[TITLE XXI.

CHAPTER 91.

Appellant to procure certified copy of record.

On filing copy of record, circuit

court to try ques

tion.

When circuit

court may allow appeal.

Notice of application to circuit ance of appeal.

court for allow.

Time for filing petition, when petitioner was

verse party, with his reasons therefor, in such manner as the probate court shall direct, at least fourteen days before the same shall be entered in the circuit court.

SEC. 28. The person appealing shall procure and file in the circuit court to which the appeal is taken, a certified copy of the record or proceedings appealed from, of the notice of such appeal filed in the probate court, and the reasons for such appeal, together with evidence of the filing of the requisite bond, and that notice has been given to the adverse party according to the order of the probate court. SEC. 29. When such certified copy shall have been filed in the circuit court, with the evidence of filing the requisite bond, and of giving notice as aforesaid, such court shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any [question] of fact to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by jury.

SEC. 30. If any person aggrieved by any act of the judge of probate, shall, from any cause, without default on his part, have omitted to claim or prosecute his appeal according to law, the circuit court, if it shall appear that justice requires a revision of the case, may on the partition (petition) of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably.

SEC. 31. No such appeal shall be allowed, without due notice to the party adversely interested, nor unless the petition therefor shall be filed within one year after the making of the decree or order complained of, except as provided in the following section.

SEC. 32. If the petitioner shall be without the United States at the time of passing the decree or order, he may file his petition within without U. S., at three months after his return, provided it be done within two years after the act complained of.

the passing of

the decree.

Petition may be

SEC. 33. The petition may, in all cases, he filed in the clerk's office filed with clerk in vacation, as well as in term time, and the clerk shall note upon it the time when it is filed.

in vacation.

Proceedings

SEC. 34. After an appeal is claimed, and notice thereof given at the stayed by appeal. probate office, all further proceedings in pursuance of the sentence, order, decree or denial appealed from, shall cease until the appeal shall be determined.

Powers of cir

peal.

SEC. 35. The circuit court may reverse or affirm, in whole or in cuit court on ap- part, the sentence or act appealed from, and may make such order or decree thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings, or may take any other order therein, as law and justice shall require.

When circuit court to affirm decree, &c.

Costs in contested cases.

Execution for costs.

SEC. 36. If the appellant shall fail to prosecute his appeal with reasonable diligence, the circuit court, upon evidence that such appeal was taken, and on the motion of any person interested in the case shall affirm the decree or act appealed from, and may allow costs against the appellant.

SEC. 37. In all cases that shall be contested, either in the probate court or in the circuit court, such court may award costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.

SEC. 38. When costs are awarded to one party, to be paid by the

other, the said courts, respectively, may issue execution therefor, in like manner as is practiced in the circuit courts in other cases.

TITLE XXI.'

CHAPTER 92.

nished by coun

SEC. 39. Each county shall provide all books necessary for keeping Books to be furthe records, in the office of the judge of probate; but all printed ty-blanks, &c., blanks, and other stationery, and all the incidental expenses of the by judge. office, shall be furnished and paid by the judge of probate.

when to be held.

SEC. 40. There shall be a probate court held in each county on the Probate courts, first Monday of each month, and on such other days as the judge of 1845, p. 66. probate shall appoint; and in case any matter shall not be heard at the time appointed for hearing the same, such matter shall stand continued until the next stated term of the court, unless the parties interested otherwise agree.

to make rules.

SEC. 41. The supreme court of this state shall have power, from Supreme court time to time, to make uniform rules for regulating the proceedings in all the probate courts of the state, and to alter, amend or modify the same as it may judge necessary, in all cases not expressly provided for by law.

now in use.

SEC. 42. The seals of the several probate courts now used by them Seals of courts respectively, shall continue to be the seals of such courts, until others 1842, p. 107. shall be provided according to law.

procured, &c.

SEC. 43. In case the probate court of any county shall have no New seals, how proper seal, the judge shall, at the expense of his county, cause a seal 1832, p. 107. to be made for his office, with such device as he shall think proper, and with the words "Probate Seal," and the name of the county inscribed thereon, and shall deliver a description thereof to the secretary of state to be deposited and recorded in his office.

cases,

SEC. 44. When notice of any proceedings in a probate court shall Notice of probe required by law, or be deemed necessary by the judge of probate, ceedings in cer. and the manner of giving the same shall not be directed by any stat- 1845, p. 66. ute, the judge of probate shall order notice of such proceedings to be given to all persons interested therein in such manner, and for such length of time as he shall deem reasonable.

SEC. 45. Each judge of probate shall make an alphabetical index Index of records to the records of proceedings in the probate court, and keep the in probate office. same in his office.

1845, p. 66.

