Louisiana Anthology

ACTS
PASSED AT THE
FIRST SESSION
OF THE
LEGISLATIVE COUNCIL
OF THE
Territory of Orleans,

BEGUN AND HELD AT THE PRINCIPAL, IN THE CITY OF NEW-ORLEANS, ON MONDAY THE THIRD DAY OF DECEMBER, IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND FOUR, AND OF THE INDEPENDENCE OF THE UNITED STATES THE TWENTY-NINTH.

Published by Authority.



NEW-ORLEANS :

PRINTED BY JAMES M. BRADFORD, PRINTER TO THE TERRITORY.

1805.

10

CHAPTER IV.

AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That all lands, tenements, houses, ships, vessels, or slaves, or Duties on articles sold at auction. any interest therein, which shall, after the expiration of ten days from 12 the passing of this act, be sold at public auction or vendue, within this territory, by any auctioneer duly authorized and appointed as before directed, shall be subject to a duty of one dollar for every hundred dollars; and all other effects and articles whatever to a duty of two dollars for every hundred dollars of the value or price at which the same shall be sold as aforesaid; and at and after the same rate for every greater or less sum, to be paid by the person who shall sell the same.

Sec. 3. And be it further enacted, That no person so to be appointed an auctioneer by virtue of this Auctioneer to enter into recognizance. act, shall enter upon the execution of his office until he shall have entered into a recognizance to the government of this territory, with two sufficient freeholders as sureties, in the sum of seven thousand five hundred dollars each, conditioned for the faithful performance of his duty as auctioneer towards all persons who shall employ him as such, and also for the payment of the duty herein before mentioned; and also that such person shall in all things faithfully conform himself to the directions of this act, according to the true intent and meaning thereof, which recognizance shall be taken by any one of the judges of this territory, and by him retained until the appointment of a treasurer as aforesaid.

Sec. 4. And be it further enacted, That every auctioneer, duly appointed and authorized by virtue of this To render account of goods sold. act, who shall hereafter sell any goods or chattels, lands or tenements at public auction or vendue, 14 shall, within twenty days after the expiration of every three months, the first three months to be computed from the date of his recognizance, render a full and true account in writing, subscribed by him, to the treasurer of this territory, of all sales by him made, as aforesaid, from the time of his entering into the said recognizance, or the time that the last account was rendered by him, as aforesaid, the amount of all such sales; and shall thereupon take, before one of the judges of the said territory, the following oath: “I ——— do solemnly swear To take oath. (or affirm) that the account now exhibited by me, and to which I have subscribed my name, contains a full and true account of all sales made by me, subject to duty by law, within the time mentioned in the said account.” And every such auctioneer shall within ten days after the rendering of such account and taking the said oath, pay the amount of duty upon such amount of sales to the treasurer of this territory.

Sec. 5. And be it further enacted, That if any auctioneer shall neglect to render his Penalty on failure to render account. account, or to pay the money due from him to the treasurer for the duties accruing, according to law, such delinquent auctioneer shall be deemed to have forfeited his commission, and shall be thereafter disqualified from acting under the same. And every person so neglecting, either to render his account, or to pay within the time herein prescribed, shall also for every such offence, forfeit seven hundred and fifty dollars, which forfeiture the treasurer shall cause to be sued for and recovered in the name, and for the 16 use of the government of this territory, in any court of record having cognizance thereof.

Sec. 6. And be it further enacted, That every person who shall sell any effects, goods or chattels, lands Penalty for selling without being authorized. or tenements, by way of public auction or vendue, without being previously appointed under this act, and without having entered into the recognizance aforesaid, shall forfeit the sum of five hundred dollars for every such offence, to be recovered in manner aforesaid.

Sec. 7. And be it further enacted, That all goods and chattels, lands and tenements, which may be hereafter Goods exempt from duty. seized by any public officer for, or on account of any forfeiture or penalty, goods and effects of deceased persons, or effects distrained for rent or taken in execution, or damaged goods sold for the account of the concerned, and the goods of insolvent debtors, shall in no wise be subject to, but are hereby exempted and declared free from the duty aforesaid.

Sec. 8. And be it further enacted, That all goods and chattels, lands and tenements sold at any auction store, whether at public or private sale, shall be subject to the duty before mentioned, and that no person Goods subject to duty. shall expose to sale at public auction or vendue any effects on which a duty is laid as aforesaid, as a deputy to any auctioneer, to be appointed as aforesaid, under the penalty of five hundred dollars for each offence, to be recovered as aforesaid. Provided always, that any auctioneer may employ 18 his partner in trade, or one of his Proviso. clerks, to hold such auction or vendue, in case of sickness or inability, he being always responsible for the acts of such clerks or partner, and liable to all the penalties accruing from their mal-conduct.

Sec. 9. And be it further enacted, That the auctioneers’ commissions shall be after the following Auctioneers’ commission. rates: — On the sale of real estates, ships or vessels, and slaves, one per centum, and on all other effects two and one half per centum, on the value or price at which the same shall be sold, as aforesaid; and that any auctioneer who shall receive or accept of any higher or further reward for his services, in the sale of any effects whatsoever, shall forfeit the sum of five hundred dollars for every such offence, to be recovered as aforesaid.

Sec. 10. And be it further enacted, That it shall not be lawful for either of the said auctioneers, No real estate or slave to be sold, without a certificate of being free from mortgage. &c. after the passing of this act, to proceed to the sale of any slave or real estate whatever, without producing at the time thereof from the office of registered mortgages, now kept by Peter Pedesclaux, a certificate, stating whether there be any hypothecations of the said property so offered for sale, and if any, to what amount.

Sec. 11. And be it further enacted, That in case either of the said auctioneers shall proceed to any Penalty for selling without license. such sale, without complying with the directions contained in the preceding section, he shall be liable to a penalty of five hundred dollars for each offence, to be recovered by the purchaser 20 at such sale, in any court having cognizance of that amount.

Sec. 12. And be it further enacted, That it shall be the duty of each of the said auctioneers, Auctioneer to give purchaser a memorandum. immediately after such sale, to deliver to the purchaser, a memorandum of the sale and purchase, designating the object and day, so that such purchaser may cause the same to be registered according to law, in the said office within six days thereafter.

J. POYDRAS, 
President of the Council.

WILLIAM C. C. CLAIBORNE,
Governor of the Territory of Orleans.

42

CHAP. XI.
AN ACT

Sec. 1 B

Sec. 2. And be it further enacted, That until such provision be made by law, it shall also be lawful for the said court to sentence any person, Court may inflict fines. upon his conviction for a lesser offence, to the payment of such fine, as the court may in its discretion think proper, not exceeding five hundred dollars; and in default of payment thereof, such prisoner shall remain in custody in the said prison for such term or time, not exceeding one year, as the said court may at the same time adjudge.

44

CHAPTER XII.

AN ACT

Sec. 1. B

Sec. 2. And be it further enacted by the authority aforesaid, That there shall be the Officers. following officers for the said city: that is to say, one mayor, one recorder, fourteen aldermen, one treasurer, and as many other 48 subordinate officers, not herein mentioned, for preserving the peace and well-ordering the affairs of the said city, as the city council shall direct.

Sec. 3. And be it further enacted, That the person administering the government Governor to appoint mayor and recorder. of this territory, shall within ten days after passing this act, nominate and appoint out of the inhabitants of the said city, who shall have resided at least two years therein, the said mayor and recorder, who shall hold their offices respectively for one year, and until others shall be appointed and sworn in their stead; and the said mayor and recorder shall be appointed at the expiration of every year, in manner aforesaid.

Sec. 4. And be it further enacted, That on the first Monday in March next, Inhabitants to elect aldermen. the inhabitants of the said city, who shall be qualified as voters, in the manner herein after directed, shall assemble at such place as the present mayor and municipality of the city shall direct, in their respective wards; and shall then and there elect by ballot, two discreet inhabitants of such ward, being free-holders therein, as aldermen to represent the said ward in the city council; and that the said mayor and municipality shall also appoint or recommend two inspectors of the said election, and one clerk for each of the said wards. Manner of election. That it shall be the duty of the clerk to record in a book kept for that purpose, the name of each voter; and that the inspectors shall receive the ballots as they are given in, and deposit the same, without examination, in a ballot box, of which one of them shall keep the 50 key — that the said election shall be kept open from the hour of nine in the morning until five in the afternoon of the said day; and that the said inspectors, in the presence of such voters as may choose to remain, shall proceed immediately to open and count the said ballots, and the two persons having the greater number of votes then given, shall be declared to be the duly elected aldermen of the said ward; and a certificate of such election, signed by the said inspectors, and attested by the clerk, shall be delivered to each of the persons so chosen; and a copy thereof signed, together with a Clerk holding election, to transmit list of persons elected to clerk of the city council. list of the voters, shall also be sent to the mayor of the said city, who shall immediately publish a list of the persons elected in the different wards, and shall transmit the said list to the clerk of the city council on the first day of their meeting after the said election.

Sec. 5. And be it further enacted, That the aldermen so chosen as aforesaid, Aldermen to form a council. shall form a council, to be called the city council, of which the recorder for the time being shall ex-officio be president, but shall have no vote except a casting vote, unless at Of which the recorder is to be president. such time as the said council shall resolve itself into a committee of the whole, and that in case of vacancy in the office of recorder, or of his absence or inability, the said council shall chuse one of their members as president pro tempore, and that the aldermen so elected shall take their seats in the said council, at the city hall of the said city, on the second Monday in March next, and shall continue 52 in office, the one half until the second Monday in March in the year 1806, or until other members shall be chosen in their place, and the other half until the second Monday in March in the year 1807, in the manner following, that is to say: the said council shall, within three months after their Council to divide wards into classes. first meeting, divide by lot each ward into two classes, to be designated the first and second class, and that the time of service - of those of the first class, shall expire on the second Monday in March, 1806; and the time of service of the second class on the second Monday in March, 1807; so that in every ward there shall forever hereafter be an annual election for one of the two aldermen representing the same, who shall hold his office for two years, or until another alderman shall be legally chosen and sworn.

Sec. 6. And be it further enacted, That a majority of the said council shall To appoint their own officers. constitute a quorum, and be judges of the election of their own members, shall chuse by ballot their own clerk, door-keeper and other officers. They shall meet at least once in every month for the dispatch of business; and shall, on the third Monday in March in every year appoint a fit and discreet free-holder of the said city, to be the treasurer thereof, who Treasurer to give security. shall before he enters on the duties of his office, give bond in the penalty of twenty thousand dollars, with two sufficient securities, to the satisfaction of the said council, conditioned for the faithful performance of the duties of the said office; which treasurer shall continue in office for one year, or during 54 the pleasure of the said council, and until another be appointed and sworn. — And that the said council shall have power Powers of the council. to make, and pass all by-laws, and ordinances for the better government of the affairs of the said corporation; for regulating the police and preserving the peace and good order of the said city; and that all ordinances or by-laws, after having passed the said council, shall be transmitted to the mayor for his consideration, who, if he shall approve thereof, shall sign and return the same to the said council, and such by-law or ordinance shall thereupon have the force of a law. But if the said mayor shall disapprove the said by-law or ordinance, he shall within The Mayor. five days return the same to the council, with his objections in writing; and if two thirds of the members then present in the said council, shall agree to the said law, notwithstang such objection, then, but not otherwise, the said by-law or ordinance, shall have the force of a law: Proviso. Provided always, that if the mayor shall not return any by-law or ordinance transmitted to him by the council, within five days after it shall have been received by him, then he shall be deemed to have approved of the same, and it shall pass into a law: Provided also, that no by-law or ordinance, to be passed by the said mayor and city council, shall have any force or effect, which is contrary to this charter — to any provisions of the constitution of the United States, or the laws of the territory. Mayor & council may levy a tax. And the said mayor and city council shall have power to raise by tax, in such manner as to them may seem proper, 56 upon the real and personal estate, within the said city, such sum or sums of money as may be necessary to supply any deficiency for the lighting, cleaning, paving and watering the streets of the said city; for supporting the city watch, the levee of the river, the prisons, work-houses and other public buildings, and for such other purposes as the police and good government of the said city may require: Proviso. Provided, that no real property within the limits of the said city, and not situated in that part thereof, which shall at the time of imposing such tax be laid out into streets, shall be taxed for the maintenance of lights, of the city watch, or for watering or cleansing the said streets: And provided further, that the said mayor and council shall not have power to regulate the price of any other kind of provisions than bread; or the price of merchandize brought or imported into the said city, or of the growth or manufacture of the same; nor to tax butchers or bakers, nor carts or drays, otherwise than for the licenses herein after provided for.

Sec. 7. And be further enacted by the authority aforesaid, That the mayor, Mayor, recorder and aldermen to take oath. recorder, and each of the aldermen appointed by virtue of this act, and also all subordinate officers to be appointed under the same, shall, before they enter upon the duties of their said offices, respectively take and subscribe an oath, to perform the duties thereof according to the best of their knowledge and ability; which oath shall be taken by the said mayor before the governor, or such 58 person as he may appoint, and by the other officers respectively before the said mayor.

Sec. 8. And be it further enacted, That in case of the death, sickness, absence, In case of death, &c. of mayor, his duties to devolve on the recorder. inability, removal or resignation of the mayor, the duties of the said office shall be executed by the recorder, during such vacancy or absence, who shall be during such time entitled to receive all the emoluments annexed to the said office of mayor; and that while the recorder shall perform the functions of mayor, the city council if in session, shall elect a president pro tempore, in the manner herein before directed. And that as often as any vacancy shall happen in Vacancies in city council, how filled. the city council, it shall be lawful for the person performing the functions of mayor, to direct an election in the ward to supply such vacancy, in which the same may happen, for the time for which the member whose death, resignation or incapacity to serve caused such vacancy, would have been entitled to serve; which election shall be held in such manner, as is herein before directed for the annual election in the several wards.

Sec. 9. And be it further enacted, That after the second Monday in March next, Council to appoint inspectors of election. the council shall ten days at least before every election for aldermen, appoint the inspectors and clerks to superintend the same; and that all elections shall be held, certified and returned in the manner prescribed by the fourth section of this act; and that no person shall vote for an alderman at any Qualification of voters. election, who shall not be a free white male inhabitant of the said city, and have resided 60 at least one year therein, and who at the time of such election and for six months previous thereto, shall have been a free-holder, possessing and owning a real estate, worth at least five hundred dollars, or renting a household tenement of the yearly value of one hundred dollars; and that if any doubts shall arise at any such election, relative to the qualification of any voter, it shall be lawful for the said inspectors to examine him upon oath, as to his right to vote at such election.

Sec. 10. And be it further enacted, That it shall be the duty of the treasurer Duty of the treasurer. of the said city to receive and pay all monies belonging to the said corporation, to keep regular accounts of their real and personal property, to collect the rents, dues and demands belonging thereto, once in every year, at such time as shall be directed by the said mayor and city council; to publish an account of the receipts and expenditures of the said treasury — Provided, that no payments be made by the said treasurer, unless the same be authorised by a warrant drawn by the person exercising the functions of mayor, in pursuance of an order of the city council.

Sec. 11. And be it further enacted, That the mayor shall have a seal, to be called Mayor to have a seal. the seal of the mayoralty of the said city; which shall be affixed to all proper official acts of the corporation; that he shall have power May appoint officers. by his warrant to appoint all measurers, weighers, gaugers, marshals, constables, wharfingers, scavengers, and other officers, and ministers, which shall be directed by 62 any ordinance of the said council; and shall license all taverns and boarding houses, And issue licenses. hackney coaches, or other carriages for the conveyance of persons for hire, and all carts and drays for the carriage of goods, or other articles for hire, subject however to such restrictions as the said mayor and city council shall by ordinance direct. And that any persons selling spirituous liquors by retail, keeping a boarding or lodging house for hire, driving or owning any coach or carriage for the conveyance of persons for hire, Penalty for acting without license. or any cart or dray, or other carriage, for the conveyance of any goods or articles for hire, within the said city, without such license from the said mayor, shall for every such offence, forfeit the sum of ten dollars, to be recovered in any court having cognizance thereof, one half to the use of the said mayor, aldermen and inhabitants, and the other half to the use of any person who shall sue for the same. And the said mayor shall be entitled to receive for Perquisites of the Mayor. every warrant by him issued to any officer, and for every license by him granted, the sum of two dollars and a half, and also shall receive such additional recompense for his services, as the city council shall direct.

Mayor and recorder to be justices of the peace. The mayor and recorder of the said city for the time being, shall be ex officio justices of the peace. The said mayor shall superintend the police of the said city, and Mayor to superintend the police. make regulations for the watchmen and city guard; he shall take care that the laws of the said corporation be duly executed; he shall call meetings of the council whenever the affairs of the city shall require it. And no 64 order or resolution of the city council for the disposal of any public property, or the payment of any monies, shall, have any force No ordinance to have force without the approbation of the Mayor. if the same be objected to within twenty-four hours after the passing thereof, by the mayor, unless two thirds of the said council agree to pass the same, notwithstanding such objections. And for that purpose all such resolutions shall be sent by the said council to the mayor, immediately after the same be shall passed.

Sec. 12. And be it further enacted, That no members of the said city council, Titles to the former city property confirmed. shall be appointed to any employment or office under the said corporation, which shall have been created, or the emoluments whereof shall have been increased by the council during the time for which he shall have been elected.

Sec. 13. And be it further enacted, That the estates, whether real or personal, Aldermen cannot hold offices under the corporation. the rights, dues, debts, claims, or property whatsoever, which heretofore belonged to the city of New-Orleans, or was held for its use by the cabildo under the Spanish government; the municipality after the transfer of the province in the year 1803, to France, or the munipality now existing, which has been legally alienated, or lost, or barred, shall be vested in the said mayor, aldermen and inhabitants to be enjoyed, received, collected and sued by them and their successors forever.

Sec. 14. And be it further enacted, That all the legal ordinances of the present Ordinances now in force to continue until altered or repealed. municipality of the city of New-Orleans not incompatible with this charter, which shall be 66 in force on the second Monday in March next, shall be, and remain in force until the same shall be repealed, or altered by the said mayor or city council. And that all the powers at present vested in the mayor and municipality, of the said city, shall continue to be vested in them, until the said second Monday in March next.

Sec. 15. And be it further enacted, That the first ward shall comprehend all Boundaries of the wards. that portion of the said city, within the following bounds, to wit: beginning at the river Mississippi where the street Orleans, if extended would strike the same, and following the centre of that street to its intersection with Bourbon street, then along the same to the canal of Bernard Marigny, then along that canal to the river, and up the river to the point of beginning: — The second ward shall comprehend all that portion of the said city, within the following boundaries: beginning at the river Mississippi, where the street of Orleans, if extended would strike the same, and following the centre of that street to its intersection with Bourbon street, then along the same southwardly to the old ramparts of the city, and from thence by a straight line to the river, and down the same to the point of beginning: — The third ward shall comprehend all that portion of the said city, within the following boundaries, beginning at the point where the streets of Bourbon and Orleans intersect, and running along the said street of Orleans to the old ramparts of the city, then following the line of the said ramparts, to the canal of Marigny, and along the same to the limits of the first 68 ward, and including also, the settlements of bayou St. John, Lameterie, Jentily and Chef Menteur: — The fourth ward shall be bounded by a line running from the point of intersection of Bourbon and Orleans streets, along the said street of Orleans, to the old ramparts of the city, then following the said ramparts southwardly and eastwardly, until it strikes the limits of the second ward: — The fifth ward shall comprehend all that portion of the said city, within the following boundaries, beginning at the point where the southwardly line of the second and fouth wards strike the Mississippi, then along that line to its western extremity, and from thence in a direct line to the plantation of Madame Delor Sarpy, and along the line of the said plantation to the river, and down the river to the point of beginning: — The sixth ward shall comprehend all that portion of the said city, known by the name of the Upper Banlieu: — And the seventh ward, shall comprehend all that portion of the said city, known under the name of the Lower Banlieu.

