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[S 7. Same'as enacted.] Original note. “The plea in this case, would now probably abate the suit; but it is deemed better to place it on the same footing as the pleas in the last section.”
[S 8. Same as enacted.] Original note. “Prepared for greater caution, and to save the rights of the defendants."
(S 9. Same as enacted.]
Original note. “By the existing law, these are all pleas in abatement, together with sole tenancy. In order to simplify the proceedings, it is proposed to have them pleas in bar, subject to the usual incidents of such pleas. The next section prescribes the verdict and judgment, as in ejectment. Sole tenancy is entirely omitted, as a useless plea.”
[S 10, 11. Same as enacted.]
Original note to § 11. “By the existing law, a plaintiff may take judgment generally at his peril, as it is called; and a plea of nontenure by heirs, &c. is had on demurrer, Cro. Eliz. 872; 3 Lev. 105; Salk. 601; Com. Dig. Pl. 3 L. 11. The consequence is, that lands may be sold, upon a judgment in scire facias, of which the tenant never had notice, and never had the opportunity of resisting. It is more agreeable to the general analogy of our law, that liens on real estate should be notorious and specific, so that purchasers may have every opportunity of discovering and providing against them.”
LS 12. Same as enacted, except that the words "the interest acquired under,” were inserted by the legislature.] Original note. “Conformable to the common law, except sub. 2 is more limited than the common law rule, 2 Bl. Com. 348; 10 Johns. Rep. 13; 22 Johns. Rep. 77."
(S 13. Same as enacted.]
Original note. “ Acts of incorporation, except where declared to be public acts, are private acts; and as such, according to the English decisions, may be relieved against, when obtained on fraudulent suggestions, 2 Bl. Com. 346; 5 Cruise's Digest, 31. Whether a scire facias can be brought to vacate a private act, on the ground that it was obtained by false suggestions, does not appear to have been decided; nor is it material to the question presented by the above section. It comes within the principle of the general saving clause, which has of late years been uniformly inserted in acts of incorporation, and which has been incorporated in the First Part of the Revision; and is perhaps better calculated to secure the object of that clause, so far as it has reference to the means by which the act is obtained, than to leave it to the legislature.”
[S 14, 15. Same as enacted, except that the words “except where otherwise provided,” were inserted in 15 by the legislature.] Original note. “By the English practice, there must be 15 days between the teste and return of these writs, 2 Sellon, 197. An idle rule, productive only of delay and expense."
[S 16. Same as enaeted.] Original note. “Conformable in principle to 5 6 and 7,1 R. L. 324; and intended to put a stop to the practice of procuring nihils to be returned.”
(S 17 to 21. Same as enacted.] Original note. “The three last sections are intended as a substitute for the two returns of nihil now resorted to in cases of this sort."
(S 22. Same as enacted.]
Original note. “The declaration is a mere transcript of the scire facias, except where executors or administrators are plaintiffs; in which case they are required to make a profert. This can be just as well done in the writ, and both economy and expedition will be promoted by omitting the declaration."
(S 23. Same as enacted.]
Original note. “See $ 46, Title 6, Ch. 6, p. 67. Although,' says Sellon, v. 2, p. 197, 'the intent of the scire facias is to give a party notice or warning, yet by the general practice, it is wholly defeated; for the defendant may be summoned or not, as the party (plaintiff) thinks fit! A more severe satire, on such futile proceedings, could not well be written.”
(S 24 to 27. Same as enacted.] Original note. “These four sections new." ARTICLE II.- Of informations, in the nature of a quo warranto, and in certain other cases."
[S 28. Same as enacted.] Original note. “1 R. L. 108, 54. Laws of 1825, p. 451, $ 9, altered so as not to require leave of the court, and also allowed to be filed in vacation, conformable to the act of 1825."
(S 29. Same as enacted.] Original note. "By the present practice, the first process is either a venire facias and distringas, or a subpæna and attachment, 4 Cowen, 97. The capias is proposed as a substitute for these dilatory proceedings."
SS 30. Same as enacted.]
Original note. “The information, according to its present form, is intended merely to try the right of the defendant to the office possessed by him. In effect
, the right of the party duly elected or appointed, is also established by it, where there has been a valid election or appointment, and judgment passes against the defendant. But in that case, the party entitled may still be obliged to institute a new proceeding to get into possession. It is proposed to enlarge the information, so as to establish the right of the party entitled. also proposed, by a subsequent section, to provide for the recovery of the fees received by the defendant; thence the power to hold to bail."
