LIEN OF MECHANICS AND OTHERS. may be shall hold the estate which he had in the premises at the time of ma- be may 557 TITLE XXIV. secuted by repre- may be prosecu SEC. 27. If the creditor in such contract shall die before the com- Suit may be promencement of a suit thereon, the suit may be prosecuted by his executors or administrators, or if commenced in his life time, it prosecuted by them, as it might have been by the deceased, if living. SEC. 28. If it appear in any stage of the proceedings under this Suit commenced chapter, that the suit was commenced by the petitioning creditor be- by one creditor fore the expiration of the sixty days, or after the expiration of six ted by a nother in months, in that behalf before limited, or if the petitioning creditor become non-suit or from any cause fail to establish his claim, the suit may nevertheless be prosecuted by any other creditor having such a lien, in the same manner as if it had been originally commenced by the latter creditor, if the circumstances of the case are such that he might then, or at any time after the commencement of the original suit, have commenced a like suit on his own claim. certain cases. When creditor's lowed, though SEC. 29. If the suit is commenced by the petitioning creditor, before the expiration of the sixty days in that behalf limited, his claim claim may be almay nevertheless be allowed, if he is otherwise entitled thereto, and suit prematurely if the suit is prosecuted by any other creditor as provided in the commenced, &c. preceding section; but he shall not in such case be entitled to any costs, and he may be compelled to pay the costs that shall be incurred by the debtor, or any part thereof, as the court shall deem reasonable. SEC. 30. The costs in all other cases shall be subject to the discre- Costs. tion of the court, and shall be paid out of the proceeds of the sale, or by any of the parties in the suit, as justice and equity may require. SEC. 31. Nothing contained in this chapter shall be construed to Action at comprevent any creditor in such contract from maintaining an action thereon at the common law, in like manner as if he had no such lien for the security of his debt. mon law not prevented. cord contracts, SEC. 32. The register of deeds shall receive and record all con- Registers to retracts of the kind mentioned in this chapter, that shall be delivered &c. to him for that purpose, and he shall be entitled to the same fees therefor, as for recording deeds or other papers. charge lien on SEC. 33. When the debt secured by such lien shall be fully paid, Creditor to disthe creditor shall, at the expense of the debtor, enter on the margin payment, &c. of the record of such contract, a discharge of his said lien, or shall execute a deed of release therefor (thereof), in like manner as is provided in relation to the discharge of mortgages, after the payment thereof. petition by sure SEC. 34. Every petition filed by any person not a resident of this Indorsement of state, in pursuance of this chapter, shall be endorsed in the same ty for costs. manner that declarations are required to be endorsed in the like cases, by some responsible person as security for costs, and the regulations concerning the endorsement of declarations shall apply to the endorsement of such petition. upon Of certain Liens Personal Property. ics, &c., on per SEC. 35. Whenever any person shall deliver to any mechanic, ar- Lien of mechantizan or tradesman, any materials or articles for the purpose of con- sonal property in structing, in whole or in part, or completing any furniture, jewelry, certain cases. implement, utensil, clothing or other article of value, to be altered, CHAPTER 126. TITLE XXIV. fitted or repaired, such mechanic, artizan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and for any materials which he may have furnished in the construction or completion thereof, and may retain possession of the same until such charges are paid. Ib. When lien may be enforced. Suit for recovery of charges. Proceedings in case summons returned person. ally served. Proceedings if SEC. 36. When any person shall deliver to any mechanic, artizan, or tradesman, any watch, clock, article of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such mechanic, artizan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid. SEC. 37. In either of the cases mentioned in the two preceding sections, if the owner of the property or materials so delivered, or the person entitled thereto, shall not, when such articles shall have been constructed, completed, altered, fitted or repaired, and ready to be delivered to such owner, or other person, and the charges thereon shall be due and payable, pay to such mechanic, artizan or tradesman, the amount of such charges, the person having such lien may enforce the same as hereinafter provided. SEC. 38. The person having such lien may commence a suit for the recovery of such charges, by summons in the usual form, before any justice of the peace of the city or township in which he resides, or in any court, as the case may require, against the person liable for the payment thereof. SEC. 39. If such summons be returned personally served upon the defendant, the same proceedings shall thereupon be had, in all respects, as in other suits commenced by summons, in which there is a personal service of process, and judgment shall be rendered in such suit in like manner. SEC. 40. If the officer return upon such summons, that the defendant cannot be found within his county, the same proccedings shall be defendant cannot thereupon had, in all respects, as near as may be, as in suits commenced by attachment, in which there is not a personal service of a copy of the attachment upon the defendant, and judgment shall be rendered in such suit in like manner. be found. Effect of