had, as in the case of other defendants.
Sec. 28. No complainant shall be allowed to dismiss his bill, after a cross bill has been filed, without the consent of the defendant.
Src. 29. The complainant shall not be compelled to file his answer to any cross bill, until the defendant shall have filed a sufficient answer to the complainant's bill.
Src, 30. All exceptions to answers to interrogatories exhibited by the defendant as aforesaid, shall be filed within such time as the court may direct, and be argued at such time as the court may appoint. If the complainant's exceptions be overruled, he shall pay costs to the defendant; and if the defendant's answer be adjudged insufficient, he shall pay costs to the complainant.
Sec. 31. Replications shall be general, with the like advantage to all parties as if special; and shall be filed in four days after the answer, if in term time; or if such answer be filed in vacation, the plaintiff or his attorney shall have notice thereof.
Sec. 32. After replication is filed, the cause shall be deemed at issue, and stand for hearing at the next term, or in default of filing such replication, the cause may be set for hearing upon the bill and answer; in which case the answer shall be taken as true, and no evidence shall be received, unless it be matter of record to which the answer refers.
Sec. 33. When the complainant shall require a discovery respecting the matters charged in the bill, the disclosure shall not be deemed conclusive; but if a replication be filed, may be disproved or contradicted, like any other testimony, according to the practice of courts of equity.
Sec. 34. The said circuit courts, when sitting as courts of equity, may extend the time for answering, replying, pleading, demurring, or joining in demurrer; and may permit the parties to amend their bills, petitions, pleas, answers and replications, on such terms as the court may deem proper, so that neither party be surprised nor delayed thereby.
Sec. 35. The said circuit courts may, in their discretion, direct an issue or issues to be tried by a jury, whenever it shall be judged necessary in any cause in equity, pending in any
of the said courts. In all other causes in equity, the mode of trial shall be the same as has been heretofore practiced in courts of chancery.
Sec. 36. Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party sueing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property, or thing in action, belonging to the defendant; and if any property, money or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself.
Sec. 37. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money, or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not: Provided, That no answer made to any bill filed under this and the preceding section shall be read in evidence against the defendant on the trial of any indictment for the fraud charged in the bill.
Sec. 38. If in any suit or action now pending, or which shall hereafter be brought in any court of chancery, there are or shall be two or more complainants or defendants, and one or more of them die, (if the cause of such action or suit survive to the surviving complainant or complainants, or against the surviving defendant or defendants,) such suit or action shall not thereby be abated; but such death being suggested and shown to the satisfaction of the court, such suit or action shall proceed at the suit of the surviving complainant or complainants, and against the surving defendant or defendants.
Sec. 39. When there shall be two or more complainants or defendants, in any suit or action in chancery, as aforesaid, and any of them die, and the cause of action do not survive, but other persons shall become parties in interest, in right, or by the death of such deceased party, such suit or action shall, by reason of such death, be abated only with respect to such deceased party. The surviving complainant or complainants may proceed against the surviving defendant or defendants, without reviving the suit against the representatives of the deceased party, or any other who may become interested by the death of such party; but, in such case, such representatives or other persons becoming interested by the death of such party, shall not be bound by any order or decree in such cause to which they are not made
parties; and they may be made parties in the manner provided in chapter one of the Revised Statutes.
Sec. 40. In all cases where all the complainants or defendants, in any suit now pending, or hercaster to be brought in any court of chancery, shall die before final decree, such suit or action shall not thereby be abated, but may be revived in the name of the legal representatives of the deceased, or other person becoming interested in the cause of action by the death of such party. Sec. 41. In all suits in chancery, and suits to obtain title to lands, in
of the courts of this State, 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 section eight of this chapter, shall be sufficient to authorize the court to hear and determine the suit, as though all parties had been sued by their proper
Sec. 42. All decrees, orders, judgments and proceedings, made or had with respect to such unknown persons, shall have the same effect, and be as binding and conclusive upon them, as though such suit or proceeding had been instituted against them by their proper names.
Sec. 43. Whenever a decree shall be made in any suit in equity, directing the execution of any deed or other writing, and the party against whom the same shall have been entered shall not comply therewith, within the time required, it shall be lawful for the court to appoint a commissioner to execute the same; the execution thereof by such commissioner shall be as valid in law to pass, release or extinguish the right, title and interest of the party on whose behalf it is executed, as if it had been executed by such party in proper person, in conformity with such decree; and such deed or other writing, if it relate to land, shall, within six months after its execution by such commissioner, be recorded in the office of the recorder of the county wherein the lands may lie.
Sec. 44. In all cases where a sale of property is decreed, the court may direct the same to be made for cash, or on such credit, and on such terms as it
deem best and most equitable to the interests of the several parties.
Sec. 45. All decrees given in causes in equity in this State, shall be a lien on all real estate respecting which such decrees shall be made; and whenever, by any decree, any party to a suit in equity shall be required to perform any act other than the payment of money, or to refrain from performing any act, the court may, in such decree, order that the same shall be a lien upon the real or personal estate, or both, of such party until such decree shall be fully complied with ; and such lien shall have the same, force and effect, and be subject to the same limitations and restrictions as judgments at law.
