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ered by order of law; and make return of this writ and your doings thereon within twenty days next coming. Witness our said justices at aforesaid, the
in the year
Justice of the supreme court.
pleas for the county of provided always, that such complaint be made within three years after such forcible entry or detainer be committed, and not after.
Sec. 4. Each person summoned and attending as a juror shall be entitled to one dollar per day for his attendance, and four cents per mile going, and four cents per mile returning from said court; to be paid in the first instance by the plaintiff, before the verdict shall be received, and to be taxed in the bill of costs if he recover.
An Act regulating Water Mills.
SECTION 1. Owners of mills may improve their 9. Execution to issue against goods and ponds, &c.
chattels, and also against mill, &c. 2. Remedy for persons injured by such 10. Sale on execution valid—redemption
ponds-mill pledged and liable for allowed. damages.
11. Mill owner removing subject to com3. Appeal allowed_terms of.
plaint, plaintiff shall recover dama4. Amount of damages to be ascertained ges awarded for five years only. by jury.
12. Justice attending jury to be compen5. Justice to attend the jury-swear sated.
them-decide questions of law-is- 13. Death of plaintiff not to abate the acsue venire, in case, &c.
tion-executor may prosecute-dam6. Jury to appraise past damages, also ages in such case how assessed.
future yearly damage, also gross dam- 14. Marriage of plaintiff not to abate acages.
tion-party in interest may come in. 7. Verdict may be appealed from, to su- 15. Joint tenants, &c., being plaintiffs,
preme court-court shall order venire suit not abated by transfer of interand another trial.
est to co-tenant. 8. Plaintiff may elect between yearly 16. Suit not abated by death of defendant.
and gross damages-election conclu- 17. Owner of dam not to detain the natsive-if plaintiff makes no election, ural stream, &c. court shall enter judgment for yearly damages.
It is enacted by the General Assembly, as follows :
SECTION 1. Where any person has set up or shall set up any water mill upon his land or upon the land of another with his consent, the owner of such mill may continue and improve the pond and keep up the dam thereof on his land for his advantage, without molestation.
Sec. 2. Any person aggrieved or injured by the flowing of the pond raised by such dam, or by the stopping or raising of the water either above or below said dam, or by the back
ing of water under his land, or by the flowing out of any
water in his land by means of such dam, may commence an action on the case before the court of common pleas in the county in which such dam is, against the owner of said dam, or any precedent owner thereof; a copy of which writ shall be left by the officer serving the same in the office of the town clerk of the town in which such dam is; and the mill and mill dam complained of, together with all their appurtenances and the land under and adjoining the same, shall thenceforth be pledged and liable for the damages which may be recovered in such action.
Sec. 3. Whenever it shall be adjudged by said court that the plaintiff in any such action is entitled to damages, the defendant shall have the right to appeal from such judgment to the
supreme court, upon the same terms and conditions as appeals are allowed in other cases; and in like manner the plaintiff may appeal whenever said court shall adjudge that he is not entitled to damages : provided however, that such appeal be claimed within five days after the rendition of such judgment, or during the same term of said court, if said term shall not continue five days, by filing an appeal bond as in other cases.
Sec. 4. Whenever any plaintiff in any such action shall recover a final judgment for damages against the defendant, whether in the court of common pleas or in the supreme court, the court rendering the same shall issue a writ of venire to the sheriff of said county or his deputy, to return twelve good and lawful men of the same county, to meet at a time and place appointed in such writ, in order to ascertain the amount of such damages, in manner as is herein after provided.
Sec. 5. At the time and place appointed by such writ, some one justice of the court issuing the same, not interested in the cause, shall attend said jurors; shall engage them to a faithful and impartial discharge of their duty; shall swear all witnesses produced by either party before them; shall decide all questions of law that may arise incidentally in the trial, and may charge the jury upon the law, after the parties have submitted their evidence and arguments to them. If all the persons summoned as jurors do not appear, or are excused, such judge may issue a venire to fill
the panel. Sec. 6. Such jury shall appraise the damages which the plaintiff shall have sustained by the matters of complaint set forth in his writ and declaration, from the time of his ownership of the premises injured up to the date of the writ, if the
defendant hath been so long owner of the mill dam or pond; if not, then from the time the ownership of the defendant commenced up to the date of the plaintiff's writ, or until the defendant ceased to be owner.
And in addition to the foregoing, the said jury shall also appraise the damages that the plaintiff ought yearly to receive and recover of the defendant, his heirs and assigns, owners of said dam, from the date of the plaintiff's writ until five years after said dam shall be removed by the said defendant, his heirs or assigns. Said jury shall also appraise what sum would be a just and reasonable compensation to said plaintiff, for all damages done to him by the matters of complaint set forth in his writ, from the date of his writ; which verdict, so rendered and signed by them, said justice shall return to the court issuing the venire, as soon as
SEC. 7. If such verdict be returned to the court of common pleas, either party aggrieved thereby may appeal, as is herein after provided, from the judgment of the court accepting the same to the supreme court, to be holden in the same county ; in which case said supreme court shall order a venire for, and trial before, another jury; which shall be had in the same manner and subject to the same rules as is herein before prescribed : provided however, that if the verdict rendered on such appeal shall not be more favorable to the party appealing than the one appealed from, such party shall recover no costs in such appeal, unless the same shall be adjudged him by the court accepting such verdict, upon cause shown.
