SECTION 1. No petition or petitions shall be finally acted upon by the General Assembly, which prays for a change of county lines, the erection of new counties, the removal of the seat of justice of any county, or which may affect the rights and interests of any person or persons, unless the petitioner or petitioners shall have given four weeks' notice in some newspaper printed in this State, and a copy of said advertisement shall be put up on the court house door in said county, at least two months before such petition or petitions shall be presented to the General Assembly. SEC. 2. No county shall hereafter be divided, or county seat removed, unless it be done on a petition signed by a majority of the qualified voters of said county, so to be divided, or the county seat removed; which petition shall particularly describe the line or lines of division or curtailment so proposed, and the particular place to which such county seat is proposed to be removed.

SEC. 3. When any of the citizens of this State shall deem the establishment or relocation of any State road to be of public utility, they, or some two of them, shall give four weeks' public notice, by at least four written notices posted up in the most public place in each county in which the proposed location, change or alteration is about to take place, that they will petition the next session of the legislature to establish or relocate such road; in which notice a particular description of the road shall be set forth.

SEC. 4. At least fifty householders and citizens of the county or counties through which said road shall pass, are necessary to sign the petition; and before the petition shall be presented to the legislature, the persons giving said notice, or other credible persons, shall make affidavit of such advertisements having been made as required by the preceding section, before the clerk of the court of any county through which the road may pass; a certificate of which shall be given by the clerk and accompany the petition.

SEC. 5. No State road shall be established or relocated, except upon the petition of a portion of the citizens of the county in which the same is to be established or relocated.

SEC. 6. The clerks of the county commissioners' courts shall, severally, issue the certificates aforesaid, upon oath being made by any credible person that said notices were given according to the provisions of section three.

[See Chapters 92 and 93.]

APPROVED: March 3, 1845.

CHAPTER LXXXIII.

PRACTICE.

SECTION 1. The first process in all actions to be hereafter commenced in any of the circuit courts of this State, shall be a summons, except actions where special bail may be required: which summons shall be issued under the seal of the court, tested in the name of the clerk of such court, dated on the day it shall be issued, and signed with his name; and shall be directed to the sheriff, (or if he be interested in the suit,) to the coroner of the county; and shall be made returnable on the first day of the next circuit court in which the action may be commenced.

SEC. 2. It shall not be lawful for any plaintiff to sue a defendant out of the county where the latter resides, or may be found, except in cases where the debt, contract or cause of action accrued in the county of the plaintiff, or where the contract may have specifically been made payable; when it shall be lawful to sue in such county, and process may issue against the defendant to the sheriff of the county where he resides. And in every species of personal actions in law or equity, when there is more than one defendant, the plaintiff commencing his action, where either of them resides, may have a writ or writs issued, directed to any county or counties, where the other defendants or either of them may be found: Provided, That if a verdict shall not be found or judgment rendered against the defendant or defendants, resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action.

SEC. 3. It shall be the duty of the sheriff or coroner to serve all process of summons or capias, when it shall be practicable, ten days before the return day thereof, and to make return of such process to the clerk who issued the same, by or on the return day, with an indorsement of his service, the time of serving it and the amount of his fees: Provided, That when such process shall have been directed to a foreign county, the officer executing the same, may make return thereof by mail; and the clerk may charge the postage and tax the amount in his fee bill.

SEC. 4. In all suits instituted against any incorporated company in this State, a summons returned executed on the president thereof, or served by leaving a copy of the summons with the principal clerk, cashier or secretary of such company, at his office, within such time and under such regulations as are herein provided for the service of such process in suits against natural persons, shall be deemed a sufficient service whereon to ground subsequent proceedings and judgment against such company, in any court of this State having jurisdiction: Provided, That the provisions of this section shall not be construed to interfere with any mode of suing counties, or other corporations specially provided in any statute law of this State.

SEC. 5. If it shall not be in the power of such sheriff or coroner to serve such summons or capias, ten days before the return day thereof, he may execute the same at any time before or on the return day, but in such case the defendant or defendants shall be entitled to a continuance, and shall not be compelled to plead before the next succeeding term.

SEC. 6. Whenever it shall appear, by the return of the sheriff or coroner, that the defendant or defendants are not found, the clerk shall, at the request of the plaintiff, issue another summons or capias, (as the case may be,) and so on, until service be had, and the defendant or defendants be summoned or brought into court, and if such summons or capias be served on any one or more, but not on all of the defendants, the plaintiff or plaintiffs shall be at liberty to proceed to trial and judgment, in the same manner as if all the defendants were in court: and any judgment so obtained shall be valid against the defendant or defendants on whom the

process had been served, and the plaintiff or plaintiffs may, at any time afterwards, have a summons in the nature of a scire facias, against the defendant or defendants not served with the first process as aforesaid, to cause him, her or them to appear in the said court and show cause why he, she or they should not be made a party to such judgment, and the court shall thereupon proceed to hear and determine the matter in the same manner as if such defendant or defendants had been originally summoned or brought into court; and such defendant or defendants shall also be allowed the benefit of any payment which may have been made on the judgment before recovered, and the judgment of the court against the defendant or defendants in such case, shall be that the plaintiff or plaintiffs recover against such defendant or defendants, together with the defendant or defendants in the former judgment, the amount of his debt, or damages as the case may be.