Sec. 16. And be it further enacted, That it shall be lawful for the said mayor Duty of mayor and city council. and city council, to cause common sewers, drains, canals, pavements and bridges to be built, and constructed in every part of the said city, and to order and direct the pitching, filling and opening, widening and continuing any of the streets thereof; and if for such purpose, the ground of any person or body corporate is necessary to be had, the Mode of opening streets. said city council, shall endeavor to purchase the same at a reasonable price; and if they 70 cannot agree with the proprietor or propritors thereof, or the guardians of minors, or if married women, with them and their husbands, then it shall be lawful for one of the judges of the superior court, at the request of the mayor or recorder, to issue a precept to the person charged with the service of writs from the said superior court, directing him to impannel a jury to appear in the said court, at a period not less than three weeks from the time of issuing such precept, to enquire and assess the damages and recompence due to the owner or owners of such ground, and at the same time to summon the owner or owners of such ground, or his or their legal agent or representative, by notice in writing to be left at his or their usual place of abode, to appear before the said court at the day and place in such precept to be specified; which jury being first duly sworn, faithfully and impartially to enquire, to assess such damages and recompense, as they shall, under the circumstances, judge fit to be awarded and adjudged to the owner or owners, of said ground for their respective losses, according to their several interests and estates therein, and the verdict of the said jury and the judgment of the said court thereon, and the payment of the sum of money so awarded and adjudged to the owner or owners, or tender and refusal thereof, shall be conclusive and binding upon the said owner or owners, his or their heirs, executors, administrators or assigns, claiming any estate therein, and the said ground shall therefrom 72 become city property, subject to the purposes for which it may be required!

Sec. 17. And be it further enacted, That all monies paid for the purchases of City to pay for ground over which a street is opened. ground bought as aforesaid, or the payment of the assessment therein mentioned, as well as the charges of opening, pitching, paving and regulating such street, and the expences for the construction of common sewers, drains, canals, pavements, and bridges, shall be paid by the said mayor or city council, out of the city funds.

Sec. 18. And be it further enacted, That the recorder of the said city, shall Salary of recorder. be paid out of the funds thereof, the yearly salary of one thousand dollars.

Sec. 19. And be it further enacted, That the legislature of this territory shall Legislature may amend this act at pleasure. always have power to alter or amend this charter whenever the same may be by them deemed proper.

120

CHAP. XXIII.
AN ACT

Sec. 1 B

Sec. 2. And be it further enacted, That no member of any volunteer company shall No volunteer can withdraw from his company. be at liberty to withdraw from the same without the consent of the commanding officer thereof, or of the governor of this territory; and no person who shall be expelled from any such company, shall ever thereafter be admitted therein, or into any other volunteer company of this territory.

Sec. 3. And be it further enacted, That the same provision which has been made for enforcing the By-laws. by-laws of the battalion of Orleans volunteers, shall be, and is hereby extended to all volunteer companies.

144

CHAPTER XXV.

AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That there shall be appointed in and Governor to appoint judges. for each of the said counties, one judge, who shall be a justice of the peace, and as many other justices of the peace as the governor shall from time to time commission and appoint, which judge and justices of the peace shall hold their offices for four years; and there shall likewise be appointed in and for each 152 county, and also shall have exclusive jurisdiction of all causes for personal wrongs or injuries to real or personal property, where the damages demanded do not exceed one hundred dollars.

Sec. 5. And be it further enacted, That the mode of proceeding in the said courts, Mode of proceeding in court. shall be by petition in writing, addressed to the court, stating the names of the parties, and the nature of the complaint, with the species of relief prayed for; that such petition shall be signed by the party presenting the same, or his attorney, and shall be delivered to the clerk of the said county, whose duty it shall be immediately to file the same, and endorse thereon a certificate, signed with his hand, of the day on which the same was filed, and at the request of the petitioner or his attorney; the said clerk shall also make a fair transcript of the said petition, together with a citation in the following form:

Mr. A. B.

You are hereby summoned to comply with the prayer of the annexed petition, or to file Form of citation. your answer thereto in writing, with the clerk of the county of              at his office, at              in              days after the service hereof, and if you fail herein, judgment will be given against you by default.

Witness, C. D. judge of the said court, this          day of              in the year of our Lord 18        

E. F. Clerk.

154 Which citation shall be sealed with the seal of the said courts respectively, and shall be signed by the clerk, and shall, together with the petition, be served by delivering a copy both in the French and English languages to the defendant. And if Proceedings when defendant fails to attend his citation. the party defendant shall not appear at the day appointed by the said petition, and either file his answer or obtain further time for doing the same, from the said judge, and lodge the order for that purpose in the clerk's office; then on application to the said court at the next term, and producing a certificate from the clerk, stating that the sheriff has returned the party duly summoned, and that no answer or order giving further time to answer is filed, the said court shall order judgment to be rendered for the petitioner, for the sum demanded in the said petition, if the same be for a sum certain, arising on contract, or if the prayer of the said petition be for damages, or for a sum which is not ascertained or liquidated, then the said court shall assign a day for assessing the said damages, and ascertaining the sum really due, and shall direct reasonable notice thereof to be given to the adverse party or his attorney, and on the day so appointed, the said court shall proceed to assess and ascertain the petitioner's damages, and shall give final judgment for the amount so assessed.

Sec. 6. And be it further enacted, That wherever any fact shall be alleged by the one party in his petition or answer, which is denied by the other, of the defendant in 156 Jury to find facts alleged in the petition of one party, and denied by the other. his answer, or the plaintiff by his petition, or by his writing lodged in the clerk’s office within three days after he shall have received notice of the defendant’s answer, shall demand that the truth of the fact so alleged and denied, shall be enquired of by a jury, Mode of selecting such jury. then it shall be the duty of the clerk to issue process, for summoning a jury of free white male persons, who are house keepers, and who shall have resided one year at least in the territory of Orleans, which jury shall be selected in such manner, as the said judge shall by rule of court direct, and shall be sworn to decide the question of fact so alleged and denied, and their verdict, a decision thereof, shall be unanimously given in open court, and shall be recorded by the Verdict to be conclusive, when recorded. clerk, and shall after being so given and recorded be conclusive between the parties, as to the fact thereby decided, and the court shall render judgment thereon: Provided always, That whenever Proviso any corruption or such misbehavior of the parties, or jurors shall be made to appear, as in the opinion of the court shall amount to evidence that impartial justice has not been done, or whenever new evidence material to the cause, shall be discovered after the said trial, which the party could Judge may grant a new trial. not by reasonable diligence have discovered before; in all those cases, as well where they or any of them occur in trials, where a jury is demanded, as in those which are tried by the judge, he may, if he thinks substantial justice has not been done, grant a new trial; 158 Provided, the same be applied for, within three days after the verdict shall have been recorded, or in judgment given in cases where the trial has been by the court. Court to decide on points of law. And the said court shall decide all points of law arising, as well on the said trial by jury, as in trials by the court; but either party who may be dissatisfied with such decision, may Bill of exceptions. reduce the evidence or other matter, on which such question of law shall arise to writing, together with the decision thereof, made by the said court, and may require, that the same be signed by the judge making such decision, whose duty it shall be, if such matter is truly stated, to sign the same, and the said paper so signed, shall be termed a bill of exceptions, and shall be annexed to the other proceedings in the cause, and form part of the record thereof.

Sec. 7. And be it further enacted, That whenever a petition shall be presented In what case attachment may issue. for the recovery of a debt due from a person, being about permanently to depart from the territory, before in the common course of proceeding judgment could be rendered and execution issue against him; or for the recovery of a debt due from a person residing out of the territory, or departed therefrom, or who conceals himself with intent to evade the payment of his debts, and such intent to depart, actual departure, residence abroad or concealment, together with the existence of the debt, shall be proved to the satisfaction of the judge, such judge shall direct the clerk to issue an attachment, which shall 160 be directed to the sheriff of the said county, and shall be in the following form:

The government of the territory of Orleans, to the sheriff of the county of Form thereof.              greeting: Whereas due proof hath been made before the judge of said county, by A. B. that C. D. is indebted to him in the sum of              and that the said C. D. (is about permanently to depart from the territory, or has departed from, or conceals himself, with intent to avoid the payment of his debts, as the case may be.) Now therefore you are commanded to seize, and take into your possession the goods and chattels, lands and tenements of the said C. D. in the said county, to an amount sufficient to secure the payment of the said sum, and that you give notice by leaving a copy of this writ, in the French and English languages, at the last place of abode of the said C. D. in the county aforesaid, and causing another such copy thereof to be put up at the church door of the parish in which he last resided. And in what manner you shall have executed this writ, you make return to the court of the said county, on the first Monday in              next, at             

Witness, E. F. judge of the said court, this              day of              in the year of our Lord one thousand eight hundred and              and in the              year of the independence of the United States.

G. H. Clk. 

162

And the sheriff shall proceed to execute the said writ in the manner therein directed, To be served by the sheriff. and shall make a particular return of all goods and chattels, lands or tenements, which he shall have attached or seized by virtue thereof, and on the return of the said writ, the court may proceed to hear and determine the claim of the said petitioner, first naming a defender for the debtor, if he be absent, or does not name an attorney; and the said court may in all cases of trial or attachment grant such delay in favor of an absent debtor, as to them may seem just: Provided always, That the defendant may How attachment may be stayed. at any time before trial on an attachment supercede the same by proving to the satisfaction of the judge who issued the attachment, that the facts on which the same was founded, were not truly stated, or by giving bail to the satisfaction of the sheriff, to comply with such judgment as shall be rendered for the petitioner: Proviso. Provided however, That if any petitioner as aforesaid shall by oath satisfy the judge of the court wherein such petitioner brings his suit, of the truth of the facts stated in his petition, and shall further swear, that so far as he knows or believes the said defendant does not possess within the territory, sufficient property, if attached, to satisfy the judgment which the petitioner expects to obtain, and that the said oath is not made for the purpose of vexing and harrassing the defendant, but in order to secure the petitioner’s demand; such judge may direct the sheriff or coroner, as 164 the case may be, to arrest the person of the defendant, and confine him, until he shall give a bond with sufficient security resident in the territory, conditioned that the defendant shall not depart from the territory without leave of the court, or that in case of departure without such leave, he, the security, will be accountable and pay to the said sheriff or coroner, as the case may be, the amount of the final judgment, sentence or decree of the court; which said bond shall be assigned by the obligee to the petitioner; and if the condition thereof shall appear to be broken, it shall be the duty of the court to give judgment thereon against the security, for the amount of any judgment rendered against the defendant, he, the said security, having ten days previous notice in writing, of such intended motion: Proviso. Provided however, That every such defendant so directed to be arrested and his security, may be discharged from such arrest and bail, by proving to the satisfaction of the judge, that the facts stated by the petitioner in order to hold such defendant to bail are not true, or by placing in the hands of the sheriff or coroner, as the case may be, sufficient estate to satisfy the amount of the petitioner’s demand in case judgment shall be rendered against such defendant.

Sec. 8. And be it further enacted, That all judgments to be rendered in the said All judgments to be pronounced in open court. courts, shall be pronounced in open court, and shall be entered on the minutes of the 166 court by the clerk, and shall three days thereafter, if not set aside on a motion for a new trial, be signed by the judge pronouncing the same; and in case an appeal shall be demanded by either party, a certified copy of the said judgment shall be annexed to the bill, answer and other proceedings in the cause; and that it shall be the duty Clerk to keep a docket of judgments. of the clerks of the said courts, respectively, to keep a book, in which a docket or short note of all final judgments, for the payment of money, rendered by the said court shall be entered, which note shall contain the names of the persons against whom such judgment shall be rendered, alphabetically arranged, the names of the persons in whose favor the same may be rendered, the sum for which it is given, distinguishing the debt or damages from the costs, and the day on which such final judgment was signed, which entry shall be called the docket of the judgment, and all real property and slaves of the person against whom such judgment shall be signed and docketted in the courts, shall be bound and liable for the said debt and costs in whosoever hands the same may come for one year thereafter; and the said docket book shall be kept at the clerks’ offices respectively, And shew it to any person who may demand to see it. and the clerks shall examine and shew any entries therein to any person who demands the same; and when any judgment so docketed shall be discharged, and the same shall be made to appear either by the sheriff’s return of the execution, or by the acknowledgment of the 168 creditor taken before, and certified by the judge of the county court, in which the same may have been entered, or before a judge of the superior court; satisfaction shall be entered in the said docket book by writing opposite to the entry of the said judgment, in a column to be kept for that purpose; Form of satisfaction. “Satisfied the        day of              in the year one thousand eight hundred and       ” stating the day on which the entry is made, by which entry all liens upon the estate of the debtor shall be discharged.

Sec. 9. And be it further enacted, That no writ of execution upon any judgment No execution to issue until judgment is docketed. for the recovery of money in the said courts respectively, shall issue until such judgment be docketted in form aforesaid; and that all such writs shall be in the following form:

The government of the territory of Orleans, to the sheriff of the county of Form of a writ of Fieri Facias.              greeting: We command you that you demand from A. B. the sum of              which C. D. lately recovered by judgment, of the county court of the said county, and if he shall not pay the same in three days after demand, that then you cause the said sum to be made of the personal estate of the said A. B. except slaves, in the said county if sufficient personal estates can be found therein, but if sufficient personal estate of the said A. B. exclusive of slaves cannot be found therein, and then you cause the said sum to be made of the real estate and slaves of the said A. B. therein, whereof he was 170 owner on the        day of              in the year one thousand eight hundred and        (mentioning the day on which the judgment was docketted) into whose hand soever the same may have come; and that you have those monies before our said court, to render to the said C. D. for the judgment aforesaid, on the first Monday of              next (inserting the first day of the next term) together with this writ.

Witness E. F. judge of the said court, this        day of              (inserting the day on when said writ is sealed.)

And that when any such writ of execution to be called a writ of Fieri Facias, How to be executed. shall be delivered to the sheriff, he shall endorse thereon the day and hour on which the same shall be received by him, and the delivery of such writ shall bind and be a lien upon all personal property of the person against whom the same shall be directed, for three months thereafter, into whose hands soever the same may come, and it shall be Duty of sheriff on executing the writ. the duty of the sheriff on receiving such writ of Fieri Facias by himself or his deputy, to demand payment of the sum directed, to be levied, with the legal fees of the sheriff, to be specified in such demand, which demand shall be made in writing left at the usual place of abode of the party against whom the same is directed, and also shewing him or her the said writ, if the party can be found, and if the said sum with the fees, shall not be paid at the expiration of three days, including the day on which such 172 demand shall have been made, then the said sheriff shall seize so much personal property or in default thereof, of real estate and slaves of the debtor as may be sufficient (in the estimation of two discreet householders) to secure the payment of the sum directed to be levied, and shall cause a list of the articles so seized, to be given to the debtor if he may be found, or left at his usual place of abode, with a notice to him, to appear within three days, and name an appraiser of the property so seized; and if within the said term of three days, said debtor shall Property how valued when taken in execution. name an appraiser, the sheriff shall proceed to name another discreet householder of the county as an appraiser on his part, who shall be sworn to make a just and true appraisement of the property so seized; and the said two appraisers if they should happen to disagree, such umpire as they shall name to determine between them, he being also sworn in the like manner, shall make a valuation of the said property in writing, and shall deliver the same signed with their names to the sheriff: Provided, That if the party shall neglect to name an appraiser, the sheriff shall be, and is hereby authorised to name a discreet householder to act for How sold. him as aforesaid; and that after such seizure and appraisement, the sheriff shall keep the property so seized at his risque (except from fire or accidental death of slaves or animals seized) and shall advertise the same for sale at some public place in the said county, by putting up an advertisement 174 specifying the property, and the time and place of sale, at such public places in the said county, as the court shall by general rule direct; and it is hereby made the duty of the judge, at their first term, to enter such rule for the government of the sheriffs in this respect; and that all personal estate shall be advertised for the space of fifteen, and all real estate for the space of thirty-five days; and on the day so appointed, if the monies directed to be levied by such execution, and all legal charges shall not be paid, the sheriff shall proceed to sell the property so seized to the highest bidder for cash, or on such terms of credit as the creditor may by writing under his hand direct: Provided always, That without the debtor’s consent expressed in writing, no sale What sales to be invalid. shall be valid unless the sum bid for the property so seized shall amount to at least two thirds of the appraised value, but the said property shall in such case be exposed to public sale at a time to be designated and advertised as aforesaid by the said sheriff, not less than ten days for personal, nor less then thirty days for real estate or slaves from the time of the first sale, and if on such second exposure to public sale, there shall be offered for the said property more than one half, the said appraised value, then the same may be sold to the highest bidder therefor: Proviso. Provided also, That the several periods herein before designated for advertising such property, may be altered by the consent of the debtor and creditor, expressed 176 in writing, delivered to the sheriff; and that whenever perishable articles shall be seized, the sheriff may by order of the judge sell the same at such period as he shall direct: Sales to be in day time, and all sales under execution by virtue of this writ, shall be in the day time, between the rising and setting of the sun; and every sheriff shall keep a just and true account of all sales made by him as aforesaid, and to be recorded by the sheriff. in a book to be kept for that purpose, in which shall be entered the date, the article sold, the buyer’s name and the price paid, which shall be open to the inspection of any person demanding to examine the same, and such sale, whether of personal or real estate, shall vest in the purchaser all the estate right and title of the person against whom such execution issued, of, in, and to the property so sold; that is to say, if personal property, other than slaves, all the right, title and demand of the said person therein or thereto, on the day the said writ of execution was delivered to the sheriff, and if real property or slaves, all the estate, right, title or demand, the said person had therein or thereto, on the day the said judgment was docketted.

Sec. 10. And be it further enacted, That on any sale of land or slaves under Sheriff to give conveyance. an execution by virtue of this writ, the sheriff shall deliver to the purchaser a conveyance in the following form, that is to say:

Whereas I A. B. sheriff of the county of              by virtue of a writ of Fieri Facias Form thereof. to me directed, against the goods 178 and chattels, lands and tenements of C. D. at the suit of E. F. did seize all that certain (here insert the description of the property sold) and having exposed the same to public sale according to law; G. H. became the purchaser thereof, for the price of              which I hereby acknowledge to have received.

Now therefore, Know all men by these presents, That I the said sheriff, do in consideration of the premises, and by virtue of the act in such case made and provided, grant, bargain, sell, assign and set over to the said G. H. his heirs and assigns, all the above described (insert the description of the property as slaves, lands, houses, &c.) and all the right, title, interest or demand, which the said C. D. on the        day of              (insert the day of docketing the judgment) as at any time since, had in, or to the said              or any part thereof, to hold the same to the said G. H. his heirs and assigns forever. In witness whereof, I have hereunto set my hand and seal, this        day of              in the year of our Lord one thousand eight hundred and        and in the              year of the independence of the United States.

