Imágenes de páginas
PDF
EPUB

vided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded.

A. D. 1870.

CHAPTER XI.

NOTICES AND FILING AND SERVICE OF PAPERS.

SEC. 423. Notices, &c., how served.

424. Service, how made.

425. Service by mail.

426. The like.

427. Double time where service by mail.

428. Notice of motion, &c., where personally served.

429. When papers need not be served on defendant.

430. Service of papers where parties reside out of the State.

431. Summons and pleadings to be filed.

432. Service on attorney.

433. When this chapter does not apply.

how served.

SEC. 423. Notices shall be in writing; and notices and other papers Notices, &c, may be served on the party or attorney, in the manner prescribed in the next three Sections, where not otherwise provided by this Act

SEC. 424. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made; or it may be as follows:

1. If upon an attorney, it may be made, during his absence from his office, by leaving it with the clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or, if it be not open so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion.

2. If upon a party, it may be made by leaving the paper at his residence between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion.

SEC. 425. Service by mail may be made where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail.

SEC. 426. In case of service by mail, the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid.

Service, how made.

Service by

mail.

Double time when served

SEC. 427. When the service is by mail, it shall be double the time required in cases of personal service, except service of notice of trial, which by mail. may be made sixteen days before the day of trial, including the day of service.

Of notice of motion, &c.,

SEC. 428. Notice of a motion or other proceeding before a Court or Judge, when personally served, shall be given at least four days before when personthe time appointed therefor.

ally served. When papers

served on de

SEC. 429. When a defendant shall not have demurred or answered, ser- need not be vice of notice or papers in the ordinary proceedings in an action, need fendant.

A. D. 1870.

not be made upon him, unless he be imprisoned for want of a bail, but shall be made upon him or his attorney, if notice of appearance in the action has been given.

SEC. 430. Where a plaintiff or a defendant who has demurred or anService of swered, or gives notice of appearance, resides out of the State, and has parties reside no attorney in the action, the service may be made by mail, if his resiout of State. dence be known; if not known, on the Clerk, for the party.

papers where

Pleadings to be filed.

SEC. 431. The summons and the several pleadings in an action shall Summons & be filed with the Clerk within ten days after the service thereof, respectively; or the adverse party, on proof of the omission, shall be entitled, without notice, to an order from a Judge that the same be filed within a time to be specified in the order, or be deemed abandoned.

Service on

attorney.

SEC. 432. Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney, instead of the party. SEC. 433. The provisions of this chapter shall not apply to the service chapter does of a summons or other process, or of any paper to bring a party into contempt.

When this

not apply.

riff and Coro

and

CHAPTER XII.

DUTIES OF SHERIFFS AND CORONERS.

Duty of She- SEC. 434. Whenever, pursuant to this Act, the Sheriff may be required ner in serving to serve or execute any summons, order or judgment, or to do any other or executing act, he shall be bound to do so in like manner as upon process issued to how enforced. him, and shall be equally liable in all respects for neglect of duty; and if the Sheriff be a party, the Coroner shall be bound to perform the service, as he is now bound to execute process where the Sheriff is a party; and all the provisions of this Act relating to Sheriff's shall apply to Coroners where the Sheriff is a party.

Guardian not

to receive pro

CHAPTER XIII.

ACCOUNTABILITY OF GUARDIANS.

SEC. 435. No guardian appointed for an infant shall be permitted to perty until se- receive property of the infant until he shall have given sufficient security, curity given. approved by a Probate Judge, to account for and apply the same under the direction of the Court.

Power of Referees.

CHAPTER XIV.

POWERS OF REFEREES.

SEC. 436. Every referee appointed pursuant to this Act shall have power to administer oaths in any proceedings before him, and shall have generally the powers now vested in a referee by law.

CHAPTER XV.

MISCELLANEOUS PROVISIONS.

SEC. 437. Papers lost or withheld, how supplied.

438. Where undertakings to be filed.

439. Judgment on bond and warrant of attorney, executed before
January 1, 1870.

440. Time for publication of notices, how computed.

441. Laws of other States and governments, how proved.

SEC. 437. If an original pleading or paper be lost or withheld by any person, the Court may authorize a copy thereof to be filed and used instead of the original.

SEC. 438. The various undertakings required to be given by this Act must be filed with the Clerk of the Court, unless the Court expressly provides for a different disposition thereof, except that the undertakings provided for by the chapter on the claim and delivery of personal property, shall, after the justification of the sureties, be delivered by the Sheriffs to the parties respectively for whose benefit they are taken.