judg. ment. Enforcing liens in other cases. Expense of keeping beasts, when al lien. SEC. 41. If the plaintiff recover judgment in such suit, execution shall issue thereon in the same manner and with the like effect, as upon judgments rendered in suits commenced by attachment, and the property upon which the plaintiff holds such lien, or so much thereof as shall be sufficient to satisfy such execution, may be sold thereon in the same manner as if it had been seized and held upon an attachment in such suit. SEC. 42. The provisions of this chapter concerning liens upon personal property, and enforcing the same, shall apply to all cases of personal property on which the bailee or keeper thereof has by law a lien for any keeping, feed, care or labor by him bestowed upon such property. SEC. 43. If the property upon which any such lien shall be enforced to be an addition as provided in this chapter, consist of horses, cattle, sheep, swine, or other beasts, and any expenses shall have been incurred by the person having such lien after the same accrued, in keeping and taking care of such property, the amount of such expenses shall be an additional lien upon the property, and shall be computed and ascer tained upon the trial, or assessment of damages, and included in the judgment. CHAPTER 127. OF THE DISPOSITION OF UNCLAIMED PROPERTY IN CERTAIN CASES. TITLE XXIV. CHAPTER 127. date of reception cases. SECTION 1. Whenever any personal property shall be consigned Description and to or deposited with any forwarding merchant, wharf keeper, ware of property to be house keeper, tavern keeper, or the keeper of any depot for the re- entered in certain ception and storage of trunks, baggage, and other personal property, 1839, p. 112. such consignee or bailee shall immediately cause to be entered in a 1840, p. 135. book to be provided and kept by him for that purpose, a description of such property, with the date of the reception thereof. be given to own. SEC. 2. If such property shall not have been left with such con- When notice to signee or bailee for the purpose of being forwarded or otherwise dis- er by letter. posed of according to directions received by such consignee or bailee, at or before the time of the reception thereof, and the name and residence of the owner of such property be known or ascertained, the person having such property in his custody, shall immediately notify such owner by letter, to be directed to him, and deposited in a post-office, to be transmitted by mail, of the reception of such property. lished. SEC. 3. In case any such property shall remain unclaimed for three Notice, when and months after its reception as aforesaid, the person having possession how to be pubthereof shall cause a notice to be published once in each week for four successsive weeks in a newspaper published in the same county, if there be one, and if not, then in some paper published at the seat of government, describing such property, and specifying the time when it was so received, and stating that unless such property shall be claimed within three months from the first publication of such notice, and the lawful charges thereon paid, the same will be sold according to the statute in such case made and provided. unclaimed. SEC. 4. In case the owner or person entitled to such property shall Proceeding if not, within three months after the first publication of such notice, property remain claim such property and pay the lawful charges thereon, including the expense of such publication, the person having possession of the property, his agent or attorney, may make and deliver to any justice of the peace of the same county, an affidavit, setting forth a description of the property remaining unclaimed, the time of its reception, the publication of the notice, and whether the owner of such property be known or unknown. when to be made SEC. 5. Upon the delivery to him of such affidavit, the justice shall Inventory and cause such property to be opened and examined in his presence, and order for sale, a true inventory thereof to be made, and shall make and annex to by justice. such inventory an order under his hand, that the property therein described, be sold by any constable of the city or township where the same shall be, at public auction, upon due notice. Constable to give SEC. 6. It shall be the duty of the constable receiving such inventory and order, to give ten days' notice of the sale, by posting up writ- notice and sell ten notices thereof in three public places in the city or township, and property. to sell such property at public auction, for the highest price he can obtain therefor. stable. SEC. 7. Upon completing the sale, the constable making the same Return of conshall endorse upon the order aforesaid, a return of his proceedings upon such order, and deliver the same to such justice, together with the inventory, and the proceeds of the sale, after deducting his fees, which shall be the same as upon an execution. TITLE XXIV. CHAPTER 128. Disposition of proceeds, &c. Inventory, &c., SEC. 8. From the proceeds of such sale, the justice shall pay the charges and expenses legally incurred in respect to such property, or a rateable proportion to each claimant, if there be not sufficient for the payment of the whole; and such justice shall ascertain and determine the amount of such charges in a summary manner, and shall be entitled to one dollar for each day's services rendered by him in such proceedings. SEC. 9. Such justice shall deliver to the treasurer of the county in county treasurer. Which the property was sold, the affidavit, inventory and order of sale and return hereinbefore mentioned, together with a statement of the charges and expenses incurred in respect to such property, as ascertained and paid by him, with a statement of his own fees, and shall at the same time