TITLE XXIV. CHAPTER 131. Summons to direct notice to be given to owner. Summons, how executed. Justice to attend ister oath, &c. mons, not less than ten, nor more than twenty days from the date thereof. SEC. 4. Such summons shall also direct the sheriff or constable to give at least six days' notice to the owner of such lands, of the time at which such jury is to appear. SEC. 5. The officer to whom such summons shall be delivered, shall execute the same by summoning such jurors, in the same manner, and with the like authority, as upon venires issued in cases pending before justices of the peace, and shall, in like manner make return thereof, and of the fact of his having given the notice therein required. SEC. 6. The justice shall attend at the time and place specified in jury, and admin the summons, and if it appear that due notice has been given, as required in the summons, and if six or more of the nine freeholders as above specified, shall then and there appear, he shall administer to each of them an oath or affirmation, well and truly to examine and certify, in regard to the benefits or damages which will result from the opening of such ditch or ditches. Proceedings by jury. SEC. 7. The person applying to have such ditch or ditches opened, shall then deliver to the jury a map of the land through which the same are proposed to be opened, on which map the plan, length, width and depth of such ditch or ditches shall be particularly designated; and thereupon the jury shall personally examine the premises, and hear any reasons that may be offered in regard to the question submitted to them; and they may, if they think proper, vary the dimensions of any ditch so proposed to be opened; but in each (such) case they shall designate on the said map the alterations made by them. SEC. 8. If, after taking all the circumstances into consideration, the ry to be certified, jury shall be satisfied that the opening of such ditch or ditches is necessary and proper, they shall so certify by inquisition in writing; and if so satisfied, they shall further certify by such inquisition, that the benefits which will accrue to the owner of the lands, from the opening of such ditch or ditches, will or will not be equal to any damages that he will sustain thereby; and if such benefits shall be certified not to be equal to the damages, the jury shall assess the damages which, in their judgment, will be sustained by such owner, and certify the same in like manner. Inquisition of ju Inquisition to be tice; fees of officers and jury. SEC. 9. Every such inquision shall be signed by all the jurors, and delivered to jus delivered to the justice; and the justice, jurors, and officer serving the summons, shall be entitled to receive the same fees for their services under the provisions of this chapter as are allowed by law for similar services in causes tried before justices of the peace. When applicant open ditch. SEC. 10. Upon payment or tender of the damages assessed by the may enter and jury, and the costs of such assessment, or if no damages shall have been found by them, upon payment of the costs of the proceedings, and the delivery of the certificate of the jury to the justice, it shall be lawful for the person applying for such summons, to enter, with his servants, teams, carriages, and necessary implements, upon such lands, and then and there to cut and open such ditch or ditches as were designated on the said map, according to the plan and dimensions therein specified and adopted by the jury, not deviating materially from such dimensions. Ditch may be cleared and scoured from time to time. SEC. 11. After such ditch or ditches shall have been opened, it shall be lawful for the said applicant, his heirs or assigns forever thereafter, CHAPTER 132. from time to time, as it shall be necessary, to enter upon the lands TITLE XXIV. through which such ditch or ditches shall have been opened, for the purpose of clearing out and scouring the same, and then and there to clear and scour such ditch or ditches, in such manner as to preserve the original length, depth, and width thereof. person SEC. 12. Any person who shall dam up, obstruct or in any way in- Double damages jure any ditch or ditches so opened, shall be liable to for obstructing or to the pay injuring ditch, &c. owning or possessing the swamp, marsh or other low land, for the draining of which such ditch or ditches shall have been opened, double the damages that shall be assessed by the jury for such injury, and in case of a second or other subsequent offence by the same person, treble such damages. with township SEC. 13. The justice before whom proceedings shall be had under Justice to cause this chapter, shall cause the map delivered by the applicant, and the maps to be filed inquisition of the jury, which he shall certify to have been taken be- clerk. fore him, to be filed in the office of the clerk of the township wherein the premises shall be situated, to be kept in his office, as a record of the proceedings between the parties. CHAPTER 132. OF THE SUPPORT AND REGULATION OF MILLS. by part of own all. SECTION 1. When any mill which is owned by several persons as When mill may joint tenants or tenants in common, or the dam or appurtenances of be repaired, &c. such mill shall need to be repaired or to be re-built, in whole or in ers at expense of part, and the proprietors shall not all agree to join in repairing or re- 4 Mass., 559. building the same, the greater part in interest of the proprietors may 11 do 325. cause the work to be done at the expense of the whole, in proportion to their respective interests. called. SEC. 2. Any one or more of the proprietors may, in such case, call Meeting of proa meeting of the whole of them, to be held at the mill, to consult and prietors, how agree upon the measures to be taken for repairing or re-building the