Election of sen

ators.

Election of

ARTICLE 3.

At the meeting of the electors on the first Monday of April, in the year one thousand eight hundred and thirty, and annually thereafter, immediately after the choice of representatives, the electors qualified by law to vote in the choice of such representatives, shall be called upon, by the presiding officer in such meeting, in the several towns within their districts respectively, to bring in their ballots for such person or number of persons to be senator or senators for such districts in the next General Assembly, as shall by law be allowed to such districts respectively; which person or persons, at the time of holding such meetings, shall belong to and reside in the respective districts in which they shall be so ballotted for as aforesaid. And each elector present at such meeting, qualified as aforesaid, may thereupon bring in his ballot or suffrage for such person or persons as he shall choose to be senators for such district, not exceeding the number by law allowed to the same, with the name or names of such person or persons, fairly written on one piece of paper. And the votes so given in shall be received, counted, canvassed and declared, in the same manner now provided by the constitution for the choice of senators. The person or persons (not exceeding the number by law allowed to the districts in which such votes shall be given in) having the highest number of votes, shall be declared to be duly elected for such districts. But in the event of an equality of votes between two or more of the persons so voted for, the house of representatives shall in the manner provided for by the constitution, designate which of such person or persons shall be declared to be duly elected. Adopted November 1828.

ARTICLE 4.

There shall annually be chosen and appointed a lieulieutenant-gov. tenant-governor, a treasurer, and secretary, in the same ernor, treasurer manner as is provided in the second section of the and secretary. fourth article of the constitution of this state for the

choice and appointment of a governor.
Adopted November 1831.

TITLE 1. Account.

shall be ap

pointed.

SECT. 1. BE it enacted by the Senate and House of Representatives in General Assembly convened, That whenever a judgment shall be rendered against the When auditors defendant, in an action of account, that he do account, the court shall appoint not more than three able, disinterested, and judicious men, to take the account; who shall be sworn according to law, and shall have power to appoint the time and place for the hearing, and shall give reasonable notice thereof to the parties: And if the defendant shall refuse to attend, at the time and place appointed, and produce his books, and render his account, the auditors shall receive from the plaintiff his statement of the account, and award to him the whole sum he claims to be due.*

SECT. 2. If the parties appear, and produce their How they shall books, the auditors shall have power to administer an proceed. oath to them, and examine them respecting their accounts, and to enquire of any other lawful witnesses: and if either party shall refuse to be sworn, or to answer any proper questions respecting his account, the auditors may commit him to goal, there to continue till he will consent to be sworn, and answer all proper interrogatories: and the auditors shall liquidate and adjust the accounts, and award that the party in whose favor they find the balance to be due, shall recover the same, and shall make report to the same or the next succeeding session of the court. The party in whose. favor the report is made, shall pay to the auditors their fees and expenses, which shall be allowed in the bill of cost: and on the return and acceptance of the report,

*1 C. R. 175. 180. 5 C. R. 14. 2 C. R. 704. Kirby 163-4. 2 Day 28. 4 Day 175. 5 Day 452. 1 Root 319. 2 C. R. 425.

SECT. 4. An executor, who is also residuary legatee, will lie against when all, or any part of his legacy is withholden from executors, and him, by his co-executor, may bring his action of account tenants in com- against his co-executor for the recovery thereof; and

mon.

When the rem

edy shall be by
bill in equity.

Process.
Writ.

Declaration.

Signing.

the like action shall be allowed to residuary legatees against executors. When two persons hold any estate as joint tenants, tenants in common, or coparceners, if one of them shall receive, use or take benefit of such estate, in greater proportion than the amount of his interest in the principal estate, he, and his executors or administrators, shall be liable to render an account to his co-tenant; and such co-tenant, his executors or administrators, may bring an action of account against such receiver, and recover such sum as he has received more than his proportion as aforesaid.

SECT. 5. When there shall be such claim, by one coexecutor, or residuary legatee, against two or more coexecutors; or when there is a claim by one joint-tenant, tenant in common, or coparcener, against two or more co-tenants, the remedy shall be by bill, or petition in equity.§

TITLE 2. Actions Civil.

CHAPTER 1.

An Act for the regulation of Civil Actions.

SECT. 1. BE it enacted by the Senate and House of Representatives in General Assembly convened, That the process in civil actions shall be by summons, or attachment, in writing; that the writ shall describe the parties and the court, and mention the time and place appearance; shall be accompanied with a declaration, containing the cause of action, and shall be signed by the governor, lieutenant-governor, a senator, judge, justice of the peace, or clerk of the court to which it is

of

*9 C. R. 232. Kirby 353. 1 Root 137. 413. 261. 268. 55. 2 Root 12. 121. 5 Day 452. 3 Day 377. 2 Day 116.

† 1 Root 217.