Sec. 8. Upon the return and filing of any such verdict, the court to which it is returned shall continue the cause until the next term, before rendering any judgment, accepting the same; and the plaintiff shall, on or before the second day of said term in writing, make his election between the yearly damages and the damages in gross found by said jury; and no appeal shall be had unless made within three days after such election or during the said term of said court, if said term do not continue said three days; which election of the plaintiff shall be entered on the records of said court in said case, and shall be forever binding on said plaintiff and defendant and all claiming under them; and the judgment of the court shall follow the election of the plaintiff. But if the plaintiff neglect to make any election within the time and in the manner herein before prescribed, the court shall enter up judgment in his favor for the yearly damages found by said jury; and the judgment so rendered shall bar all actions for the injuries complained of by the plaintiff, excepting only
an action of debt on said judgment or scire facias to enforce the same.
Sec. 9. Any execution that may issue on any judgment for damages rendered as aforesaid, whether for yearly damages or damages in gross, shall run not only against the goods and chattels and body of the defendant and his real estate, as executions on other judgments, but if the defendant was owner of said mill at the date of the writ, also against the mill and mill dam which was the occasion of said suit, with all the appurtenances thereof; and the form of the execution shall be varied accordingly by the court issuing the same; and such execution may be levied thereon and the same proceedings may be had as on executions in other cases levied on real estate.
Sec. 10. Any sale of said mill or mill dam and appurtenances thereof made on such execution, shall be valid and effectual against the defendant, and against all persons whose titles shall accrue after the service of the writ in said action
; but any person entitled to the premises sold may redeem the same at any time within one year after the sale, upon paying to the purchaser or person holding under him, the sum paid therefor, with interest thereon at the rate of twelve per cent. . per annum.
Sec. 11. Whenever any plaintiff shall elect to receive the yearly damages awarded him as aforesaid, and the mill owner shall afterward remove the matter complained of in the writ, for which said damages were awarded, the plaintiff or his assigns shall recover said damages for five years after said matters shall be removed, and no longer.
Sec. 12. The justice of the court of common pleas or of the supreme court, who shall attend said jury in assessing damages, shall be entitled to compensation for his services and expenses, to be allowed by the court and taxed in the bill of costs.
SEC. 13. If the plaintiff in any such action shall decease pending the same, his death shall not abate said action, but his executor or administrator, as in suits which survive, shall come in, and prosecute the same; but the jury assessing damages shall assess damages only up to the date of the plaintiff's writ, (which damages shall be assets in the hands of such administrator or executor,) and not yearly damages or damages in gross, unless the heirs at law or devisees of such deceased shall, in writing or in person, in open court, consent to such appearance of the administrator or executor.
SEC. 14. No marriage of any party plaintiff in any such action, shall abate the same, if the new party in interest, upon
the marriage being suggested by the defendant on the record, will at the same term, in writing or in person, in open court, amend the process and enter himself as one of the plaintiffs in said action; but the costs in said action shall not be increased by said marriage.
Sec. 15. If several joint tenants, tenants in common or coparceners, be plaintiffs in such a suit, and pending the same one or more of them shall sell his interest in the premises alleged to be injured, to one or more of his cotenants, such action shall not thereby be abated, but the cause shall proceed to judgment with the same effect as if such conveyance had not been made.
Sec. 16. If there be several defendants in such a suit, and one or more of them die pending the same, the suit shall not thereby abate, but the cause shall proceed to judgment with the same effect as if such death had not occurred. And if there be but one defendant, and he die pending the same, his death shall not abate said action, if the devisees or heirs at law will come into court at the term next following the decease, and substitute their names as defendants, instead of the deceased.
Sec. 17. No person owning any dam, on any river, or stream of water, shall detain the natural stream thereof, at any one time, more than twelve hours out of twenty-four hours, except on Sundays, when he shall be requested by the owner of
dam within one mile below on the same stream to suffer the said natural run of said river or stream to pass his said dam.
An Act to redress misemployment of property given to certain
plication of property given for chari
table uses. 2. Town council to make such orders re
lative thereto as case requires-orders conclusive until altered by supreme
court. 3. Councils may render judgment and
execution against defaulters-default
ers may be committed. 4. Appeal granted_terms of appeal-sen
tence of council suspended in the
meantime. 5. Supreme court to have concurrent ju
risdiction with councils.
It is enacted by the General Assembly, as follows:
SECTION 1. Whenever any real or personal property, or the
use, issues or profits of any, have been or shall be given, limited, appointed and assigned by any person to and for the