TITLE 3. certaining the amount to be recovered, in the same manner as if such debts were outstanding and unpaid, as prescribed in the two last sections.

Remedy in equity

$42. The heirs of any person who may be liable to any creditor against heirs. of such person, in consequence of lands having descended to them, shall be prosecuted jointly in a court of equity, but shall not be liable to any suit in a court of law.

Not to be de

layed by

S43. Suits against heirs or devisees shall not be delayed, nor shall their infancy. the remedy of the plaintiffs be suspended, by reason of the infancy of any such heir or devisee; but guardians, to defend their rights in such suits, shall be appointed, as in other cases. 10

Bills to specify estate descended.

Defence to bill.

Value of lands descended.

When debt

to be levied of them.

Preferenco of decree.

heir.

$44. In any bill filed against heirs to charge them on account of any lands and tenements or hereditaments descended to them, the complainant shall specify with convenient certainty, the real estate so descended.

$45. In such suit, any heir may show that at the time of the commencement thereof, he had nothing by descent, or that he had not sufficient to satisfy the complainant's demand.11

any

$ 46. If it that appears lands or tenements have descended to such heir, the court shall inquire and ascertain the value thereof, either by reference to a master or by awarding an issue for that purpose.

$47. If it appear that the lands, tenements or hereditaments so descended, were not aliened by such heir, at the time of the commencement of the suit; or if the heir confess the action, and show what lands, tenements or hereditaments have descended to him; the court shall decree that the debt of the plaintiff, or the proportion thereof which he is entitled to recover, shall be levied of such real estate so descended; and not otherwise. 12

$ 48. Every final decree rendered in such suit, shall have preference as a lien on the real estate descended, to any judgment or decree obtained against such heir personally, for any debt or demand in his own right.

Alienation by $49. When it shall appear, in any such suit, that before the commencement thereof, any such heir has aliened the lands, tenements or hereditaments descended to him, or any part thereof, he shall be personally liable for the value of the estate so aliened, and judgment shall be rendered therefor, and execution awarded, as in suits for his own debts. 12

Defence by

heir.

$50. In such cases, the preference herein before declared, in respect to demands against the ancestor of such heir, shall apply, and such heir may show the same matters herein before allowed, and the same proceedings and judgment shall be had thereon.

(10) 1 R. L. p. 318, § 6. (11) Ib. p. 317, § 4. (12) Ib. § 2.

$51. But no lands, tenements or hereditaments, aliened in good faith by any heir, before any suit commenced against him, shall be liable to execution, or in any manner affected by a decree against such ed. heir. 13

ART. 2.

Land alien

recoveries.

$ 52. In suits brought against several heirs jointly, or several de- Apportioning visees jointly, the amount which the plaintiff shall be entitled to recover, shall be apportioned among all the heirs of the ancestor, or among all the devisees of the testator, in proportion to the value of the real estate descended to such heirs, or devised to such devisees, respectively, as the case may be, and such proportion only shall be recovered of each heir, or of each legatee.

$53. The costs of such suit shall be apportioned among the seve- Form of deral defendants, in proportion to the debt or damages recovered against cree, &c. each of them; the decree shall express the amount recovered against each defendant for debt, or damages and costs, and the execution issued thereon, shall conform to such decree.

against infant

$54. When a decree shall be rendered against any heirs or devi- Decrees sees who are infants, no execution issued thereon shall be executed heirs. against them, until the expiration of one year after the rendition of such decree; but such execution may be executed against any defendants in the same suit, who were of full age.

executions.

S55. The solicitor issuing an execution, in every such case, shall Directions on endorse thereon the names of the defendants who are infants, and shall direct the sheriff not to execute the same against such infants, until the time specified in the last section.

devisees.

$56. Devisees made liable by the foregoing provisions, to the cre- Liability of ditors of their testator, shall not be so liable, unless it shall appear that his personal assets, and the real estate of the testator descended to his heirs, were insufficient to discharge such debt; or unless it shall appear that after due proceedings before the proper surrogate, and at law, the creditor has been unable to recover such debt, or some part thereof, from the personal representatives of the testator, or from his next of kin, or legatees, or from his heirs.

$57. In either of the cases specified in the last section, the amount I of the deficiency of the personal assets, and of the real estate descended, to satisfy the debt of the plaintiff, and the amount which such plaintiff may have failed to recover from the personal representatives of the testator, his next of kin, legatees and heirs, may be recovered of the devisees of such testator, to the extent of the real estate devised to them respectively.

$58. But the two last sections shall not impair or affect the lia- Ib. qualified. bility of devisees, for any debt of their testator, where such debt was by his will expressly charged exclusively upon the real estate devis

(13) 1 R. L. p. 317, § 2.

TITLE 3 ed; or made payable exclusively by such devisee, by the terms of the will; or made payable out of the estate devised, before resorting to the personal estate or to any other real estate descended or devised. $59. It shall be incumbent on the creditor seeking to charge any devisees, to show, on the trial, the facts and circumstances herein required to render them liable.

Proof of liability.

Provisions

extended to devisees.

Alienation

of land devised.

Child born

after will

made.

Ib.

Distribution, &c.compell

ed.

Contribution by devisees.

$60. The provisions herein contained, with regard to heirs, and to proceedings by and against them, and to decrees and executions against them, shall be applicable to suits and proceedings against devisees, who shall, in like manner, be sued jointly.

$61. Devisees shall be liable, in the same manner and to the same extent, as heirs, notwithstanding they may have aliened the real estate devised, before suit brought against them; but no real estate aliened in good faith by any devisee, before the commencement of a suit against him, shall be liable to execution upon, or in any manner affected by, a decree against such devisee.14

$62. In cases where, by the provisions of any statute, a child born after the making of a will, shall be entitled to succeed to a portion of the testator's real and personal estate, such child shall have the same rights and remedies to compel a distribution of the personal estate, and a partition of the real estate, as are provided by law for next of kin and for heirs; and shall in all respects be liable, in the same manner and to the same extent, to the creditors of his ancestor, in respect to the personal property delivered to him, and the real estate descended to him, as are herein prescribed in relation to next of kin and heirs.