J. K. sheriff  
of the county of             

Sealed and delivered
     in the presence of }

    L. M.
    N. O.

180

And all such conveyances shall by the sheriff be delivered within one week after To be recorded by the clerk. the same shall have been executed, to the clerk of the county, and shall by him be recorded and copied faithfully in a book to be kept for that purpose, and a certificate that the same has been recorded, being endorsed on the original, the same shall be admitted in all courts of this territory as evidence, without further proof of the execution; Proviso. Provided, That no such conveyance shall be recorded, which shall appear to have any material erasures or interlineations therein, which shall not have been noted before the execution thereof, and if any such erasures, interlineations or alterations not noted, shall appear in the original, it shall not be given in evidence, although the same may have been recorded.

Sec. 11. And be it further enacted, That every sheriff and treasurer appointed by virtue of this act, shall before either of them shall enter upon the duties of his office, give bond to the satisfaction of the judge of the said courts respectively, with two sufficient sureties each, that is to say, the Sheriff and Treasurer to give bond and security. sheriff of the county of Orleans in the sum of twenty thousand dollars, each of the other sheriffs in the sum of five thousand dollars, and each of the treasurers in the sum of two thousand dollars, conditioned for the faithful performance of the duties of their respective offices. If judgment should be obtained against any sheriff for any mal-conduct, or 182 neglect of duty, and his goods or chattels, lands and tenements shall be found insufficient to pay the same, the said bond may by order of the superior court, or the county court of the county for which he shall have been appointed, be put in suit against his sureties, and the amount of such judgment obtained against the said sheriff, may be recovered against the said sureties: Security to be liable for the conduct of the principal. Provided, that such sureties, shall in no case be liable for more than the amount of the penalty of such bond.

Sec. 12. And be it further enacted, That that the coroner shall in all suits, wherein the sheriff is party, or in which he may be directly interested, In what cases the coroner to perform the duties of sheriff. execute and perform all the duties which by law ought to have been executed and performed by such sheriff, if he were not interested therein, and such person so named and appointed, shall have in such suits all the powers, receive all the emoluments, and be liable to all the responsibilities of the sheriff of the county, and shall with the same powers and rights, and under the same responsibility, execute all the duties by this act enjoined on the sheriff, whenever the said office shall become vacant, until a sheriff shall be appointed and sworn.

Sec. 13. And be it further enacted, That every sheriff shall have power to call for the aid, and command the services of every Sheriff may summon posse commitatus. able bodied inhabitant of his county, to preserve the peace of the county in cases of riot; execute the process of the court that 184 may be directed to him in cases where resistance is made or threatened to the execution thereof by force, and every person so called by any sheriff who shall refuse to render such assistance, may be punished by fine at the discretion of the court, not exceeding twenty-five dollars.

Sec. 14. And be it further enacted, That the several sheriffs to be appointed Duty of sheriff. by virtue of this act, shall execute all orders and writs which shall be directed to them, in their several counties by the superior or county courts; that they shall take charge and custody of all persons committed to prison for any offences against the territory; that they shall by themselves or their known deputies attend the superior and county courts in their respective counties; and that they shall by all lawful means preserve the peace, and apprehend for punishment all disturbers thereof, and other public offenders, Liable for mal-conduct. and that they shall be liable by suit to the injured party for all mal-conduct in office or negligence of duty.

Sec. 15. And be it further enacted, That it shall be lawful for any suitor in Defendant in any suit to answer interrogatories inserted in the petition. either of the said courts to insert in the petition or answer any such interrogatories material to the matter in litigation as he may desire to have answered by the opposite party on oath, and that whenever any such interrogatories shall be inserted in the bill, the defendant shall answer the same on oath, in his answer so filed as is herein before directed, which oath shall be taken and subscribed 186 before any judge or justice of the peace of the territory; and whenever such interrogatories shall be contained in the answer of the defendant, the plaintiff shall file a replication within such time as shall for that purpose be directed by rules of the courts respectively, And other proceedings on petitions. and in such replication on oath to be taken in like manner, shall fully answer all such interrogatories contained in the answer; and if the party called on to answer such interrogatories, shall not fully answer the same, the opposite party may file his exceptions in writing, to such answer, and the court, or any judge thereof, may examine the sufficiency of such exceptions, and if the same shall be found to be well taken, the said court or judge shall direct a further and more sufficient answer or replication to be made, and if the party so called on to answer, shall refuse to answer, or shall a second time put in an insufficient answer or replication, to any point to which on reference as aforesaid, he shall have been directed to put in a further answer or replication, Defendant refusing to answer the allegations, shall be taken for proved. then the allegations of the opposite party contained in his petition or answer on the matter so refused to be answered unto, or insufficiently answered, shall be taken on the trial of the cause for proved.

Sec. 16. And be it further enacted, That no appeal from any final judgment in No appeal shall stay execution. either of the said inferior courts, created by this act, shall stay execution thereon, unless the same shall be entered and pursued in the form herein after 188 directed, that is to say: The party applying for the same, shall before any execution be issued on such judgment file in the clerk’s office of the county, a petition praying that such appeal may be allowed, together with one sufficient surety, in such penalty as the judge of the said court shall direct, payable to the opposite party it such suit, in the following form, that is to say:

Know all men by these presents, That we A. B. and C. D. are held and firmly bound Form of a bond on a petition for appeal. unto E. F. his executors, administrators and assigns, in the sum of                                and for the payment hereof, we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals, dated this        day of                         

Whereas the above bounden A. B. hath this day filed his petition of appeal, from a final judgment rendered against him in the county court of the county of                                in favor of the said E. F.

Now therefore, the condition of the above obligation is such, That if the said A. B. shall prosecute his said appeal with effect, and shall pay or perform any judgment that may be rendered thereon against him, or if the execution that may issue, or such judgment shall be satisfied out of his proper goods or chattels, lands and tenements, then and in such case the above obligation to be avoid, or else to remain in full force and virtue.

And whensoever any petition for appeal shall be filed, and such bond executed and 190 given, all proceedings in such suit, in the said county courts shall cease, and the clerk shall make out a transcript of the proceedings in the cause, Clerk to make out papers in case of appeal. and all affidavits and other documents on file in the same, and annex the same to the said petition of appeal, and shall also issue a citation to the opposite party in the following form:

The government of the territory of Orleans, to ________________ greeting:

Whereas A. B. hath this day filed in the office of the clerk of the county of _____________ a petition of appeal from a certain final judgment rendered in the county court of the said county against him, which appeal is returnable in the superior court of the territory on the first Monday of Form of citation in appeals. _____________ next. You are therefore hereby cited to appear in person, or by attorney in the said court, on the day last aforesaid to answer to the said appeal. Witness C. D. judge of the said county, the ________ day of ______ in the year _______

Which citation shall be served on the opposite party, if within the territory, or his attorney, if the said party shall not be within the territory, delivering a copy thereof or leaving the same at his or Citation to be served, and affidavit made thereof. her usual place of abode, which service must be made to appear by affidavit to the satisfaction of the superior court: Provided always, That when the service is made on any attorney, the absence of the party from the state, and the authority of the attorney must appear to the superior court by affidavit or Which citation shall be served on the opposite party, if within the territory, or his attorney, if the said party shall not be within the territory, delivering a copy thereof or leaving the same at his or her usual place of abode, which service must be made to appear by affidavit to the satisfaction of the superior court: Provided always, That when the service is made on any attorney, the absence of the party from the state, and the authority of the attorney must appear to the superior court by affidavit or 192 otherwise, before any proceedings can be had in the said court on such appeal: And provided also, That all such citations shall be returnable at the next term of the superior court, and shall be served so long before the return of the same, as to allow the party between the service and the return, one day for every four leagues distance between the place of service, and the place at which the superior court shall sit, if so many days shall intervene between the time in which the same may be served, and the then next term of the superior court; Return of citation. but if a sufficient number of days shall not intervene to make the said allowance for distance, then the said citation shall be made returnable on the first day of the succeeding term of the said superior court; and if the appellant shall not prosecute such appeal in manner directed by this act, Proceedings where an appeal is not prosecuted. the said bond so lodged in the clerk’s office by him, may be delivered to the opposite party to be put in suit; but if judgment shall be obtained thereon, no execution shall issue for a greater sum than the amount of the original judgment, with interest and costs of suit on such bond.

Sec. 17. And be it further enacted, That it shall be the duty of the appellant to return the said petition of appeal, the transcript of the proceedings with the said citation on the return day thereof, into the superior court, General proceedings in appeals. and on the filing thereof the opposite party may appear and answer the said appeal by declaring in writing, that 194 there is not any error in the proceedings of the inferior court, and thereupon the said superior court shall proceed to hear the said appeal on the pleadings which shall have been so transmitted as aforesaid, but either party may produce new proof in the superior court, and the said court may whenever the justice of the case may require it, permit an amendment of the pleadings in the inferior court, so as to bring the merits of the case completely before them; and if the party cited shall not appear and answer the appeal within such time as the said superior court shall by its rules direct, then the said court shall proceed to hear the said cause ex parte, and give such judgment as the nature of the case may require, and to issue execution thereon.

Sec. 18. And be it further enacted, That whenever any judgment shall be rendered When a writ of distringas may issue. in any of the said courts for the performance of any specified act, other than the payment of money, a copy of such judgment shall be served by the sheriff upon the party directed to perform the same, by delivering the same to him personally; and if the said party shall neglect or refuse to perform such judgment in the manner directed thereby, and such neglect or refusal shall appear by the certificate of the sheriff, that a writ may be taken out to be called a writ of distringas which shall be in the following form, that is to say:

The government of the territory of Orleans, to the sheriff of the county of Form thereof. 196 greeting: We command you, that you distrain A. B. by all his goods and chattels, lands and tenements in your county, until he shall perform a certain decree rendered by the court of _____________ against him in the favor of G. H. and what you shall have done in this respect you return to the said court, on the _______ day of __________ next.

Witness C. D. judge of the said court, on the _______ day of __________ in the year _______.

And on the receipt of such writ, it shall be the duty of the sheriff to seize and take into his possession all the real and personal estate of the party against whom such writ shall be directed, and to receive the rents, issues and profits of such estate, and be subject to the order of the court, How executed. until the said writ of distringas shall be superseded. And the said courts may from time to time, in cases where the nature of the case may require it, direct the same or any part thereof, so received by the sheriff on such writs of distringas, to the party in whose favor such judgment shall be rendered, on his giving security to refund the same, when the said judgment shall be performed; and whenever the party against whom such writ of distringas shall issue, shall have performed the said judgment or decree, and paid all such damages and costs as the court shall award, Distringas how superseded. then that the said court shall on application of the said party, direct the said distringas to be superseded, and the 198 party to be restored to the possession of the estate which shall have been so distrained.

Sec. 19. And be it further enacted, That the said courts respectively shall have power to fine jurors and sheriffs and other officers for non-attendance, Court may fine jurors and officers for non-attendance. provided that such fine shall not for any one default amount to more than the sum of ten dollars, and that they may punish all contempts by imprisonment during the term of such court.

Sec. 20. And be it further enacted, That the examinations of all witnesses in the said courts shall be taken in open court, or before such persons as the court may in each cause authorise to take the same, Witnesses how examined. and that all witnesses shall be sworn to declare the truth, the whole truth and nothing but the truth, relative to the matter in dispute between the parties; and that when any witness is too aged or infirm to be produced on the trial of any cause, or is about to leave the country before the trial of the cause in which such person may be wanted as a witness, or shall reside out of the country in which the trial may be had; In what cases testimony of living witnesses may be given by deposition, in all these cases the examination of such witness may be taken before the judge of any county court in the said territory, or before a judge of the superior court, or the mayor or recorder of the city of Orleans, And how taken, who shall have full power to compel the attendance of any witness before them respectively, for the purpose of taking such deposition, 200 previous reasonable notice of the time and place of such examination, having been given to the opposite party; And returned. and such witness shall be sworn as aforesaid, and duly cautioned to declare the truth, and shall be examined by the parties, or such of them as attend, and shall sign the deposition with his name or make his or her ordinary mark thereto, in the presence of the magistrate taking the same, who shall certify the said depositions to have been taken in his presence, and shall enclose the same under his seal, and direct the same to the court, in which such deposition is to be used, and if the party producing such deposition shall prove that notice of such examination, and that the party is too infirm or old to attend the court, or has left the country, or resides out of the same, then and in all such cases but not otherwise, the said deposition shall be good evidence in the cause, unless by consent of the opposite party—and the said court shall have power to compel the attendance of all witnesses by order, in the following form:

To A. B. you are hereby commanded to appear in the county court of the county of _____________ Form of subpoena for witnesses. on the _______ day of __________ at _______ o'clock in the forenoon, to testify the truth according to your knowledge, in a certain cause pending therein, between A. B. plaintiff, and C. D. defendant, on the part of (plaintiff or defendant as the case may be) and hereof 202 you are not to fail, under the penalty upon each of you of two hundred and fifty dollars.

By the Court,     
E. F. Clk.   

And if any witness being served with such order by delivering a copy thereof to him or her, and being tendered his or her reasonable expenses in going to, and remaining at, and returning from the place at which such court shall be held, Witness refusing to attend when summoned may be brought by force. shall refuse or neglect to attend the court, on due proof thereof and on affidavit that such witness is material to the trial of the fact in dispute, may direct the sheriff to attach and bring the said witness into court; and if such witness without any legal objection, shall refuse to answer or testify in the cause, Witness how punished for refusing to answer. it shall be lawful for the said court to commit such witness to close custody; and the party aggrieved by such refusal may moreover have and maintain a suit against such person so summoned as a witness, for all damages that he, she or they may have sustained by reason of such refusal or neglect.

Sec. 21. And be it further enacted by the authority aforesaid, That in all cases which shall appear to the said courts or either of them, to require the examination of long accounts, Referees to settle long accounts. it shall be lawful for the said courts respectively, to refer the same to three persons selected by the said court to examine the said accounts and report the balance that may be due to either party respectively, which referees shall before they enter on the said reference take before the To take oath. 204 judge or justice of the said county, the following oath: “I, A. B. do solemnly swear, that I will fairly and impartially examine Form thereof. the matters and things referred to me in the cause between C. D. plaintiff, and E. F. defendant, and that I will make a true report thereon according to the best of my skill and understanding—So help me God.” And the said referees shall give reasonable notice of the time and place of their meeting to the parties respectively, and shall have power to examine witnesses upon oath as to any of the matters in dispute, and shall make their report in writing to the court by Report of referees to be conclusive. which they shall have been appointed, which report signed by the said referees or any two of them, shall be conclusive as to the state of said accounts, the same shall not be confirmed until it shall appear a copy thereof has been served on the opposite party three days at least before such confirmation shall be applied for, and all witnesses shall be summoned in manner herein before directed, and be liable to the like attachment and action, for not attending before such referees, as for not attending in court, Witnesses to attend referees as they do court. and that the form of the order to attend in such case, shall be altered so as to suit the circumstances of the case, and the attachment for non-attendance to be applied in form above directed, and granted by the court if in session, or by the judge thereof on like proof being offered to him in vacation.

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Sec. 22. And be it further enacted, That each of the said courts shall have power to make such rules for regulating their Court to make rules of practice. practice respectively, as shall not be inconsistent with the provisions of this act, or any other law of the said territory.

Sec. 23. And be it further enacted, That the justices of the peace to be appointed by Jurisdiction and power of justices of the peace. virtue of this act, shall have jurisdiction without appeal in all civil cases arising within the parish in which they respectively reside, of less value than fifty dollars, and may hear and determine the same in a summary way; and for that purpose the said justices respectively, may issue a summons under their hands, directing the party defendant to appear before them, at a day and place therein to be expressed, on which day, such justice shall proceed to examine the proofs and allegations of the parties, and shall grant judgment thereon according to law and may enforce the payment of any sum of money, for which such judgment may be given by an order in writing, signed by such justice, directed to any constable of the parish, commanding him to seize and sell goods and chattels of the party against whom such judgment shall be rendered, to the amount of such judgment and costs; which order such constable is hereby directed to execute, and to sell goods and chattels, seized by virtue of such order, after giving nine days previous notice of such sale.

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Sec. 24. And be it further enacted, That the judge of the said county court, Court to appoint constables. shall nominate in each parish as many discreet white male inhabitants as the said judge shall think fit, to be constables therein, Their duty, whose duty it shall be to execute all summonses and other process directed to them by the justices of the peace, for such parish; to attend the county courts in such relation as the sheriff of the county shall direct; and to aid the judge, justices, and other officers in preserving the peace and good order of the county, and that each of the said constables shall be entitled to receive the sum of one dollar for every day's attendance upon And pay. court, to be paid out of the county funds, in the manner directed by law.

Sec. 25. And be it further enacted, That the justices of the peace and commandants now appointed, When this law is to go into operation. may continue to have and execute all the jurisdiction in civil causes, now vested in them by law, until the first term of the courts hereby provided for, and that then and from such time the offices of civil commandant shall cease and be abolished, and the several justices of the peace shall have and exercise the civil jurisdiction vested in them by this act, and no other.

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CHAP. XXVI.
AN ACT

Sec. 1 B

Sec. 2. And be it further enacted, That after filing such petition, the clerk shall on the request of the petitioner or his attorney, Clerk to make out citation. make a fair transcript of the same, together with a citation in the following form:

Mr. A. B. you are hereby summoned to appear at the ____________ and comply with the prayer of the annexed petition, Form thereof. or file your answer thereto, in writing, in the office of the clerk of the superior court, at __________ in ______ days after the service hereof. Witness C. D. presiding 212 or senior judge of said court, this ______ day of ____________ in the year of our Lord ______. Which citation shall be sealed with the seal of the said court, and signed by the clerk, and shall, together with the petition, be delivered to the sheriff of the county where the defendant or defendants reside, To be served by sheriff. and shall be served by delivering a copy of the petition and citation in the French and English languages to the defendant, or leaving such copy, in case the defendant is absent, at his usual place of residence, with some free member of the family, above the age of fourteen — and every sheriff shall endorse upon such citation, the day on which he received it, and the time and manner in which he executed the same, and shall return the said citation so executed, to the office of the clerk of said court, on or before the day assigned for the appearance of the defendant. And in case any such sheriff shall neglect to execute such process, Penalty on sheriff on failing to perform his duty. or shall insufficiently execute the same, or shall unreasonably delay the return thereof to the clerk’s office, every such sheriff shall be liable for every such offence, to pay to the party aggrieved, a fine not exceeding the sum of twenty-five dollars, and costs, to be recovered on motion in said court, to be made by the party injured, the said sheriff having received ten days previous notice of such motion; and the said sheriff shall further be liable to the action of the party injured, for such damages as he shall have sustained by such neglect.

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Sec. 3. And be it further enacted, That if persons living in different counties shall be made defendants to the same suit, How citation and petition may be served where defendants live in different counties. that then the copy of the petition shall be sent with the citation, only to the sheriff of the county where the defendant first named in the petition resides, and citations shall issue to the sheriffs of the counties where each of the other defendants reside; which citation shall be delivered to such sheriffs, and served and returned in the manner, and under the penalties aforesaid.

Sec. 4. And be it further enacted, That the day of appearance, when the defendant resides in New-Orleans, shall be the tenth day after the date of the service of such citation; and the day of the defendant’s appearance shall, where he resides without the city of New-Orleans, be delayed, in addition to said ten days, one day for every four leagues of the distance of his place of residence from said city.