same, which meeting shall be called by a written notice, signed by the person who called it, and addressed to each of the other proprietors, expressing that the mill in question needs to be repaired or rebuilt, and that a meeting of the proprietors thereof will be held at the mill, or at some place in the county where the mill is situated, on a certain day and hour mentioned in the notice, to consult and agree upon the measures to be taken for that purpose, and requesting the attendance of the proprietors at such meeting. Notice, by whom returned. SEC 3. The notice may be served by any constable or other disinterested person, and the certificate of such constable, endorsed on a served, and how copy of the notice, or the affidavit of such other person, annexed thereto, specifying the several persons, if more than one, on whom he served it, and the time and manner of the service, on each, shall be deemed sufficient evidence thereof. SEC. 4. The notice shall be served by delivering the original to the How notice to be person to whom it is addressed, or by leaving such notice at his dwel- served. ling house, or at his last and usual place of abode, not more than TITLE XXIV CHAPTER 132. Majority in interest may take measures to repair, &c. Each proprietor to pay his proportionate share of expenses. to have lien on thirty days nor less than seven days before the day appointed for the meeting. SEC. 5. At the meeting so called, or at any adjournment thereof, the greater part in interest of the whole body of the proprietors of the mill, may take measures to cause the mill, or the dam or appurtenances thereof, to be repaired or re-built, as they shall judge most for the interest of all who are concerned therein. SEC. 6. Every proprietor of the mill shall pay his just and equal part of the charge and expense of such repair or re-building, in proportion to his share or interest in the mill, which sum shall be paid on demand, after the work is completed, to the proprietors by whom it shall have been advanced, with interest from the time of the ad vance. SEC. 7. The proprietors who shall advance the money so expended, Proprietors advancing money shall have a lien therefor on the rents and profits of the mill, and may rents and profits, retain so much thereof as belongs to any proprietor who is indebted or may maintain to them for such advance, to be applied to the payment of his debt, or they may maintain a suit for such debt, or for as much thereof as shall not be paid out of the rents and profits. suit. Guardians to act SEC. 8. When any proprietor is under guardianship, as a minor or for minors, &c. otherwise, his guardian may act for him in calling a meeting of the proprietors, or in attending such a meeting, and may vote for the ward, and may do all such other acts in the premises as the ward could do if competent to act for himself; all which shall be binding on the ward, and on his estate. When husband to act for his wife. Apportionment of expense, in case of tenant for life, &c. Mortgagee in pos. session, and far liable. SEC. 9. When any part of the mill is held by a married woman, her husband may in like manner represent her, and appear and act for her at such meeting, and his doings shall have the same effect as if they had been done by her before their intermarriage. SEC. 10. When any part of the mill is held by any person as tenant for life, or years, with remainder or reversion to another person, the sum due for repairs and other expenses on that part of the mill, shall be apportioned on the tenant for life or years, and on the remainderman, or reversioner, in proportion to their respective interests in the premises, or as shall be equitable and just; and the party to whom the money shall be due from such remainder-man or reversioner, shall have a lien on the rents and profits belonging to him after his estate shall come into possession, if not sooner paid, notwithstanding any limitation by lapse of time. SEC. 11. Every mortgagee in possession shall be considered as a mortgagor, how proprietor for all the purposes of this chapter, but the mortgagor shall also be liable for all sums so due on account of his share of the mill, so far as the same are not recovered of the mortgagee, provided the action therefor is brought against the mortgagor, before his right of redemption is foreclosed; and all sums paid by the mortgagee on such account, shall be considered and allowed between him and the mortgagor, as so much added to the mortgage. How moneys advanced may be collected. SEC. 12. All sums due from one proprietor to another, for moneys advanced under the provisions of this chapter, may be recovered in an action of assumpsit; and when two or more proprietors are so indebted, the creditor or creditors may maintain a bill in chancery against any two or more of them, in which suit the court shall determine what amount is due from each of the debtors severally, and shall award execution against each of them accordingly, and shall ap TITLE XXIV. CHAPTER 133. portion the amount so recovered, among the complainants in such suit if more than one, according to their respective rights. SEC. 13. Nothing in this chapter shall make void, or in any way Contracts beaffect, any contract or agreement between the proprietors of any mill, tors not affected as to the repair or rebuilding thereof. tween proprie by this chapter. weigh grain, lect or refusal. SEC. 14. Every miller, occupying and using a grist mill, shall be Miller to keep provided with scales and weights, or a vibrating steel-yard, to weigh scales, &c.. and corn, grain, flour and meal, delivered at and taken from the mill, if flour, &c. Forrequired; and if he shall neglect to keep himself so provided, or feiture for neg shall refuse so to weigh corn, grain, flour or meal. when required by any person delivering or taking away the same, he