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son deceased shall be decreed to be set off, assigned, paid or se-
cured, shall, if required, give bond to the judge of probate, with
sufficient sureties, to pay to the administrator, in default of other
estate in his hands, his ratable proportion of the just demands
with which the estate may be chargeable.

Sec. 10. The reversion of the widow's dower may, if the par-
ties request it, be set off, divided or assigned with the other real
estate at its just value, to be estimated by the committee.



CHAPTER 178.

OF TRUSTEES OF ESTATES.

COMPILED FROM

Chapter 168 of the Revised Statutes.
" 732, Laws of 1848.



Sbotiov

1. Trustees to giTO bond ; their doties.
S. Bond, when not reqmred.



Sbotioh

3. Tnistee refusing to gire bond, dedinee.

4. ** msj resign, when.



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TEVSTXBfl OF UTATKS.



[TITLB XIX.



Saonov
6. Ja^ge m«y appoint trnstee, wlien.

6. Estate Tetto in inch frattee, whan.

7. Tniatee may be remored, whML

8. Trustee appointed to reoeire i

manage estate.



Saonov
f « Judge maj antkorixe nle of propeity

and control its management
10. Administrators may be authorised to
coitYey real estate bolden in tmit
by intestate.



Sbotion L Every trustee to whom any estate real or pevsonal
shall be devised in trast for asy minor or other person, bv the mil
of any person deceased, shall give bond to the judge of probate,
with snmeient sureties, in sach sum as the judge may order, con-
ditiimed :

First ; that the trustee shall make and file in the probate offioe
a true inventory of the real estate, goods, chattels, rights and cied-
its so devised, at such lime as the judge shall order :

Secondly; that he will annually render an account to the said
ju^e of the annual inoooEie and profit thereof:

TUirdiy ; that at the expiration of said trust he wUl adjust and
settle his accounts with the judge, and pay and deliver over all
balances, money and property, with which 1m has been intrusted :
and.

Fourthly; tibat he will faithfully execute such trust according to
the true intent of ihe devisor.

Seg. 3. If the testator in his will has directed, or if the parties
interested in such trust property, being of age and capable, shall
request that no such bond be taken, the trustee shall not be
required to give such bond, so long as he shall continue faithfully
to execute the trust

Sec. 3. Any person appointed a tru^e as aforesaid, who shall
neglect or refuse to give such bond, shall be considered as having
declined the acceptance of such trust.

Sec. 4. Anv trustee so appointed or appointed by the judge
in pursuance of this chapter may, upon request in writing to the
judge, be permitted to resign the trust, if the judge shall think it
expedient

Sec. 5. If any trustee appointed in any will, no provision be-
ing made therein for perpetuating the trust, shaU decline accepting
the same, or shall die, or shall resign or be removed, a trustee may
be appointed by the judge in his stead, after notice to the persons
interested in such trust estate.

Sec. 6. Every trustee so appointed by the judge shall be bound

by the provisions in this chapter in the same manner as if he were

appointed by such last will, and the estate so given in trust shall

vest in such trustee in like manner, to all intents and purposes, as

. the same vested in the original trustee under such will.

Sec 7. Any trustee who shall become disqualified for the dis-
charge of the trust by becoming insane or otherwise incapable, or
evidently unsuitable for the execution of the trust, or who shall
neglect or refuse to comply with the provisions of this chapter,
may, after notice to such trustee and other parties interested, be
removed by the judge.



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CHAP. 179.]



BONDS AXD Btrrrs.



497



Se€. 8. Any trustee appointed by the judge shall demand and
leoeive of the original tmstee all saeh estate as shall hare oome
to bis bands by yiittte of snob trust, and shall manage, pay and
deliTer over such property or the income thereof, in the same man«
ner and nnder the same obligations an<^ duties ae guardians are
now by law obliged to do.

Sbg. 9. The judge of probate, on application of any such
trustee, or any person interested, may, after notice to all persons
interested, authorize and require such trustee to sell any property
8o holden in trust, and to invest tbe proceeds of Buch sale in sucn
manner as will be most for the interest of all persons concerned
therein, and such judge may from time to time make such orders
and decrees as he may think just and reasonable, in relation to
the sale, management, investment and disposition of such trust
property, and to the settlement of the account of such trustee.

