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make affidavit before the clerk of the court from which process issues, or a justice of the peace, or if the plaintiff resides out of the state, before any person who may be authorized to administer an oath in the state or kingdom in which he resides, that the same is in danger of being lost, or that the benefit of any judgment which may be rendered will be lost, unless the defendant be held to bail, and such affidavit be delivered to the clerk of the court, the clerk must issue a writ against the body of the defendant, with directions to the sheriff endorsed to take bail.
When damages are unliquidated, the affidavit must state facts, and the nature and cause of action, and the clerk must fix the amount of bail.
When any person is arrested for debt on execution, or on original process, for the purpose of being held to bail, it is the duty of the officer having the custody of the debtor, at his request, to convey him before the judge of the county in which the arrest is made. The county judge must require of the debtor a complete schedule of his property, of whatever description, with an account of the debts owing by the debtor at the time. The debtor may then take the oath prescribed by statute, and if no fraud appears upon examination of the debtor, or of the witnesses produced, and the debtor assign the property named in the schedule, not exempt, and produce the receipt of the assignee to the court, he is discharged.
The plaintiff in execution may, after the defendant has taken the oath prescribed, pay the sheriff the jail fees on the Monday of each week, and keep the defendant in jail until the debt is paid, at the rate of one dollar and fifty cents per day, upon the happening of which event the sheriff returns the exetion satisfied by imprisonment.
If any creditor or his agent shall make complaint, on oath or affirmation, to the clerk of the Circuit Court of any county in this state, that his debtor is about to depart from this state, or has departed from this state, with the intention, in either case, of having his effects and personal estate removed without the limits of this state, to the injury of such creditor, or stands in defiance of any officer to arrest him on civil process, so that the ordinary process of law can not be served on such debtor, and that the debtor is indebted to him in a sum exceeding twenty dollars, specifying the amount and nature of such indebtedness, such creditor may sué out a writ of attachment against the debtor's lands and tenements, goods and chattels, rights and credits, moneys and effects, of what nature soever, or so much as will satisfy the debt sworn to, with interest and costs.
When any creditor, his agent or attorney, shall make oath or affirmation before any justice of the peace in the state, that any person being a nonresident of this state is indebted to such creditor in a sum not exceeding fifty dollars, such justice may issue an attachment against his personal estate.
Attachment may issue in the case of a non-resident against all his property, for a sum exceeding twenty dollars, from the clerk of the Circuit Court of any county.
Imprisonment for debt is forbidden by the Constitution, except in case of the debtor's refusal to deliver up his estate for the benefit of creditors, as prescribed by law, or when there is strong evidence of intentional fraud.
RATE OF INTEREST. From and after January 30, 1849, money may be loaned at such rate of interest, not exceeding ten per cent. per annum on each hundred dollars, as the parties may agree upon. In the trial of any action brought upon a promissory note or writing obligatory, in any of the courts of this state, wherein is reserved a higher rate of interest than six per cent. per annum, it shall be lawful for the defendant to set up and plead, as a defence in any such suit, that the consideration of said note or writing obligatory, upon which such suit is brought, was not “money loaned”; upon which issue it shall be lawful for the debtor, the creditor being alive, to become a witness, and his testimony shall be received as evidence; and the creditor, if he shall offer his testimony, shall be received as a witness, together with any other legal evidence that may be introduced by either party; and if upon the trial of the said issue it shall be found that the said note or writing obligatory, upon which such suit is brought, was not given for money loaned, then the said court shall render judgment for the principal sum in said promissory note or writing obligatory, and six per cent interest thereon.
LANDLORD AND TENANT.
Tenants who hold over after the expiration of their term, and after demand made and notice in writing given for the possession thereof, by the landlord, must pay at the rate of double the yearly value of the land for the time such landlord is so kept out of possession.
Every tenant, who shall be sued in ejectment by any person other than his landlord, shall forthwith give notice thereof to his landlord or his attorney, under the penalty of forfeiting two years' rent of the premises in question.
In all cases of distress for rent, the landlord may by himself, or his attorney, seize for rent any personal property of his tenant, that may be found in the county where such tenant shall reside, and in no case shall the property of any other person, though the same shall be found on the premises, be liable to seizure for rent due from such tenant.
The person making the distress shall immediately file with some justice of the peace, in case the amount claimed does not exceed one hundred dollars, or with the clerk of the Circuit Court in case it exceeds that sum, a copy of the distress warrant, together with the inventory of the property levied upon, and
thereupon the tenant shall be summoned, and the amount due from him assessed and entered upon the records of the Court. The Court shall certify to the person or officer making the distress, the amount found due, together with the costs of the Court, and the officer shall proceed to sell the property distrained, and return the certificate, with an endorsement thereon of his proceedings, which return and certificate shall be filed in the proper court.
If the tenant does not, within five days after notice of such distress and the cause of taking, replevy the goods so taken, the person distraining may, with the sheriff or constable of the county, cause the goods to be appraised by two reputable freeholders under oath, and the landlord may then sell the goods at public auction, on giving ten days' notice.
The landlord has a lien upon the growing or grown crops for rent that shall accrue during the year of their growth.
If any person makes an illegal or forcible entry into lands, or holds over after the expiration of the time for which such lands were let to him, after demand made in writing for possession thereof, such person shall be adjudged guilty of a forcible entry and detinue, and may be removed from such possession by an action before a justice of the peace.