pay over to such treasurer any balance of the proceeds of the sale, remaining after payment of such charges, expenses and fees. Entry, &c. to be made by treasur er. When owner may receive with treasurer. SEC. 10. The treasurer shall file in his office, and safely keep all the papers so delivered to him, and make a proper entry of the payment to him of any moneys arising from such sale, in the books of his office. SEC. 11. If the owner of the property sold, or his legal represenamount deposited tatives shall, at any time within five years after such moneys shall be deposited in the county treasury, furnish satisfactory evidence to the treasurer, of the ownership of such property, he or they shall be entitled to receive from such treasurer, the amount so deposited with If amount not paid to owner, to him. SEC. 12. If the amount so deposited with any county treasurer, be paid into the shall not be paid to such owner or his legal representatives within the said five years, such county treasurer shall pay such amount into the state treasury, to the credit of the general fund. state treasury. What penalties, &c. may be reco. CHAPTER 128. OF THE COLLECTION OF PENALTIES, FORFEITURES AND FINES, AND OF Of the Collection of Penalties and Forfeitures. SECTION 1. In all cases not otherwise specially provided for by vered by action. law, where a pecuniary penalty or forfeiture shall be incurred by any person, and the act or omission for which the same is imposed, shall not be also a misdemeanor, such penalty or forfeiture may be recovered in an action of debt, or in ar. action of assumpsit; and if it be a forfeiture of any property, it may be sued for and recovered in an action of trover, or other appropriate action. Action, how brought and conducted. Jurisdiction of justices. SEC. 2. Every such action shall be brought in the name of the people of the state of Michigan, and shall be conducted and prosecuted in the same manner as personal actions, and shall be subject to all the provisions of law concerning personal actions, not repugnant to the provisions of this chapter. SEC. 3. Justices of the peace shall have jurisdiction of all actions for the recovery of penalties or forfeitures, where the amount of the TITLE XXIV. penalty or forfeiture shall not exceed one hundred dollars. CHAPTER 128. brought. SEC. 4. Every action for a penalty or forfeiture, shall be brought Where to be in the county where the act was done, or where the act omitted was required, in whole or in part, to be done, upon which the penalty or forfeiture attached. in debt. SEC. 5. In actions of debt brought to recover any penalty or for- How to declare feiture imposed by any statute, it shall be sufficient, without setting forth the special matter, to allege in the declaration, that the defendant is indebted to the plaintiffs in the amount of such penalty or forfeiture; whereby an action hath accrued according to the provisions of the statute by which such penalty or forfeiture is imposed, specifying the section and chapter, as the case may require, or in some other similar terms, referring to such statute. SEC. 6. Whenever an action of assumpsit shall be brought for the Ib., in assumpsit. recovery of any penalty or forfeiture imposed by any statute, it shall be sufficient, without setting forth the special matter, to allege in the declaration, that the defendant, being indebted to the plaintiffs in the amount of such penalty or forfeiture, according to the provisions of the statute by which such penalty or forfeiture is imposed, referring to such statute as prescribed in the last section, undertook and promised to pay the same. SEC. 7. If an action of trover be brought to recover any goods or Ib., in trover. other things forfeited by the provisions of any statute, the declaration may allege that such goods or other things were forfeited according to the provisions of such statute, referring to the same as prescribed in the foregoing sections, and that the defendant converted the same to his own use, without setting forth the special matter. SEC. 8. To every declaration for a penalty or forfeiture, the de- Plea and evifendant may plead the general issue, which shall be in the same form dence. as in personal actions; and may give in evidence under such plea any special matter in bar of the action, or in discharge of the defendant therefrom, in the same manner, and with the like effect as if a special notice thereof had been given. SEC. 9. When a penalty or forfeiture is imposed by law for any Where amount act or omission, not exceeding any specified sum, an action may be is not specified. brought for the highest sum so specified; and the jury, or justice before whom the trial shall be had, shall award the sum so specified, to the plaintiff, or such part thereof, within the limitation prescribed by law, as shall be deemed proportionate to the offence. recovered by in. SEC. 10. In all cases where the penalty or forfeiture shall be one When may be hundred dollars or more, such penalty or forfeiture may be recovered dictment. by indictment in the proper court of the county. omission to be a SEC. 11. When any act or omission is punishable according to law, When act or by a fine, penalty or forfeiture, and imprisonment, or by such fine, misdemeanor. penalty, or forfeiture, or imprisonment, in the discretion of the court, such act or omission shall be deemed a misdemeanor. SEC. 12. It shall be the duty of every supervisor, whenever he Duty of supervishall know, or have good reason to believe, that any penalty or for- sors. feiture has been incurred within his township, which shall be recoverable by action before a justice of the peace, according to the foregoing provisions of this chapter, forthwith to commence and prosecute a suit, in the name of the people of this state, for the recovery thereof. |