ter his appoint- aforesaid, shall become vacant by death, resignation, or otherwise, during the ment, and con- recess of the legislature, the governor shall fill the same: Provided also, That nothing in this act shall be so construed as to exonerate the proprietors of the town of Columbus, from any responsibility of their original tinue in office one year; pro viso as to vacancies, &c. Power and du ty of the direc tor defined. Authorized to remove nuisan ces; may cut contract. 2. That it shall be the duty of the said director, to superintend the erection of the public buildings, in the town of Columbus, agreeably to the plans laid down by the late director, except in his opinion, alterations are necessary in the internal arrangement of said buildings, in which case he is hereby authorized to direct the same, in such manner as he shall judge most likely to answer the purpose for which such buildings are erected; and in all things to see that the said public buildings are composed, in all their parts, of proper materials, and built in a good and workmanlike manner; and he is hereby authorized and required, to object to any materials, not of proper quality, or any work not of the description aforementioned; and if the director shall perform, or cause to be performed, for his own private advantage, any part of the above work, he shall, on conviction thereof, forfeit the amount of his penal bond. § 3. That it shall be the duty of the director, for the time being, to prevent and abate all nuisances, either in the streets or public squares of said town, and dispose of by digging for brick-yards, or any other purpose, and to preserve from trespass all wood and timber, the property of the state, within the said town, and to cut and dispose of such part as he may deem proper for the use of the state, and annually account for the proceeds of the same. timber. To make report to the next legislature. His compensation and how paid, See O. L. c. 810. Tickets made negotiable. Holders of tickets may sue and recover from the managers after the be had. 4. That it shall be the duty of the director to make a report of his proceedings, and of the progress made in the erection of said buildings, whether in his opinion the same is composed of good materials, and built in a workmanlike manner, to the next legislature, within twenty days after the commencement of its session. 5. That the director shall be entitled to receive for his services, at the rate of six hundred dollars per annum, for all the time he may be engaged in discharging the duties of his office, payable quarter-yearly on the certificate of the governor, that the services have been performed, being presented to the auditor, who is hereby authorized to issue bills for the same, payable at the office of the treasurer of the state. [Passed, January 28, 1813.] CHAP. CCXCV.-An act supplementary to the several acts, for raising money by way of lottery. 1. Be it enacted, &c. That all lottery tickets heretofore issued by the authority of this state, or which may be hereafter issued by the same authority, shall be deemed so far negotiable, as that every bona fide bearer thereof, shall be authorized to demand, sue for, and recover, in his own name, any prize which may be drawn to such ticket, without using in such demand or suit, the name of the original purchaser of such ticket. 2. That if in any case of lotteries heretofore allowed by the laws of this state, tickets should [shall] have issued, and the time or times limited by law within which the drawing of such lottery ought to have been had and completed, should [shall] have expired without such drawing having been had drawing should and completed, it shall be competent for the bona fide holder of such ticket, to demand, sue for, and recover of the managers of such lottery in an action of assumpsit, the original price of such ticket together with interest thereon, from and after the time of demand made, in his own name, without suing therefor, in the name of the original purchaser of said ticket; and at the trial of such action such ticket shall be competent evidence to be introduced: Provided, That if the first purchaser of such ticket shall have given his note therefor, to the managers of such lottery, and shall not have paid such note, the managers shall be entitled to such relief in equity, against such first purchaser or subsequent purchaser of such ticket, having notice of the premises, as the nature and circumstances of the case may require. [Passed, January 8, 1813.] Repealed, Feb ruary 16, 1816, CHAP. CCXCVI.—An act declaring streets in towns public highways.