Sbo. 10. When any person deceased shall at the time of his
death have holden any real estate in trust for tbe use of another,
and there shall be no dispute as to the trust or title of the deceased
therein, the judge of probate for the county in which such real
estate is situated, upon application to him for that purpose, notice
being given, may grant a license to the executor or administmtov
of such deceased person to convey such real estate to the person
for whose xjoe the same was hdden in trust by the deceased, or to
such other person as may be designated by said judge. (Laws of
1848, chap. 732.)



CHAPTEE 179.

OF BONDS TO THE JX7DQS AlfTD SUITS THEBEGN.
IDENTICAL WITH

Chapter 169 of the Revised Statutes.



SSCTIOV

1. Bonds to be made to the judge.

8. New bonds may be reqnired, when.
S. Sureties may be dischaxged, how.

4. License to sne bond, how giren.

5. Names of parties endorsed on writ

6. Snits on bond, how brought

7. Judgment, security for all interested.
S. Execution awarded to parties, how.

9. Such parties deemed creditors.



SxoTioir

10. Order of attachments to controL

11. Others admitted to prosecute, how.

12. Scire facias on judgment, when.

13. Execution awarded thereon.

14. Judgment not a bar against obligor.

15. Nor against any other claimant

16. • Costs, how recorded.

17. No review of such action allowed.



Section 1. All bonds hereafter given to a judge of probate,
shall be made to << the judge of probate for the county of ,"

viithout naming the incumbent of the office.



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428 BONDS AND SUITS. [tITLE XIX.

Sec. 2. If the sureties or the penalty in any bond given to the
judge of probate shall be insaflELcienti the judge shall require the
principal therein to furnish new bonds, with suSScient penalty and
sureties, and upon refusal or neglect after due notice and a reason-
able time allowed, shall ttvoke the trust of such principal.

Sec. 3. The judge of probate, on application of any surety,
may require new bonds to. be filed, and sifter due notice may, in
his discretion, discharge such surety from all further responsibility
upon such bond.

Sec 4. Any person interested in any bond ^ven to a judge of
probate, may apply to the judge for an order for the suit thereof^
setting forth his claim intended to be recovered in such suit, and
the judge after due notice and hearing the parties, may make such
order, upon the applicant giving bond, with sufficient sureties, to
pay the costs which may be adjudged against him.

Sec 5. The name and residence of every person at whose
request such order is made and suit instituted, shall be endorsed
on the writ befoie the service thereof, with a brief statement of his
claim.

Sec. 6. In such suits, the defendants shall be called to answer
to " the judge of probate for the county of ," without

mentioning the name of the judge to whom the bond was given,
or who fills the office ; and no suit on any such bond shall be
abated or discontinued by any vacancy or change in the office of
judge.

Sec 7. When it shall appear upon confession, verdict, demur-
rer or in anv other wav, that the penalty of such bond is forfeited,
judgment shall be rendered against the defendant for such penalty,
and such judgment shall be a security for all interested.

Sec 8. Upon a hearing in chancery on such forfeiture, the
court shall examine and ascertain the claims of the parties whose
names are endorsed upon the writ; and judgment shall be ren-
dered for such parties respectively, for the amount so ascertained,
^ that the judge of probate for the county of now have

execution for , being part of the penalty forfeited, and

costs taxed at , for the use of A. B. of C," with such fur-

ther description as the court may deem expedient.

Sec 9. The party for whose use such judgment shall be ren-
dered, may sue out execution thereon and shall be taken to be the
creditor ; and if such execution is levied on real estate, the same
shall vest in such party as it would do if he were the nominal as
well as real plaintiif in the suit, and the attachment made on the
original writ shall enure to his benefit in the same manner.

Sec 10. If there be more than one party for whose use such
executions may be awarded, the order of priority in the attachment
shall be as designated in the endorsement on the original writ, and
if there be no such designation, in the order in which the names
are endorsed.

Sec 11. During the pendency of such suit^ the court, on moi^



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CHAP. 180.]



APPEALS.



429



tion, may order thcuiame of any person interested to be endorsed
on the original writ in manner aforesaid, and he shall thereupon
be entitled to the same rights as if his name had been so endorsed
before the service of such writ, but subsequent to the other en-
dorsers, upon his giving bond with sureties for the payment of
costs.

Sec 12. After judgment for the penalty of such bond, any
person interested, upon giving bond to the judge of probate, with
sufficient sureties for the payment of such costs as may be ad-
judged against him, may sue out a scire facias on such judgment
to show cause why execution should not be awarded for his use
out of the same.

