Executors, to settle their tached. § 28. Whenever any executor or executrix, administrator or admi- 1816—(7) nistratrix, or guardian, shall be cited by the orphans' court, or the t chief justice thereof, to appear and settle his accounts, as executor, &c., refusing administrator, or guardian, and shall fail to appear in obedience to the accounts citation, the said orphans' court shall have power to issue an attach- may be atment against the person or persons so failing, in the same manner as the superior courts of this territory might or could do, for disobedience to any order, judgment, or decree of said courts; and the said Proceedings orphans' court shall have power to summon a jury of by-standers whenever it may be necessary, in order to carry into effect the power hereby granted. thereon. Sec. 42. each other, tors in cer § 29. When two or more have letters of administration granted to 1806-(1) them, of any intestate's estate, and one or more of them take all, Action of acor the greatest part of such estate, and refuse to pay the debts, or fu- count may be brought by neral expenses of such intestate, or refuse to account with the other administraadministrator, in such case, the administrator so aggrieved, may have tors against his action of account against the other administrator or administrators; and by execu and recover such proportionable share of such estate as shall belong to him; and any executor being a residuary legatee, may have an action of account against his co-executor or co-executors, and recover his Remedy by part of the estate, in the hands of such co-executor or executors; and legatees. any other residuary legatee may have the like remedy against the executors; and any person having a legacy bequeathed in any last will and testament, may sue for and recover the same, at common law. tain cases. Sec. 19. name of de § 30. Where any suit may have been commenced on behalf of or 1821-(4) against the personal representative or representatives of any testator suits may be or intestate, the same may be prosecuted by or against any person or continued in persons who may afterward succeed to the administration or executor- ceased execu ship: such person or persons may, at any time, be made parties on tor, &c. motion, and the cause shall proceed in the same manner, and judg- New parties ment therein be in all respects as effectual, as if the same were pro- made on mosecuted by or against the parties originally named. Where any per- Payments to sonal representative or guardian shall be displaced, all moneys due to him or her in such right, by execution or otherwise, shall be paid to his or her successor. tion. successor. Executors § 31. When letters testamentary, probate of a will, or letters of ad- Пb. Sec. 18. ministration on the estate of any testator having no known place of appointed by residence in this state at the time of his or her death, shall have been other states duly obtained in any other state, territory, or country, and no personal may sue. representative of such testator or intestate shall have been duly appointed and qualified, in this state, the personal representative or representatives so appointed out of this state, may maintain any action, demand and receive any debt, and shall be entitled to all the rights and privileges which he, she, or they, could have done, or would have had, if duly appointed and qualified within this state: Provided al- Evidence of ways, That before the rendition of judgment in any such action, there their right. shall be produced in court where the same is pending, a copy of such letters testamentary, probate, or letters of administration, duly authenticated, according to the laws of the United States in such cases, and the certificate of the clerk of the county court of some county in this state, that such certificate has been duly recorded in his office; and in default of such proof, the court may direct a nonsuit to be entered: And provided further, That such foreign representative or represen- ed where tatives shall not be entitled to receive any money so recovered, or judgment is any money due to him, her, or them, in such rights, until the and bond' copy of the letters testamentary, probate, or letters of administration given before shall have been recorded as aforesaid, and then shall have been depo- proceeds. To be record recovered, receiving 1806-(1) Sec. 35. sited in the clerk's office of the county court of the county where such judgment shall have been recovered, or of the county in which the debtor or debtors may reside, a bond in such penalty as the judge of said county court may direct, payable to him and his successors in office, and with such obligors thereto as he may approve, conditioned that such representative or representatives shall faithfully administer, and apply according to law, all moneys and effects received by him, her, or them, in right of such testator or intestate, from any person or persons in this state, and on such bonds, suits may be brought and judgment recovered, as in other cases. 32. Executors, administrators, and guardians, shall not be comSpecial pelled to plead specially to any action, or suit at law, brought against pleading not them in their said capacity, but may under the general issue, give any executors, special matter in evidence. (1) required of &c. 1826-(15) Sec. 1. Mispleading by executor § 33. So much of the act entitled "An act regulating judicial proceedings in certain cases, and for other purposes," passed December eighteenth, one thousand eight hundred and eleven, as provides that or adminis- no executor or administrator shall be liable out of their individual estate, for not pleading, mispleading, or false pleading in or to any action whatever, which may be brought against them as such, is hereby repealed. trator. Ib. Sec. 2. not chargea §34. No security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any ble beyond omission or mistake in pleading of the executor or administrator. § 35. The appointment of a debtor, executor, shall in no case be deemed an extinguishment of the debt, unless it be so directed in the will. assetts for mispleading, &c. Ib. Sec. 3. Debtor ap pointed exec utor not released. NOTE. Property not devised or bequeathed by will, is required to be administered, as in case of intestacy. See "Wills,"—§ 7. When lands are directed by will to be sold, and no one is appointed by the testator for that purpose, or being appointed, refuses to act, the sale and conveyance may be made by the acting executor. See "Wills,❞—§ 14. 