* Be it enacted, &c. That all streets and alleys in towns laid out, or which may hereafter be laid out in this state, pursuant to the laws thereof, shall *See Q. L. c. 186, 254 be and they are hereby declared to be, so far public highways, that any person Streets deobstructing or fencing in any such streets or alleys of such town, shall be clared public subject to the same fines and penalties, and recoverable in the same manner highways; penas fines and penalties are now imposed and recovered for obstructing public alty for obstructing the roads and highways: Provided however, That the keeping open and in repair such streets and alleys, shall not exempt the citizens of any town from the ordinary labor required to be performed on the other public highways in their townships by such citizens. [Passed, January 29, 1813.] CHAP. CCXCVII.—An act to prevent the keeping of billiard tables. Be it enacted, &c. That if any person or persons shall keep, or procure to be kept, any billiard table, or billiard tables in his or their house, outhouse or other building, the person or persons so procuring or keeping, such table or tables, shall for every such offence, on conviction, by presentment or indictment of the grand jury of the county, be fined in the sum of one hundred dollars, for the use of the county where such offence is committed; and it shall be the duty of the presiding judges of the several courts of common pleas in this state, to give this act specially in charge to the grand jury, attending their respective courts. This act to take effect and be in force, from and after the first day of April next. [Passed, January 29, 1813.] same. Repealed, O. CHAP. CCXCVIII.-An act for the encouragement of volunteers in the northwestern army Obsolete; see of the United States. next act. Whereas, in consequence of the lamentable disaster, which has happened to Preamble. that part of the northwestern army of the United States, lately under the command of general James Winchester, it becomes indispensably necessary that prompt and efficient measures should be adopted, to carry on the expedition contemplated by the army under the command of general William H. Harrison; and whereas, it may be impracticable to recruit and organize an adequate corps of the militia of this state, at so early a period as to reinforce the northwestern army, prior to the expiration of the term of service of the brigades under the command of general Tupper and general Perkins; and notwithstanding their valor and patriotism, yet considering the privations and sufferings those men have endured, it is unreasonable to expect or require of them to continue in service, after the expiration of the term aforesaid, without making them an additional compensation-therefore, in service on 1. Be it enacted, &c. That in case the term of service of any of the Bounty of militia of this state, now under the command of general William H. Harrison, twelve dollars should expire prior to his receiving a sufficient reinforcement, he is hereby per month to be authorized to accept their services for any longer period not exceeding two given to the 0months; and provided the whole or any part of such militia shall volunteer, hio militia, now and subject themselves to the orders of the commander-in-chief of the north- conditions. western army, to perform such services as he may require of them, a bounty at the rate of twelve dollars per month, shall be paid out of the treasury of this state, to each noncommissioned officer, musician and private of the militia of this state, now in the service of the United States, who shall volunteer and continue in the service aforesaid, in their respective corps; and the bounty so allowed, shall be apportioned and paid to such volunteers, for, and according to the time they shall respectively continue to serve after the expiration of their present term of service. 2. That a sum not exceeding forty thousand dollars is hereby appropri- Forty thousand ated, to be paid out of any money in the treasury of this state, not otherwise dollars approappropriated, for the payment of any noncommissioned officers, musicians or priated for that privates, who may serve as volunteers, agreeably to the provisions of the first purpose. section of this act; and the paymaster of any detachment of such volunteers, shall be entitled to receive bills from the auditor of public accounts, payable at the treasury; and the auditor is hereby required to issue the same, on such paymaster producing to him the pay-rolls of any such detachment, duly certified by the commander-in-chief of the northwestern army. [Passed, February 2, 1813.] CHAP. CCXCIX.-An act to raise for a limited time an efficient military force.