Sec. 13. On such scire facias the claim of such person shall
be examined, and execution therefor awarded in manner aforesaid,
and he shall be taken to be the creditor as aforesaid.

Sec. 14. No suit or judgment on such bond shall operate as an
abatement or bar to any suit thereon, against any obligor against
whom no suit has been commenced or judgment rendered.

Sec 15. A judgment in favor of the obligors shall in nO case
operate as a bar to any suit thereon, for the benefit of a different
claimant or of the same claimant for a different claim.

Sec. 16. Execution may be awarded for costs adjudged to the
defendants in ^ny such suit, against the parties for whose benefit
the suit was brought or maintained, or the defendants may have
their remedy on the bonds taken in the probate office therefor.

Sec 17. Neither party shall have a right of review in any suit
upon a probate bond.



CHAPTER 180. •

OP APPEALS PKOM THE COURT OF PROBATE.
IDENTICAL WITH

Chapter 170 of the Revised Statutes.



SSOTIOK

1. Who may appeal from decree.

5. Appeal, how claimed.

8. Bonds to he given to prosecute.

4. Notice of appeal to he given.

6. Costs for appellant, when.

6. Neglect to prosecute, costs on.



Sbotion

7. Appeal allowed within 2 years, when.

8. Notice of snch petition, given.

9. Appeal, where determined.

10. Costs, how secured and allowed.

11. Trial hv jaiy, in what cases.

12. Time when decision takes effect.



Section 1. Any person aggrieved by any decree, order, ap-
pointment, grant or denial of any judge of probate, which may
conclude bis interest and which is not strictly interlocutory, may



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480 APPBAL8. [title ZIX*

appeal therefrom to the sopmor court of jadicatnie next to be
faoideo in tiie coonty.

8bc. 2. Such appeal shall be claimed within aixty days from
tiie time of making such decision and not after, in writing signed
by the party appealing or bis attorney, setting forth bis inteievt
therein and the reasons of his appeal.

Bec. 3. The person appealing shall give bond with sufficient
fluiety to prosecute bis appeal with effecti and to pay all such
costs as shall be awarded against him by the superior coiut.

8bc. 4. Notice shall be immediately given of such appeal and
of the court at which it will be entoed and prosecuted, in som^
newspaper printed in the county, if such there be, otherwise in
eome newspaper printed in the State.

Sec 5. If the decision of the judge of {wobate is reversed or
altered, the superior court shall tax costs for the appellant, othear*
wise for the appellee, and may issue execution therefor.

Sec 6. If such appeal shall not be prosecuted, any person
interested may file a complaint before the court appealed to, and
have the decision appealed from affirmed, and judgment and exe-
cution for his costs.

Sec. 7. Any person aggrieved by any sudi decision of a judge
of probate, who was prevented from appealing therefrom within
said sixty days through mistake, accident at misfortune, and opt
from his own neglect, may petition the said supmcHr court, at any
time within two years thereafter, to be allowed an appeal, setting
forth his interest, his reasons for appealing and the causes of his
delay.

Sec. 8. Upon such petition, an order of notice shall be issued,
requiring the petition and such order to be published in some
newspaper three weeks successively, the last publication thereof
to be at least thirty days before the sitting of said superior court
to which it is returnable.

Sec. 9. If it shall appear that tiie petitioner has not unreason-
ably neglected to appeal, and that injustice has been done by the
decision of the judge of probate, such appeal shall be allowed,
heard and tried on such petition.

Sec. 10. The court may require the appellant to give security
for costs, and costs may be allowed to either party at the discretion
of the court

Sec 11. On such appeal, if any fact material to the cause
shall be disputed, the court may direct an issue proper to try such
fact to be formed, and ascertain the same by the verdict of a jury.

Sec 12. Every decision of a judge of probate, so far as the
same shall be affirmed or unaltered by the superior court upon
appeal, shall be considered to have been in force from the time the
same was made or passed by the judge of probate.



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COAP. 181.]



OOUBTB.



itSl



TITLE XX.

OF COURTS AND THEIR OFFICERS.



Chapter 181.
Chaptbr 182.
Chapter 183.
Chapter 184.
Chapter 185.
Chapter 186.
Chapter 187,
Chapter 188.
Chapter 189.
Chapter 190.



Of the superior court and court of common pleas.

Of the adjournment of courts.

Of clerks of courts.

Of justices of the peace.

Of police courts.

Of juries.

Of attorneys and counsellors.

Of state reporter.

Of sheriff and deputy sherii&.

