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Judges; election

of the bar in the event of disability, etc; how.

Clerk to hold

agree upon a judge to hear and determine

case; when aud

how.

mencement of the term, whether regular, adjourned or special, or at any time before its adjournment; or if he be in attendance and cannot properly preside at the trial of of by members any cause therein, the attorneys present and practicing in said court may elect a judge by ballot to hold said court during the absence of the judge, or for the trial of the cause in which the judge of said court cannot preside. The clerk of the court shall hold said election, declare the such election. result thereof, and enter the same of record. Provided, Parties or their however, that the parties or their attorneys, in any case attorneys may in which the judge of the court cannot properly preside at the trial thereof, may agree upon a judge to try or hear and determine the same, which agreement shall be entered of record in the proper order book of the court, and in such case no election of a judge to try or hear and deterAttorney in case mine the case shall be held. No person who is counsel or attorney in the case to which the disability of the judge relates shall vote in the election of a judge to try the same; nor shall any person who has not been admitted to pracpractice shall be tice as an attorney in some court in this State be elected as such judge. The judge so elected or agreed upon shall, before proceeding to act, take an oath that he will faithfully and impartially perform the duties of a judge of such court so long as he shall continue to act as such; and, if he be elected or agreed upon to try or hear and determine a particular case as hereinbefore provided for, he shall take the further oath that he is not interested as counsel or attorney, or otherwise, in the cause to be tried or heard and determined by him.

cannot vote.

No person not admitted to

elected.

Oath

Powers and

duties of such judge.

12. Every judge so elected elected or agreed upon shall have and possess the same powers, and perform the same duties, in all respects, as the regularly elected judge of such court, during the time he shall act in pursuance of such election or agreement. If there be any cause pending in such court, in the trial or hearing of which the elected cannot judge elected as aforesaid cannot properly preside, preside another another judge for the trial or hearing thereof may be elected or agreed upon as aforesaid.

When judge

may be agreed upon, etc

Compensation
of judge so
elected.
How paid.

13. The judge so elected or appointed shall receive. for his services, while sitting as such judge, ten dollars per day, to be certified by the court and paid out of the this and the two State treasury. This and the two next preceding sections next preceding shall apply as well to criminal as to civil causes.

Application of

sections.

Acts Repealed.

Acts repealed.

14. All acts and parts of acts coming within the purview of this chapter, and repugnant thereto, are hereby repealed.

[Approved February 4, 1881.]

[NOTE BY THE CLERK OF THE HOUSE OF DELEGATES.]

The foregoing act takes effect from its passage, twothirds of the members elected to cach house, by a vote taken by yeas and nays, having so directed.

CHAPTER IV.

AN ACT to revive, amend and re-enact chapter ten of the Code of West Virginia, concerning official bonds, bonds taken in judicial proceedings, etc.

[Passed February 10, 1881.]

Be it enacted by the Legislature of West Virginia:

1. That chapter ten of the Code of West Virginia be and cole; amended. the same is hereby revived, amended and re-enacted so as

to read as follows:

CHAPTER X.

Official bonds; Bonds taken in Judicial Proceedings; How payable; Sureties; Proof of Execution of Bond.

1. Every bond required by law to be taken or approved official bonds; by, or given before, any court, board or officer, shall, un- how taken. less otherwise provided, be made payable to the State of West Virginia, with one or more sureties deemed suf- sureties therein ficient by such court, board or officer, and be proved or How proved or acknowledged before such court, board or officer.

Suits Thereon.

2. Upon any such bond, whether heretofore or hereafter taken, and upon any bond payable to the Commonwealth

acknowledged.

of Virginia, heretofore taken within the territory now in- Suits thereon; cluded in this State, suits may be prosecuted from time to how prosecuted. time in the name of this State, if the bonds be so payable, and in the name of the State of West Virginia, successor to the Commonwealth of Virginia, if the bond be payable to said Commonwealth, for the benefit of the State, or of For whose benany county, district or corporation or person injured by a breach of the condition of any such bond, until damages are recovered in the aggregate equal to the penalty thereof.

efit.