And if the defendant shall not appear on the day given in such citation, and file his answer, Judgment may be entered up where defendant fails to answer. or file with the clerk, an order from a judge, allowing such defendant further time for filing it, then the petitioner or his counsel may order judgment to be entered up against such defendant, and if the court shall hold session three days after taking such judgment, and no motion is made to set the same aside upon shewing good cause, and to file an answer, or if such motion is made and over-ruled, then the said judgment shall be final, wherever the 216 demand is liquidated by a note, bond, contract or final judgment; and if the sum demanded be uncertain, the court shall proceed to hear testimony, assess the damages, and render final judgment for the sum so assessed.

Sec. 5. And be it further enacted, That every answer shall be filed with the clerk in the English and French languages; Answer to be filed with the clerk in the French and English languages. shall without evasion, answer every material fact stated in the plaintiff’s petition; shall avoid all matter scandalous, libellous or impertinent, and where it contains a denial of the facts stated in the petition, or states any new facts in avoidance thereof, and the defendant wishes a trial by a jury, such petition shall conclude with a prayer to that effect; and if any plaintiff requests a trial by jury, such request shall be lodged in writing with the clerk, within three days after receiving notice of the filing of the defendant’s answer; Clerk may order the sheriff to summon a jury in certain cases, at the instance of the plaintiff. and it shall, upon such demand of a jury, made either by the plaintiff or defendant, be the duty of the clerk to issue process to the sheriff, for summoning a jury of free male white persons who are house-keepers, and who shall have resided at least one year within the territory of Orleans, which jury shall be selected in such a manner as said court shall by their rules direct, and shall be sworn to decide all questions of fact submitted to them by the court, and their verdict or opinion unanimously given on the facts submitted to them, shall be read and 218 assented to in open court, and recorded by the clerk, as the foundation for the judgment of the court.

Sec. 6. And be it further enacted, That all facts intended to be relied on by the plaintiff or defendant, and submitted to a jury, Duty of the parties where they intend to submit facts to a jury. shall, at least two days before such trial, be drawn up by the party intending to submit the same, and delivered to the judge or judges, together with an abstract of the substantial parts of the petition and answer, each prepared by the party filing the same, and upon receiving them, the court shall examine whether such facts are within the pleadings and strike out such as do not fairly arise out of the petition or answer; and it shall be the duty of the jury upon the trial, to find separately and severally upon each of the facts so stated, for plaintiff and defendant, and to leave the question of law, if doubtful, to the court, but to decide the same if they have no doubt, and the court shall in either case render judgment thereon : Proviso. Provided always, That whenever corruption or such misbehaviour of the parties or jury shall be made to appear as in the opinion of the court shall amount to proof that substantial and impartial justice has not been done, or whenever new evidence material to the cause shall have been discovered after the said trial, which the party could not by reasonable diligence have discovered before, or if the decision shall appear to be manifestly contrary to law or evidence, in all such cases, as well where they occur in 220 causes where facts are tried by a jury, as where the trial is had by the court ; if it shall appear that justice has not been done, the court, on the application of the party injured by such verdict or decision, may grant a new trial, provided that the same is applied for within seven days after such decision of the court or verdict of the jury shall have been recorded.

Sec. 7. And be it further enacted, That when any plaintiff shall wish to obtain a discovery from the defendant, on oath, such plaintiff may insert in his petition, pertinent interrogatories, Plaintiff may insert in his petition pertinent interrogatories, and may call upon the defendant, on oath, to answer them, and the said defendant shall distinctly answer to such interrogatories, provided they do not tend to charge the defendant with any crime or offence against the penal laws of the territory. Which defendant is bound to answer. And if the defendant, upon being duly cited as aforesaid, neglect or refuse to answer, or upon one answer being over-ruled by the court as evasive or insufficient, shall again make an insufficient answer, in such cases the facts in the plaintiff’s petition shall be considered as confessed; and the court shall proceed to give judgment according to the prayer thereof.

Sec. 8. And be it further enacted, That when any defendant shall desire to obtain from the plaintiff a discovery upon oath, such defendant may subjoin to his answer, interrogatories pertinent to his defence, Plaintiff shall in like manner answer interrogatories. and call upon the plaintiff to answer them upon oath, and if the said interrogatories are 222 deemed by a judge of the court, upon a perusal thereof, pertinent and material, and the defendant shall attach to his answer, an affidavit that he verily believes that the answer of the plaintiff to the said interrogatories will materially aid such defendant in making his defence, then the order of the said judge, that such interrogatories shall be answered, shall be filed with the answer in the clerk’s office; and the plaintiff shall within a reasonable time, to be judged of by the court, answer the same distinctly, or on failure thereof, his suit shall be dismissed at his costs, on motion of the defendant.

Sec. 9. And be it further enacted, That whenever any fact is denied as aforesaid, by the answer, on oath, to interrogatories of either plaintiff or defendant, Credibility of answers to interrogatories. such answer so given, shall be received as true, unless disproved by the oath of two credible witnesses, or of one credible witness and strong corroborating circumstances. In the proof of facts not denied on oath as aforesaid, and not depending on records or written testimony, the uncontroverted oath of a single credible witness shall be sufficient, and no free white witness of the age of discretion shall be disqualified from testifying on the ground of being incompetent, unless such witness shall, at the time of producing him, be interested or infamous: all other exceptions shall go to the credit, and not to the competence of the witness : Provided however, That the wife and husband 224 shall not give testimony for or against each other.

Sec. 10. And be it further enacted, That where any answers to interrogatories shall be deemed by either party putting such interrogatories, insufficient, such answer may be excepted to in writing within three days after the said answer is filed.with the clerk. Proceedings on insufficient answers. Such exceptions shall especially state wherein the answer excepted to is insufficient, and if a sufficient answer is not filed within three days after such exceptions are left in the clerk’s office, the court may hear the exceptions argued, upon the motion of either party, and upon answer or exceptions being over-ruled, the party filing such over-ruled answer or exceptions, shall pay costs. And if after one answer is over-ruled, a second insufficient answer is filed, the court shall consider that the matter insufficiently answered is confessed, and shall decree accordingly. Upon an answer being over-ruled, the party shall be allowed two days to file his amended answer, and upon the expiration of that period, except where good cause is shewn, judgment shall be taken for want of amended answer by default, and such proceedings shall be had as aforesaid in the case where no answer is filed.

Sec. 11. And be it further enacted, That whenever a petition shall be presented for In what cases attachment may issue. the recovery of debt, from a person being about to depart permanently, or absolutely to remove from the territory, before, in the common course of proceeding, judgment 226 could be rendered and execution issued against such defendant, or for the recovery of a debt due from a person residing out of the territory, or departed therefrom, or who conceals himself so that a citation cannot be served upon him, to compel an answer to the plaintiff’s petition, and such intention to depart, actual departure, residence out of the territory, or concealment to avoid process and payment of debts, together with the existence of the debt demanded in such petition, shall be proved to the court, if in session, or to some judge thereof in vacation, then such court or judge, as the case may be, shall order the clerk to issue an attachment, which shall be directed to the sheriff of the county where the said defendant may have effects or lands, and shall be in the following form :

The government of the territory of Orleans, to the sheriff of ____________ county, Form thereof. greeting : Whereas due proof hath been made before the superior court of the territory, (or A. B. a judge of the superior court of the territory as the case may be) by C. D. that E. F. is indebted to him in the sum of ____________ and that the said E. F. (has removed, is about shortly to depart, or conceals himself to avoid process, as the case may be.) Now therefore you are commanded to seize and take into your possession, the goods and chattels, lands and tenements of the said E. F. if any you find in said county, to the amount of what will suffice to discharge the said debt and costs of 228 suit, and that you give notice of this proceeding by leaving a copy thereof in the French and English languages, at the last place of abode of the said defendant, if in said county, and causing a copy thereof to be affixed at the door of the parish church of said county; and make return of this writ, and endorse thereon the manner in which you have executed it, before our court, on the ______ day of ____________ in the year of our Lord ______ and in the year of the independence of the United States ______

G. H. Clk. of S. Ct.

And the said sheriff shall proceed to execute the said writ in the manner therein directed, and shall make a particular return of all goods and chattels, lands or tenements, which he shall have attached or seized by virtue thereof. Proceedings on return of attachment. And on the return of the said writ, the court may proceed to hear and determine the claim of the said petitioner, first naming some proper person to defend said debtor, provided no attorney shall be retained by him; and on the application of the person so defending, granting such delay, in order to procure an answer and make out a defence, as to the court may seem just : Proviso. Provided always, That the defendant to any such attachment may, at any time before trial thereof, release the said attached property, by proving to the satisfaction of the court or of the judge who issued such attachment, that the facts on which the same was founded, were not 230 truly stated, or by giving to the sheriff bond with sufficient surety to defend such suit, and abide by the judgment of the court.

Sec. 12. And be it further enacted, That whenever a petition is filed for the recovery of any debt or damages on note, bond, contract, or open account, or for damages for injury to or detention of the property of the petitioner, In what cases of debt bail can be required. and the petitioner shall at any time after the filing such petition, by oath, satisfy any one of the judges of the said court, of the truth of the facts stated therein, and shall further annex to his petition, an affidavit that he verily believes that the defendant is about to remove permanently from the territory, before judgment on said petition could be obtained; and that such defendant does not, as far as the deponent knows or believes, possess, within the territory, sufficient property if attached, to satisfy the judgment which the petitioner expects to obtain, and that the said oath is not made for the purpose of vexing and harassing the defendant, but in order to secure the petitioner’s demand; such judge may direct the sheriff or coroner, as the case may be, to arrest the person of the defendant and confine him until he shall give a bond with a sufficient security, resident in the territory, conditioned that the defendant shall not depart from the territory without the leave of the court, or that in case of departure without such leave, he, the security, will be accountable, and pay to the said sheriff or coroner, as the 232 case may be, the amount of the final judgment, sentence or decree of the court; which said bond shall be returned by the sheriff to the office of the clerk of said court, and if no exceptions are filed by the petitioner, stating the insufficiency of the security so taken by the sheriff within ten days after said bond is so returned, the same shall be assigned by the obligee to the petitioner ; Security liable for his principal. and if the condition thereof shall appear to be broken, it shall be the duty of the court, upon motion, to give judgment thereon against the security for the amount of any judgment rendered against the defendant, he, the said security, having ten days previous notice, in writing, of such intended motion; but if exceptions shall be filed within the said space of ten days, stating the insufficiency of any security so taken, the petitioner shall cause a copy of such exceptions to be delivered to the sheriff or coroner by whom such security was taken, and such exceptions shall be heard in a summary way, on motion, Who liable for insufficient security. and in case the court shall decide the security insufficient, the officer taking the same, whether sheriff or coroner, shall be liable to have such judgment entered up against him for the whole amount of the debt and damages adjudged against such defendant, as could have been entered up against such security, had he been adjudged sufficient : Proviso. Provided however, That every such defendant so directed to be arrested and held to bail, may be discharged by proving to the satisfaction of the 234 judge, that the facts stated by the petitioner, in order to hold such defendant to bail, are not true, or by placing in the hands of the sheriff or coroner, as the case may be, sufficient estate to satisfy the amount of the petitioner’s demand, in case judgment shall be rendered against such defendant.

Sec. 13. And be it further enacted, That all judgments rendered by said court, shall be pronounced in open court, and be entered on the minutes of the court by the clerk, and shall, three days thereafter, if not set aside by the court upon a motion for a new trial, be signed by the presiding judge of the court : And that it shall be the duty of the clerk of the said court, to keep a book, Judgments to be docketed. in which a docket or short note of all final judgments for the payment of money, rendered by said court, shall be entered, which notes shall express the names of the parties to the suits in which such judgment shall be rendered, alphabetically arranged; the names of the persons in whose favor the same may be rendered, the sum for which it is given, distinguishing the debt or damages from the costs, and the day on which such final judgment was signed; which entry shall be called the docket of the judgment; and all real property and slaves within the territory, belonging to the person against whom such judgment shall be so signed and docketted, shall be bound and liable for the said debt and costs, in whosever hands the same may pass for one year thereafter; and the said docket books shall 236 be kept at the clerk’s office, and shall by him be examined and shewn to any person who shall request an inspection thereof; Clerk to enter satisfaction, when judgment is discharged. And when any judgment, so docketed, shall be discharged, and the same shall be made to appear, either by the sheriff’s return of the execution, or by the acknowledgment of the creditor, or his attorney duly authorised, taken before and certified by one of the judges of the said court, satisfaction shall be entered in the said docket, by writing in a column opposite to the entry of judgment, to be kept for that purpose, Form thereof. “Satisfied the ______ day of ____________ in the year ______” stating the day on which such entry is made and upon what evidence of satisfaction, by which entry all lien upon the estate of the debtor, by virtue of such judgment, shall be discharged.

Sec. 14. And be it further enacted, That no writ of execution upon any judgment for recovery of money, as aforesaid, shall issue When execution may issue. until such judgment shall be docketed, in form aforesaid, and that all such writs shall be in the following form:

The government of the territory of Orleans, to the sheriff of ____________ county, greeting ; We command you, that you demand from A. B. the sum of ____________ debt or damages, and also the sum of ____________ costs, which C. D. lately recovered by judgment of the superior court, and if he shall not pay the same in three days after demand, that then you cause the same to be made out of the personal estate of said Form thereof. 238 A. B. except slaves, in your county, if sufficient personal estate, exclusive of slaves, can be found therein; but if sufficient personal estate of said A. B. exclusive of slaves, cannot be found in your county, that then you cause the said sum to be made of the real estate and slaves of said A. B. in your said county, whereof he was owner on the ______ day of ____________ last past, (inserting the day on which the judgment was docketed) into whose hands soever the same may have come, and that you have those monies before our said court, to render to the said C. D. for the judgment aforesaid, on the ______ day of ____________ together with this writ. Witness E. F. judge of said court, the ______ day of ____________

Signed, G. H. Clk.

And sealed with the seal of the court; and when any such writ of execution, to be called a fieri facias, shall be delivered to the sheriff, to whom the same is directed, he shall endorse thereon the day and hour on which the same shall be received by him: and the delivery of such writ shall bind and be a lien upon all personal property of the person against whom the same shall be directed, into whose hands soever the same may come. And it shall be the duty of the sheriff on receiving such writ of fieri facias, by himself or his deputy, In what manner sheriff shall proceed on execution. to demand payment of the sum directed to be levied, together with the legal fees of the sheriff, to be specified at the time of making such 240 demand; which demand shall be made in writing, left at the usual place of abode of the party against whom such writ is directed, and also by shewing to such party, if at his usual place of abode, the said writ; and if the said sum and said sheriff’s fees shall not be paid at the expiration of three days, including the day on which demand shall have been made, then the said sheriff shall seize the personal estate, or in default thereof, real estate, or slaves, as may be sufficient in the opinion of two discreet householders, to secure the payment of the sum directed to be levied, and shall cause a list of the articles so seized to be given to the debtor, if he may be found, or left at his usual place of abode, with a notice to him to appear and name an appraiser of the property so seized; and if within the term of three days the said debtor shall name an appraiser, the sheriff shall proceed to name another discreet householder of his county, as an appraiser on his part, who shall be sworn to make a just and true appraisement of all the property so seized; and the said two appraisers, and upon their disagreeing, an umpire to be chosen by them to decide between them, he having also in like manner been sworn, shall make a valuation of the said property, in writing, and shall deliver the same, signed with their names, to the sheriff: Proviso. Provided however, That if the debtor resides in another county, and does not attend by himself or agent, and appoint such appraiser, or after notice as aforesaid, 242 shall neglect or refuse to make such appointment, the sheriff shall, and he is hereby authorised to name a discreet householder to act for said debtor as aforesaid; and that after such seizure, the sheriff shall keep the property so seized at his risk, (except from fire, or the death of slaves or animals, not occasioned by the fault or negligence of such sheriff) and shall advertise the same for sale, at some public place in said county, by setting up advertisements, specifying the property to be sold and the time and place of sale, at such public places in said county as the court of said county shall by their general rule direct and appoint, and until such direction at such place as the sheriff shall prefer, as the most public, and that all personal estate shall be advertised for the space of fifteen days, and all real estate and slaves for the space of thirty-five days, next preceding the day of sale: and on the day so appointed, if the money so directed to be levied by such execution, and all legal charges shall not be paid, the sheriff shall proceed to sell the property so seized, on the day of sale, so advertised, to the highest bidder for cash, or for such terms of credit as the creditor may by writing under his hand direct : Provisos continued. Provided always, That without the debtor’s consent, expressed in writing, no sale shall be valid, unless the sum bid for the property so seized shall amount to at least two thirds of its appraised value; but the said property shall, in said case, be exposed to sale at a time to be designated and advertised 244 as aforesaid by such sheriff, not less than ten days for personal, nor less than thirty days for real estate or slaves, from the time of the first sale. And if on such second exposure to such public sale, there shall be offered for the said property, more than one half of the appraised value, then the same may be sold to the highest bidder therefor : Provided also, That the several periods herein before designated for valuing property may be altered by consent of the debtor and creditor, expressed in writing and delivered to the sheriff; and that whenever perishable articles shall be seized, the sheriff may, by order of a judge, sell the same at such period as he may direct. And all sales by virtue of this act shall be in the day time between the rising and setting of the sun; All sales under execution to be in the daytime. and every sheriff shall keep a just and true account of all sales by him made as aforesaid, in a book to be kept for that purpose, in which shall be entered the date, the articles sold, the name of the purchaser, and the price paid, which shall be open to the inspection of any person demanding to examine the same; and such sale, whether of personal or real estate, shall vest in the purchaser all the estate, right and title of the person against whom such execution issued, of, in, and to the property so sold, that is to say: of personal property other than slaves, all the right, title and interest of the said person therein, or thereto, on the day the execution was delivered to the sheriff, and of real property and slaves, all 246 the estate, right, title, interest or demand, the said person had therein or thereto, at the time said judgment was docketed, on which said execution was issued.

Sec. 15. And be it further enacted, That on any sales of land or slaves under an execution by virtue of this act, Sheriff to give purchasers of property a conveyance. the sheriff shall deliver to the purchaser, a conveyance in the form prescribed by the act for dividing the territory of Orleans into counties, and establishing courts of inferior jurisdiction therein, to be recorded and certified in the same manner and under the same regulations, and to be given in evidence under the same restrictions, rules and regulations, as deeds or conveyances for lands or slaves, sold on execution are directed to be executed, recorded, certified and given in evidence under the provisions of the tenth section of the said last recited act.

Sec. 16. And be it further enacted, That the coroner shall in all suits, wherein the sheriff is party, or in which he may be directly interested, In what cases the coroner shall act as sheriff. execute and perform all the duties which by law ought to have been executed and performed by such sheriff, if he were not interested therein; and such person so named and appointed, shall have in such suits, all the powers, receive all the emoluments, and be liable to all the responsibilities of the sheriff of the county, and shall with the same powers and rights, and under the same responsibility, execute all the duties by this act enjoined on the sheriff, 248 whenever the said office shall become vacant, until a sheriff be appointed and sworn.

Sec. 17. And be it further enacted, That whenever any judgment shall be rendered, in any of the courts, for the performance of any specific act, other than the payment of money, In what cases a writ of distringas may issue. a copy of such judgment shall be served upon the defendant, by the sheriff of the county where the defendant resides or is found, by the delivery of the same to the said defendant, and if the said defendant shall neglect or refuse to perform such judgment in the manner directed thereby, and such neglect or refusal shall appear by the certificate of the sheriff, then a writ may be taken out and called a writ of distringas, which shall be in the following form, that is to say :

The government of the territory of Orleans, to the sheriff of ____________ county, greeting : We command you that you distrain A. B. by all his goods and chattels, lands and tenements in your county, until he shall perform a certain decree, rendered by the superior court of said territory, against him, in favor of C. D. and what you shall have done in this respect you return to the said court, Form thereof. on the ______ day of ____________ in the year ______

Signed,  G. H. C. S. C.