[merged small][merged small][merged small][merged small][ocr errors]

Judgment on rant of attor ney executed

bond and war

before Janua

SEC. 439. Upon any bond and warrant of attorney, executed and delivered before the first day of January, 1870, judgment may be entered in the manner prescribed by Sections three hundred and ninety-nine, four hundred, four hundred and one, upon the plaintiff's filing such bond ry 1, 1870. and warrant of attorney, and the statement, signed and verified by himself, in the form prescribed by Section three hundred and ninety-nine. SEC. 440. The time for publication of legal notices shall be computed. The time for so as to exclude the first day of publication, and include the day on which notices, how the act or event, of which notice is given, is to happen, or which computed. completes the full period required for publication.

publication of

Laws of other States and

how moved,

SEC. 441. Printed copies in volumes of statutes, code or other written law enacted by any other State or Territory, or foreign Government, governments, purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the Courts and judicial tribunals of such State, Territory or Government, shall be admitted by the Courts and officers of this State, on all occasions, as presumptive evidence of such laws. The unwritten or common law of any other State or Territory, or foreign Government, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their Courts, may also be admitted as presumptive evidence of such law.

TITLE XIII.

ACTIONS IN PARTICULAR CASES.

CHAPTER I. Actions against foreign corporations.

II. Actions in place of scire facias, quo warranto, and of informa-
tions in the nature of quo warranto.

[blocks in formation]

Where and

by whom action brought.

ACTIONS AGAINST FOREIGN CORPORATIONS.

SEC. 442. An action against a corporation created by or under the laws of any other State, government, or country, may be brought in the Circuit Court:

1. By any resident of this State, for any cause of action.

2. By a plaintiff not a resident of this State, when the cause of action shall have arisen, or the subject of the action shall be situated, within this State.

CHAPTER II.

ACTIONS IN PLACE OF SCIRE FACIAS, QUO WARRANTO, AND OF INFORMA-
TIONS IN THE NATURE OF QUO WARRANTO.

SEC. 443. Scire facias and quo warranto abolished, and this chapter substituted.

444. Action may be brought, by direction of the Legislature, by the Attorney-General, to vacate a charter.

445. Action to annul a corporation, when and how brought by the Attorney-General, by leave of the Supreme Court.

446. Leave to sue, how obtained.

447. Action upon information or complaint of course.

448. Action, when and how brought to vacate letters patent. 449. Relator, when to be joined as plaintiff.

450. Complaint and arrest of defendant in action for usurping an

office.

451. Judgment in such actions.

452. Assumption of office, &c., by relator, when judgment is in

his favor.

453. Proceedings against a defendant, on his refusal to deliver books or papers.

454. Damages, how recovered.

455. One action against several persons claiming office and fran

chise.

456. Penalty for usurping office or franchise, how awarded.
457. Judgment of forfeiture against a corporation.

458. Costs against a corporation, or persons claiming to be such,
how collected.

459. Restraining corporation, and appointment of receiver.
460. Copy of judgment roll against corporation, where to be
filed.

461. Entry of judgment relating to letters patent.
462. Action for forfeiture of property to the State.

A. D. 1870.

Scire facias

SEC. 443. The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished; and the remedies heretofore obtainable in those forms may be obtained and quo warby civil actions under the provisions of this chapter. But any proceeding ranto abolishberetofore commenced, or judgment rendered, or right acquired, shall not chapter subbe affected by such abolition.

ed and this

stituted.

a charter, by

SEC. 444. An action may be brought by the Attorney-General, in the Action may name of the State, whenever the Legislature shall so direct, against a Attorney Genbe brought by corporation, for the purpose of vacating or annulling the act of incorpora- eral to vacate tion, or an act renewing its corporate existence, on the ground that such direction act or renewal was procured upon some fraudulent suggestion or conceal- the Legisla ment of a material fact, by the persons incorporated, or by some of them, or with their knowledge and consent.

ture.

of

ration, when

SEC. 445. An action may be brought by the Attorney-General, in the Action to anname of the State, on leave granted by the Supreme Court or a Justice nu a corpothereof, or a Circuit Judge, for the purpose of vacating the charter or and how may annulling the existence of a corporation, other than municipal, whenever Attorney Gensuch corporation shall

be brought by

eral, by leave of Supreme

1. Offend against any of the provisions of this Act, or Acts creating, Court. altering, or renewing such corporation; or,

2. Violate the provisions of any law by which such corporation shall have forfeited its charter by abuse of its powers; or,

3. Whenever it shall have forfeited its privileges or franchises by failure to exercise its powers; or,

4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges and franchises; or,

5. Whenever it shall exercise a franchise or privilege not conferred upon it by law.

And it shall be the duty of the Attorney-General, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted to bring the action, in every case of public interest, and also in every other case in which satisfactory security shall be given to indemnify the State against the costs and expenses to be incurred thereby.

SEC. 446. Leave to bring the action may be granted upon the applica- Leave, how tion of the Attorney-General; and the Court or Judge may, at discre- obtained. tion, direct notice of such application to be given to the corporation or

to its officers, previous to granting such leave, and may hear the corporation in opposition thereto.

Action up

on informa

SEC. 447. An action may be brought by the Attorney-General in the name of the State, upon his own information, or upon the complaint of tion or comany private party, or by a private party interested, on leave granted by plaint. a Circuit Judge, against the parties offending, in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this State, or any office in a corporation created by the authority of this State; or,

2. When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office; or,

3. When any association or number of persons shall act within this State as a corporation, without being duly incorporated.

« AnteriorContinuar »