3. The proceedings in such suit must show for whose Proceedings; benefit it is prosecuted; and the party for whose benefit it what they must is prosecute shall be liable for costs if the judgment be for show. the defendant; and the court may, in its discretion, require costs. security for costs from such party, according to the prin- Security for ciples and usages of law.

Who liable for

costs.

Copy of bond or record; legal effect of.

4. A copy of the bond, or the record thereof, certified by the officer in whose office it is required by law to be filed or recorded, shall be prima facie evidence of the execution and contents thereof; but the court in which any suit upon or relating to such bond is pending, may, in its quire prone discretion, require the production of the original bond, unless the same be lost or destroyed.

Court may re

tion of original bond.

Bonds taken in judicial proceedings; how

payable.

Of officers of

Bonds taken in Judicial Proceedings, and Bonds given by
County, District and Municipal Officers-How payable.

5. Any bond to be given upon an injunction, appeal, writ of error, supersedeas, or other proceedings in a civil suit, may be made payable to the State, according to the first section of this chapter, or to the party entitled to municipal cor- the benefit thereof. And any bond to be given by an ofporation, coun- ficer of a municipal corporation, county, or district, or tricts; how pay- which may lawfully be prescribed by the ordinances, bylaws, or regulations thereof, may be made payable to the State as aforesaid, or to the said municipal corporation, county or district.

ties and dis

able

Official bonds; condition of.

Liability of officer and securities.

Officers elected

an office in this State.

Time within which they must qualify and give Londs

Official Bonds; Condition.

6. When a person undertaking any office is required by law to give an official bond, the condition, unless otherwise provided, shall be for a faithful discharge by him of the duties of his office, and for accounting for and paying over, as required by law, all money which may come to his hands by virtue of the said office. And the liability of the said officer and his securities under said bond shall extend as well to all moneys received by him, by virtue of his office under the laws in force at the time of the execution thereof, as to all moneys which shall come to his hands by virtue of his said office under and by reason of any law passed during his continuance in office.

Time within which Officers must Qualify.

7. Every person elected or appointed to an office in this or appointed to State, shall take the oath prescribed by the fifth section of the fourth article of the Constitution; and if bond be required of him by law, give his official bond, unless otherwise specially provided, within sixty days after he has been duly declared elected or appointed; or if at the time of his election or appointment he was absent from the State, or from the circuit, county or district for which he has been chosen or appointed, within sixty days after he has been notified of his election or appointment; or if no term of the county court or other tribunal in lieu thereof shall be held within sixty days after the election or appointment of an officer required by law to give bond and qualify before such court or tribunal, was so declared elected, or after he was notified of his said election or appoint

officers who

and were pre

having bond

ment, then at the first term of such court or other tribunal held next thereafter: Provided, however, That the officers Proviso as to elected to any such office at the general election of this failed to qualify State, held on the twelfth day of October, one thousand or who qualified eight hundred and eighty, from whom an official bond is vented from or may be required to be given or approved before or by approved, etc. the county court of any county or other tribunal in lieu thereof, who failed to qualify or give the bond required by law within the said sixty days, or who qualified and gave or executed such bond within the said sixty days, but who was prevented from having said bond approved by reason of no term of the county court of such county or other tribunal in lieu thereof having been held within the said sixty days, may qualify and give such bond or have such bond approved, if sufficient, before the county court of such county or other tribunal in lieu thereof, within sixty days from the passage of this chapter. And. Executive offiprovided further, That the executive officers shall qualify cers; time with on or before the fourth day of March next, after they are must qualify declared elected, or before they exercise the duties of and give bouds their respective offices, and shall give the bonds required by law before entering upon their said duties, except in case of appointment to vacancies in said offices herein otherwise provided for.

in which they

tion shall not

8. The preceding section shall not apply to the cases of Preceding secofficers appointed or elected to fill vacancies. They must apply to officers qualify within ten days after they are notified of their appointed to fill appointment or declared elected.

vacancies.
Must qualify
within ten days.