CHAPTER 92.

OF THE COUNTY COURTS.

to be elected,

SECTION 1. There shall be established in each of the organized County courts,-counties of this state, a county court for such county, which shall be judge of, when held at the county seat thereof, for the transaction of all business term of office. that may be lawfully brought before it. The qualified electors of each county shall, on the first Tuesday of November, eighteen hundred and forty-six, and once in every four years thereafter, elect a suitable person to the office of judge of said county, who shall be called the county judge, and hold his office for four years from the first day of January thereafter, and until his successor is elected and qualified to serve in his place.

SEC. 2. There shall be elected at the same time, and in the same

TITLE XXI.

CHAPTER 92.

Second judge.

County court to be a court of record-its pow.

tion.

manner, an additional judge in each county, to be called the second judge, who shall hold his office for the term of four years, whose duty it shall be to perform the duties of the county judge, when such judge is interested, or when from absence, or other disability, is unable to serve; provided, that when the office of county judge becomes vacant from any cause, such vacancy shall be filled at the first general election thereafter.

SEC. 3. The county court shall be a court of record, with a clerk and seal, and shall have original and exclusive jurisdiction of all civil ers and jurisdic actions arising or brought within the county, where the debt or damages demanded do not exceed the sum of five hundred dollars, (excepting actions of ejectment, proceedings in probate cases, and cases cognizable by justices of the peace,) and appellate jurisdiction of all cases of appeal from courts of justices of the peace in civil proceedings such court shall also have jurisdiction of proceedings for the foreclosure of mortgages as hereinafter prescribed, and full power and authority to enter judgments by confession; and by the consent of parties to try any civil action, except actions of ejectment, without limitation as to amount.

Power to issue process, &c.

When and where to be held.

County judge to take and file oath of office.

Clerk of county,

duties.

:

SEC. 4. The county courts shall have full power and authority to issue all legal process, proper and necessary to carry into effect the jurisdiction given them by law, and to carry out such jurisdiction, shall have and exercise all the powers usually possessed by courts of record under the common law, under the limitations and regulations imposed by statute.

SEC. 5. The county court shall be held in each of the courties of this state, on the first Monday of every month, and on such other days as the judge thereof may find necessary or convenient for the transaction of business; but no notice of the holding of such court shall be necessary in any case except such as is given by the process of the court, or the continuance of a cause.

SEC. 6. Each judge of a county court, before he enters upon the duties of his office, shall take and subscribe the oath prescribed by the constitution of this state, which may be administered by the county clerk, or any justice of the peace of the county, and shall be filed in the office of the county clerk.

SEC. 7. The county clerk shall be the clerk of the county court, his powers and and shall have the custody and care of all the books and papers belonging to the court, shall be present at all trials, if required by the judge, may swear all the witnesses and jurors on the trial of a cause, shall keep minutes of the proceedings and judgments of the court, under the direction of the judge, shall issue all process under his hand and the seal of the court, except where otherwise provided for by law, and shall tax all costs from minutes thereof kept by him (including witnesses' fees) under the direction of the judge; provided, that in case of his inability to discharge his duties, by reason of sickness or absence, his deputy may perform the same, or the court employ some person in his place.

Process, how to be directed and

SEC. 8. All process from county courts shall be directed to the sheby whom served. riff of the proper county, and may be served by such sheriff, or by any of his deputies, or by any person specially deputed therefor by

Security for costs.

the court.

SEC. 9. The county judge may, in all actions, either before or after the issuing of process, at his discretion, require of the plaintiff satis

factory security for costs, and the person giving such security shall sign a memorandum thereof in writing to that effect, which shall be filed with the clerk, and in all cases, plaintiffs not residing in the county shall give such security before process shall issue.

TITLE XXI.

CHAPTER 92.

SEC. 10. Amicable suits may be entered by the parties thereto, Amicable suits. without process, and thereupon the same pleading shall be made, and the same proceedings had as in other cases.

commenced by

to contain.

SEC. 11. All causes not commenced by an amicable appearance of What suits to be the parties thereto, or by warrant, attachment or writ of replevin, declarationshall be commenced by declaration made orally, or in writing, by the what declaration plaintiff in person, or by agent or attorney, on oath before the court Offer by plaintiff. or clerk thereof; which said declaration shall be a brief statement of the form of the action, and of the plaintiff's claim or demand, and in all actions arising upon contract, may be made without regard to any form of declaration heretofore used, but such declaration shall in all cases set forth specifically the nature of the plaintiff's claim or demand; and if for money due upon contract, the amount due after allowing all credits to which the defendant is entitled shall be the damages claimed therein; and the plaintiff in every action for the recovery of a debt or damages, shall, at the time of filing such declaration, state to the court or clerk, the amount for which he will take a judgment, which offer shall not prejudice such party on the trial.