And on the receipt of such writ, it shall be the duty of the sheriff to seize and take into possession, all the real and personal estate of the party against whom such writ shall be directed, and to receive the rents, 250 issues and profits of such estates, and hold the same subject to the order of the court, until the said writ of distringas shall be superseded: How superseded. And the said court may, from time to time, in cases, the nature of which may require it, direct the sums or any part thereof, so recovered by the sheriff on such writ of distringas, to be paid to the party in whose favor such judgment shall be rendered, on his giving sufficient security to refund the same, when the said judgment or decree of the court shall be performed; and whenever the party against whom such writ of distringas shall issue, shall have performed the said judgment or decree and paid all such damages and costs as the court shall award, then the said court shall, on the application of said party, direct the said distringas to be superseded, and the party to be restored to the possession of the estate which shall have been so distrained.

Sec. 18. And be it further enacted, That the said superior court shall have full power to fine jurors, sheriffs or other officers, for non-attendance or neglect of duty, Court may fine jurors, sheriffs and others, and punish contempts. provided that such fine shall not, for any one default amount to more than fifteen dollars, and that the said court shall have full powers to punish all contempts by fine, not exceeding fifty dollars for any one offence, and also by imprisonment not exceeding ten days.

Sec. 19. And be it further enacted, That the examination of all witnesses shall be taken in open court, or before such persons as the court may, in each cause authorise to All witnesses to be examined in open court. 252 take the same, and that all witnesses shall previous to giving testimony, be sworn to declare the truth, the whole truth and nothing but the truth, relative to the matter in dispute between the parties; and that where any witness is too aged or infirm to appear on the trial, or is about to depart from the territory before the trial, or where a material point in the party’s cause depends upon the testimony of a single witness; In what cases evidence may be given by deposition. in all such cases, upon satisfactory affidavit made, the said court when in session, or any judge thereof in vacation, may direct the examinations of any such witness to be had before any judge of the county courts in the territory, or before any judge of the superior court, or the mayor or recorder of the city of New-Orleans, who shall have full power to compel such witnesses to come before them respectively, for the purpose of giving such deposition, previous reasonable notice of the time and place of such examination having been given to the opposite party; and such witness shall be sworn, as aforesaid, and duly cautioned to declare the truth, and shall be examined by the parties or such of them as attend, and shall sign the deposition with his name, or make his or her ordinary mark thereto, in the presence of the party taking the same, who shall certify the said deposition to have been taken in his presence, and shall enclose the same under his seal, and direct it to the clerk of said superior court: and if the party producing such deposition shall prove by 254 affidavit, that notice was given to the adverse party, of the time and place of taking such deposition, that the party giving the testimony is too infirm or old to attend court, is dead, Court may compel the attendance of witnesses by summons. or has left the territory, then and in all such cases, but not otherwise, except by consent of parties, the said deposition shall be good evidence in the cause: and the said court shall have power to compel the attendance of all witnesses, by summons, in the following form :

To A. B.—You are hereby commanded to appear in the superior Form thereof. court for the territory of Orleans, on the ______ day of ____________ in the year of our Lord ______ to testify the truth, according to your knowledge, in a controversy pending therein between C. D. plaintiff and E. F. defendant, and hereof you are not to fail, under the penalty of two hundred and fifty dollars.

By order of the court, 
E. F. Clerk.

And if any witness, after being served with such order, by delivering a copy thereof to him or her, and being tendered his or her reasonable expences in going to, remaining at, and returning from the place of holding such superior court, shall refuse or neglect to attend the court, on due proof thereof, Mode of proceeding where witness refuses to attend. and on affidavit that such witness is material on the trial of the controversy in which he or she has been summoned, may direct, by order signed by the clerk, the 256 sheriff to attach and bring such witness into court; and if such witness, without any legal objection, shall refuse to answer or testify in the cause, it shall be lawful for said court to fine the said witness in a sum not exceeding two hundred and fifty dollars, and commit him or her to prison for a space not exceeding thirty days: and the party aggrieved by such refusal to give testimony, may moreover have his or her action against such witness, and recover damages for such neglect or refusal.

Sec. 20. And be it further enacted, That in all cases which shall appear to the said court to require the investigation of long and intricate accounts, Long and intricate accounts may be put into the hands of referees, it shall be lawful for said court to refer the statement to three proper persons, to be chosen for that purpose by the court, who shall examine said accounts, and the vouchers and other testimony in support of them, and state such accounts in their report to the court; which referees before they enter on such reference shall take before some judge of said court, or of the county court, or some justice of the peace for the territory, the following oath :

I, A. B. do solemnly swear, that I will fairly and impartially examine the matters and things Who shall be sworn. referred to me in the cause between C. D. plaintiff, and E. F. defendant, and that I will make a true report thereon, according to the best of my skill and understanding — so help me God.

258 And the said referees shall cause reasonable notice of the time and place of their meeting to be given to the parties, respectively, and shall have power to examine witnesses as to any or all the matters in dispute, and where such witnesses require to be summoned, it shall be lawful for any justice of the peace, upon application made by such referees, or by their written order, to issue a summons, directed to such witnesses, to be served by the constable, by the delivery of a copy thereof, and if such witnesses fail to attend duly upon such summons, the superior court shall, upon affidavit thereof, proceed as in other cases of contempt. And make report to the court. The said referees shall make their report in writing to the court, signed by the said referees or any two of them, which shall be conclusive as to the state of such accounts, if the same shall be confirmed by the court; but no such report shall be confirmed until it shall appear that a copy thereof has been served on the opposite party, three days at least before such confirmation shall be applied for.

Sec. 21. And be it further enacted, That the said superior court shall have power to Court may make rules for its government. make such rules for regulating their practice, respectively, as shall not be inconsistent with the provisions of this act or of any other law of this territory.

Sec. 22. And be it further enacted, That the said superior courts shall have power What writs the court may have power to issue. to issue writs of Quo Warranto, Procedendo, Mandamus, and Prohibition, 260 which said writs shall pursue the forms, and be conducted according to the rules and regulations prescribed by the common law.

J. POYDRAS, 
President of the Council.

Approved — April 10th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the territory of Orleans.

262

CHAP. XXVIII.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted by the authority aforesaid, That the members of Who exempt from militia duty. the council, with their officers, secretary of the territory, judges of courts of law, their respective officers, the attorney general, the mayor and recorder of the city of New-Orleans, the treasurer of the territory and of the city, sheriffs, deputy sheriffs, gaolers, all post-masters and stage drivers, who are employed in the care and conveyance of the mail; all ferrymen employed at any ferry on the post roads, all pilots, all mariners, 266 actually employed in the sea service of any citizen within the United States, ministers of the gospel, schoolmasters, all physicians, surgeons and apothecaries, the secretaries of consuls from foreign states: and no other person or persons shall be exempted from militia duty.

Sec. 3. And be it further enacted, That the militia of this territory shall, within the How militia to be arranged. respective bounds herein after mentioned, be arranged into brigades, regiments, battalions and companies; that each brigade shall consist of no less than two, nor more than six regiments, each regiment into two battalions, and each battalion into four companies, in such manner that no company shall consist of more than sixty-four privates, or less than forty individuals, or as near as may be, having regard to their local situations; there shall be to each regiment at least one company of grenadiers, light infantry or artillery; and to each brigade there shall be one troop of horse, not exceeding one eighth part of the infantry: Provided always, That the volunteer corps Proviso. of cavalry and infantry, which now exist in this territory, and have not been included in the general formation of the militia, shall continue to exist as heretofore, and retain the privileges which they have hitherto enjoyed.

Sec. 4. And be it further enacted, That the territory of Orleans, for the purpose Territory divided into division bounds. of making the arrangements in the preceding section mentioned, be, and is hereby 268 divided into division bounds, as follows, to wit:

The city of New-Orleans, down to the Balize, and up to the parish of Cabahanoce included, shall form one division; the districts or parishes of La Fourche, Galveston, Iberville, Manchac, Baton Rouge and Point Coupee, one other division; the districts of Avoyelles, Rapides, Natchitoches, Ouachitta and Concordia, one other division: Provided, That it shall be lawful for the governor to divide any divisions aforesaid into two brigades, or more, when the number of men enrolled in the militia of such district, shall exceed two thousand. And if upon the actual organization of the militia, the aforesaid distribution of the territory into districts, should prove inconvenient, the governor shall have like power, by proclamation, to alter the boundaries of such districts in such manner as may to him seem best suited to the circumstances of the country, and such proclamation, shall have full force and effect until after the rising of the next session of the legislature of the territory thence afterwards ensuing.

Sec. 5. And be it further enacted, That the militia shall be officered as follows, viz. Militia how officered. on the staff of the commander in chief, there shall be four aids de camp with the rank of major, to the four districts aforesaid, one brigadier general, who shall be entitled to two aids de camp, with the rank of captain; and to each brigade, one brigade major with the rank of colonel; to 270 each regiment one colonel commandant ; to each battalion one major ; to each company of infantry (including light infantry and grenadiers,) one captain, two lieutenants, first and second, four serjeants, four corporals, one drummer and one fifer ; that there shall be a regimental staff, to consist of one adjutant, one quarter master, to rank as lieutenants, one ensign to each stand of colours, one surgeon and one surgeon’s mate, one serjeant major, and one drum major ; to each troop of horse there shall be one captain, two lieutenants, first and second, one cornet, four serjeants, four corporals, one saddler, one farrier, one trumpeter, and forty privates ; there shall be to each company of artillery, one captain, two lieutenants, first and second, four serjeants, four corporals, one drummer and one fifer. To the whole militia of the territory there shall be one adjutant general, commissioned with the rank of colonel, whose duty it shall be to distribute all orders Adjutant general to be appointed, and his duty. from the commander in chief to the several corps ; to attend all public reviews, when the commander in chief shall review the militia, to obey all orders from him relating to the carrying into execution and perfecting the system of military discipline established by this act ; to superintend the annual inspection of the militia in the different districts of the territory once a year ; to furnish blank forms of the different returns that may be required, and to explain the principles on which they 272 should be made ; to receive from the several officers of the different corps throughout the territory, returns of the militia under their command, reporting the actual situation of their arms, their accoutrements and ammunition, their delinquencies, and every other thing which relates to the general advancement of good order and discipline ; all which the several officers of the brigades, regiments and battalions are hereby required to make in such manner as the governor shall direct, so that the said adjutant general may be furnished therewith ; from all which returns he shall make a general return of all the militia of the territory, and lay the To give bond. same before the governor. That the said adjutant general, before he enters upon the exercise of the duty of his office, shall give bond, with one or two sufficient sureties in the penalty of two thousand dollars, conditioned for the due and faithful performance of the said duties, and shall in full compen His salary. sation for his services, receive a yearly salary of fifteen hundred dollars, to be paid quarterly out of the unappropriated monies in the treasury of the territory.

Sec. 6. And be it further enacted, That if any commissioned officer shall How an officer may vacate his office. remove out of the bounds of his proper brigade, regiment, battalion or company, except within the city of New-Orleans, or shall be absent therefrom (otherwise than on militia duty) for more than six months, without leave from his commanding officer, his office shall be vacated, and if a non-commissioned 274 officer or private, either infantry or cavalry, shall be removed or be absent in like manner from the bounds of his company, or be appointed or elected a commissioned officer in any other part of the militia, their place in their respective companies shall likewise be vacated. That when different corps shall be assembled together, Who to command when several corps are assembled together. the senior officer present, shall command, without any regard to corps whatever ; and all commissioned officers shall take rank according to the date of their commissions ; and when two of the same grade bear equal date, then their rank shall be determined by lot, to be drawn by them, before the commanding officer of the regiment or battalion.

Sec. 7. And be it further enacted, That the whole militia of the territory shall be Militia how mustered. subject to be mustered and exercised in manner following : each regiment, once every year ; each battalion twice, and each company four times in each year ; the time and place of each and every such musters, to be fixed by the several colonels commandants : Provided however, That the approbation of the commander in chief shall be necessary, as to the time and place of the regimental musters as aforesaid ; and Provided also, That at the review of every battalion, it shall be the duty of the officer commanding the same, to inspect and examine the arms and equipments of each individual composing the same, and to see that every officer, non-commissioned officer 276 and private, be armed and equipped in all respects as this act directs ; and the militia shall be and is hereby indemnified and excused from exercising on any other days than those enumerated in this act ; except the reviews of the adjutant general, which shall be made between the first of October and the first of March in each year.

Sec. 8. And be it further enacted, That if any commissioned officer shall without a Penalty on officers and privates for not attending muster. lawful excuse, neglect or refuse to attend on any of the days herein before appointed for exercise, or the day officially notified by the adjutant general for the review, which he shall yearly make, such commissioned officer shall forfeit and pay the sum of three dollars, and every non-commissioned officer shall forfeit the sum of one dollar and a half, and every private so neglecting or refusing to attend, shall forfeit and pay the sum of one dollar for every such neglect or refusal, except such commissioned and non-commissioned officer and private who shall be summoned, and actually attending on any of the days of exercise aforesaid, as a juror or witness in any court within this territory, and the same fine shall be respectively paid, by every officer, non-commissioned officer, and private, who shall leave the parade on a day of muster or exercise, before the regiment, battalion or company is discharged, without leave first had and obtained from the commanding officer.

Sec. 9. And be it further enacted, That every non-commissioned officer and private 278 of the militia, who shall be disorderly or disobedient, or guilty of unmilitary con- Penalty for disobedience, or unmilitary conduct. duct on a muster or training day, or at any other time when on duty, shall be confined during the time of the said muster or training, or duty, at the discretion of the commanding officer, not exceeding the space of twenty-four hours, and shall pay a fine not exceeding ten dollars nor less than three dollars, at the discretion of the justice of the peace to whom complaint shall be made, by any officer or non-commissioned officer of the company to which such offender belongs. In order to ascertain those persons who by their absence from duty, or on the days of exercise shall have incurred the fines First serjeant of each company to act as clerk, and his duty. above mentioned, each company shall have a clerk, who shall be the first serjeant, to register all orders and proceedings of the company in an orderly book, which shall never be alienated from the company ; to keep exact details of all detachments, to examine the equipments when thereto required, to note all delinquencies, and on every such day, in presence of the captain or commanding officer of the company or detachment, at the end of an hour, after the time appointed for the meeting of the company or detachment, and also after the duty or exercise is over, and before the men are discharged, shall call over a muster roll of the company or detachment, noting those who are absent, and return shall be made on the same or following day, which shall be signed by the commanding officer of the 280 company or detachment ; and the said serjeant shall sue for, recover and receive all fines and forfeitures which are required by this act to be recovered, one half to his own use for his trouble, and the other half to be paid to the commanding officer of the Fines how recovered. company, in trust for the use of the company to which he belongs ; excepting such cases wherein other provision is made by this act, for the recovery and appropriation of fines and forfeitures.

Sec. 10. And be it further enacted, That no officer of the militia shall be discharged, excepting by the Officers how discharged. commander in chief on the request of such officer, in writing, or by the commander in chief on the address of the legislature, or by being disbanded by a law of the territory, or by a judgment of a court martial, or by actual removal, (the brigadier general to be the judge, whether the distance is so great that such officer cannot Not exempted from duty until discharged. conveniently discharge the duties of his office,) or by fix months absence without leave of such officer, from the district of his command : And no officer shall consider himself exempted from the duties of his station, When a general officer may approve the resignation of an inferior officer. until he shall have been discharged in one or other of the methods aforesaid ; and if by the commander in chief, not until he shall have received a certificate of such discharge : no officer shall be allowed to resign his commission when under an arrest : and no general or field officer shall approve the resignation of any other officer, until such inferior officer shall have lodged in his hands all 282 such militia laws and orderly books as he shall have been furnished with by the go-vernment, and such general or field officer shall deliver the laws and orderly books which he shall thus have received, to the next succeeding officer who shall be commissioned in the place of him who shall have resigned,

Sec. 11. And be it further enacted, That officers of cavalry shall furnish themselves Uniform and equipment of cavalry. with good horses, and shall each be armed with a good sword and a pair of pistols, the holsters of which shall be covered with bear skin caps ; each horseman also shall furnish himself with a good and serviceable horse, a good saddle, bridle, mailpillion and valise, holsters, a breast plate and crupper, a pair of boots and spurs, a pair of pistols, a sabre, and cartridge box to contain twelve cartridges for pistols ; no man shall be enlisted into any troop of cavalry, unless he shall own, and constantly keep, a suitable horse and furniture, for that service, and if any man who shall belong to any troop of cavalry shall be destitute of a suitable horse and furniture, for more than three months at one time, he shall be discharged from such corps, and enrolled in the infan-try militia of the district in which he resides.

Sec. 12. And be it further enacted, That every commissioned officer of infantry, Equipment of infantry officers. whose duty shall require him to serve on foot, shall be armed with a sword ; and every officer whose duty requires him to be mounted on horseback, shall be armed with a sword and pair of pistols.

284

Sec. 13. And be it further enacted, That each non-commissioned officer and private of the infantry, Of non-commissioned officers and privates. shall constantly keep himself provided with a good musket or gun, a sufficient bayonet and belt, two spare flints, and a knapsack, a cartridge box or pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder ; and shall appear so armed, accoutred, and provided whenever called out, except that when called to exercise only, he may appear without a knapsack, and without cartridges loaded with ball: Provided always, That whenever a Proviso. man appears armed with a musket, all his equipments shall be suited to his musket; and whenever a man appears with a rifle, all his equipments shall be suited to his rifle; and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound, and every citizen enrolled and providing Military accoutrements exempt from executions for debt. himself with arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt, or for payment of taxes.

Sec. 14. And be it further enacted, That every non-commissioned officer or private of the infantry, who shall neglect to keep 286 Penalty for neglecting to equip according to law. himself armed and equipped as aforesaid, or who shall on a muster day, or at any other time of examination, be destitute of, or appear unprovided with the arms and equipments herein directed, shall pay a fine not exceeding one dollar, and in proportion to the articles of which he shall be deficient, at the discretion of the justice of the peace before whom trial shall be had : and all parents, tutors, guardians and masters, shall furnish those of the said militia, who shall be under their care and command, with the arms and equipments aforesaid, under the like penalties for any neglect.

Sec. 15. And be it further enacted, That every person liable to do military duty, who Penalty for not attending muster equipped according to law. being duly warned, shall refuse or neglect to appear at the time and place appointed, armed and equipped, as by this act is directed, for any muster, training, or view of arms, or other military duty, shall pay as a fine for such default the sum of fifty cents. And every person who shall appear at any muster with his arms in an unfit condition, shall pay a fine of twenty five cents for each and every such default: Proviso. Provided nevertheless, It shall be lawful for the commanding officer of a company, at any time within eight days after any muster, training, view of arms or other duty, to excuse any person for non-appearance, on the delinquent’s producing to him satisfactory evidence of his inability to appear as aforesaid; and the commanding officer of the company shall certify the same to the clerk within 288 the time above mentioned, and the clerk shall not thereafter commence any prosecution against such delinquent for his fine for non-appearance as aforesaid.