1812-(20) Sec. 10. FEES. § 1. The clerks, sheriffs, and other officers, and persons hereafter named, shall be entitled to demand and receive for the services hereinafter mentioned, the fees thereto respectively annexed, and no more, to be paid, taxed, and collected, in manner hereinafter directed, that is to say: TO CLERKS OF Superior Courts. Clerk of cir. For every writ, other than those hereinafter particularly speci cuit court. fied, with the endorsement, A copy thereof, Entering the sheriff's return, or a copy thereof, 50 18 12/ Docketing every cause, to be charged but once, 25 121 (1) Held to extend to an action of covenant against an administrator, and that he may, under a general plea to the merits, give any special matter in evidence. Martin, adm'r v. White, 1 Stewt. Rep. 473. 12/ 18 12 61 61 25 18 62 75 18 50 50 30 Entering the appearance of any party, by attorney or person For filing declaration, plea, or demurrer, or other pleadings, for each, For entering every rule on the rule docket, at the request of the party, but not otherwise, For every order made in court, not otherwise provided for, For every trial, swearing jury and witnesses, and recording a For every trial where there is a special verdict, case agreed, or points reserved, and swearing jury and witnesses, For entering up judgment, or a copy thereof, For every scire facias, and recording the return, For every execution fi. fa. or ca. sa., and recording the return, For recording the return thereof, for every hundred words, For recording the award of arbitrators, viewers, auditors, &c. For every order to witness for attendance, and copy thereof, to For taking bonds for injunctions, certiorari, supersedeas, or writ For recording the acknowledgment of satisfaction of a judg ment, For a summons for witness or witnesses, For administering an oath in court, not relating to the trial of a suit there depending, and certifying the same, For the copy of an account, for every hundred words, ment, For swearing and taking the examination of a garnishee or garnishees, or any attachment, and entering the same on record, For every subpoena in chancery, or writ of injunction, For a copy thereof, each, For recording the report of a surveyor, for every hundred words, 12/1 For a copy thereof, for every hundred words, 12/1/ For a commission to take depositions, 50 For a copy of interrogatories to accompany such petition, for every hundred words, 12/ For filing the depositions of each party, 12 For entering a decree in chancery, at large, for every hundred words, 20 For every writ de idiota inquirenda, or writ of lunacy, For every writ of ad quod damnum, or other writ in the na- For recording the return, and inquest thereon, for every hun- For every writ of certiorari, writ of error, prohibition, man- For filing the same with the return, For making a complete record of any cause, after final judg- 25 15 50 15 50 10 121 121/1 For a search out of term time, for anything above a year's 121/1 64 25 For taxing costs, or copy thereof, For every necessary certificate to which the seal of office is re For every necessary certificate not otherwise provided for, or For every order of continuance in court, For entering finding of indictment, or filing information, For taking recognizance, For swearing and entering grand juries, issuing summonses on TO THE CLERKS OF THE COUNTY COURts. Clerk of the For the like services by them performed, the same fees as are herein allowed to the clerks of the superior courts. county court. For recording the probate of any will, or testament, and for 50 50 50 00 1.00 For recording a will, testament, or codicil, for every hundred 12 For administering oath to executors, or administrators, and tak For letters of administration, and order granting the same, For order for tavern license, and taking bond, For issuing a marriage license and taking bond, For recording certificate of marriage, to be paid when license is issued, For recording certificate of estray, and copy for advertising at the court-house, For an order binding out apprentice, and copy of the same, For filing appeal from a justice of the peace, docketing same, 50 50 50 50 50 For recording a deed of bargain and sale of lands, slaves, or For recording the same, with the return thereof, for every hun- For recording a letter of attorney with the certificate thereon, or for a copy thereof, for every hundred words, For recording any bond, note, articles of agreement, or any other writing not herein provided for, for every hundred words, 12 50 12 For a copy thereof, for every hundred words, 25 00 Provided, That no fee shall be allowed for issuing scire facias against defaulting jurors, where they may be excused by the court. a It shall not be lawful for the clerks of the circuit or county [a 1832-(37) courts to demand or receive any fees for swearing and certifying the Sec. 1.] attendance of any jurors in their respective courts. b Said clerks shall not be entitled to demand a fee from any ness for swearing, or certifying his attendance as a witness, the fee for such service shall be taxed in the bill of costs, and collected as the other costs may be. TO THE CLERK of the Supreme Court. demand fees from jurors for certifying attendance. [b Ib. Sec. 2.] Nor for wit nesses. Fee to be taxed in bill of costs. "The clerk of the supreme court of errors and appeals shall be en- [c 1816—(8) titled to double the fees allowed by law to the clerks of the superior Clerk of the Sec. 1.] courts, for like services. supreme court. TO THE SHERIFFS. For levying an attachment on the estate of an absconded debtor, 1 50 Sheriff. For summoning garnishee, For selling property attached, the same as for selling on a fieri 50 For serving capias ad respondendum, or other mesne process, 1 00. |
