TITLE XXIV. CHAPTER 114. Proceedings on return of writ personally eer v. ed. Proceedings on return of writ not personally served. property attached, or so much thereof as shall be sufficient to satisfy the judgment rendered on such attachment, with interest and costs. SEC. 17. Upon the return of such writ, if it appear that a copy thereof has been personally served on the defendants, or either of them, or if either of the defendants shall appear in the suit, the same proceedings may be thereupon had in such suit, in all respects, as upon the return of an original writ of summons personally served, in a suit commenced by such summons. SEC. 18. If it appear by the return of such writ that any property has been attached thereon, and that neither of the defendants could be found, the plaintiff shall, within thirty days after such return, unless the defendants or some of them shall sooner appear in the suit, cause a notice to be published in some newspaper printed in the county for which said circuit court is held, and if no newspaper is printed in said county, then in some newspaper printed in the judicial circuit in which such writ shall be returned, which notice shall state the names of the parties, the time when, from what court, and for what sum the writ was issued, and when the same was returnable, and shall be published for six successive weeks, and if any plaintiff shall neglect to cause such notice to be so published, as required in this section, the attachment shall be dismissed with costs. SEC. 19. If any bond shall have been given to the sheriff or other Bond to be returned and filed officer serving the writ, as hereinbefore provided, he shall state the by officer. fact in his return to the attachment, and return and file such bond therewith; and if any such bond shall be given after the return of the writ, and before judgment, such sheriff or other officer shall immediately cause the same to be filed in the clerk's office to which such writ was returned, and give notice thereof to the plaintiff or his attorney. When plaintiff SEC. 20. If a copy of the attachment shall not have been served may file declara. upon any of the defendants, and none of them shall appear in the tion, &c. on filing suit, the plaintiff, on filing an affidavit of the publication of the notice cation of notice. hereinbefore required for six successive weeks, may file his declaration in the suit, and proceed therein as if a copy of such attachment had been served upon the defendants. affidavit of publi When defendant not served, may admitted to de appear and be tend. Judgment and of personal ser. ant. SEC. 21. If any defendant not served with a copy of the attachment, shall appear at any time before judgment, he may be admitted by the court to defend the suit, upon such terms as such court may deem reasonable. SEC. 22. When a copy of the attachment shall have been personexecution in case ally served on the defendant, or such defendant shall have appeared vice, or appear in the suit, judgment shall be rendered, and execution shall issue ance of defend thereon, in the same manner, and with the like effect as in a suit commenced by summons, in which the summons shall have been returned personally served, except that by virtue of such execution, the officer to whom the same shall be directed and delivered, may sell any property attached in the suit, and remaining in the hands of the officer who served the attachment, wherever the same may be in this state. Judgment and execution in case attachment is not SEC. 23. When a copy of the attachment shall not have been served, and the defendant shall not have appeared in the suit, judg personally serv. ment shall be rendered, and execution may issue in the same form as ed, and defendant does not appear. if such copy had been personally served, but such judgment shall not be conclusive against the defendant, and such execution shall only 517 authorize the officer to whom it is directed, to sell the property at- TITLE XXIV; tached in such suit. CHAPTER 115. execution in such case. SEC. 24. In the case specified in the last section, the attorney issu- Indorsement on ing the execution, shall indorse thereon or annex thereto, a description of the property so attached, with a direction to the officer to sell the same, or so much thereof as may be sufficient to satisfy the execution, and not to levy the same or any part thereof upon any other property. cution, to entitle SEC. 25. If a bond shall have been given to the officer, conditioned When not neces for the payment of the judgment, as provided in the thirteenth and sary to issue exefourteenth sections of this chapter, and judgment be rendered in fa- plaintiff to sue vor of the plaintiff, it shall not be necessary to issue any execution bond. upon such judgment, to entitle such plaintiff to sue on such bond. erty may be or SEC. 26. When any of the property taken in attachment shall Perishable prop. consist of animals or perishable property, the court, or any judge dered to be sold. thereof, may make an order, directing such property to be sold, and the money arising from such sale to be brought into court, to abide the order of such court. proceeds with SEC. 27. Upon such order for a sale being made, the officer hav- Officer to make ing such property, shall advertise and sell the same, in the same man- sale, and deposite ner that personal property is required to be advertised and sold on clerk. execution, and shall