[S 31 to 38. Same as enacted, except a variation in $ 36. These sections were all reported, as new, and were founded on the reasons stated in the above note to 5 30.] Original note to $38. “New. See note to § 29.”
[S 39. Same as enacted, the reported word “incorporating," having been changed to “creating, altering or renewing."]
Original note to %. “Laws of 1825, p. 450, 57, enlarged in conformity to 15 J. R. 358. Intended also to remove doubts whether quo warranto or scire facias is the proper remedy.”
IS 40, 41. Same as enacted.]
Original note to § 41. “For the present practice, see note to § 28. The summons, with the provisions of Ch. , will be much more expe ditious than the present practice. Where the corporation has had notice, and has actually appeared by counsel, it seems wholly useless to require process; though according to the present practice, it is indispensable. See 4 Cowen, 100.”
(S 42, 43, 44. Same as enacted.] Original note. “The two last sections are intended as a substitute for the present practice of proceeding to outlawry, in such a case." (S 45, 46, 47. Same as enacted.]
Original note to 5 47. “The act of 1788, 1 R. L. 108, S 4 and 6, requires the defendants to plead as of the same term in which the information is filed, unless the court shall give further time. There can be no objection to extending the power of enlarging the time to plead, to a judge of the supreme court.”
[S 48. Same as enacted, except the fine reported “two hundred and fifty dollars.”] Original note. "1 R. L. 108.
Original note. “1 R. L. 108. Fine limited.” [S 49. Same as enacted.] Original note. “Ib. Extended to judgment of dissolution, conformable to 5 7 of the act of 1825.”
(S 50, 51, 52. Same as % 51, 52, 53 R. S.] Original note to s 52. “Necessary to provide for several cases in which forfeitures are given by statute. This section has already been printed in Chapter 8 of this Part, p. 185; but it belongs more properly to this Article.”
“Article III.- Of writs of mandamus and prohibition." [S 53, 54. Same as § 54, 55 R. S.] Original note. “The words demur or,' new; conformable to 16 J. R. 61."
[S 55. Same as $ 56 R. S.], Original note. “Not precisely conformable to the language of the statute, but conformable to its construction, 1 East. 114, and analogous to the rule in similar cases.”
[S 56 to 59. Same as $ 57 to 60 R. S.; the words “of two hundred and fifty dollars,” in last ý, inserted by the legislature.]
Original note to § 59. “New. In chapter 12, Part 1, a penalty is imposed on any supervisor who shall neglect to perform the duties imposed on the board. But the ordinary remedy, in case of such neglect, is by mandamus against the board. To save a further action, and to ensure the performance of public duties, it is proposed to give the court power to fine. There are many cases besides that stated, in which this power will be found highly useful.”
[S 60 to 64. Same as $ 61 to 65 R. S.]
Original note. “The writ of prohibition is recognized in our existing statutes, 1 R. L. 345, $ 9; though there is no case to be found in our reports, in which it has been issued. By the common law, it may be issued in some cases by the court of chancery, 3 Blackstone's Com. 112; though it usually goes from the court of K. B. In the above sections, the Revisers have deemed it expedient to confine it to the supreme court; the chancery writ of injunction being sufficient for all the purposes of that court. The course of proceeding has also been much simplified, by conforming it substantially to the practice in cases of mandamus."
“ARTICLE IV.- Of the writ of ad quod damnum." (S 68 to 75. Same as $ 69 to 76 R. S., except that the words "inquiry of damages,” were substituted by the legislature for “ad quod damnum," in the latter section.]
Original note. “We have no statutory provisions in relation to this writ, when used in behalf of the people of this state; but we have numerous special laws, and one of a permanent nature, 1 R. L. 198,
relating to it, when issued in behalf of the United States. Supposing that it may sometimes be required in behalf of this state, this Article has been framed to embrace both classes of cases."
“ TITLE III.- Of writs of error and appeals."
“ARTICLE I. — Of writs of error.” (S 1. Same as enacted, except that after “all cases," the words “except on judgments rendered upon any indictment for a capital offence," were omitted by the legislature.)
Original note. “1 R. L. 143, § 1, the expressions varied so as to include qui tam, and other doubtful suits, Cowper, 382; and extended to allow the issuing the writ out of the court into which it is returnable. This is now the rule, in respect to such writs, returnable into the supreme court; but those returnable into the court for the correction of errors, are issued out of chancery. An anomalous rule, founded upon an exploded principle of the court of chancery, being the officina brevium. Every court having the authority to render judgment, should have the entire control of all the process necessary to bring the cause before it."