Sec. 16. And be it further enacted, That whenever the commanding officer shall call his company Non-commissioned officers to notify privates of musters. together, at the times and periods herein before stated, or when he shall be ordered by his superior officer to do it, he shall issue his order therefor, to one or more of the non-commissioned officers, if there be any, if not, to one or more of the privates belonging to his company, directing him or them to notify and warn the said company to appear at such time and place as shall be appointed; and every such person and persons who shall receive such orders, shall give notice of the time and place appointed for assembling said company, to each and every person he or they shall be so ordered to warn, either by verbal information, or by leaving a written or printed notification thereof at the usual place of abode of the person thus to be notified and warned; What shall be deemed a legal notice. and no notice shall be deemed legal for musters, for the purpose of common and ordinary trainings, unless it shall be given four days at least previous to the time appointed therefor; but in case of invasion, insurrection, or other emergency, any time specified in the orders shall be considered as legal; Penalty on non-commissioned officers for neglect to give notice. and every non-commissioned officer or other person who shall neglect to give the said notice and warning, when ordered thereto by the commanding 290 officer of the company to which he belongs, shall forfeit and pay as a fine for such offence a sum not exceeding five dollars, nor less than two dollars, at the discretion of the justice of the peace before whom such trial shall be had; and the testimony of any person under oath, who shall have received orders agreeable to law, for notifying and warning any company or part thereof, to appear at a time and place appointed for muster, view of arms, or other military duty, shall be sufficient to prove due notice was given to the party against whom complaint may be made, unless such testimony shall be invalidated by other sufficient evidence. And whenever a company shall be In what cases non-commissioned officers may take superior command. destitute of commissioned officers, and the commanding officer of the regiment or battalion to which such company belongs, shall think proper to call out such company, he shall direct his orders to one or more of the non-commissioned officers of said company, who shall have full power and authority to warn, assemble, lead, order exercise and govern said company conformably to the orders he or they shall thus receive from their superior officers for that purpose: Proviso. Provided always, When in regiment or battalion it shall be lawful for the commanding officer present, to order a commissioned officer to command such company while acting in conjunction with other corps.

Sec. 17. And be it further enacted, That whenever any officer, non-commissioned officer or private in Fines how recovered. the militia, shall forfeit 292 any sum of money for any default or offence by this act, the same shall be recovered in a summary way, by the clerk of the company to which the offender belongs, before any justice of the peace in the parish wherein such offender resides.

Sec. 18. And be it further enacted, That every captain or commanding officer of a company How commandants of companies and regiments are to make returns. shall make a return of his company, comprehending every man belonging to said company, stating all the arms and equipments belonging to them, to the commanding officer of the regiment, in the month of December, annually: every commanding officer of a regiment shall make a return of the state of his regiment to the brigadier, in the month of March, annually: and every commanding officer of a brigade shall make a return of his brigade to the adjutant general of the territory, in the month of May, annually.

Sec. 19. And be it further enacted, That every captain or commanding For what offence an officer may be reprimanded or removed from command. officer of a company, who shall neglect or refuse to call out his company as often as the law requires, or at any other time when thereto required by his superior officer; or who shall at any time excuse his men for unnecessary absence or deficiency, shall be tried by a court martial, and if thereof convicted, he shall be reprimanded in orders, or removed from office, at the discretion of said court.

Sec. 20. And be it further enacted, That at any How a regiment shall be formed. regimental muster the several companies shall form in regiment, according to 294 the rank of the officers commanding them, and the same rule shall apply, whenever different corps are assembled together; excepting so far as by custom, usage and necessity, cavalry, artillery and light troops may be detached from the battalions.

Sec. 21. And be it further enacted, That the governor or commander in chief shall appoint Courts martial how appointed. courts martial for the trial of all officers, above the rank of captain: the brigadier general shall appoint courts martial for the trial of captains and all officers under that rank: and it shall be the duty of every officer who shall appoint a court martial as aforesaid, to approve or disapprove of every sentence of such court martial by them appointed: and no officer who shall appoint a court martial shall be president thereof, nor shall any sentence be put in execution until it shall have been approved of as aforesaid: Regulation thereof. no court martial shall consist of a less number than thirteen commissioned officers, the president of which shall not be under the rank of a field officer; and no field officer shall be tried by any person under the degree of a captain; Field officers how tried. and all officers shall take rank by seniority of commission, without regard to corps; and the officer who shall appoint a court martial, shall at the same time appoint a suitable person for a judge Judge advocate how appointed, and his duty. advocate, whose duty it shall be impartially to state the evidence both for and against the officer under trial; to take accurate minutes of the evidence and all the proceedings of the court: all of 296 which he shall transmit with the judgment of the court thereon, under seal, to the officer whose duty it is to approve of such judgment; every officer to be tried shall have ten days notice given him of the time and place Rules of proceeding in trial. appointed for trial; and every officer to be tried shall be put in arrest, so as to be suspended from the exercise of his office, and shall have a copy of the charges exhibited against him, ten days before the sitting of said court; and in case any officer, for the trial of whom a court martial shall be appointed, shall neglect to appear and make defence, he shall be deemed by said court guilty of the charges, and shall be sentenced accordingly. In every court martial held for the trial of an officer, not less than two-thirds of the members must agree in the sentence or judgment of said court, otherwise the person charged shall be acquitted: Two-thirds of the court must concur in all sentences. all proceedings and trials by courts martial shall be carried on in the day time, and when the members shall be required to give their votes on a question or decision, they shall begin with the youngest in commission: all persons shall be holden to appear and give evidence before any court martial, under the same penalties for neglect as are by law provided for witnesses in other cases, when Witnesses to attend as in civil cases. thereunto summoned by a justice of the peace for such service, and all witnesses shall be sworn by the judge advocate, before they give their evidence to the court. Before any court martial shall proceed to the trial of any officer, the judge advocate shall 298 administer to the president and each of the members, the following oath, viz.

You A. B. do swear that you will well and truly try the cause now before you, between this Oath to be taken by court martial. territory and the person to be tried, and you do further swear that you will not divulge the sentence of this court martial until it shall be approved or disapproved of, and that you will not, on any account, at any time whatever, discover the vote or opinion of any member, unless required to give evidence thereof as a witness, by a court of justice, in a due course of law — So help you God.

And the president shall administer to the judge advocate the following oath, viz.

You A. B. do swear that you will not, on any account, at any time whatever, Oath to be taken by judge advocate. divulge the vote or opinion of any member of this court martial, unless required to give evidence thereof as a witness, by a court of justice in a due course of law — So help you God.

Sec. 22. And be it further enacted, That every officer holding a Particular offences for which an officer may be tried. commission in the militia, who shall be accused of any unmilitary conduct, neglect of duty or disobedience of orders; or who shall when on duty, appear or behave himself in an unofficer like manner, or shall wilfully injure those who are under his command, he shall be liable to be tried by a court martial, and if found guilty, to be sentenced by said court to be reprimanded in orders, or to be removed from office: and whenever a court-martial 300 shall sentence any officer to be removed from office, the Disqualification of a removed officer. court shall thereon adjudge such officer incapable of holding any military commission under this territory, for life or for years, according to the nature and aggravation of his offence: and such sentence being duly approved of by the officer appointing such court martial, shall be published and remain in full force, unless reversed, so far as respects disqualification by the legislature.

Sec. 23. And be it further enacted, That the several volunteer companies of militia of the city of Regulations of the Orleans volunteers. New-Orleans shall be mustered, inspected and reviewed once at least every twelve months, between the first day of December and the thirty-first day of March, at such time and place, and in such manner as the commander in chief shall direct and appoint; and every of the said companies that shall not then and there muster at least two serjeants and twenty-five rank and file, properly armed and equipped according to the rules and regulations of their respective companies, such company may be dissolved if the commander in chief shall think fit: Provided however, Proviso. That all members of the said company being bona fide residents of the city of New-Orleans, but then absent with leave, or who shall be unable through sickness or other unavoidable necessity, to be present at such muster and inspection, shall nevertheless be counted as being of the effective strength of their respective companies, and allowed as such, 302 as fully and completely for the purposes aforesaid, as if they had actually been present at the said muster.

Sec. 24. And be it further enacted, That nothing contained in this act shall be Construction of this act. construed or understood as in any wise affecting the acts already passed relative to volunteer companies.

J. POYDRAS, 
President of the Council.

Approved — April 10th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the territory of Orleans.

CHAP. XXIX.
AN ACT

Sec. 1 B

J. POYDRAS, 
President of the Council.

Approved — April 10th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

336

CHAP. XXXII.
AN ACT

Sec. 1 B

Sec. 2. And be it further enacted, That the treasurers of the several counties shall County treasurers to advertise slave holders to give in a list of slaves. respectively affix at the doors of the houses where their courts are held, at the doors of the several churches in their counties, and at such other public places as they may deem best calculated to give general notice, advertisements, calling on all owners of slaves within their several counties, to deliver to the said treasurer of such county, lists of all slaves which they may own in any part of this territory; and also calling upon all overseers, agents and other persons holding slaves of persons residing out of the territory, to deliver to said treasurer lists of all such slaves as may be held or employed by them: the said lists to be delivered before the first day of August in every year.

Sec. 3. And be it further enacted, That every owner of any slaves shall before the said day of August in every year, deliver to Holders of slaves to deliver in a list thereof. 338 the treasurer of the county in which such owner may reside, a list upon oath of all slaves which belong to him, and shall in such list state as nearly as he can, the ages and names of such slaves; and every person holding or employing within this territory the slave or slaves of persons not residing within the same, shall deliver in like manner on the same day and year aforesaid, a list of such slaves; Penalty for failure. and if any person or persons shall fail within the time above prescribed to furnish the treasurer of the county in which said person may reside with such list, the person or persons so failing shall forfeit and pay the sum of one hundred dollars, to be sued for and recovered by the treasurer of the county in which such person may reside, and to accrue to the use of the territory; For delivering in a false list. and if any person shall deliver a false list with intent to defraud the territory, he shall be deemed guilty of wilful and corrupt perjury, and on prosecution suffer the pains and penalties by law provided for that offence; and in either of the above cases the slaves not listed shall be subject to pay double tax.

Sec. 4. And be it further enacted, That each treasurer shall before the first day of September in every year, make out and transmit County treasurers to transmit to the treasurer of the territory a list of slaves, And advertise persons to pay the tax. to the treasurer of the territory, a copy of the list of all slaves given in by the citizens of his county, and shall proceed to affix to the door of the house where the court for his county is held, at the doors of each church therein, and at such public place as he may select for that purpose, 340 advertisements, calling upon all masters, owners and holders of slaves within his county, to pay the taxes due for such slaves on or before the first day of October next, and upon the application of any person from whom such taxes are due for that purpose, Treasurer to give receipt for taxes. it shall be the duty of such treasurer to receive such taxes, and without delay to grant a receipt for the same, which receipt shall specify the amount of tax, the names of the slaves for whom the same has been paid, the year for which the tax accrued, and the person for whom the payment is made. Mode of proceeding where tax is not paid. And if the owner or holder of any slave or slaves listed as aforesaid, shall neglect or refuse to pay the tax due for such slave or slaves on or before the day last mentioned, it shall be the duty of the treasurer of the county where such tax is due and unpaid, to make out and deliver to the sheriff of such county a list of such slaves on which taxes remain due and unpaid as aforesaid, together with the names of the persons listing or owning the same, and to add to the same fifty per cent on the amount so due, and such sheriff is empowered and required to demand and receive the amount so due of the persons by whom the same is payable, and if the same is not paid, such sheriff is authorised and required to levy the amount of such taxes, and collect the same by the sale of the property real or personal, of the person from whom such arrears of taxes are due: Proviso. Provided however, That in all sales of property for the taxes, the time and place of such 342 sale shall, ten days previously to making the same, be advertised in some public place.

Sec. 5. And be it further enacted, That every county treasurer shall on or before the County treasurers to pay over to the treasurer of the territory the taxes they may receive. first day of December in every year, account for and pay over to the treasurer of the territory, all sums received by him for taxes on slaves within his county, on or before the said first day of October; and for all sums so received by him subsequent to that day, he shall account for and pay over as aforesaid, within two months from the time of receiving the same, and shall obtain a receipt for the same; Penalty for failure. and on failure to account and pay as aforesaid, every county treasurer shall be liable to have judgment entered against him, on motion in the superior court of the territory, or in the court of the county where such treasurer resides, for the amount of all taxes so remaining unaccounted for or unpaid, and twenty per cent damages thereon, he the said county treasurer having received twenty days previous notice of said intended motion.

Sec. 6. And be it further enacted, That every county treasurer on delivering to any County treasurers to take from sheriffs receipts for lists of taxes. sheriff a list of taxes due for collection, shall take such sheriff’s receipt therefor, and if any sheriff shall fail to account for and settle according to such list, Penalty on sheriff for not collecting and paying to the treasurer taxes. and pay over the amount collected by him within one month after receiving the same, it shall be the duty of the treasurer of such county, to direct a motion to be made in his county court against such sheriff, and such court is empowered and 344 directed to render judgment against every such sheriff and his sureties for the amount of the taxes unaccounted for, together with twenty per cent damages thereon, such sheriff having received ten days previous notice of such intended motion.

Sec. 7. And be it further enacted, That it shall be the duty of every sheriff, deputy Sheriffs, &c. to give information of frauds in delivering in lists of slaves. sheriff, constable, justice of the peace and grand juror to give information to the county treasurer of their county, of every failure to deliver in lists of slaves, or the delivery of fraudulent lists which may come to their knowledge, and such treasurer upon affidavit made of the fact and filed in his office, is directed to make out and deliver to the sheriff a list of all such slaves not listed by the holder or owner, together with double the tax imposed by this act upon slaves regularly listed; which taxes are to be collected and accounted for by such sheriff, in the same manner as other taxes placed in his hands for collection.

Sec. 8. And be it further enacted, That there shall be allowed to each county Allowances to county treasurers for their services. treasurer, and he is hereby empowered and authorised to retain in his hands five per cent of all the monies which he shall collect, account for and pay over as aforesaid.

J. POYDRAS, 
President of the Council.

Approved — April 19th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

358

CHAP. XXXVI.
AN ACT

Sec. 1. B

That the fees to be received by attornies at law shall be as follows : Attorneys’ fees

The fees to be received by counsel, shall be as follows : Fees to counsel

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Which said fees for counsel and attornies shall be taxed by the clerk, and paid by the party sentenced to pay costs in each suit. Fees by whom taxed and paid. Provided however, That no fees shall be taxed for more than one attorney and one counsel in each cause, and that the fees taxed for either counsel or attorney, shall respectively in no case exceed the amount of five per cent on the sum demanded in the petition.

Sec. 2. And be it further enacted, That the fees to be received by the clerks of the superior and inferior courts shall be as follow : Clerk’s fees.

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Which said fees when they arise in any suit, shall be taxed as costs, and paid by the party sentenced to pay costs : Fees to be taxed as costs. and if any clerk of any court, shall charge greater or other fees than those above enumerated, Penalty for extortion. such clerk shall for every such offence be subject to pay the sum of one hundred dollars, to be recovered as other debts of the like amount are, and to be applied one half to the use of any person who will sue for the same, and the other half to the use of the territory.

Sec. 3. And be it further enacted, That the several sheriffs throughout this territory shall be entitled to demand and receive the following fees : Sheriff’s fees.

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And any and every sheriff who shall charge, demand and receive greater fees Penalty for extortion. than those above specified and enumerated shall be liable to pay the sum of one hundred dollars for every such offence, the said sum to be recovered as are other debts of the like amount, and to be applied one half to the use of any person who will sue for the same, and the other half to the use of the territory.

Sec. 4. And be it further enacted, That the office of depository of monies collected on judgments, is abolished, Office of depository of monies abolished. and that the sheriff of each county shall, without any further or greater fees than those herein enumerated, retain until legally demanded, and then pay over to the party entitled thereto, all such sums of money as may be collected by him in consequence of executions, judgments or other orders of court.

Sec. 5. And be it further enacted, That the justices of the peace shall have a right to demand and receive the following fees, and no other or greater, to wit : Fees of Justices of the peace.

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Sec. 6. And be it further enacted, That witnesses shall be paid Pay of witnesses. for every day’s travel in going and returning from court where they shall be summoned, and for each day they shall be detained on the trial of any cause, the sum of two dollars.

That the fees to constables shall be as follow : Constables’ fees.

That the fees to be received by the coroner of each county shall be the following, and no more : Coroners’ fees.

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Sec. 7. And be it further enacted, That all and every the respective officers whose fees are herein before enumerated, limited and appointed, Officers to make out and publish a table of fees. are hereby required to make fair tables of their fees respectively, according to this act, and to publish and set up the same in their respective offices within one month after the passage of this act, in some conspicuous part for the inspection of all persons who have business in said offices; on pain of forfeiting, for each day the same shall be missing through such officer’s neglect, the sum of twenty dollars, which shall be recoverable as debts of the like amount are, and shall be paid the one half to any person who will sue for the same, and the other half to the territory.

Sec. 8. And be it further enacted, That it shall and may be lawful for any person to refuse payment of fees to any officer who will not make out a bill of particulars, signed by him, if required, and also a receipt or discharge signed by him of the fees paid.

Sec. 9. And be it further enacted, That there shall be appointed for the superior court and for each county court of this territory, a cryer and a translator, Cryer and translator to be appointed. and that the fees to cryers shall be fifty cents for every 372 cause, and that the fees to translators one dollar and fifty cents for every cause.

Sec. 10. And be it further enacted, That Further costs to be taxed. the fees to each and every of the officers aforesaid shall in every civil suit be paid by the party sentenced to pay costs in such suit, and in all prosecutions before any county court at the suit of the territory, the said fees shall be taxed by the judge and paid out of the county funds.

Sec. 11. And be it further enacted, That Repealing clause. all laws heretofore existing in this territory allowing fees to the officers above enumerated, and whose fees are hereby limited, are repealed from and after the passage of this act.

J. POYDRAS, 
President of the Council.

Approved — April 27th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

382

CHAP. XLI.
AN ACT

Sec. 1. B

J. POYDRAS, 
President of the Council.

Approved — May 1st, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the territory of Orleans.

384

CHAP. XLIII.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That it shall be the duty of the sheriff of each county, Who to levy and collect said tax. to levy and collect, and of the treasurer to receive all such taxes aforesaid, according to the regulations of such ordinance as may be made by the said judges and justices for collecting and receiving the same, and that the said sheriffs and treasurers shall be entitled to the same fees and emoluments respectively, for collecting and receiving the taxes aforesaid, which are allowed to them for collecting and receiving the tax authorized by the act, entitled “an act to impose a tax upon slaves.”

Sec. 3. And be it further enacted, That the expenses chargeable upon the county funds aforesaid, How claims on county funds are to be paid. shall be paid by the treasurer on the warrant or certificate of the judge of the county, countersigned by the clerk.