deposite the proceeds thereof with the clerk to whose office the attachment is required to be returned. SEC. 28. If the plaintiff recover judgment, the court may order To whom prosuch money to be paid to the plaintiff thereon; but if judgment be ceeds to be paid. rendered against the plaintiff, or the suit be discontinued, or the attachment dismissed, the court shall order such money to be paid to the defendant, or person entitled thereto. tachment suits. SEC. 29. The practice in actions commenced by attachment, shall Practice in atbe the same in all respects, as in personal actions commenced by summons, as near as may be, except as otherwise provided by law. of joint debtors. SEC. 30. When two or more persons are jointly indebted as joint obli- Attachments gors, partners or otherwise, the attachment may be issued against the se- against property parate or joint estates or property of such joint debtors, or any of them, and the same proceedings shall be had as hereinbefore prescribed. brance removed SEC. 31. If any estate which shall be attached shall be subject to a Effect of sale in mortgage, or other incumbrance, and the mortgage shall be redeem- case of incumed, or the incumbrance removed before the sale on the execution, before sale. such estate may be sold on such execution in the same manner and with the same effect as if the mortgage or other incumbrance had never existed. CHAPTER 115. OF PROCEEDINGS BY AND AGAINST INFANTS. SECTION 1. When an infant shall have any right of action, to recover any real property or the possession thereof, or to recover any debt Right of infant or damages, he shall be entitled to maintain a suit thereon; and the 2 Paige, 374. to bring suit. TITLE XXIV. CHAPTER 115. Next friend to be appointed. 11 Wend., 164. 12 do 191. By whom appointment to be made. Upon what pa pers. When bond may be required of next friend. Where bond to be filed, &c. Order to be filed. Guardian for defendant. How appointed. Proceedings to Ib. same shall not be deferred or delayed, on account of such infant not being of full age. SEC. 2. Before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as next friend for such infant in such suit, who shall be responsible for the costs thereof. SEC. 3. Such appointment shall be made as follows: 1. If the suit is intended to be brought in the circuit court, by any judge thereof, or any master in chancery, or circuit court commis sioner: 2. If intended to be brought in the county court, by the judge thereof, or a circuit court commissioner. SEC. 4. It shall be made on the petition of the infant, and the written consent of the person proposed to be next friend to such infant, duly acknowledged before, or proved to the officer making the appointment. any SEC. 5. Before any person shall be appointed next friend for an infant in suit to recover any debt or damages, he shall, if required by the officer to whom application for such appointment shall be made, execute a bond to such infant, in a penalty at least double the amount claimed in such suit, with such sureties as shall be approved by such officer, conditioned that such next friend shall duly account to such infant for all moneys which may be recovered in such suit. SEC. 6. Such bond shall be delivered to such officer before the appointment shall be made, and shall be by him filed in the office of the judge of probate of the county in which such infant resides; and such officer shall be entitled to receive from such next friend, the fee allowed by law to such judge of probate for filing such bond, to be paid by him. SEC. 7. The order for the appointment of a next friend shall be filed in the office of a clerk or register of the court, before any declaration or bill shall be filed in such cause. SEC. 8. After the issuing and service of process against any infant defendant, or the service of a declaration, if the suit be commenced by declaration, the suit shall not be any further prosecuted, until a guardian for such infant shall have been appointed. SEC. 9. Such appointment shall be made upon the request of such defendant, and upon the written consent of any competent person proposed as guardian, by the court or any master in chancery, if the suit be commenced in chancery, or by any justice of the supreme court, or circuit court commissioner, if the suit be commenced in the circuit court; and if commenced in the county court, by the judge thereof or a circuit court commissioner, and shall be filed in the office of a register or clerk of the court before any plea or answer be put in. SEC. 10. If such infant defendant neglect, for twenty days after the return day of the process, or service of the declaration by which the suit was commenced, to procure the appointment of a guardian to defend the suit, the plaintiff may obtain an order from any judge or officer of the court mentioned in the preceding section, requiring such infant to procure the appointment of a guardian within ten days after the service of such order. SEC. 11. If a guardian be not appointed within the time specified in such order, the judge or officer granting the same, shall appoint some discreet person to be guardian for such infant, in the defence of TITLE XXIV. such suit. CHAPTER 116. SEC. 12. No person appointed guardian for the purpose of defend- Liability for ing a suit against an infant, shall be liable for the costs of such suit, costs. unless specially charged by the order of the court for some personal