TITLE 3. ed; or made payable exclusively by such devisee, by the terms of the will; or made payable out of the estate devised, before resorting to the personal estate or to any other real estate descended or devised. $ 59. It shall be incumbent on the creditor seeking to charge any devisees, to show, on the trial, the facts and circumstances herein required to render them liable.

Proof of liability.

$60. The provisions herein contained, with regard to heirs, and to proceedings by and against them, and to decrees and executions against them, shall be applicable to suits and proceedings against devisees, who shall, in like manner, be sued jointly.

$61. Devisees shall be liable, in the same manner and to the same extent, as heirs, notwithstanding they may have aliened the real estate devised, before suit brought against them; but no real estate aliened in good faith by any devisee, before the commencement of a suit against him, shall be liable to execution upon, or in any manner affected by, a decree against such devisee.14

$ 62. In cases where, by the provisions of any statute, a child born after the making of a will, shall be entitled to succeed to a portion of the testator's real and personal estate, such child shall have the same rights and remedies to compel a distribution of the personal estate, and a partition of the real estate, as are provided by law for next of kin and for heirs; and shall in all respects be liable, in the same manner and to the same extent, to the creditors of his ancestor, in respect to the personal property delivered to him, and the real estate descended to him, as are herein prescribed in relation to next of kin and heirs.

S63. Such child shall be authorised to recover of the legatees who may have received any property or effects of the testator, the portion of such property or effects to which he may be entitled, by an action of replevin, or of trover or assumpsit, as the case may require; and shall also be entitled to recover of the devisees of any real estate under the will of the testator, such portion of such real estate as shall belong to him.

$64. In cases where a distribution of such personal estate shall not have been made by the surrogate, to any such child born after the making of a will, the court of chancery shall have power to compel the same; and the said court shall have power also to compel just and equal contribution by the legatees under such will, to make up the portion of personal property to which such child shall be entitled.

$ 65. The court of chancery shall also have power to compel partition between the devisees of any real estate, and such child so enti- ̈ tled to a portion of such real estate, so as to enforce a just and pro- . portionate contribution by each devisee.

(14) 1 R. L. p 317, § 5.

$66. The foregoing provisions relative to a child born after the ART. 1. making of a will, shall apply equally in all respects to every person Witnesses to who, being a witness to a will, shall be entitled by the provisions of wills, &c. any statute, to recover any portion of the personal or real estate of the testator, from the legatees and devisees named in such will.

TITLE IV.

OF PROCEEDINGS BY AND AGAINST CORPORATIONS, AND PUBLIC
BODIES HAVING CERTAIN CORPORATE POWERS, AND BY AND
AGAINST OFFICERS REPRESENTING THEM.

ART. 1. Of proceedings by and against corporations, in courts of law.

ART. 2. Of proceedings against corporations, in equity.

ART. 3. Of the voluntary dissolution of corporations.

ART. 4-Of proceedings by and against public bodies, having certain corporate powers, and by and against the officers representing them.

ARTICLE FIRST.

Of Proceedings by and against Corporations, in Courts of

6. Appearance of defendants when to be entered.

7. Declaration may be for cause accruing after teste of process.

8. In certain cases, judgment may be applied for at first term.

9. Judgment to be rendered unless good defence appear.

10. When immediate reference to be ordered.

11. Issues of fact and of law to have preference in trials and arguments.

12. Rate of damages to be recovered against banks.

13. In pleading, not necessary to set forth acts of incorporation, &c.

14. Mistake in naming a corporation, how waived.

15. Suits against foreign corporations, may be by attachment.

16. By whom to be issued; its contents.

17. Proof necessary to sustain application.

18. What vouchers to be produced in certain cases.

19. One witness necessary to establish damages.

20. Bond to secure costs to be given, where filed.

21. General powers and duties of sheriff on the attachment.

22 & 23. Certain provisions of law concerning absent debtors, to apply.

24. Proceedings on judgment for plaintiff.

25. Proceedings when judgment is for defendants.

26. Double costs and damages for vexatious suits.

27. When defendants may appear and defend.

28. When they may apply for discharge of attachment.

29. Bond to be given; its penalty and condition.

30. Apportioning defendants' property among several plaintiffs.

rations.

$1. A foreign corporation created by the laws of any other state suit by foor country, may, upon giving security for the payment of the costs of reign corposuit, prosecute in the courts of this state, in the same manner as corporations created under the laws of this state.

$ 2. But where, by the laws of this state, any act is forbidden to be done by any corporation or by any association of individuals, without 58

VOL. II.

Exceptions,

TITLE 4. express authority by law, and such act shall have been done by a fo

Proof of doinestic corporation.

Process

against them.

How served.

Proceedings thereon.

Declaration.

Judgment at

reign corporation, it shall not be authorised 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.

$ 3. 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 in bar, that the plaintiffs are not a corporation.

