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When any lot not exceeding ten acres shall be appropriated and used as a burying ground, and shall be recorded as such in the Recorder's office of the county, it shall be exempt from all taxes, and when sold in lots for burying the dead, the said lots shall not be subject to execution or attachment; provided, that no person shall hold more than one-eighth of an acre exempt from execution.
When, in any case, the head of a family dies, deserts, or ceases to reside with the same, the said family shall be entitled to retain the property above exempted free from levy and sale on execution.
In cases of fines for assault, assault and battery, and frays, the property of the party, having a family, reserved from execution, is one bed and bedding, one cow, and ten dollars' worth of household kitchen furniture.
In addition to the property now exempt by law from sale under execution, there shall be exempt from levy and forced sale, under the process or order from any court of law or equity in this State, for debts contracted from and after the fourth day of July, 1851, the lot of ground and the buildings thereon, occupied as a residence and owned by the debtor, being a householder and having a family, to the value of one thousand dollars. Such exemption shall continue after the death of such householder for the benefit of the widow and family, some or one of them continuing to occupy such homestead until the youngest child shall become twenty-one years of age, and until the death of such widow, and no release or waiver of such exemption shall be valid, unless the same shall be in writing, subscribed by such householder, and acknowledged in the same manner as conveyances of real estate are by law required to be acknowledged.
No property shall, by virtue of this act, be exempt from sale for nonpayment of taxes on assessments, or for a debt or liability, incurred for the purchase or improvement thereof, or prior to the recording of the aforesaid conveyance or notice.
If, in the opinion of the creditors or officer holding an execution against such householder, the premises claimed by him or her as exempt, are worth more than one thousand dollars, such officer shall summon six qualified jurors of his county, who shall, upon oath, to be administered to them by the officer, appraise said premises, and if, in their opinion, the property may be divided without injury to the parties, they shall set off so much of said premises, including the dwelling-house, as in their opinion shall be worth one thousand dollars, and the residue of said premises be advertised and sold by such officer.
In case such surplus, or the amount due on said execution, shall not be paid within the said sixty days, it shall be lawful for the officer to advertise and sell the said premises, and out of the proceeds of such sale to pay to such execution debtor the said sum of one thousand dollars, which shall be exempt from execution for one year thereafter, and apply the balance on such execution; provided, that no sale shall be made unless a greater sum than one thousand dollars shall be bid therefor, in which case the officer may return the execution for want of property.
The costs and expenses of setting off such property, as provided herein, shall be charged and included in the officer's bill of costs upon such execution.
Boats and vessels of all descriptions, built, repaired, or equipped, or running apon any of the navigable waters within the jurisdiction of this State, shall be liable for all debts contracted by the owner or owners, masters, supercargoes, or consignees thereof, on account of all work done, supplies or materials furnished by mechanics, tradesmen, and others, for or on account of the building, repairing, furnishing or equipping such boats and vessels, and such debts shall have the preference of all other debts due from the owners or proprietors, except the wages of mariners, boatmen, and others, employed in the service of such boat and vessels, which shall be first paid.
All engineers, pilots, mariners, boatmen, and others, employed in any capacity in or about the service of any such boat or vessel, who may be entitled to arrearages of
consequence of such service, shall have a lien as above. No creditor shall be allowed to enforce the lien created as specified, unless such lien be enforced within three months after the indebtedness accrues.
All judgments rendered in any court of record for any debt, or damages, costs, or other sum of money, shall cease to be a lien upon the lands, tenements, and real estate of the persons against whom it is rendered, after the lapse of seven years.
The time during which any person in whose favor any such judgment shall have been entered, shall be restrained by injunction out of chancery, or order of any judge or court, from issuing execution or selling thereon, shall not be deemed as part of the seven years.
Every landlord shall have a lien upon the crops growing or grown upon demised premises, in any year, for rent that shall accrue for such year.
Any person who shall furnish labor or materials toward the erecting or repairing any building, or the appurtenances of any building, shall have a lien upon the same, and upon the land on which such building stands, for the amount due him for such labor or materials, whether the kind or quantity of work or amount to be paid be specified or not, provided the time of completing the contract be not extended beyond the period of three years, nor the time of payment beyond the period of one year from the time stipulated for the completion thereof.
Persons furnishing labor or materials in repairing or erecting any building, in order to enforce their lien as above stated, must bring suit within six months from the time that the last payment should have been made.
No mortgage on personal property hereafter executed shall be valid as against the rights and interests of third persons, unless possession of the property shall be delivered to and remain with the mortgagee, or the said mortgage be acknowledged and recorded in the office of the recorder of the county in which the mortgagor shall reside.
Any mortgagor must first acknowledge before any justice of the peace, in the justice's district in which he may reside, such mortgage, and the said justice must certify to such acknowledgement, and enter the same upon his docket.
It shall then be valid for two years, provided that such mortgage shall provide for the possession of the property so to remain with the mortgagor.
No action shall be brought whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon any consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them for a longer term than one year, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.
COLLECTION OF DEBTS.
When any debtor shall refuse to surrender his estate, lands, goods, or chattels, for the satisfaction of any execution which may be issued against the property of any such debtor, it shall and may be lawful for the plaintiff or his attorney or agent to make affidavit of such fact before any justice of the peace of the county, and upon filing such affidavit with the clerk of the court from which the execution issued, or with the justice of the peace who issued such execution, it shall be lawful for such clerk or justice of the peace, as the case may be, to issue a capias ad satisfaciendum against the body of such defendant in execution.
In all actions to be commenced in any court of record in the state, founded on any specialty, judgment, or contract, in which the plaintiff or other credible person can ascertain the sum due or damages sustained, and will 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 exe. tion 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 sue 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 in-· terest 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