Form of Demand for Possession. To A. B., of M., in the County of H.
Take notice, that you are hereby required to quit, and deliver up to me, on the day of
next (or immediately), the possession of the dwelling house (or rooms and apartments, or lands and premises), with the appurtenances, which you now hold or claim to hold of me, situate in M., in the County of H., known as No. 12, on E. street.
May 4th, 185
Afidavit of Service (written on a copy). I certify, that on the
I gave to A. B. above named (or left at the usual place of abode of A. B. above named), an original notice, of which the within is a true copy. H., May 4th, 185
[Seal.] Personally appeared T. W., and made oath, that the above affidavit, by him subscribed, is true.
Before me, N. M., Justice of the Peace.
Warrant to Distrain. To C. D.
I hereby authorize and require you to distrain the goods and chattels in the dwelling house (or rooms and apartments, or on the lands and premises) now in the possession of A. B., situate in M., in the County of A., known as No.
12, on E. street, for six months' rent, due to me under a lease of the same, and to proceed thereon for the recovery of the said rent, as the law directs. Witness my hand, this
E. F. [Note. - This warrant may be addressed to any agent or attorney of the landlord.)
Notice to Tenant of Distress for Rent. To A. B.
Take notice, that by the authority and on behalf of your landlord, E. F., I have this day distrained the several goods and chattels specified in the inventory hereto attached, in your house, in M., in the County of H., known as No. 12, on E. street, for eighty dollars arrearages of rent due to him, the said E. F. Now, therefore, if you do not pay the rent so due, or replevy the said goods and chattels according to law, within five days from the date hereafter, I shall cause the said goods and chattels to be appraised and sold, according to the statute in such case made and provided. May 10th, 185.
C. D. [Note. -The inventory must be attached to the foregoing, and left with the tenant, in presence of some one, who should certify to that fact.]
PROMISSORY NOTES AND BILLS OF EXCHANGE. . Foreign bills of exchange, expressed that the value has been received, protested for non-acceptance, or non-payment, are entitled to ten per cent. damages, together with legal interest and costs, and charges of protest.
A foreign bill is one drawn on a party out of the United States.
When an inland bill of exchange, expressed that the value has been receivea, is protested for non-acceptance or non-payment, the drawer or endorser shall pay legal interest from the time such bill ought to have been paid, and five per cent. damages, together with costs and charges of protest.
All promissory notes, bonds, due bills, and other instruments in writing, for the payment of money or articles of personal property, are assignable by endorsement, in the same manner as bills of exchange, so as absolutely to vest the property thereof in the assignee.
The assignee cannot sue the assignor on such endorsement, until he has first instituted and prosecuted a suit against the maker of such note, bond, &c., for the recovery of the money due thereon; provided, that if the institution of such suit would have been unavailing, or the maker had absconded or left the State when such note became due, such assignee may at once sue on the endorsement.
APPRENTICES. All children under the age of fourteen years may be bound without their consent, and all minors above that age with their consent, males until they are
twenty-one, and females until they are eighteen. Such minors may be bound with the consent of the father, or if he be incompetent, then with the consent of the mother, or if she be incompetent, then with that of the guardian of the minor, or if there be no guardian, then with the approbation of the Judge of the County Court, or by any two justices of the peace of the county in which such minor resides, endorsed on the indenture.
The fact of such incompetence to consent shall be tried and found by a jury. in the County Court.
Any minor who shall be likely to become a public charge may be bound by the County Court, or by any two overseers of the poor, or by any two justices of the peace of the county in which such minor may reside, with the approval of the Judge of the County Court.
The indenture must be signed and sealed by the parties, whose consent is required by law, but the approval of the Judge of the County Court may be endorsed on the indenture, attested by his seal of office.
The age and time of service of the minor shall be inserted in the indenture. It must be provided in the indenture, that the apprentice shall be taught to read, write, and the cardinal rules of arithmetic.
The Judge of the County Court, or any two justices of the peace, excepting the justices who may have bound the apprentice complaining, shall hear complaints of apprentices against their masters, and may discharge the indenture.
Indentures not in conformity with this law are void.
RIGHTS OF MARRIED WOMEN AND WIDOWS.
Widows shall be allowed, in all cases, in exclusion of creditors, as their soie property for ever, necessary beds, bedsteads and bedding for themselves and families, necessary household and kitchen furniture, one spinning wheel, one loom and its appendages, one pair of cards, one stove, and the necessary pipe therefor, the wearing apparel of themselves and families, one milch cow and calf for every four persons in the family, one horse at the value of forty dollars, one woman's saddle and bridle of the value of fifteen dollars, provisions for themselves and families one year, two sheep for each member of the family, and the fleeces taken from the same, food for the stock above described for six months, fuel for themselves and families for three months, and sixty dollars' worth of other property.
The appraisers certify to the County Court an estimate of the value of each article allowed to the widow, and she may take other property in lieu of that above specified, at the value affixed by the appraisers.
In addition to the above, widows of persons who may die intestate shall be entitled to one-third of the personal estate of their deceased husbands, after the payment of debts, as their property for ever.
If the estate be intestate, and there shall be a widow, and no child or de