$63. Such child shall be authorised to recover of the legatees who may have received any property or effects of the testator, the portion of such property or effects to which he may be entitled, by an action of replevin, or of trover or assumpsit, as the case may require; and shall also be entitled to recover of the devisees of any real estate under the will of the testator, such portion of such real estate as shall belong to him.

$64. In cases where a distribution of such personal estate shall not have been made by the surrogate, to any such child born after the making of a will, the court of chancery shall have power to compel the same; and the said court shall have power also to compel just and equal contribution by the legatees under such will, to make up the portion of personal property to which such child shall be entitled.

$65. The court of chancery shall also have power to compel partition between the devisees of any real estate, and such child so entitled to a portion of such real estate, so as to enforce a just and proportionate contribution by each devisee.

(14) 1 R. L. p 317, § 5.

$66. The foregoing provisions relative to a child born after the ART. 1. making of a will, shall apply equally in all respects to every person witnesses to who, being a witness to a will, shall be entitled by the provisions of wills, &c. any statute, to recover any portion of the personal or real estate of the testator, from the legatees and devisees named in such will.

TITLE IV.

OF PROCEEDINGS BY AND AGAINST CORPORATIONS, AND PUBLIC
BODIES HAVING CERTAIN CORPORATE POWERS, AND BY AND
AGAINST OFFICERS REPRESENTING THEM.

ART. 1. Of proceedings by and against corporations, in courts of law.

ART. 2. Of proceedings against corporations, in equity.

ART. 3.-Of the voluntary dissolution of corporations.

ART. 4. Of proceedings by and against public bodies, having certain corporate powers, and by and against the officers representing them.

ARTICLE FIRST.

Of Proceedings by and against Corporations, in Courts of

Law.

SEC. 1. Foreign corporations may sue, on giving security.

2. Except actions founded on violations of our own statutes.
3. When existence of domestic corporation, to be proved.

4. Process against corporations, teste, return, &c.

5. How to be served.

6. Appearance of defendants when to be entered.

7. Declaration may be for cause accruing after teste of process.
8. In certain cases, judgment may be applied for at first term.

9. Judgment to be rendered unless good defence appear.

10. When immediate reference to be ordered.

11. Issues of fact and of law to have preference in trials and arguments.

12. Rate of damages to be recovered against banks.

13. In pleading, not necessary to set forth acts of incorporation, &c.

14. Mistake in naming a corporation, how waived.

15. Suits against foreign corporations, may be by attachment.

16. By whom to be issued; its contents.

17. Proof necessary to sustain application.

18. What vouchers to be produced in certain cases.

19. One witness necessary to establish damages.

20. Bond to secure costs to be given, where filed.

21. General powers and duties of sheriff on the attachment.

22 & 23. Certain provisions of law concerning absent debtors, to apply.

24. Proceedings on judgment for plaintiff.

25. Proceedings when judgment is for defendants.

26. Double costs and damages for vexatious suits.

27. When defendants may appear and defend.

28. When they may apply for discharge of attachment.

29. Bond to be given; its penalty and condition.

30. Apportioning defendants' property among several plaintiffs.

$1. A foreign corporation created by the laws of any other state

Suit by fo

rations.

or country, may, upon giving security for the payment of the costs of reign corpor suit, prosecute in the courts of this state, in the same manner as corporations created under the laws of this state.

$ 2. But where, by the laws of this state, any act is forbidden to be Exceptions. done by any corporation or by any association of individuals, without

TITLE 4. express authority by law, and such act shall have been done by a fo

Proof of domestic corporation.

Process

against them.

How served.

Proceedings thereon.

Declaration.

Judgment at

first term, &c.

1b. defence on merits.

reign corporation, it shall not be authorised to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or made or entered into, in consideration of, such act.

$3. In suits brought by a corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause, the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar, that the plaintiffs are not a corporation.

S4. The first process for the commencement of a suit against a corporation, shall be a summons, except in those cases where a scire facias or other process is allowed by law; and such process, and all other writs and process against corporations, may be issued and tested on any day in term, and may be made returnable on any day in the same, or the next succeeding term, in the same manner as process issued against individuals may be issued, tested and returned.15

$5. Writs of summons and other process for the commencement of a suit against a corporation, may be served on the return day of such process, or previous thereto, on the presiding officer, the cashier, the secretary, or the treasurer thereof; and if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner, as the court in which the suit is brought, may direct. 16

$6. When such process shall have been returned duly served, the appearance of the corporation shall be entered, and the plaintiff shall proceed thereupon in such suit, in the same manner as in personal actions against natural persons. 17

S7. In every such action, the plaintiff may declare on a cause of action which arose previous to the commencement of the suit, although the same may have arisen after the teste of the process by which the action was commenced. 18

$8. In any such action founded upon a note or other evidence of debt, for the absolute payment of money on demand, or at any parti cular time, if it shall appear that the first process together with a copy of the declaration was served at least twenty days before the return of such process, the plaintiff may file a declaration in such suit on such return day, or on any subsequent day in the same term, and may ap ply for judgment. 19

$9. On such application, the court shall render judgment for the plaintiff as by default, either interlocutory or final, or both, as the case may require; unless it shall satisfactorily appear to such court,

(15) Laws of 1817, p. 21, § 1. (16) Ib. § 2. (17) Ib. § 3. (18) Ib. § 4. (19) Laws of 1825, p. 449, § 4.