J. POYDRAS, 
President of the Council.

Approved — May 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

388

CHAP. XLIV.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That it shall be the duty of the several justices of Duties of justices of the peace. the peace, in and for the several counties of this territory, and they are hereby vested with full power to hear and examine all complaints of any breach of the peace or other crime or misdemeanor, committed in the body of the county for which such justice shall have been appointed, and if any charge of breach of the peace, crime or misdemeanor shall be established by the oath of one or more credible witnesses, then it shall be the duty of such justice of the peace, for any offence not punishable with death or exclusively cognizable by the superior court, to take the bond of the party charged, with such surety as to the said justice may appear reasonable, conditioned for the appearance of the party accused at the next county court for the said county, and to transmit the said bond, together with the declarations of the witnesses relative to such 392 charge, to the clerk of the said court, to the end that such offender may be prosecuted according to law — and if the party so charged shall be accused on oath as aforesaid of an offence punishable with death, or shall refuse to give such security, it shall be the duty of such magistrate to commit him to the custody of the sheriff of the county who shall keep such offender in safe and sure custody, until he shall be delivered by due course of law; and on every such commitment, the magistrate making the same shall give his direction to the said sheriff, in writing, signed with his hand, ordering the said sheriff to keep the said person, so accused, in safe and sure custody until delivered by due course of law, and shall substantially set forth the nature of the offence of which such person is accused — which commitment shall be a sufficient warrant and justification to the said sheriff or his deputy, for the detention and imprisonment of the party so charged.

Sec. 3. And be it further enacted, That such justices of the peace shall have full Further powers of justice of the peace. power in all cases in which there shall appear to them, by oath, that a breach of the peace has been committed, or that there is just cause to apprehend that a breach of the peace is intended, to cause the party charged with such breach of the peace or intention of breaking the same, to be brought before them respectively, and direct him to give such security as the said justice may deem reasonable, to keep the peace of the territory, 394 and to answer to the offence, if any has been committed, and in case of refusal to give such security, to commit the party so charged (by warrant to be directed and drawn as aforesaid) to the custody of the sheriff of the county, who shall thereupon imprison the said party, until he shall enter into such security as has been ordered, before the same or some other judge or justice of the said county.

Sec. 4. And be it further enacted, That May take bonds for appearance of witnesses. in all cases where any person shall be committed or bound over to appear and answer for any offence, it shall be the duty of the magistrate making such commitment or binding the said party over, to take bonds from the material witnesses, in such penalty as the said justices may deem reasonable, conditioned for the appearance of such witness at the then next county court, if in a case cognizable therein, to testify against the said person so charged — and shall transmit, without delay, such bonds, together with the affidavits taken in such case, and the examination, if any, of the party, to the clerk of the county court of the county.

Sec. 5. And be it further enacted, That Criminals charged with a capital offence to be removed to New-Orleans. in all cases in which any person shall be committed to the custody of any sheriff, other than the sheriff of the city and county of Orleans, for any capital or other offence, exclusively cognizable in the superior court, it shall be the duty of such sheriff, without delay, and under sure and sufficient safeguard, to transmit such person to the city 396 of New-Orleans, and deliver him or her into custody of the sheriff of the said county, at the common gaol of the said city, whose duty it shall be to receive the said person, together with the warrant of commitment, endorsed by the sheriff delivering the same, to whom he shall deliver a copy of such commitment, together with a certificate of his having received such prisoner; and the said sheriff of the county of Orleans, is hereby authorised and directed to keep all such prisoners, so delivered to him, in safe and secure custody, until they shall be delivered by due course of law.

Sec. 6. And be it further enacted, That Cognizance in criminal cases of the county courts. the county courts respectively shall have jurisdiction of all crimes except those which are capital and such others whereof cognizance shall hereafter be exclusively given to the superior court.

Sec. 7. And be it further enacted, That Clerks to prosecute in behalf of the territory. it shall be the duty of the clerks of the county courts to prosecute on the part of the territory, for all crimes and offences before the court of such county respectively.

Sec. 8. And be it further enacted, That Taxes on certain suits. upon each suit brought into the court of the county of Orleans, there shall be paid to the clerk of said court, at the time of filing the petition, a fee of two dollars, over and above the other fees already authorised, which shall be charged as other costs to the party against whom final judgment shall be given : That the said clerk shall pay over, monthly, the amount of the fees authorised

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by this act, to the treasurer of the said county, and that the judge of the court of the said county shall be entitled to receive quarter yearly out of the funds in the treasury thereof, the annual salary of eighteen hundred dollars.

J. POYDRAS, 
President of the Council.

Approved — May 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

416

CHAP. L.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That every person who shall hereafter be duly Rape and crime against nature. convicted of any manner of rape, or of the detestable and abominable crime against nature, committed with mankind or beast, shall suffer imprisonment at hard labor for life.

Sec. 3. And be it further enacted, That every person who shall wilfully and maliciously Arson. burn any dwelling house, sugar house, rum house, cotton house, cotton gin house, or store, or out house or building adjoining such dwelling house, sugar house, cotton house cotton gin house or store, shall be deemed guilty of arson, and upon conviction thereof shall suffer imprisonment at hard labor for life.

Sec. 4. And be it further enacted, That every person who shall commit the crime of Robbery. robbery, and being thereof convicted, shall be publicly whipped, and suffer imprisonment at hard labor, not less than seven, and more than fourteen years.

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Sec. 5. And be it further enacted, That every person who shall commit the crime of Burglary. burglary, and be thereof convicted, shall be publicly whipped, and shall suffer imprisonment at hard labor, not less than ten, nor more than twenty years.

Sec. 6. And be it further enacted, That if any person or persons shall be accessary Accessaries before the fact how punished. before the fact, to any wilful murder, rape, arson, robbery or burglary, he, she or they so offending, shall upon conviction thereof, suffer the same kind of punishment which might be inflicted on the principal offender, for such crime or crimes respectively.

Sec. 7. And be it further enacted, That if any person or persons shall be accessary, After the fact. after the fact, to any wilful murder, rape, arson, robbery or burglary, he, she or they so offending, shall upon conviction thereof, be fined not exceeding five hundred dollars, or receive not exceeding thirty nine lashes on the bare back.

Sec. 8. And be it further enacted, That every person convicted of horse or mule Punishment of horse or slave stealers. stealing, or for stealing any slave, shall for every such offence be publicly whipped, and shall suffer imprisonment at hard labor, not less than seven nor more than fourteen years.

Sec. 9. And be it further enacted, That every person convicted of any species of Larceny. larceny, or as accessary thereto, shall be whipped not exceeding thirty-nine stripes, and shall moreover restore the goods and chattels so stolen to the rightful owner or 420 owners thereof, or shall pay to him, her or them, the value of such thereof as shall not be restored, which value the court shall enquire into and declare, or in default of making such restoration or payment, shall be imprisoned at hard labor for a period of time not exceeding two years.

Sec. 10. And be it further enacted, That robbery or larceny of bank notes, obligations Robbery. or bonds, bills obligatory, or bills of exchange, promissory notes for the payment of money, or notes for the payment of any specific property, lottery tickets, paper bills of credit, certificates granted by or under the authority of this territory, or of the United States, or of any of them, shall be punished in the same manner, both as of the principal and accessary as robbery or larceny of goods and chattels.

Sec. 11. And be it further enacted, That if any person having knowledge of the actual Punishment of persons guilty of misprision of any crime. commission of the crime of wilful murder, rape, arson, robbery, burglary or larceny, shall conceal, and not as soon as may be, disclose and make known the same to some one of the judges, or other persons in civil authority within this territory, on conviction thereof, such person or persons shall be adjudged guilty of misprision of felony, and shall pay a fine not exceeding three hundred dollars, and may also at the discretion of the court, suffer imprisonment at hard labor, or otherwise, not exceeding twelve months.

422

Sec. 12. And be it further enacted, That if any person or persons shall receive or buy Receivers of stolen goods. any goods or chattels, that shall be feloniously taken or stolen from any other person knowing the same to have been so taken or stolen, or shall receive, harbor or conceal any felon or felons, thief or thieves, knowing him, her or them to be so, he, she or they being of either offence legally convicted, shall restore the goods so received, or pay double the value thereof, and shall moreover suffer imprisonment at hard labor not exceeding one year, and in default of making the restoration or payment aforesaid, shall suffer further imprisonment at hard labor for a period not exceeding one year.

Sec. 13. And be it further enacted, That any person who shall wilfully and maliciously House burning. burn any out house, barn or stable, not adjoining some dwelling house, sugar house, cotton house, cotton gin house, or store, or shall burn any hovel, crib, cock, mow or stack of hay, fodder, corn or grain, or shall be accessary to either of said offences before the fact, shall upon conviction thereof, pay the damages that any person may sustain thereby, and shall moreover suffer imprisonment at hard labor, not less than seven nor more than fourteen years.

Sec. 14. And be it further enacted, That if any person or persons shall forge or Forgery. counterfeit or cause or procure to be forged or counterfeited, or shall willingly aid or assist in the forging or counterfeiting any gold or silver coin, which now is, or hereafter may

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be passing, or in circulation in this territory, or shall falsely pay or offer or tender in payment, any such forged or counterfeited coin, knowing the same to be forged or counterfeited, every person so offending and being thereof convicted, shall suffer imprisonment at hard labor, not less than seven nor more than fourteen years.

Sec. 15. And be it further enacted, That if any person or persons shall falsely make, Forgery of letters, &c. alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly aid or assist in the false making, altering, forging or counterfeiting of any letter patent, gift, grant, bond, writing obligatory, bill or order, or acceptance of such bill or order, note of the bank of the United States, or of the bank of any one of the said states, or of any bank of any of the territories thereof, cotton receipt, promissory note, will, indenture, deed or contract, with intention to defraud any person, or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment, or for sale, any such false, forged, altered or counterfeited bond, bill, or acceptance of such bill or order, note of the bank of the United States, or of the bank of any one of the said states, or of any bank of any of the territories thereof, cotton receipt, promissory note, will, indenture, deed or contract, with intention to defraud any person, knowing the same to be false, forged or counterfeited, and shall be thereof 426 convicted, every such person shall suffer imprisonment at hard labor for life.

Sec. 16. And be it further enacted, That if any person or persons shall wilfully and Perjury. corruptly commit perjury, or shall by any means procure any person to commit corrupt and wilful perjury, on his or her oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of this territory, or in any deposition or affidavit taken, or made pursuant to the laws of this territory; every person so offending and being thereof convicted, shall be punished with imprisonment at hard labor not less than five years, nor more than ten years, and shall be set in the pillory two hours on some day in each year of such imprisonment, and be thereafter rendered incapable of giving testimony in any of the courts of this territory, until such time as the judgment against such offender be reversed.

Sec. 17. And be it further enacted, That in every presentment or indictment to be Trial of persons indicted for perjury. prosecuted against any person for wilful and corrupt perjury, it shall be sufficient to set forth the substance of the offence, charged upon the defendant, and by what court or before whom the oath or affirmation was taken, (averring such court, person or persons, to have competent authority to administer the same) together with a proper averment or averments to falsify the matter or matters wherein the perjury or perjuries is or are assigned, without setting forth the 428 bill, answer, information, indictment, declaration, or any part of any record or proceeding other than as aforesaid, and without setting forth the commission or authority of the court, or the commission or authority of the person or persons before whom the perjury was committed.

Sec. 18. And be it further enacted, That in any Subornation of perjury. presentment or indictment, for subornation of perjury, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth the bill, answer, information, indictment or declaration, or any part of the record or proceeding, and without setting forth the commission or authority of the court, or person or persons before whom the perjury was committed, or was agreed or promised to be committed.

Sec. 19. And be it further enacted, That if any Stealing or altering records, &c. of any court. person or persons shall feloniously steal, take away, alter, falsify, or otherwise avoid any record, writ, process or other proceeding in any of the courts of this territory, by means whereof any judgment shall be reversed, made void, or not take effect, or if any person shall acknowledge, or procure to be acknowledged in any of the courts aforesaid, any recognizance, bail or judgment, in the name or names of any other person or persons, not privy or consenting to the same, every such person or persons on conviction thereof, shall pay a fine not exceeding three thousand dollars; and may also at the discretion of the court, be punished 430 with imprisonment at hard labor not exceeding two years: Proviso. Provided nevertheless, That this act shall not extend to the acknowledgment of any judgment or judgments, by any attorney or attorneys, duly admitted for any person or persons against whom any such judgment or judgments shall be had or given.

Sec. 20. And be it further enacted, That every Stealing or altering other records, etc. of any court. person who shall deface, alter, falsify or embezzle any record, enrolment or matter or instrument recorded, or registry thereof, with intent to defraud, shall upon conviction thereof, pay a fine not exceeding one thousand dollars, and be imprisoned at hard labor for a term not more than two years, and shall be rendered incapable of holding any office within this territory.

Sec. 21. And be it further enacted, That if any Bigamy. person or persons being married, shall intermarry with any person or persons, the former husband or wife being alive, he, she or they so offending, shall on conviction thereof, pay a fine not exceeding five hundred dollars, and be imprisoned not exceeding two years: Proviso. Provided nevertheless, That this act or any thing therein contained shall not extend to any person or persons whose husband or wife shall absent him or herself one from the other, for the space of five years, the one of them not knowing the other to be living within that time, nor to any person or persons who shall be, at the time of such marriage, divorced by competent authority, or to any person or persons 432 whose former marriage, by sentence of competent authority, shall have been declared void.

Sec. 22. And be it further enacted, That if any Manslaughter. person or persons shall commit the crime of man-slaughter, and be thereof convicted, such person or persons shall be fined in a sum not exceeding five hundred dollars, and may moreover be punished with imprisonment at hard labor or otherwise, as the court shall direct, not exceeding twelve months.

Sec. 23. And be it further enacted, That if any Biting, slitting, maiming, etc. person or persons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or ears, or cut out or disable the tongue, put out an eye, while fighting or otherwise; slit the nose or a lip, cut or bite off the nose or lip, or cut off or disable any limb or member of any person, with intention in so doing to maim, disable or disfigure such person in any manner before mentioned; then in every such case, the person or persons so offending, their counsellors, aiders and abettors, shall on conviction thereof, pay a fine not exceeding one thousand dollars, and shall be farther punished with imprisonment at hard labor not exceeding seven years.

Sec. 24. And be it further enacted, That whoever Assault with intention to kill. shall assault another by wilfully shooting at him, or with intent to commit murder, rape or robbery, shall on conviction thereof, be imprisoned at hard labor not exceeding two years, and shall 434 afterwards give sufficient security, for good behavior for one year.

Sec. 25. And be it further enacted, That if any Duelling. person shall challenge another, or shall accept a challenge, to fight with sword, pistol, rapier, or other dangerous weapon, every person so challenging or accepting such challenge, shall upon conviction thereof, be fined not exceeding five hundred dollars, and may be imprisoned not exceeding two years; and if any person shall willingly or knowingly carry or deliver to any person a written challenge, or verbally deliver any message purporting to be a challenge to fight such duel, or shall be second to either party, or shall command counsel, or advise or procure any person to fight such duel, every person so offending and being thereof convicted, shall be liable to the same penalties as are by this act directed in the case last mentioned of a challenge to fight, or the accepting of such challenge.

Sec. 26. And be it further enacted, That if any Rescue. person or persons shall by force set at liberty or rescue any person or persons, who shall be found guilty of any capital offence, or rescue any person convicted of any capital crime, going to execution, or during execution, every person so offending and being thereof convicted, shall suffer imprisonment at hard labor not exceeding fourteen years; and if any person or persons shall by force set at liberty or rescue any person or 436 persons who before conviction shall stand indicted for any capital offence, or if any person or persons shall by force set at liberty or rescue any person committed for, or convicted of any other offence, every person so offending, shall on conviction thereof, be fined not exceeding three hundred dollars, and be imprisoned at hard labor not exceeding two years.

Sec. 27. And be it further enacted, That if any Opposition to the law. person or persons shall knowingly or willingly obstruct, resist, oppose or insult any officer of this territory, in serving or attempting to serve or execute any mesne process, or warrant, or any rule or order of any of the courts of this territory, or any other legal or judicial writ or process whatsoever, or shall assault, beat, wound or insult any officer, or other person duly authorised, in serving or executing any writ, rule, order, process or warrant aforesaid, every person so knowingly and wilfully offending in the premises, shall on conviction thereof, be imprisoned not exceeding six months, and fined not exceeding two hundred dollars.

Sec. 28. And be it further enacted, That whoever Prison breaking. being lawfully imprisoned, shall break or conspire to break prison; whoever shall take any reward under pretence of helping the owner to his stolen goods; whoever shall compound any felony, Conspiring to have an innocent person indicted. whoever shall falsely and maliciously conspire to indict an innocent man of any felony, and who shall be accordingly indicted and acquitted, every such offender shall upon conviction

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for any of the aforesaid offences, suffer fine or imprisonment, or both at the discretion of the court.

Sec. 29. And be it further enacted, That if any Bribery. person or persons shall directly or indirectly give, offer or promise any bribe or other undue reward, to obtain or procure the opinion, judgment or decree of any judge, justice of the peace, or other civil or judicial officer of this territory in any suit, controversy, or matter depending before him or them, and shall be thereof convicted, such person or persons, and the judge, justice of the peace, or other civil or judicial officer, who shall in any wise accept or receive the same, on conviction thereof shall suffer fine or imprisonment, or both, at the discretion of the court.

Sec. 30. And be it further enacted, That if any Oppression and extortion. judge, justice of the peace, sheriff, coroner, constable or other civil officer, be guilty of any oppression or extortion, in the administration, or under the colour of his office, every such offender shall on conviction, suffer fine or imprisonment, or both, at the discretion of the court.

Sec. 31. And be it further enacted, That whoever Riot. shall make or knowingly assist at any rout, riot, or unlawful assembly; whoever shall wilfully and maliciously Breaking levees. pull down or destroy any levee or embankment on any of the rivers or navigable waters of this territory; whoever shall maliciously Slander. defame any person by making, writing, publishing 440 or causing to be published, any manner of libel, shall on conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court.

Sec. 32. And be it further enacted, That whoever Assault and battery. shall be guilty of assaulting and beating, wounding short of maiming, or of falsely imprisoning any person, shall on conviction thereof, suffer fine or imprisonment, or both, at the discretion of the court.

Sec. 33. And be it further enacted, That all Trials to be on the principles of the common law. the crimes, offences and misdemeanors herein before named, shall be taken, intended and construed, according to and in conformity with the common law of England; and that the forms of indictment, (divested however of unnecessary prolixity) the method of trial; the rules of evidence, and all other proceedings whatsoever in the prosecution of the said crimes, offences and misdemeanors, changing what ought to be changed, shall be except as is by this act otherwise provided for, according to the said common law.

Sec. 34. And be it further enacted, That the Trials may be had by jury or otherwise. trial of every person, for any of the crimes or misdemeanors aforesaid, shall be by jury, if the party accused or the person who prosecutes desires it.

Sec. 35. And be it further enacted, That every Copy of indictment, and list of jury to be given the prisoner. person who shall be accused and indicted for any capital crime or any crime punishable with imprisonment at hard labor for life, or for seven years or upwards, shall have a copy of the indictment and list of 442 the jury which are to pass on his trial, delivered unto him at least two entire days before he or she shall be tried for the same; Prisoner allowed counsel. and that every person accused and indicted, shall be allowed and admitted to make his full defence by counsel learned in the law; and the court before whom such person shall be tried, or some judge thereof, shall immediately upon his request, assign to such person such counsel as such person shall desire, to whom such counsel shall have free access at all seasonable hours; May adduce evidence. and every such person or persons so accused and indicted, shall be admitted in his, her, or their defence, to make any proof he, she or they can produce by any lawful witness or witnesses, and shall have the like process to compel his, her, or their witnesses to appear on his, her or their trial, as is usually granted to compel witnesses to appear on the prosecution against him, her or them.

