TITLE XXV. CHAPTER 136.

not necessary.

SEC. 15. But when such corporation shall appear by counsel pursuant to the notice above authorized to be given, and shall be heard When summons in opposition to granting such leave, the court or justice granting leave, may also direct a rule to be entered, requiring the defendants to appear and plead to such information, within twenty days after service of a copy thereof, and notice of said rule; and in such case it shall not be necessary to issue a writ of summons.

Proceedings on return of sum

mons.

Rule for appear.

ance.

Publication, &c.

Information against several persons.

Enlarging time to plead, &c.

Judgment on conviction.

Court may impose a fine, &c.

Judgments

tions.

SEC. 16. Whenever any writ of summons, issued upon an information in the nature of a quo warranto, shall be returned duly served, the attorney general may thereupon enter a rule, in vacation or in term, requiring the defendants to plead to the information filed against them in twenty days after service of a copy thereof; and the same shall be served in the same manner, and with like effect, as rules upon declarations in personal actions.

SEC. 17. Whenever any such writ shall be returned not served by reason of the defendants, or the officers of the defendants not being found within the county, the court shall direct a rule to be entered, requiring the defendant, whether an individual or a corporation, to appear and plead to such information, within twenty days after the last publication of such rule as hereinafter provided.

SEC. 18. A certified copy of such rule shall be published for four weeks successively, in such paper as the court may direct; and if the defendant shall not appear and plead to such information, within the time limited in the rule, the plaintiff shall be entitled, upon filing an affidavit of the due publication of such rule, to enter the default of the defendant, in like manner as if the writ had been duly served.

SEC. 19. When several persons claim to be entitled to the same office or franchise, one information may be filed against all such persons, in order to try their respective rights to such office or franchise. SEC. 20. An order may be made enlarging the time to plead or demur, upon an information in the nature of a quo warranto, by the supreme court, or by a justice thereof; but by no other person.

SEC. 21. Whenever any defendant, whether a natural person or a corporation, against whom an information in the nature of a quo warranto shall have been exhibited, shall be found or adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any of fice, franchise or privilege, judgment shall be rendered that such defendant be ousted, and altogether excluded from such office, franchise or privilege; and also, that the attorney general, or the relator, if there be one, recover his costs against such defendant.

SEC. 22. The court may also, in its discretion, impose a fine upon any such person or corporation against whom such judgment shall be rendered, not exceeding two thousand dollars; which fine, when collected, shall be paid to the state treasurer, and shall by him be distributed and paid to the several county treasurers to the credit of the several library fuuds, in the same proportions that the income of the primary school fund was apportioned to the several counties, at the then last apportionment of such school moneys.

SEC. 23. Whenever it shall be found or adjudged that any corporaagainst corpora- tion against which an information in the nature of a quo warranto shall have been filed, has, by any mis-user, non-user, or surrender, forfeited its corporate rights, privileges and franchises, judgment shall be rendered that such corporation be ousted and altogether excluded from such corporate rights, privileges and franchises, and that the said corporation be dissolved.

CHAPTER 137,

SEC. 24. If judgment be rendered upon any such information TITLE XXV. against any corporation, or against any persons claiming to be a corporation, the court may cause the costs therein to be collected, by ex- Collection of ecution against the persons claiming to be a corporation, or by attach- 12 Wend., 277. ment against the directors or other officers of any such corporation.

costs.

having equity ju

SEC. 25. Whenever any such judgment shall be rendered, any Powers of courts court having equity jurisdiction shall have the same powers to restrain risdiction. the corporation against which it is rendered; to appoint a receiver of its property and effects; and to take an account and make distribution thereof among its creditors, as in case of the voluntary dissolution of a corporation; and it shall be the duty of the attorney general, immediately after the rendering of any such judgment, to institute proceedings for that purpose in said court.

&c.

SEC. 26. Whenever any such judgment shall be rendered against a Record of judg corporation, a copy of the record of such judgment shall be forthwith ment to be filed, filed in the office of the secretary of state; and such secretary shall forthwith cause notice of the substance and effect of such recovery to be published for four successive weeks in some newspaper printed at the seat of government, and in a newspaper printed in the county where the principal office or place of business of such corporation shall be, if a newspaper be there printed.

forfeited proper

SEC. 27. Whenever, by the provisions of law, any property, real or Informations for personal, shall be forfeited to the people of this state, or to any officers, ty. for their use, an information for the recovery of such property, alleging the grounds of such forfeiture, may be filed by the attorney general in the circuit court; upon which the like proceedings and judgment shall be had, if the information be to recover personal property, as in actions of trover, and if to recover real property, as in actions of ejectment.

CHAPTER 137.