* 1. Be it enacted, &c. That if any number of the militia of this state, sufficient to form a company, to consist of from fifty to eighty shall volunteer Obsolete. Manner of electing officers. See preceding act. Time of rendezvous; equipments; term of service. Repealed, Feb- tors, to be selected annually for traverse jurors; twelve to be sum moned to each court; their compensation; by whom paid. Proviso. their services and enrol themselves, they are hereby authorized to choose, by ballot, officers for said company at such time and place as a majority of such company shall agree upon; and when assembled for that purpose, shall choose three judges of the election, and one clerk, by a plurality of votes present; and the judges and clerk shall be duly sworn, and immediately proceed to receive the votes of the persons so enrolled, shall make out and certify a proper poll-book and return of such election; the person having the highest number of votes shall be declared duly elected; and the certificate of the judges and clerk shall be a sufficient authority for such person to take command according to his rank; and in like manner, when a sufficient number of companies shall so volunteer, to form a battalion and associate themselves together, the company officers, so elected, shall choose, in like manner, their major; and if two battalions shall volunteer and associate together, the company officers and majors shall, in like manner, elect their colonel; and if two regiments shall volunteer and associate together, the field and company officers shall, in like manner, elect their brigadier-general. 2. That if any company, battalion, regiment or brigade, shall so volunteer and enrol themselves, and assemble at the places of rendezvous, to be pointed out by the governor, with sufficient clothing, blankets and knapsacks, by the twentieth day of February, eighteen hundred and thirteen, ready to march, and shall march, with all convenient speed, to the headquarters of the northwestern army of the United States, or to such other place as the commander thereof shall direct, and report themselves to the commander-in-chief of said army, and shall continue to serve, under his command, for the term of three months, unless by him sooner discharged; each person so enrolling himself, and serving as aforesaid, when legally discharged, shall be credited for a full tour of duty: Provided, That nothing in this act contained, shall be so construed, as to exonerate any person from serving on the present call of the militia, if legally thereto required. [Passed, February 5, 1813.] CHAP. CCC.-An act to amend the act, reducing into one, the several acts organizing the judicial courts, defining their powers and regulating their practice.* 1. Be it enacted, &c. That hereafter there shall be but forty-eight traverse jurors, having the qualification of electors, annually selected for each county, twelve of whom only shall be summoned to attend at each court, which jurors shall be selected, drawn and summoned in the manner prescribed by the one hundred and fourteenth section of the act to which this is an amendment; and when any pressure of business shall require two juries, the supreme court and courts of common pleas may issue their venire to the sheriff or other officer to return a jury of bystanders, having the qualifications aforesaid; and each juror shall receive fifty cents for each cause in which he shall be empanneled and sworn, which shall be paid by the party prevailing, into the hands of the clerk of the court upon return of the verdict, or on the jury being discharged from the further consideration of the cause by the party whose neglect shall be the cause of such discharge: Provided, That no verdict shall be received and recorded until the jury fee shall have been paid. Plaintiff may 2. That the plaintiff shall not, in any action instituted by capias ad not be ruled to respondendum, be ruled to declare until special bail be filed and perfected, declare until (unless the sum [same] be waived) or the defendant be in custody; but the special bail plaintiff may waive his right to special bail, by filing a declaration in chief, in filed; rules as which case the defendant shall be considered as being in court; or he may file to declaring, a declaration de bene esse, and take a double rule on the defendant for bail &c. in such and plea; and if the plaintiff in any case do not declare either in chief or de case. bene esse on the same note, bond, contract or cause of action, as that stated in the writ, in the endorsement on the writ, or in the affidavit to hold to bail, but on a different one from any stated as aforesaid, the writ may for such cause be abated, and as well the bail to the sheriff as the bail to the action, shall thereupon be discharged; and if such plaintiff declare as well on the same note, bond, contract or cause of action, as on a different one (being such as by the rules of law may be joined in the same suit) the said defendant shall be admitted on common bail, and his bail to the sheriff and special bail to the action shall thereupon be discharged. Parties allowed 3. That in all cases where a nonsuit may be directed by the court of to appear or ex- common pleas, by reason of irrelevancy of testimony, or by reason that the See O. L. c. 243. testimony adduced does not support the case set forth in the declaration, but cept to the a different one; and also whenever the testimony shall be arrested from the opinion of the jury, by reason of which the plaintiff becomes nonsuit,* the plaintiff shall court in cases have the same right to appeal as in other cases; and either party shall also where a nonsuit is directed by have the right to except to the opinion of the court on a motion to direct a the court. nonsuit, to arrest the testimony from the jury; and also in all cases of motions for a new trial by reason of any supposed misdirection of the court to the jury, or by reason that such verdict may be supposed to be against law, so that such case may be removed by writ of error. 