Of coroners and constables.



CHAPTER 181.

OF THE SUPERIOR COURT OF JUDICATURE AND COURT OP
COMMON PLEAS.*

COMPILED FROUC

Chapters 171 and 172 of the Revised Statutes.
Chapter 34, Laws of 1843.



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36,


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a


1843.


a


130,


a


a


1844.


u


131,


a


(C


1844.


a


234,


ii


a


1846.


u


606,


u


a


1847,


u


606,


a


a


1847,


a


626,


a


a


1848.


u


711,


u


a


1848.


a


712,


u


u


1848.


a


1092,


a


u


1861.


a


1223,


u


C(


1852.


a


1224,


a


u


1852.


a


1280,


u


a


1853.



# The act of 1851, chap. 1092, altering the organization of the courts, prescribei the
constitiitioii of both the saperior court and conrt of common pleas in one section, which
b eo formed that it would be difflcnit to compile the laws into two separate chapters in
■tibewTJaedritatnte. We haTO, thorefoie, pnt them into one chaptex^ comtitnting the two



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432



COURTS.



[title XX.



sunbiok ooubt ot judioatvxv altd
ooxmoh plbas, cokstxtutioit ot.
Skotioh
1. Circiiit justices appointed ; chief jus-
tice and others; how appointed in
case of vacancT in superior court,
and quorum of S. C. J.
9. Court of common pleas shall consist
of, ftc; chief justice of superior
eonrt to he chief justice of C. C.
pleas.
C. C. pleas, hy whom holden.
When new terms are established,
courts to take cognizance of pro-
ceedings.

BUPXRIOR COUBT OT JUDIOATinUI.

6. Jurisdiction in cases at common law.
" as to special writs.
" to correct errors of other

courts.
" giren by statute.
Chancery powers of courts.
Powers in case of injunctions.
Issues of fact, how determined.
Bules of practice adopted.
One justice to have the power of the

court when two are disqualified.
Superior court held at Concord;

terms of, when, &c.
Clerks to attend to the business of

their own county ; compensation of.
All causes, actions, &C., now pending

to be heard, &c.
Court to fix a day when each county

shall be heard; party excepting to

furnish copies, &c.
Superior court may order clerk of C.

C. F. to enter up judgment as of

preceding term.
When execution returned unsatisfied,

proceedings, &c
Court may compel discorery.



3.
4.



6.

7.

8.

9.
10.
II.
12.
13.

14.

15.

16.

17.



18.



19.



22.
23.
24.
25.
26.
27.
28.



20.



OOUST OT OOXMOir rUUB.

Sbctioh

21. Jurisdiction original in ciTil <
** in criminal cases.
^ of appeal and highway!.
*' to try issues of fact
Bnis of exceptions.
Transfer of questions of law.
Decision thereof, how certified.
Disqualification of judges.

COM1U88IOXBB0 MAT BB ▲PFOnTTXD JX

OITIB ACTIONS.

• •

29. Court, on motion of either party, may
refer any dril action to one or mora
commissioners; if action commen-
ced belbrQ the passage of this act,
not to be referred unless by consent
of both parties.

Each party to prepare and file a
statement of the facts which con-
stitute his case; commissioners, at
discretion, to allow amendments to
be made on terms.

Duties of commissioners.

Commissioners to hare power to ex-
amine either party as witness in
chief if the other party desires it;
upon request of either party, the
other party may be examined at
trial before jury.

The court, on the facts reported, to
render judgment unless either party
elect to try the case by jury.

Such party required to furnish state-
ment, &c.

How the yerdict shall be.

Judgment in such case to be condn-
sire, &c.

To proceed ex parte if either party
neglect to appear on due notice.

Terms of court of common pleas.



30.



31.
32.



33.



34.

35.
36.

37.

38.



Section 1. There shall be appointed and commissioned, as
prescribed by the constitution, four circuit justices of the court of
common pleas ; provided^ however^ that until a vacancy shall hap-
pen in the superior court of judicature as now constituted, but two
of said circuit justices shall be appointed ; and whenever such
vacancy shall occur in said superior court, an additional circuit
justice shall be appointed for each vacancy so happening until the
said four circuit justices shall have been appointed; and no



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CHAP. 181.] OOITRTS. 483

appointment shall be made to fill the first two yacancies that may
occur in said superior court after this act shall take effect; bat
upon the happening of either of said vacancies the said superior
court shall consist of the remaining justices thereof; and if by the
happening of either of said vaeancies the office of chief justice of
said superior court shall be vacated, the governor with advice of
council shall appoint one of the remaining justices of said court
to be chief justice thereofl And after said two vacancies shall
have occurred, the said superior court shall consist of a chief justice
and two associate justices, any two of whom shall be a quorum to
hear and determine cases. {Laws of 1851, chap* 1092, sec, 1.)