OF WRITS OF MANDAMUS AND PROHIBITION.

writ of manda

mus.

SECTION 1. Whenever any writ of mandamus shall be issued out Return to first of the supreme court of this state, the person, body or tribunal, to whom the same shall be directed and delivered, shall make return to the first writ of mandamus; and for a neglect so to do, shall be proceeded against as for a contempt.

SEC. 2. Whenever a return shall be made to any such writ, the per- Pleadings and son prosecuting the same may demur or plead to all or any of the proceedings. material facts contained in the said return, and the like proceedings shall be had thereon for the determination thereof, as might have been had if the person prosecuting such writ had brought his action on the case for a false return.

SEC. 3. Issues of fact joined in any such proceeding, shall be tried Trial of issues of in the county within which the material facts contained in the manda- fact.

mus shall be alleged to have taken place.

SEC. 4. In case a verdict shall be found for the person suing such Damages, &c. writ, or if judgment be given for him upon demurrer, or by default,

he shall recover damages and costs, in like manner as he might have

TITLE XXV. done in such action on the case as aforesaid; and a peremptory mandamus shall be granted to him without delay.

CHAPTER 137.

Recovery to bar another action.

Time for return.

Court may im

tain cases.

SEC. 5. A recovery of damages by virtue of this chapter, against any party who shall have made a return to a writ of mandamus, shall be a bar to any other action against the same party for the making of such return.

SEC. 6. The supreme court, or any justice thereof, shall have the same power to enlarge the time for making a return, and pleading thereto, as in personal actions.

SEC. 7. Whenever a peremptory mandamus shall be directed to any pose fine in cer public officer, body or board, commanding them to perform any public duty, specially enjoined upon them by any provisions of law, if it shall appear to the court that such officer, or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the court may impose a fine not exceeding two hundred and fifty dollars, upon every such officer, or member of such body or board, which fine, when collected, shall be paid to the state treasurer, and be by him distributed and paid to the several county treasurers, in the manner and for the purpose specified in the twentysecond section of the last preceding chapter.

Payment of fine

SEC. 8. The payment of such fine shall be a bar to any action for to bar action for any penalty incurred by such officer, or member of such body or penalty. board, by reason of his refusal or neglect to perform the duty so enjoined.

Writs of prohibi tion.

Service and return.

Proceedings when party adopts return.

Proceedings if re

SEC. 9. Writs of prohibition shall only be issued out of the supreme court; and such writs shall be applied for upon affidavits, by motion, in the same manner as writs of mandamus; and if the cause shown shall appear to the court to be sufficient, a writ shall be thereupon issued, which shall command the court and party to whom it shall be directed, to desist and refrain from any further proceedings in the suit or matter specified therein, until the next term of the said supreme court, and the further order of such court thereon; and then to show cause why they should not be absolutely restrained from any further proceedings in such suit or matter.

SEC. 10. Such writ shall be served upon the court and party to whom it shall be directed, in the same manner as a writ of mandamus; and a return shall in like manner be made thereto by such court, which may be enforced by attachment.

SEC. 11. If the party to whom such writ of prohibition shall have been directed, shall, by an instrument in writing, to be signed by him, and annexed to such return, adopt the same return, and rely upon the matters therein contained, as sufficient cause why such court should not be restrained as mentioned in the said writ, such party shall thenceforth be deemed the defendant in such matter, and the person prosecuting such writ may take issue or demur to the matters so relied upon by such defendant; and the like proceedings shall be had for the trial of issues of law or fact joined between the parties, and for the rendering of judgment thereupon, as in personal actions.

SEC. 12. If the party to whom such writ of prohibition shall be diturn not adopted, rected, shall not adopt such return as above provided, the party prosecuting such writ shall bring on the argument of such return as upon a rule to show cause; and he may, by his own affidavit, and other proofs, controvert the matters set forth in such return.

Judgment if return not adopted.

SEC. 13. The court, after hearing the proofs and allegations of the

parties, shall render judgment, either that a prohibition absolute, restraining the said court and party from proceeding in such suit or matter, do issue, or a writ of consultation, authorizing the court and party to proceed in the suit or matter in question.

TITLE XXV.

CHAPTER 138.

turn adopted.

SEC. 14. If the party to whom such first writ of prohibition shall Judgment if rebe directed, shall adopt the return of the court thereto as above provided, and judgment shall be rendered for the party prosecuting such writ, a prohibition absolute shall be issued; but if judgment be given against such party, a writ of consultation shall be issued as above provided.

CHAPTER 138.

WRITS OF ERROR AND CERTIORARI.

SECTION 1. Writs of error in civil and criminal cases, upon any final judgment or determination, may issue of course, out of the su- Writs of error preme court, in vacation as well as in term, and shall be returnable may issue of to the same court.

course.