S4. The first process for the commencement of a suit against a corporation, shall be a summons, except in those cases where a scire facias or other process is allowed by law; and such process, and all other writs and process against corporations, may be issued and tested on any day in term, and may be made returnable on any day in the same, or the next succeeding term, in the same manner as process issued against individuals may be issued, tested and returned. 15

$5. Writs of summons and other process for the commencement of a suit against a corporation, may be served on the return day of such process, or previous thereto, on the presiding officer, the cashier, the secretary, or the treasurer thereof; and 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.16

$6. When such process shall have been returned duly served, the appearance of the corporation shall be entered, and the plaintiff shall proceed thereupon in such suit, in the same manner as in personal actions against natural persons.17

$7. In every such action, the plaintiff may declare on a cause of action which arose previous to the commencement of the suit, although the same may have arisen after the teste of the process by which the action was commenced." 18

$8. In any such action founded upon a note or other evidence of first term, &c. debt, for the absolute payment of money on demand, or at any particular time, if it shall appear that the first process together with a copy of the declaration was served at least twenty days before the return of such process, the plaintiff may file a declaration in such suit on such return day, or on any subsequent day in the same term, and may apply for judgment. 19

Ib. defence on merits.

$ 9. On such application, the court shall render judgment for the plaintiff as by default, either interlocutory or final, or both, as the case may require; unless it shall satisfactorily appear to such court,

(15) Laws of 1817, p. 21, § 1. (16) Ib. § 2. (17) Ib. § 3. (18) Ib. § 4. (19) Laws of 1825, p. 449, § 4.

that such corporation has a good and substantial defence on the merits, ART. 1. which shall be disclosed by affidavit.20

suit.

$ 10. If such defence consist of a set-off, and be of such a nature Reference of that the cause might be referred, the court shall immediately refer the cause to the clerk thereof, or to some other fit persons, to hear the proofs of the parties, and report thereon; and the proceedings thereon shall be the same in all respects as in cases of reference.

issues in such

S 11. Every issue of fact joined in such cause, shall have a pre- Preference to ference at the court at which it shall be noticed for trial, to all other suits. causes; and every case made, special verdict rendered, bill of exceptions and demurrer to evidence taken, on such trial, and every issue of law joined on the pleadings in any such suit, shall have a preference in the argument thereof in any court where the same may be pending. 20

ages in certain cases.

S 12. When judgment shall be rendered against any incorporated Rate of dam bank, for the amount of any bills or other evidences of debt, payable 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 of interest established by law.21

any

S 13. In actions by or against any corporation created by or under law of this state, it shall not be necessary to recite the act or 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 passage.

Reciting acts of incorpora.

tion.

S 14. In suits or proceedings by or against any corporation, a mis- Mistake in take in the naming of such corporation, shall be pleaded in abate-am corment; and if not so pleaded, shall be deemed to have been waived.

poration.

reign corpo

S 15. Suits brought in the supreme court by a resident of this state, Attachment against any corporation created by or under the laws of any other against fo state, government or country, for the recovery of any debt or dama- rations. ges, may be commenced by attachment.

S 16. The court, or any judge thereof in vacation, and any officer By whom isauthorised to perform the duties of such judge, in vacation, may, on the sued. application of the plaintiff, issue such attachment to the sheriff of the county in which any property of such corporation may be, commanding him to attach and safely keep all the estate, real and personal, of such corporation.

tain it.

S 17. Such application shall be in writing, and shall be accompa- Proof to ob nied by the affidavit of the plaintiff, or one of the plaintiffs, specifying the sum in which such corporation is indebted to him, over and above

(20) Laws of 1825, p. 449, § 4. (21) Laws of 1818, p. 243, § 3.

TITLE 4. all discounts; or specifying the amount of damages to which he shall claim to be entitled.

Vouchers in certain cases.

When wit

ness required.

Bond for

costs.

Powers of sheriff.

Proceedings in certain,

Cases.

Proceedings on judgment

$ 18. If such suit be for the recovery of a debt, the original security if any, shall be produced at the time of making such application, and a copy thereof shall be annexed to the affidavit: if there be no written security, then the original accounts shall in like manner be produced, and a copy thereof be annexed to the affidavit.

S 19. If such suit be for the recovery of any damages, the facts and circumstances to establish the grounds of such claim, and the amount thereof, shall be proved by the affidavit of at least one disinterested witness.

$ 20. Before such attachment shall issue, a bond shall be executed by or on behalf of the plaintiff, to the defendants, in the penalty of two hundred and fifty dollars, with sureties to be approved by the officer to whom the application is made, conditioned to pay all costs which shall be awarded against such plaintiff in such suit, which bond shall be filed by the officer receiving the same, in the office of a clerk of the

court.

$21. The sheriff to whom such attachment shall be directed and delivered, shall proceed thereon in all respects, in the manner prescribed by law in case of attachments against absent debtors, shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such suit.

$ 22. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such corporation, or if any part of it consist of a vessel belonging to any port or place in this state, or any of the United States, or of any foreign vessel, or of any share or interest in any vessel, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors.

$23. Any bond required in any such case to be given by a petitioning creditor, may be given by the plaintiff in the suit; and any bond required to be given to the sheriff serving such attachment, shall be held for the benefit of the plaintiff in such suit.

$ 24. In case judgment be rendered for the plaintiff in any such suit, for plaintiff. and an execution be awarded thereon, the sheriff shall assign to the plaintiff any bond taken by him in the course of the proceedings, shall pay over to such plaintiff the proceeds of all sales of perishable property, or of any vessel or share or interest in a vessel, sold by him, or so much thereof as may be necessary to satisfy such execution; and if any balance remain due, he shall sell, under such execution, so much of the property of such corporation remaining in his hands, as may be necessary to satisfy such balance.