[S 2. Same as enacted, except that subs. 1 and 2 were reported as follows:
“1. By the party against whom the judgment complained of was rendered, and who shall be aggrieved thereby;
“2. In case of his death, by his executors or administrators, if the judgment was to recover any debt or damages only; or.”
And except also, that sub. 4 as reported, contained after the word “party,” the following clause, which was stricken out by the legislature: “or by such person having an estate in remoinder or reversion, in any property which shall have passed by a fine."]
Original note to sub. 1. “Tidd, 1030.” To sub. 2. “Comyn's Dig. Pleader, 3 B. 9.” To sub. 3. “Comyn's Pl. 3 B. 9, extended to devisees, as by Ch. 6 of the 2d Part, land in such case may be devised.” To sub. 4. “$ 6, 1 R. L. 183, § 11 and 12, 1 R. L. 363. Our statute, $ 7,1 R. L. 133, allows writs of error by “a party against whom a judgment may be rendered, or his representatives aggrieved thereby.' Ít seemed useful to define more clearly the persons entitled and the cases in which the writ may be brought.”
[S 3. Same as enacted.] Original note. “Tidd, 1079; 3 Burr. 1172; that a plaintiff may not be concluded by an erroneous judgment. The terms of the present statute do not reach this case. It seems just to allow the writ, with the qualification proposed."
[S 4, 5. Same as enacted.] Original note to 5 5. “1 Rolle's Ab. 748; 8 Term Rep. 302."
(S 6. Same as enacted.] Original note. “1 Strange, 234.”
IS 7. Same as enacted] Original note. “Tidd, 1081, inserted as introductory to the ensuing provisions, by which a substitute for the present expensive and dilatory proceedings by summons, and severance, is proposed."
(S 8 to 18. Same as enacted.]
Original note. “The preceding eleven sections, are prepared for the purpose of furnishing a cheap and expeditious mode of proceeding, to
enable a party to prosecute his writ of error, without going through the tedious forms and great expense, now required. The scire facias is an antiquated proceeding, not adapted to its purpose, since it is equally effectual upon being twice returned nihil, as upon actual service. The principles and consequences of the proceeding, have been carefully preserved, see 1 Archbold's Prac. 210; Comyn's Pl. 3 B. 9; 2 Sellon, 404, where the cases are collected; except as to non-resident parties, for whom a better provision has been made, in allowing them subsequently to bring error, than that of the present law. It seems unjust to delay a party during the long time that would be necessary to give notice to non-residents; and yet they should not be prejudiced by a proceeding to which they are not parties.”
(S 19. Same as enacted, except that sub. 2 was inserted by the legislature. Original note. “Bro. Error, 9; Rolle's Abr. 749. Latter part new."
(S 20. Same as enacted.] Original note. “Implied in the books of practice.'
[S 21. Same as enacted, except that the words “except writs of error to reverse fines and,” were stricken out by the legislature.] Original note. “See note to $ 24."
(S 22, 23, 24. Same as enacted.
Original note. “It is proposed to limit the time generally for bringing writs of error, to two years, on the ground that such a time is sufficient to enable a party to discover any error or defect in a judgment rendered. Where real estate has been sold under a judgment, the rights of purchasers are kept in suspense during the five years now allowed for bringing writs of error, and if the judgment be reversed, they must in many cases be remediless. The English statute of 10 and 11 W.3, ch. 11, allowed twenty years. Our legislature, at an early day, fixed five years upon judgments in the supreme court, 1 R. L. 134, 59, and by the act of 1817, p. 178, extended the same limit to judgments in courts of common pleas and mayors' courts. No exception exists in our statute, in favor of infants, married women, &c., and that probably was one reason why the long term of five years was allowed. But it would seem more just, to conform the rule to the special case, than to have it so general as to reach other cases, not within its reason. The preceding sections have therefore been prepared, allowing the same exceptions, as in the general statute of limitations. Thus the rights of all seem guarded, and protracted and suspended litigation will be avoided.”
IS 27. Substantially same as enacted.]
Original note to $ 26, 27. “The two last sections are intended as a substitute for the 2d and 3d sections of the present act, 1 R. L. 143. These sections require security only where execution is intended to be stayed; and even then, in real or mixed actions, the bond of the plaintiff is taken without sureties, unless he be absent, in which case one surety is required. It is conceived that security should be required in all cases."
[S 29. Same as $ 31 R. S.] Original note. “ Ib. Language slightly varied, and that part relating to popular actions omitted, because it is conceived that they are entitled to no peculiar privileges.”