shall forfeit for each neglect or refusal, not less than one dollar, nor more than five dollars. Rates of Toll for Grinding. SEC. 15. The toll for grinding and bolting any wheat, rye, or oth- Rates of toll. er grain, shall not exceed one-tenth part thereof; for grinding, and not bolting, any wheat, rye, or other grain, except Indian corn, the toll shall not exceed one-twelfth part thereof; and for grinding, and not bolting, Indian corn, the toll shall not exceed one-tenth part thereof. mill. SEC. 16. The owner or occupier of any grist mill, shall well and Duty of owner sufficiently grind the grain brought to his mill for that purpose in due or occupant of time, and in the order in which it shall be received, and shall be accountable for the safe keeping of all grain received in such mill for the purpose of being ground therein, and shall deliver the same when ground, or ground and bolted, as the case may be, with the bag or cask in which it was brought, when demanded, but every owner or occupant of a mill may grind his own grain at any time. ler in certain ca SEC. 17. Nothing contained in the last section shall be so construed Construction of as to charge the owner or occupant of any mill, for the loss of last section. any grain, bag or cask, which shall happen by fire or inevitable accident, without the fault of such owner or occupant, his agents or servants. SEC. 18. Every miller, or owner or occupant of a grist mill, who Liability of milshall not well and sufficiently grind any grain as aforesaid, or not in ses. due time as the same shall be brought, or who shall exact or take more toll than is herein allowed, shall, in every such case be liable to the party injured in the sum of five dollars damages, over and above the actual damages sustained thereby. CHAPTER 133. PROCEEDINGS TO COMPEL THE DELIVERY OF BOOKS AND PAPERS BY alty. Pen SECTION 1. Whenever any person shall be removed from office, or Books and papers the term for which he shall have been elected or appointed shall ex- to be delivered to pire, he shall, on demand, deliver over to his successor all the books successor. and papers in his custody as such officer, or in any way appertaining to his office, and every person violating this provision shall be deemed guilty of a misdemeanor. TITLE XXIV. CHAPTER 133. Complaint by successors. Delivery, how enforced. Officer to inquire into complaint. Affidavit of delivery of books and papers. When person committed. SEC. 2. If any person shall refuse or neglect to deliver over to his successor, any books or papers, as required in the preceding section, such successor may make complaint thereof to any judge of a court of record, or to any circuit court commissioner for the county where the person so refusing shall reside. SEC. 3. If such officer be satisfied by the oath of the complainant, and such other testimony as may be offered, that any such books or papers are withheld, he shall grant an order, directing the person so refusing to show cause before him, within some short and reasonable time, why he should not be compelled to deliver the same. SEC. 4. At the time so appointed, or at any other time to which the matter may be adjourned, upon due proof being made of the service of such order, such officer shall proceed to inquire into the matters set forth in the complaint. SEC. 5. If the person charged with withholding such books and papers, shall make affidavit before such officer, that he has truly delivered over to his successor, all such books and papers in his custody, or appertaining to his office, within his knowledge, all further proceedings before such officer shall cease, and the person complained against shall be discharged. SEC. 6. If the person complained against shall not make such afficharged may be davit, and it shall appear that any such books or papers are withheld, the officer before whom such proceedings shall be had, shall, by warrant, commit the person so withholding, to the jail of the county, there to remain until he shall deliver such books and papers or be otherwise discharged according to law. Search warrant when to be issued. Proceedings thereupon. Books and pa pers, how obtained when officer dies, &c. SEC. 7. In the case stated in the last section, if required by the complainant, such officer shall also issue his warrant directed to the sheriff or any constable of the county, commanding them in the day time, to search such places as shall be designated in such warrant, for such books and papers as belonged to the officer so removed, or whose term of office expired, in his official capacity, and which appertained to such office, and seize and bring them before the officer issuing such warrant. SEC. 8. Upon any books or papers being brought before such officer, by virtue of such warrant, he shall inquire and examine whether the same appertain to the office, from which the officer so refusing to deliver, was removed, or of which the term expired, and if the same pertain to such office he shall cause them to be delivered to the complainant. SEC. 9. If any person appointed or elected to any office, shall die, or his office shall in any way become vacant, and any books or papers belonging or appertaining to such office, shall come to the hands of any person, the successor in any such office may, in like manner as herein before prescribed, demand such books or papers from the person having the same in his possession; and if withheld, an order may be obtained, and the person charged may in like manner make affidavit of the delivery of all such books and papers that ever came to his possession; and in case of omission to make such affidavit, and to deliver up the books and papers so demanded, such person may be committed to jail, and a search warrant may be issued, and the property seized may be delivered to the complainant, as herein before prescribed. |