9 Wend., 34.

SEC. 2. No writ of error shall operate to stay or supersede the execution in any civil action, unless the plaintiff in error, with two suffi- Not to stay procient sureties, or three sufficient sureties without the plaintiff in error, cond given. ceedings unless shall give bond to the defendant in error, with condition that the plain- 1 Mass., 156. tiff in error shall prosecute his writ to effect, and shall pay and satisfy such judgment as shall be rendered against him thereon.

determined, &c.

SEC. 3. The sufficiency of the sureties, and the sum for which the bond shall be given, shall be determined in each case, by any justice sufficiency of of the supreme court, or circuit court commissioner; but the penalty sureties, by whom of such bond shall not be less than double the amount of the judgment upon which the writ of error is brought, if such judgment be against the plaintiff in error, nor in any case less than one hundred dollars.

&c.

SEC. 4. The bond, if any be given, shall be filed in the office of the clerk of the court in which the judgment was rendered at the time Bond to be filed, of serving the writ on such clerk, and notice thereof shall be given and notice given, to the defendant in error, or his attorney, and no execution shall thereafter be issued upon the judgment complained of, during the pendency of the writ of error; and if any execution shall have been issued, all further proceedings thereon shall be stayed, upon the officer holding such execution being served with a certificate of the service of such writ, and the filing of such bond, signed by the clerk with whom such bond shall be filed.

8 Mass., 383.

SEC. 5. The proceedings upon writs of error, as to the assignment Proceedings on of errors, and as to the appearance of the defendant in error, and writs of error. the pleadings, judgment, and all other matters not herein provided 16 do 384. for, shall be according to the course of the common law, as modified by the practice and usage in this state, and such general rules as shall be made by the supreme court.

SEC. 6. No writ of error upon a judgment of conviction for trea- Allowance of son, or for murder in the first degree, shall issue, unless allowed by writ in certain one of the justices of the supreme. court, after notice given to the attorney general.

cases.

TITLE XXV.

CHAPTER 138.

When writ not to delay execu tion, &c. without order for stay.

Further order, &c.

Within what

time writ to be brought.

In case of disability.

In case of death of party.

Writ not to issue

SEC. 7. Writs of error upon judgments in all other criminal cases, shall issue of course, but they shall not stay or delay the execution of the judgment or sentence, unless they shall be allowed by one of the justices of the supreme court, with an express order thereon for a stay of proceedings on the judgment or sentence.

SEC. 8. When a stay of proceedings shall be ordered, as provided in the preceding section, the justice may, at the time of making such order, make such further order as the case may require, for the custody of the plaintiff in error, or for letting him to bail; or the party may, upon a writ of habeas corpus, procure his enlargement upon giving bail, if entitled thereto.

SEC. 9. All writs of error upon any judgment or final determination, rendered in any cause, in any court of law, and of record in this state, shall be brought within two years after the rendering of such judgment or final determination, and not after, except in the cases specified in the two next sections.

SEC. 10. If any person against whom any such judgment shall be rendered, or final determination made, shall be at the time, either, 1. Within the age of twenty-one years: or,

2. Insane: or,

3. Imprisoned on any criminal charge, or in execution upon some conviction of a criminal offence, for any term less than for life: or, 4. A married woman:

The time during which such disability shall continue, shall not be deemed any portion of the time above limited for bringing a writ of error; but such person may bring such writ after the time so limited, and within two years after such disability shall be removed.

SEC. 11. If the person entitled to bring such writ shall die, during the continuance of any disability specified in the preceding section, his heirs, devisees, executors or administrators entitled to bring such writ, may bring the same after the time herein limited for that purpose, and within two years after such death.

SEC. 12. But the existence of any disability specified in the preafter five years. ceding sections, shall not authorize the bringing of a writ of error upon any judgment after the expiration of five years from the time of rendering the same.

SEC. 13. If an action of debt, or a writ of scire facias, be brought on any judgment, a writ of error to reverse the judgment may be sued out at any time within two years after the bringing of such action of debt or writ of scire facias.

Writ of Certiorari.

SEC. 14. All writs of certiorari to correct errors in proceedings that are not according to the course of the common law, shall be issued out of and be made returnable to the supreme court, according to the practice heretofore established, and subject to such regulations as shall from time to time be made by the general rules of the supreme court.

SEC. 15. Writs of certiorari may be allowed by any justice of the supreme court, or circuit court commissioner.

SEC. 16. No such writ of certiorari shall be issued, to correct any proceedings, unless such writ be brought within the same time after such proceedings shall have been had, as is limited by this chapter for bringing a writ of error upon a judgment.