7 C. R. 95. 9 C. R. 183. 556.

2 C. R. 425. 396. 10 C. R. 269.

returnable. Attachments may be granted against the Attachment. goods and chattels of the defendant, and for want there

of, against his lands or person. When the plaintiff Bonds for prosprays out an attachment, a sufficient bond shall be giv- ecution. en, conditioned to prosecute his action to effect, and answer all damages in case he makes not his plea good: and if it shall appear to the authority signing the writ, that he is unable to pay the cost of suit, if a recovery

should be had against him, then he shall procure a sure- Surety, when to ty in such bond of prosecution. If the plaintiff is not be given. an inhabitant of this state, or if an inhabitant of this state, and it appears to the authority signing the writ, that he is unable to pay the cost of suit, if a recovery is had against him, then, whether the suit be a summons or attachment, he shall procure surety in a bond from some substantial inhabitant of this state to prosecute his action to effect, and answer all damages, in case he make not his plea good.*

indifferent per

son.

SECT. 2. All process, by attachment or summons, To whom proshall be directed to the sheriff, his deputy, a constable, cess shall be dior some indifferent person; but no writ of attachment rected. or summons shall be directed to an indifferent person Direction to an to serve, till the same shall be complete in all other respects; nor shall it be so directed, unless more defendants than one are therein named, and described to be of different counties in the state; or unless where, in case of a writ of attachment, the plaintiff, or one of the plaintiffs, if there be more than one, or his or their agent or attorney, shall make an affidavit respecting the writ, in the words following: "You solemnly swear (or Form of oath. affirm) that you verily believe the plaintiff, (or plaintiffs, as the case may be) is in danger of losing the debt, (damage, or other thing, as the case may be) in this writ, unless an indifferent person be deputed for the immediate service of the same. So help you God:" which oath the authority signing such writ is empowered to administer; and he shall certify on the writ that he administered the same; for which service he shall be entitled to receive twelve cents, but which shall not be taxed in the bill of costs: in which cases, the authority shall insert in the writ the name of the indifferent person to whom it is directed; but need not insert the reason of such direction. And if any writ of attachment, or summons, shall be directed to an indifferent person, except in the cases, and under the regulations above mentioned, the same shall abate.†

* 2 C. R. 379. 5 C. R. 540. 3 C. R. 157. 431. 9 C. R. 236. 2 Day 228. 4 Day 436. 1 Root 85. 314. 259.

+9 C. R. 206. 6 C. R. 137. 8 C. R. 104. 5 Day 122. 1 Root 328. 284. 504. 356. 2 Root 519.

Special deputation.

Time of service.

Service of sum. mons;

SECT. 3. The sheriff may depute a proper person, on some special occasion, to serve a particular writ; which deputation shall be entered on the back of the writ; who, after service thereof, shall make oath before a justice of the peace, that he faithfully and truly served the same, according to his indorsement thereon, and that he did not fill up said writ, nor give direction to any person to fill up the same; and such justice of the peace shall certify on the writ that he administered said oath accordingly; and thereupon the service thereof shall be good and valid.*

SECT. 4. All writs and processes, returnable to the supreme court of errors, the superior court, and county courts, shall be served at least twelve days inclusive before the day of the sitting of the court; and if returnable to a justice of the peace, at least six days inclusive, as aforesaid; or the defendant shall not be bound to make answer thereto.†

SECT. 5. A summons shall be served, by the officer's reading the same in the hearing of the defendant or defendants, or leaving an attested copy thereof at the of attachment. place or places of his or their usual abode: an attach

Stock of incor.

ment shall be served, by attaching the goods and chattels of the defendant, or if none can be found, by attaching the person or lands of the defendant. When an attachment is served, by taking the body of the defendant, notice shall be given to him, by the officer's reading the writ in his hearing, or by leaving an attested copy at his usual place of abode. When any estate, real or personal, is attached, the officer serving the writ shall leave with the person whose estate is so attached, or at the place of his usual abode, if within the state, a true and attested copy of the writ, and of his return, describing the estate attached thereon. And when any real estate is taken, the officer serving the writ, shall leave a true and attested copy thereof, and a description of the estate taken, at the town clerk's office, in the town where the land lies, within seven days next after attaching the estate, and before the time limited by law for the service of such writ expires: and unless the service shall be so completed, such estate shall not be holden against any other creditor, or bona fide purchaser.

SECT. 6. The rights or shares, which any person porated compa- may have or own in the stock of any bank, insurance

nies,

* Kirby 239. + 3 C. R. 258. 1 C. R. 169. 9 C. R. 525. 8 C. R. 285. 334. 7 C. R. 272. C. R. 433. 163. 1 C. R. 258. 5 C. R. 546. 4 C. 503. 1 Day 117. 1 Root 128.

Kirby 174.

4 C. R. 425. 3 R. 152. 3 Day