9. If any person elected or appointed to an office fail to Failure to qualqualify within the time prescribed by law, the office shall ify; penalty. be deemed vacant.

bond.

10. If a person elected or appointed to an office, who is Penalty for actrequired by law to give an official bond, act in such office ing without before he has filed his official bond according to law, he shall forfeit not less than fifty nor more than one thousand dollars.

Official Bonds of Particular Officers.

the governor, to

11. Every bond required by law to be approved by the official bond to Governor shall be first submitted to the Attorney General be approved by for examination; and if he be of opinion that it is in be examined by proper form and legally executed, he shall make an

endorsement thereon to that effect.

attorney gen

Endorsement thereon.

auditor, treas

12. The secretary of state, auditor, treasurer, state su- Bonds of secreperintendent of free schools, and state librarian, shall each tary of state, give bond, with good security, to be approved by the gov-urer, state ernor. The bond of the secretary of state shall be in the superintendent penalty of ten thousand dollars; that of the auditor in and state libratwenty thousand dollars; of the treasurer in twenty-five rian; penalty.

3 Acts.

of free schools,

Where filed.

Bond of clerk of

the supreme court of Appeals.

How approved and penalty.

Bonds; of clerk

of circuit court;

veyor, clerk of

constable.

court.

Penalty of such
bonds.

Clerk of circuit
court
Sheriff.

thousand dollars; of the state superintendent of free schools in three thousand dollars; and of the state librarian in five thousand dollars. The bond of the secretary of state shall be filed in the office of the auditor, and the other bonds mentioned in this section, in the office of the secretary of state.

13. The clerk of the supreme court of appeals, unless he be clerk pro tempore, shall give bond, to be approved by the court, in such penalty, not less than three thousand nor more than ten thousand dollars, as the court shall deem sufficient.

14. Every clerk of a circuit court shall give bond with of sheriff, sur- good security, to be approved by the circuit court, or the County court, judge thereof in vacation; and every sheriff, surveyor of assessor, notary land, clerk of a county court, or other tribunal established in public, justice of the peace and licu thereof, every assessor, notary public, justice of the To be approved peace and constable shall give bond with good security, to be by the county approved by the county court, or other tribunal established as aforesaid, of the county in which such officer is to act. The penalty of the bond of the clerk of the circuit court shall not be less than three thousand nor more than ten thousand dollars; of the sheriff not less than twenty thousand nor more than one hundred and fifty thousand dollars; of surveyor of lands not less than one thousand Clerk of county nor more than three thousand dollars; of clerk of the county court or other tribuual established as aforesaid, not less than three thousand nor more than ten thousand dollars; of assessor not less than two thousand nor more Notary Public. than five thousand dollars; of a notary public not less than two hundred and fifty nor more than one thousand dollars; of a justice of the peace not less than two thousand nor more than five thousand dollars; and of a constable not less than two thousand nor more than ten thousand dollars.

Surveyor of lands.

court.

Assessor.

Justice of the peace. Constable.

Bond of the

clerk of supreme

where filed,

15. The bond of the clerk of the supreme court of apcourt of appeals; peals shall be filed in the office of the secretary of state. how approved. The bonds to be approved by the circuit court for any county, or the judge thereof in vacation, shall be filed in the office of the clerk of such circuit court, except that the bond of the clerk of the circuit court shall be filed in the office of the clerk of the county court.

Bond of clerk of circuit court; where filed.

Bonds approved by the county court; where filed.

Exception

thereto.

Bond in case of

16. The bonds to be approved by the county court shall be filed in the office of the clerk of such court, except that the bond of the clerk of the county court shall be filed in the office of the clerk of the circuit court.

Bond dispensed with in Certain Cases.

17. When a temporary appointment is made or vacancy temporary ap filled pursuant to sections three and five of chapter four,

pointment or

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