Sec. 2. The court of common pleas shall consist of the jus-
tices of the superior court, such circuit justices as may be ap-
pointed agreeably to the provisions of this act, and the judges of
the court of common pleas appointed for each county. The chief
justice of the superior court shall be chief justice of the court of
common pleas, and the chief or senior justice of the superior
court present at any term of the court of common pleas shall pre-
side, and if no justice of the superior court be present, the senior
circuit justice present shall preside. {Laws of 1851^ chap. 1092,
sec. 2.)

Sec. 3. The terms of the court of common pleas shall be
holden by one or more justices of the superior court, or one or
more circuit justices and one or both of the judges of the court of
common pleas for the county ; but if the justice of the superior
court or the circuit justice presiding, shall be disqualified or de-
cline sitting in any case, and no otl^r justice of the superior court
or circuit justice be present, the county judges shall be a quorum
for all purposes. But at the trial of any person charged with a
crime, the punishment of which may be death, two of the justices
of the superior court, or two of the circuit justices, or one of the
justices of the superior court and one of said circuit justices shall
be present And the clerk of the court where such indictment
may be found, and every justice of the peace who shall hold any
person to answer for such crime, shall forthwith certify the fact to
the justices of the superior court. {R. £L, chap. 172, sec. 2, and
laws of 1851, chap. 1092, sec. 3.)

Sec. 4. Where there may be or has heretofore been any new
terms established for holding any of the courts in this State, the
isaid courts shall take cognizance and jurisdiction at said new
terms of all proceedings of every nature pending in or returnable
to said courts, and if said courts have at such terms exercised
jurisdiction thereof, they shall retain and continue the same ; not-
I withstanding the statute establishing said new terms may contain
I no special provision for the transfer of such proceedings. (Laf^^*

of im, chap. 26.) ^

! 28



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434 COUBTB. [tITLB XX*

SUPERIOR COURT OP JUDICATURE.

Sec. S. The superior couTt of judicature shall have jurisdie^
tk>n of all pleas real, personal and mixed, and of all civil actions
and criminal proceedings commenced according to the course of
the common law, which may be legally brought before them. (IL
S.y chap. 171, sec. 2.)

Sec. 6. The said court shall have exclusive authority to issue
writs of error, certiorari, mandamus, prohibition and quo warranto,
and may issue writs of habeas corpus and all other writs and pro-
cesses to courts of inferior jurisdiction, to corporations and indi-
viduals, for the furtherance of Justice and the due administration
of the laws. (£• &, chap. 171, sec. 3.)

Sec 7. The said court shall have the general superintendence
of all courts of inferior jurisdiction for the prevention and correc-
tion of enors and abuses, where the laws have not expressly pro-
vided a remedy. (iL &, chap. 171, sec. 4.)

Sec 8. The said court shall have jurisdiction of all questions
of divorce and alimony, and all appeals firom courts of probate
and applications therefor, all applications for review or new trial
founded on any statute, petitions for the redemption and foreclo-
sure of mortgages, petitions for partition of real estate, of pro-
ceedings relating to the forfeiture of any estate or franchise granted
by the State, and of all actions and questions whatever which
shall be transferred from the courts of common pleas for decision
according to law. {R. &, chap. 171, sec. 5.)

Sec 9. The said court shall have power to hear and determine
as a court of equity in cases of grants, devises and appointments
of any real or personal property for any charitable use, in all cases
of trust, fraud, accidents or mistakes, in cases respecting the ad-
justment of the concerns of copartners, joint tenants and tenants
in common, in cases respecting the redemption and forclosure of
mortgages, in cases respecting the assignment of dower where the
probate court has not jurisdiction, in cases respecting the secreting
and withholding any personal property where there is not a plain,
adequate and sufficient remedy at common law, in suits to compel
the specific performance of contracts, and in suits for discovery in
cases where a discovery may be lawfully required. (JR. £>., chap.
171, sec. 6.)

Sec 10. The said court may grant writs of injunction when-
ever the same shall be necessary to prevent injustice, and any
justice of said court may issue writs of injunction to stay pro-



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