Sec. 46. When there shall be no master in chancery or commissioner to execute a decree, the same may be carried into effect by execution, or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county; which, when issued, shall be executed and returned by the sheriff or other officer to whom it may be directed, and shall have the same operation and
force, as similar writs issued upon a judgment at law. The sheriff or other officer to whom the same is directed, shall be subject to the like penalties and recoveries for misconduct or neglect in the execution or return thereof, as in cases at law; or the court may, if necessary, direct an attachment to be issued against the party disobeying such decree, and. fine or imprison him, or both, in the discretion of the court and may also direct a sequestration for disobedience of any decree.
Sec. 47. In any cause in equity it shall be lawful for the court in which the cause is pending to appoint a guardian ad litem, to any infant or insane defendant in such cause, whether such infant or insane uefendant shall have been served with process or not, and to compel the person so appointed to act. By such appointment, such person shall not be rendered liable to pay costs of suit; and he shall moreover be allowed a reasonable sum for his charges as such guardian, to be paid by the party at whose motion he was appointed, to be taxed in the bill of costs.
Sec. 48. The several circuit courts of this State shall have power to appoint, in each county, a master in chancery, who shall hold his office during the term of
Sec. 49. Every master in chancery, before entering on the duties of his appointment, shall give bond, with security to be approved by the court, and take and subscribe an oath of office, which bond and oath shall be filed with the clerk of the court making the appointment.
Sec. 50. Masters in chancery, in their respective counties, shall have power to take depositions, both in law and equity, to administer oaths, to compel the attendance of witnesses, and in the absence from the county, of the circuit judge presiding in such county, to order the issuing of writs of habeas corpus, ne exent and injunction, and perform all other duties, which, according to the laws of this state, and the practice of courts of chancery, appertain to the office.
Sec. 51. Whenever it shall happen that there shall be no master in chancery, in any county, or when such master shall be of counsel, of kin to either party, interested, or otherwise disqualified or unable to act in any suit or matter, the court may appoint a special master, to perform the duties of the office in all things concerning such suit or matter.
Sec. 52. Masters in chancery shall receive for their services such compensation as shall be allowed by law, to be taxed as other costs.
Sec. 53. Nothing in the preceding sections contained shall be construed to extend to those articles in possession of the defendant, which are exempt from execution by law.
APPROVED: March 3, 1845. (AMENDED:See Appendix, Acts Nos. 3, 4 and 5.)
houses, &c., valid; to be recorded.
court, in trust, &c. 3. Trespassers, how punished; fines, how applied.
county, unless otherwise directed in grant.
missioners, by consent of parties; county commissioners not to be responsible for title.
Section 1. All gists and grants of land heretofore made for the erection of a school house, a house for divine worship, for burying the dead, or for any other charitable public purpose, when such gist or grant of land shall not exceed ten acres, shall be held valid in law to the use of the person or persons or religious society therein named, for the purpose of education, for divine worship or for the interment of the dead, and none other: Provided, That such gifts and grants shall be recorded in the county where such lands may lie, within the time prescribed by law.
Sec. 2. When any person shall hereafter deem it proper to make a donation or grant of land for the purpose of erecting a house for divine worship, a house for education or for the interment of the dead, such deed of gift or grant shall be made and executed to the county commissioners of the proper county, and their successors in office in trust, and for the use of the persons, society or collection of people therein named; which shall be held and used by such society, persons, or body of people, as therein directed, for the sole use of education, divine worship, and interment of the dead, and none other; which deed shall be recorded in the recorder's office of the proper county, within twelve months after the execution of the same : Prov ded, That in no case shall such grant for the erection of a house for divine worship exceed in quantity ten acres of land.
Sec. 3. If any person or persons shall commit any trespass upon the premises so granted, such trespasser shall be liable to pay all damages so committed, to be recovered in the name of any person who will sue for the same; and when recovered shall be paid over to those persons or societies interested in the premises, to be expended by them in repairing such damages, or making any improvements thereon that they
may think fit.
Sec. 4. When any gift or grant, as aforesaid, shall be perverted, or used for any other purpose than contemplated in this chapter, or shall be abandoned by the donees, such gifts or grants shall become vested in the county where such lands may lie, unless otherwise directed in such gift or grant, by the donor, and shall be sold by the order of the county commissioners of such county, and the proceeds thereof applied for the use of education in such county.
Sec. 5. In all cases in which any land or lot has been, or may be conveyed to the county commissioners of any county in this State for the use of any religious society, congregation or church, or to the intent that houses should be erected thereon for purposes of divine worship, and the society, congregation, church or person for whose use the conveyance was made, shall desire to sell or otherwise dispose of the premises conveyed, and shall obtain the consent of the donor, or grantor, or his heirs, or their legal representatives to such sale, or dispostion, it shall be the duty of the county commissioners to whom the conveyance was made, or their successors, to execute conveyances for the same, so as to divest the legal title, and release all claim of the county to the premises conveyed; but no commissioners or county shall, by virtue of such conveyance, become responsible for the title of the premises conveyed, except as against their own acts.
APPROVED: March 3, 1845. [AMENDED :-See Appendix, Act No. 6.]