4. That when a party to a suit in any court of common pleas within Bills of excepthis state, alleges an exception to any order or judgment of such court, it tions to be shall be the duty of the judges of such court, concurring in such order or signed and judgment, if required by such party, during the term to sign and seal a bill, sealed by the containing such exception or exceptions as heretofore, in order that such bill of exceptions may, if such party desire it, be made a part of the record in such suit, if the same suit should be taken by writ of error to a superior court. court. 5. That the process of attachment specified in the fifty-third section of Writs of atthe act to which this is an amendment, shall not be sued out unless the de- tachment regulated. fendant in such suit, at the time of the commencement of such suit, have a settlement in, or be an inhabitant of the county in which such suit is commenced; and if at the return term of such writ or process of attachment, the said defendant do not effect his actual appearance in court, the court shall cause reasonable notice, by advertisement or otherwise, of the pendency of such suit, and the proceedings shall thereupon be suspended and continued until the next term of such court; and it shall be competent for such defendant to plead to and defend such suit while his goods and chattels, lands or tenements are in custody of the sheriff or other officer, by virtue of such attachment in the same way he would be entitled to do if special bail had been filed and perfected. 6. Whereas it has been doubted, how far the process, proceeding or Proceedings in judgment in attachment, founded either on the said section or on the act attachment allowing and regulating writs of attachment, † may be impeached collaterally, may be collator by any person who may not have had a day in court, to be heard in such erally impeached. case: Therefore, for the removing of such doubts-Be it further enacted, That any person, in any suit or proceeding, founded upon, or in which it may be necessary to show any such process, proceeding or judgment, may be permitted collaterally to impeach the same, and to show any irregularity therein, or any deviation from the authority conveyed by the said fifty-third section, or by the aboverecited act; and at any time while such suit in attachment remains in court undecided, it shall be competent for any officer of the court to suggest any irregularity in such proceeding, either appearing on the face of the proceedings, or shown to the court by affidavit: whereupon, if such irregularity sufficiently appear to the court, such suit or proceeding shall be quashed. may be taken. 7. That no sheriff or other officer shall be liable to be called upon to Rules on a produce the body of any defendant on a capias ad respondendum, returned sheriff when to 'cepi corpus,' unless he be required so to do within six months after the return of such writ; and if on such rule he shall not bring in the body, he may be amerced in the manner prescribed by the act to which this is an amendment. 8. That it shall be lawful for any sheriff or other officer, to take a judgment bond from any defendant or defendants, with such security as he deem sufficient for the redelivery of personal property, taken in execution by such officer; and if such defendant or defendants do not discharge such execution, or deliver the property according to the condition of such bond, and if in consequence of not returning the money on such execution due, the said officer should be amerced by the court, it shall be lawful for the court to which such execution is made returnable, to render on such bond a judgment against the said defendant or defendants, and his, her, or their security for the benefit of said officer, and thereupon execution may be issued as in other cases. Sheriff may take a judgment bond for the delivery of property taken in execution. 9. That whenever any justice of the peace or other person, who now Recognizances is, or hereafter may be authorized so to do, shall return to the court of common taken and repleas any recognizance, a memorandum thereof shall be entered in the minute turned by jusbook of the court; whereupon, the same shall be considered as of record in tices of the Before the enactment of this law the supreme court had uniformly held, that no appeal could be taken from a judgment of nonsuit. (Reed vs. Carpenter, 2 O. R. 87.) + See O. L. c. 225. peace, how proceeded on. clerk in each such court, and may be proceeded on by process issuing out of said court, in the same manner as if such recognizance had been entered into in such court; and the same recognizance shall be made out and recorded in full in the book of records of said court, in the same manner