SEC. 7. If any sheriff or coroner to whom any summons or capias shall be delivered, shall neglect or refuse to make return of the same, before or on the return day of such process, the plaintiff may enter a rule requiring said sheriff or coroner to make return of such process on a day to be fixed by the court, or to show cause on that day, why he should not be attached for a contempt of the court; and the plaintiff shall, thereupon, cause a written notice of such rule to be served on such sheriff or coroner, and if good and sufficient cause be not shown to excuse such officer, the court shall adjudge him guilty of a contempt; and shall proceed to punish such officer as in other cases of contempt.

SEC. 8. If the plaintiff shall not file his declaration, together with a copy of the instrument of writing or account on which the action is brought, in case the same be brought on a written instrument or account, ten days before the court at which the summons or capias is made returnable, the court, on motion of the defendant, shall continue the cause at the cost of the plaintiff, unless it shall appear that the suit was commenced within ten days of the sitting of the court, in which case the cause shall be continued without costs, unless the parties shall agree to have a trial, and if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a nonsuit.

SEC. 9. The clerks of the circuit courts shall keep a docket of all the causes pending in their respective courts, in which shall be entered the names of the parties, the cause of action, and the name of the plaintiff's attorney, and he shall furnish the judge and bar at each term, with a copy of the same, in which all indictments and causes to which the people may be a party, shall be first set down, after which shall be set down all cases in law in order, according to the date of their commencement, and lastly, the suits in chancery: and the clerk shall also set and apportion the causes for as many days of the term as he may think necessary, or be directed by the judge; and all subpoenas for witnesses shall be made returnable on the day on which the cause in which the witnesses are to be called, is set for trial. SEC. 10. The clerks shall, from time to time, issue subpoenas for such witnesses as may be required by either party, returnable on the day for which the cause in which they are required to attend, is set for trial, and every clerk who shall refuse so to do, shall be fined at the discretion of the court, in any sum not exceeding one hundred dollars.

SEC. 11. In all cases pending in any circuit court of this State, if both the parties shall agree, both matters of law and fact may be tried by the court.

SEC. 12. The several circuit courts shall have power, in any action pending before them, upon motion, and good and sufficient cause shown, and reasonable notice

thereof given, to require the parties or either of them, to produce books or writings in their possession or power, which contain evidence pertinent to the issue; and it shall be the duty of the defendant or defendants, in all cases where he, she or they intend to prove, on the trial, any accounts or demands against the plaintiff or plaintiffs, to file with his plea, a bill of the particular items of such accounts or demands, and no other accounts or demands shall be suffered to be proved to the jury.

SEC. 13. On the appearance of the defendant or defendants, the court may allow such time to plead as may be deemed reasonable and necessary, and for want of appearance, may give judgment by default on calling the cause, except in cases where the process has not been served, or declaration filed, ten days before the term of the court; but all the causes shall be tried or otherwise disposed of in the order they are placed on the docket, unless the court, for good and sufficient cause shall otherwise direct. And whenever either party shall apply for the continuance of a cause on account of the absence of testimony, the motion shall be grounded on the affidavit of the party so applying, or his, her or their authorized agent, showing that due diligence has been used to obtain such testimony, or the want of time to obtain it; and also the name and residence of the witness or witnesses, and what particular fact or facts the party expects to prove by such witness or witnesses; and should the court be satisfied that such evidence would not be material on the trial of the cause, or if the opposite party will admit the fact or facts stated in the affidavit, the cause shall not be continued.

SEC. 14. The defendant may plead as many matters of fact in several pleas as he may deem necessary for his defence, or may plead the general issue, and give notice in writing under the same, of the special matters intended to be relied on for a defence on the trial; under which notice, if adjudged by the court to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated, as if the same had been specially pleaded and issue taken thereon: and whenever it shall become necessary for the attainment of justice, to allow a plaintiff to reply several matters to the plea of a defendant, or to allow a defendant to rejoin several matters to the replication of a plaintiff, the court in which the action shall be pending, on the special application of the party desiring so to reply or rejoin, may allow the same to be done. But no person shall be permitted to deny on trial, the execution of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up by way of defence or set off, unless the person so denying the same shall, if defendant, verify his plea by affidavit; and if plaintiff, shall file his or her affidavit denying the execution of such instrument: Provided, If the party making such denial be prosecuting or sued as executor or administrator, it shall be sufficient to state in such affidavit, the belief of the party making the same, according to his or her best knowledge, that such instrument was not executed by the testator or intestate.

SEC. 15. In all cases where interlocutory judgment shall be given in any action brought upon a penal bond, or upon any instrument of writing for the payment of money only, and the damages rest in computation, the court may refer it to the clerk to assess and report the damages, and may enter final judgment therefor, without a writ of inquiry, and without impanneling a jury for that purpose; and in all other actions, when judgment shall go by default, the plaintiff may have his damages. assessed by the jury in court.

SEC. 16. The court may, in its discretion, before final judgment, set aside any default, upon good and sufficient cause, upon affidavit, upon such terms and conditions as shall be deemed reasonable.