Sec. 36. And be it further enacted, That no May challenge jurors. person indicted of any crime specified in the preceding section shall be allowed to challenge above the number of twelve persons of the jury, unless cause be shewn for such challenges above the number aforesaid; Standing mute no bar to trial. and if any person on his or her arraignment for any offence, shall stand mute or will not answer to the indictment, the plea of not guilty shall be entered for him or her, on the record, and the court shall, on either of said cases, proceed to trial of the person so challenging or standing mute, as if he or she had pleaded not guilty, and for trial put 444 him or herself upon the county, and render judgment accordingly.

Sec. 37. And be it further enacted, That no Limitation of prosecution. person shall be prosecuted, tried, or punished for any offence, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offence shall be done or committed; nor shall any person be prosecuted for any fine or forfeiture, under any law of this territory, unless the prosecution for the same shall be instituted within six months from the time of incurring such fine or forfeiture: Proviso. Provided, That nothing herein contained shall extend to any person absconding or fleeing from justice.

Sec. 38. And be it further enacted, That the Mode of inflicting the punishment of death. manner of inflicting the punishment of death, shall be by hanging the person convicted, by the neck until dead.

Sec. 39. And be it further enacted, That the Criminals’ property how disposed of. lands, tenements, goods and chattels of every person convicted of any crime or misdemeanor, shall from the time when such person shall be committed to prison, charged with such crime or misdemeanor, be liable and subject in preference to all other demands whatever (except dower and jointure) in the first place, to the discharge of the expences incurred by the territory or county in the prosecution and conviction of such offender, and in the next place to what restitution or reparation may be adjudged by the court to the injured party; and if 446 the estate of the person or persons shall be incompetent to said purposes, then in that case, after deducting the expences of prosecution and conviction as aforesaid, the surplus, if any, shall go towards making Court to prevent prisoners’ property from being wasted. reparation to the party injured; and it shall be the duty of the court, in all criminal cases tried by the court wherein an injury to the person or property of any person has been sustained, to enquire, and in all such cases tried by a jury, to direct such jury to enquire at the prayer of the party injured, concerning the degree of such injury, and on due consideration of the circumstances of the case, to award and adjudge restoration or reparation accordingly, and the amount so adjudged may be levied by writ of fieri facias, as on execution in civil suits.

Sec. 40. And be it further enacted, That no No crime to work corruption of blood. conviction or judgment for any of the offences aforesaid, shall work corruption of blood, or subject the offender to any other forfeiture or penalty than such as is herein before declared and specified.

Sec. 41. And be it further enacted, That every Default in paying any fine the party to be imprisoned. person being adjudged to pay any fine under this act, shall in default of making such payment, be imprisoned for any term not exceeding one year.

Sec. 42. And be it further enacted, That the All fines herein specified to be paid into the county treasury. amount of all fines aforesaid, shall be paid when adjudged by any county court, into the treasury of such county for the use thereof, and when adjudged by the superior court, such fines shall be paid into the treasury 448 fury of the county in which judgment shall be given, for the use of the government of this territory.

Sec. 43. And be it further enacted, That the Superior court to have exclusive cognizance of every capital offence. superior court shall have exclusive cognizance of every capital crime, and of every crime for which the punishment is imprisonment at hard labor for life, or for seven years or upwards.

Sec. 44. And be it further enacted, That in Discretionary punishments only cognizable by the court before which they are tried. all sentences for crimes or misdemeanors, where the punishment is made by this act discretionary, such punishment shall be at the discretion of the court having cognizance of such crime or misdemeanor.

Sec. 45. And be it further enacted, That the Judge of county, and justices of the peace to regulate prisons. judge of each county, by and with the consent of the justices of the peace thereof, or a majority of them, may and shall, until further legislative provision be made, make and ordain such regulations for the government and good order of the county prisons, for preserving the health of the prisoners, and for keeping and compelling to hard labor such convicts as by this act are and shall be liable thereto; and it shall be the duty of the said judge to take care that such regulations so ordained shall be carried into effect.

Sec. 46. And be it further enacted, That every Regulation of labor. person sentenced to hard labor under this act, shall except when sick, be kept and compelled to such labor for the space of eight hours every day, Sundays excepted, during the period for which he shall suffer such imprisonment.

450

Sec. 47. And be it further enacted, That nothing Slaves punishable under the Spanish law. herein before contained shall be construed to extend to any slave or slaves, but that every slave accused of any crime shall be punished according to the laws of Spain for regulating her colonies: Provided however, That no cruel or unusual punishment shall be inflicted: Slave to be tried by county court. and the county courts shall have jurisdiction of all crimes and misdemeanors committed by any slave or slaves, the crime of murder only excepted; whereof the exclusive jurisdiction shall belong to the superior court; Mode of trial. that the mode of trial of slaves before the county courts shall be by the court and four discreet freeholders, who shall be sworn to decide truly and justly, according to the evidence laid before them, and whose decision so given shall have the same force and validity as the verdict of a jury in other cases.

Sec. 48. And be it further enacted, That as Governor to have collated and published, exposition of crimes, &c. soon as may be, after the passing of this act, the governor shall cause to be drawn up and printed and promulgated, in the English and French languages, an exposition and explanation of each and every of the crimes and misdemeanors herein before mentioned, which are not herein precisely defined, and of the rules of evidence, the mode of trial, the forms of writs and indictments, and all other proceedings as they are directed to be had in the thirty-third section of this act; and that the expence of drawing up, printing and promulgating such exposition and 452 explanation, shall be paid by the treasurer, on the warrant of the governor, out of any monies remaining unappropriated in the treasury of the territory.

Sec. 49. And be it further enacted, That the Sheriffs to execute all process of the courts. sheriffs of counties shall serve and execute, or cause to be served and executed, all the writs, orders and sentences, lawfully issued, made, adjudged or pronounced in pursuance of this act, by the county courts, or the superior court of this territory respectively.

Sec. 50. And be it further enacted, That the Courts may compel the attendance of witnesses. said courts and each of them, shall have the same power and authority to compel the attendance of witnesses in criminal as in civil cases.

Sec. 51. And be it further enacted, That the Grand juries to be summoned. county courts shall direct grand juries to be summoned at least once in every three months; and that the county courts and the superior court shall have power to fine grand and petit jurors to the same extent and under the same restrictions for non-attendance in criminal as in civil cases: Proviso. Provided, That nothing contained in this or any former act of this legislature, shall be construed to prevent the superior court from ordering and causing to be summoned, as heretofore, grand and petit juries of the territory, for the indictment and trial of any offence committed therein.

Sec. 52. And be it further enacted, That all judgments and sentences to be rendered 454 All judgments to be pronounced in open court. in criminal cases in the said courts, shall be pronounced in open court, and shall be entered on the minutes of the court by the clerk.

J. POYDRAS, 
President of the Council.

Approved — May 4th, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

ACTS
PASSED AT THE
SECOND SESSION
OF THE
LEGISLATIVE COUNCIL
OF THE
Territory of Orleans,

BEGUN AND HELD AT THE PRINCIPAL, IN THE CITY OF NEW-ORLEANS, ON THURSDAY THE TWENTIETH DAY OF JUNE, IN THE YEAR OF OUR LORD, ONE THOUSAND EIGHT HUNDRED AND FIVE, AND OF THE INDEPENDENCE OF THE U. STATES, THE TWENTY-NINTH.

Published by Authority.



NEW-ORLEANS :

PRINTED BY JAMES M. BRADFORD, PRINTER TO THE TERRITORY.

1805.

36

CHAP. IV.
AN ACT

W

Sec. 1. Be it therefore enacted by the governor of the territory of Orleans, by and with the advice and consent of the legislative council thereof, That Crime of murder distinguished by first and second degree. all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder 38 of the second degree, and the jury before whom any person indicted for murder, shall be tried, if they find such person guilty thereof, ascertain their verdict, whether it be murder of the first or second degree ; but if such person be convicted by confession, the court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. Every person duly convicted of murder How punished. in the first degree, shall suffer death ; and every person duly convicted of the crime of murder in the second degree, shall suffer imprisonment at hard labor, not less than five, nor more than fourteen years.

Sec. 2. And be it further enacted, That all persons who knowingly, fraudulently and Punishment for swindling. designedly, by any false pretence or pretences, shall obtain or aid and assist another in obtaining from any person money or any property whatever, with intent to defraud any person of the same, shall be deemed offenders against law and the public peace, and shall on due conviction, be punished by whipping, not exceeding thirty-nine stripes, or by imprisonment at hard labor or otherwise, not exceeding twelve months.

Sec. 3. And be it further enacted, That all other crimes, offences and misdemeanors Crimes not enumerated to be punished under the common law. committed by free persons, and not provided for by this act, or by the act to which this act is a supplement, shall be punished according to the common law, and shall be prosecuted and tried according to the said law, in the manner and according to the 40 forms prescribed by the act, entitled “ an act for the punishment of crimes and misdemeanors,” and that the property of all offenders whatever, shall be held liable to restitution, reparation, costs and damages, and shall be disposed of in all respects as is directed concerning the property of offenders, by the thirty-ninth section of the said last mentioned act.

Sec. 4. The attorney general, or the attornies appointed to prosecute on Attornies to file information. behalf of. the territory in the county courts, may by and with the leave of the court, for that purpose first obtained, file information for any offences not capital, nor exclusively cognizable by the superior court, and in all criminal causes where the trial shall be by the court, the trial shall be on information duly filed.

Sec. 5. And be it further enacted, That all persons who after this act shall be in Criminals to be punished according to the provisions of this act. force, shall be convicted of any crime or offence committed before, shall be punished therefor, as is directed by this act, or by the act to which this is a supplement.

Sec. 6. And be it further enacted, That Provisions of this act not to extend to any slave. the provisions of this act shall not extend to any slave.

Sec. 7. And be it further enacted, That the judge of each county, with the consent of a Judge of the county and justices of peace to regulate labor. majority of the justices of peace thereof, may and shall make ordinances, specifying and declaring what kind and manner of labor, offenders sentenced to imprisonment at hard labor, shall be obliged to perform, 42 and that the expence of carrying the provisions of this section into effect, shall be paid out of the county funds of the county wherein the offence may be committed.

J. POYDRAS, 
President of the Council.

Approved — July 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

54

CHAP. X.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That such Applications to be made by petition. applications shall be by petition, alledging why the alimony is claimed, and the proceedings and trial thereon shall be as in other causes. If allegations are sufficient, court may grant alimony. If the petitioner's allegations are found to be true, and are sufficient to support her claim, the court shall adjudge that reasonable alimony be paid her out of the defendant's estate; and if the said defendant shall refuse or neglect to perform such judgment, in the manner directed thereby, the said court may award a writ of distringas, against his real and personal estate, or commit him to prison for any period not exceeding twelve months, until he shall have performed the said judgment.

Sec. 3. And be it further enacted, That no No alimony can be granted in cases of adultery. alimony can be granted in case of open adultery on the part of the wife.

Sec. 4. And be it further enacted, That a Judgment for alimony to release a wife from the power of her husband. judgment for alimony rendered as aforesaid, shall release the petitioner from the power of her husband, and she shall be at liberty to live separate from him, and to use her alimony, and acquire use, and dispose of any property uncontrouled by her husband, as if she were a single woman.

Sec. 5. And be it further enacted, That whenever it is proved to the satisfaction of a judge, that there is reason to suspect that 58 a defendant, In what cases a husband sued for alimony may be held to bail. against whom a petition for alimony shall have been brought as aforesaid, is about to depart from the territory, or that he will fraudulently convey away, or conceal his property, the said judge may order such defendant to be held to bail, in such a sum, or direct the property of such defendant to be attached to such an amount, as will secure reasonable alimony to the wife.

Sec. 6. And be it further enacted, That the Court may direct maintenance for children. said courts shall in their discretion direct such provision to be made for the maintenance of the children of any parties aforesaid, according to the age and sex of such children, and to the circumstances of their parents.

Sec. 7. And be it further enacted, That any Appeals can be had. party being dissatisfied with any judgment rendered by a county court, on any petition as aforesaid, may appeal from such judgment to the superior court, and that the proceedings on such appeal, shall be as is directed in other causes.

J. POYDRAS, 
President of the Council.

Approved — July 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

68

CHAP. XII.
AN ACT

Sec. 1. B

Sec. 2. And be it further enacted, That none of the fees herein before mentioned shall To make out a bill before fees are paid. be payable by any person whatever, until there shall be produced unto the person owing or chargeable with the same, a bill or account in writing, containing the particulars of such fees signed by the clerk, the officer to whom such fees shall be due, 72 or by whom the same shall be chargeable respectively; in which said bill or account, shall be expressed in words at length, every service for which any fee shall be demanded. List of fees to be set up in the office. And the several officers whose compensations are herein fixed and limited, shall respectively set up in their several offices, a fair list of all their fees, carrying out the amount for each particular service, agreeably to the provisions of this act, and shall keep the same constantly up in some conspicuous part of their office, under the penalty of fifty dollars, for every three successive weeks, that the same shall not be kept up.

Sec. 3. And be it further enacted, That if any officer whose fees are herein limited, Penalty for taking greater fees than allowed by law. and ascertained, shall after the fourth day of July next, exact or take greater fees for any writing or other business by him done, within the purview of this act, than is herein before set down and ascertained, or if any officer shall charge and take any of the fees herein mentioned, and shall not perform the services, or shall charge and take any greater or other fee or fees than is or are herein allowed, to be proved by the fee book of such officer, upon his corporal oath, such officer for every such offence, shall forfeit and pay the party injured, besides such fee or fees, fifty dollars for every particular article or fee, so unjustly charged and taken, to be recovered with costs before the court of the county, wherein the officer making such unlawful charge or de- 74 mand resides : Provided however, That the same be sued for within twelve months after the said offence shall have been committed.

Sec. 4. And be it further enacted, That so much of any former act as comes within the Repealing clause. purview of this act, or relates to the compensations therein allowed and ascertained, is hereby repealed.

Sec. 5. And be it further enacted, That all notarial acts herein before specified, shall Business to be done by notaries in an office. be made and executed in the office of the notary or person duly authorised by law as aforesaid, unless where the illness of the party or some other sufficient cause, shall prevent him from attending in such office : And all notarial acts registered. and all the said acts shall be enregistered by the notary or person duly authorised, in regular order, according to the dates of such execution, and that all other such acts not executed in the office of said notary or person duly authorised, shall be enregistered as soon as possible, after the execution of the same, and no such act whatever shall have validity until the same shall have been so registered.

J. POYDRAS, 
President of the Council.

Approved — July 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

88

CHAP. XV.
AN ACT

W

Sec. 1. Be it therefore enacted by the governor of the territory of Orleans, by and Certain persons made a corporate body. with the advice and consent of the legislative council thereof, That J. B. Prevost, Joseph M’Neal, Richard Relf, Benjamin Morgan, Robert Dow, James Brown, Joseph Saul, William Kenner, William Brown, John Watkins, Evan Jones, George T. Phillips, William Harper, Richard Butler, William G. Garland, James M. Bradford, R. D. Shepherd, George T. Ross, Charles Norwood, Waters Clarke, James C. Williamson, Charles Patton, Thomas M’Cormick, 90 John F. Watson, Edward Livingston, William W. Smith, John Poultney, John P. Sanderson, Henry A. Heins, Samuel D. Earle, John M’Donnough, Andrew Burk, John Palfrey, George W. Morgan, Abraham R. Ellery, Thomas L. Harman, James Proffit, James Martin, Thomas Callender, William Donaldson, Hugh Pollock, and such other free white persons of the age of twenty-one years, who shall contribute not less than ten dollars per annum, for the support and maintenance of the said church, shall forever be, and are hereby created and made one body politic and corporate, in deed and in law, by the name, style and title of “the church-wardens and vestry-men of Christ’s church, in the county of Orleans,” Name of the church. and by the same name shall have perpetual succession, and are hereby made able and capable in law to have, purchase, receive, take, hold, possess, enjoy and retain to them and their successors, lands, rents, tenements, hereditaments, stock, goods, chattels and effects of what kind, nature or quality soever, whether real, personal or mixed, by gift, grant, demise, bargain and sale, devise, bequest, testament, legacy, or by any other mode of conveyance or transfer whatsoever : Funds of the church limited. Provided the yearly income arising from the same, and subject to the annual disposition of said society, shall shall not exceed the sum of twenty thousand dollars, money of the United States, and the same to give, grant, bargain, sell, demise, convey, assure, transfer, alien, and dispose of to 92 others Church may purchase, hold and dispose of property. for the whole or any less estate than they in the same, and also to improve and augment the same, in such manner and form as to the said society by their by-laws and regulations shall order and direct ; and shall and may apply the same, with the rents, issues and profits, income and interest of such estate, and the monies arising from the sales or alienation of any part thereof, to the uses, ends, intents and purposes of their institution, according to such rules, orders and regulations as shall from time to time be declared and ordained, touching and concerning the same, as fully and effectually as any natural person, or any body politic and corporate, within this territory can do and perform. Powers of the corporation. And the said society, by the name, style and title aforesaid, shall and may sue, and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all courts of law in equity, within this territory or elsewhere, and also to make and use a common seal, and the same to break, alter and renew at their pleasure, and also to ordain, establish, change and put in execution such by-laws, ordinances and regulations as shall to them, or a majority of such quorum of them seem meet and convenient, for the government of said corporation, not being contrary to the laws of this territory, and generally to do and execute all and singular the acts, matters and things which to the said corporation shall or may appertain.

Sec. 2. And be it further enacted by the authority aforesaid, ’That Of the vestry. the vestry of the said church shall always consist of fifteen persons, members of said church, of which number the church-wardens are always to be two, and that the election of such vestry shall be made every year, on the first Monday of May, by a majority of the members of the said corporation.

Sec. 3. And be it further enacted, That the said vestry so elected, shall have full Power of the vestry. power to appoint a minister, and to elect and choose annually and ever year, two church wardens of their own number, and one one treasurer of the said church.

Sec. 4. And be it further enacted, That as soon as may be, after the passing of this Vestry when elected. act, the members of the said church as aforesaid may elect a vestry to serve as aforesaid, until the first day of May next.

Sec. 5. And be it further enacted, That if it shall so happen that any election herein Provision in case of no election. before provided for, shall not take place on the day appointed for the same, the said corporation shall not therefore be dissolved, but each election shall take place as soon as may be, after the day when it ought to have taken place.

J. POYDRAS, 
President of the Council.

Approved — July 3d, 1805.

WILLIAM C. C. CLAIBORNE, 
Governor of the Territory of Orleans.

Text prepared by:

• Bruce R. Magee

Source

Territory of Orleans. Legislative Council. Acts Passed at the First Session of the Legislative Council of the Territory of Orleans: Begun and Held at the Principal, in the City of New-Orleans, on Monday the Third Day of December, in the Year of Our Lord One Thousand Eight Hundred and Four, and of the Independence of the United States the Twenty-Ninth. New Orleans: James M. Bradford, 1805. HathiTrust Digital Library, Univ. of Michigan copy, babel. hathitrust. org/ cgi/ pt?id= mdp. 35112204563441. Accessed 6 Oct. 2026.

Territory of Orleans. Legislative Council. Acts Passed at the Second Session of the Legislative Council of the Territory of Orleans: Begun and Held at the Principal, in the City of New-Orleans, on Thursday the Twentieth Day of June, in the Year of Our Lord One Thousand Eight Hundred and Five, and of the Independence of the United States the Twenty-Ninth. New Orleans: James M. Bradford, 1805. HathiTrust Digital Library, Univ. of Michigan copy, babel. hathitrust. org/ cgi/ pt?id =mdp. 35112204563441. Accessed 6 Oct. 2026.

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