as recognizances taken in such court. Proceedings in 10. That whenever any suit shall be finally determined, the clerk of the suits to be re- court shall, during the next vacation, enter the indictments, presentments, decorded by the claration, pleadings, recognizances, proceedings and judgment in each cause, so as to make a complete record thereof, in a separate book to be kept for that purpose, which record shall be examined, (and corrected if need be) and signed by the presiding judge at or before the next court for the same county, as of the day when such judgment was rendered; and the clerk shall insert in the beginning of said book, a complete alphabetical index of all the records in said book, as they may from time to time be made out. vacation and signed by the presiding judge. Power of com- 11. That any court of common pleas, to which any execution is made mon pleas over returnable by order of the supreme court, shall have the same power, on moexecutions from tion and good cause shown, to suspend further proceedings therein, as they supreme court; would have, had such execution issued from such court of common pleas : proviso. Provided, That such power shall not be construed to extend further than to stay such proceedings until the matter can be further heard by such supreme court. Duty of the supreme court on writs of error or appeals. Bail in criminal cases. 12. That when judgment shall be rendered by the supreme court, in any case brought before them by writ of error, in which errors in law may have been assigned; or in any case brought before them by appeal, or by any writ issued from such supreme court, in which there may have been an issue in law upon demurrer or demurrer to evidence, or in which there may have been a verdict, and then a motion in arrest of judgment, or for a new trial, founded on a supposed misdirection of the court to the jury, on the improper admission of testimony, or the irrelevancy of testimony, or upon any allegation that such verdict is against law; it shall be the duty of the court to reduce the reasons of their judgment to writing, and cause the same to be filed with the other papers of such cause; and if it should so happen that the judges of said court, should differ in opinion, then the dissenting judge shall also reduce the reasons of his opinion to writing, and the same shall be filed as aforesaid. 13. That whenever an indictment shall be found against any person not in custody, for an offence not capital, the court in which such indictment shall be found shall direct in what sum the party accused shall give bail for his appearance in court; and the clerk shall endorse the same on the capias or warrant which may, in such case issue, (unless the writ be a bench warrant or capias returnable forthwith.) And if any person be arrested on such capias or warrant, and shall offer to the sheriff good and sufficient bail for his appearance at court, the sheriff shall take a bond of such person, with sufficient surety, in the sum endorsed on the capias or warrant. Proceedings on 14. That whenever a person who has been, or hereafter may be, charged writ of error in with and convicted of an indictable offence, before any court of common pleas criminal cases; in this state, takes the record of such conviction, and of the judgment thereon supreme court rendered, to the supreme court by writ of error, but fails to obtain a reversal may affirm the of such judgment, if, in such judgment a day be fixed for the infliction of any judgment and prescribed punishment, such supreme court is hereby authorized and required appoint any other day for in rendering their judgment of affirmance, if such day so appointed by the inflicting the court of common pleas for the infliction of such punishment, be elapsed or inpunishment; convenient, to appoint for such purpose, any other day, or at the election of on allowance of such supreme court in their mandate to the court of common pleas, to direct a writ of error such court of common pleas to appoint any other day therefor: and in all the judge or cases, where a writ of error is allowed in favor of any criminal found guilty court may con- on indictment before any court of common pleas, the judge or court allowing tinue the crim- such writ of error, is hereby directed to cause such criminal to be continued in inal in prison, jail, notwithstanding the allowance of such writ of error, if in the opinion of or let to bail at such judge or court, the enlargement of such criminal would be unsafe or improper; but if such enlargement should be directed by such judge or court, until the trial of the alleged error, (bond, signed by such criminal, with approved security, being given as in other cases) and if on the trial, such criminal should not personally appear, it shall, nevertheless, be competent for such supreme court to render judgment against such criminal, notwithstanding his absence whereupon, proceedings may be had against such security. their discretion; conditions of the bond which is to be given. |