SEC. 12. The court or clerk before whom the declaration is so Filing declaration,and entering made, shall file the same in his office, and make a note of the sub- cause. stance thereof in the docket or record of the court, and shall number and entitle the cause; he shall also note therein the amount for which the plaintiff offers to take a judgment, and such filing shall be the commencement of the suit for all purposes whatever. SEC. 13. The plaintiff may unite in one suit as many different Joinder of differcauses of action arising upon contract as he may have against the de- ent causes of acfendant; and if he shall commence a suit against any defendant on a Costs in case of cause of action or matter, which by law he might have united with omission. Assignees of chocauses previously determined between them, he shall not recover ses in action may costs in such suit; and assignees of bonds or other choses in action maintain suits. may sue the same in their own names, but the same shall be subject to all equities according to the rules of law and evidence.

tion.

founded, to be

SEC. 14. In all actions founded in whole or in part, on any paper, Documents on writing, book of account or record, the party making the same shall, which action is with his declaration, present such paper, writing, account or record, presented with or a copy thereof, if in his possession, or under his control, and if declaration. otherwise he shall so state it, that the court may lend its aid in procuring the same.

to issue on filing

SEC. 15. On making and filing declaration as commencement of When summons suit, if the defendant be not present and appear therein, the court declaration shall (except in cases where the plaintiff is entitled to other process,) what to contain. issue a summons commanding the officer having the same, to summon the defendant to appear before the court at a time therein mentioned, not less than ten nor more than thirty days from the date thereof, to answer the plaintiff in the action; which summons shall contain a brief statement of the nature of the plaintiff's claim or demand as set forth in the declaration, and the amount claimed, with an endorsement thereon of the sum for which judgment is offered to be taken by the plaintiff.

SEC. 16. On the return of such summons, personally served, if the

CHAPTER 92.

Proceedings if defendant fails

TITLE XXI. defendant do not appear, in person or by attorney, within one hour after the time mentioned therein for his appearance, the court shall, at the request of the plaintiff, proceed with the cause ex parte; but no to appear after judgment shall in such case be rendered against the defendant for an personal service. amount greater than the sum for which the plaintiff offered to take judgment.

How defence to be made.

SEC. 17. If the defendant be within the county, and has a defence to make to such suit, he shall, unless good cause be shown for his nonappearance, appear in person on the return day of the summons, at the time and place stated therein, and being first sworn that he will state his defence truly, and true answers make to all such questions as may be put to him touching the same, he shall state orally, or in writing, the nature and ground of his defence, and if the same be founded in whole or in part upon any paper, writing, book of account or record, he shall exhibit the same with his answer or plea, or a copy thereof, if in his possession or under his control; if not, he shall so state, that the court may aid in procuring the same, and all of which shall in substance be noted in the record of the case; provided, however, that a defendant may appear by attorney and file his affidavit made before any officer authorized to administer oaths, setting forth specifically the nature and ground of his defence and the matters aforesaid.

SEC. 18. A defendant may, in his defence on any suit brought against him for the recovery of any debt or damages, arising upon contract, set forth in his answer, all causes of action he may have against such plaintiff, which by law could be united were he plaintiff, and if he shall prove an amount exceeding the amount proved against him by the plaintiff, he shall have judgment for such excess, with costs against plaintiff; nor shall such defendant recover costs in any subsequent action upon any such demand which might have been set off. SEC. 19. In all cases where the defendant interposes any objection to the plaintiff's action which goes to the jurisdiction of the court, or in abatement of such suit; or in the nature of a demurrer or dilatory plea, or in avoidance of such action; such objection need not be made under oath, and shall be immediately heard and investigated before the court; and if the objection be of such nature that it may be removed by an amendment of process or pleadings, such amendment shall be allowed and ordered by the court without delay, and without costs; and so in like manner as to any objections which the plaintiff may make to the defendant's answer. And no continuance shall be allowed unless by consent of parties, or on good cause shown, until the issue be joined upon the merits of the cause.

SEC. 20. In a case where the plaintiff seeks to recover any debt or damages, after the issue is joined, he may renew the offer made to the defendant as to the amount for which he will take a judgment, or he may increase or diminish such amount at his election; and the defendant shall, after issue joined, state the amount, if any thing, for which he will confess a judgment, without trial, and such offer shall be noted by the court.

SEC. 21. In all cases if the plaintiff or defendant shall make it apappear to the satisfaction of the court, by his own oath or other legal testimony, that he cannot safely proceed to trial for the want of some material testimony or witness, naming such witness, the court shall order a continuance of the cause for such reasonable time, so often as