misconduct in such cause. CHAPTER 116. OF PROCEEDINGS BY AND AGAINST CORPORATIONS IN COURTS OF LAW. SECTION 1. A foreign corporation created by the laws of any other Foreign corporastate or country, may prosecute in the courts of this state, in the same tions may sue in this state on giv. manner as corporations created under the laws of this state, upon giv- ing security for ing security for the payment of the costs of suit, in the same manner that non-residents are required by law to do. SEC. 2. But when, by the laws of this state, any act is forbidden to be done by any corporation, or by any association of individuals, without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into in consideration of, such act. costs. Exceptions. porations, how SEC. 3. Suits against corporations may be commenced by original Suits against corwrit of summons, or by declaration, in the same manner that personal commenced. actions may be commenced against individuals, and such writ, or a copy of such declaration, in any suit against a corporation, may be served on the presiding officer, the cashier, the secretary, or the treasurer thereof; or if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner, as the court in which the suit is brought may direct. SEC. 4. When such process, or a copy of such declaration with a notice of rule to plead, shall have been returned duly served, the appearance of the corporation shall be entered, and the plaintiff may proceed thereupon in such suit, in the same manner as in personal actions against natural persons. Proceedings on return of process duly served. cases. SEC. 5. When judgment shall be rendered against any incorporated Measure of dambank, for the amount of any bills or other evidences of debt, payable ages in certain absolutely, the payment of which shall have been refused by such bank, and no measure of damages shall be specified in the act incorporating such bank, the plaintiff shall recover interest on such amount from the time of such refusal, at the rate of ten per cent. a year, instead of the rate established by law. SEC. 6. In suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement, or given notice under his plea to the action, that the plaintiffs are not a corporation, and annex thereto an affidavit of the truth of such plea or notice. Proof of domes tic corporation. SEC. 7. In actions by or against any corporation created by or un- Reciting acts of incorporation. TITLE XXIV. der law of this state, it shall not be necessary to recite the act or any acts of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof, but the same may be pleaded by reciting the title of such act, and the date of its approval. SEC. 8. In suits or proceedings by or against any corporation, a ing corporation. mistake in the naming of such corporation shall be pleaded in abatement; and if not so pleaded shall be deemed to have been waived. Mistake in nam. Attachment against foreign corporation. Double costs, &c. SEC. 9. In suits commenced by attachment in favor of a resident of this state, against any corporation created by or under the laws of any other state, government or country, if a copy of such attachment, and of the inventory of property attached, shall have been personally served on any officer, member, clerk or agent of such corporation within this state, the same proceedings shall be thereupon had, and with the like effect, as in case of an attachment against a natural person, which shall have been returned served in like manner upon the defendant. SEC. 10. If it shall appear to the court that any such suit against a foreign corporation, was brought vexatiously and without just cause, they shall award double costs against the plaintiff, and such plaintiff shall be liable to the defendants for all damages which they may sustain by such proceedings. CHAPTER 117. Injunctions against corpora. tions in certain cases. 1837, p. 306, &c. OF PROCEEDINGS AGAINST CORPORATIONS IN CHANCERY. SECTION 1. Upon a bill being filed under the direction of the attorney general, in any court having equity jurisdiction, the court shall have power to restrain by injunction, any corporation from assuming or exercising any franchise, liberty or privilege, or transacting any 1839, p. 94, &c. business not authorized by the charter of such corporation; and in the same manner to restrain any individuals from exercising any corporate rights, privileges or franchises, not granted to them by any law of this state. Issuing and continuance of injunction. Jurisdiction of court over offi cers, &c. SEC. 2. Such injunction may be issued before the coming in of the answer, upon satisfactory proof that the defendants complained of, have usurped, exercised or claimed, any franchise, privilege, liberty or corporate right not granted to them, and after the coming in of the answer, such injunction may be continued until judgment at law shall have been had. SEC. 3. The circuit court within the proper county shall have jurisdiction over directors, managers, trustees and other officers of corporations, 1. To compel them to account for their official conduct in the management and disposition of the funds and property committed to their charge: 2. To decree and compel payment by them to the corporation whom they represent, and to its creditors, of all sums of money, and of the value of all property which they may have acquired to themselves, or transferred to others, or may have lost or wasted, by any |