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TITLE 5.

When

partner

remains

liable.

showing the names of all of them. A statement so filed, is conclusive, for the purposes specified in this section, as against the persons filing it, until thirty days after filing, in like manner, a new statement, showing a change of in

terest.

§ 1946. Where, for any cause, one or more partners have not sued not been joined as defendants in an action upon a partnership liability, and final judgment has been taken against the persons made defendants therein, the plaintiff, if the judgment remains unsatisfied, may maintain a separate action upon the same demand, against each omitted partner, setting forth in the complaint the facts specified in this sec tion, as well as the facts constituting his cause of action upon the demand.

Continuance of partnership busi

ing action for ac

counting, tc.

§ 1947. In an action brought to dissolve a partnership, or for an accounting between partners, or affecting the conness, dur- tinued prosecution of the business, the court may, in its discretion, by order, authorize the partnership business to be continued, during the pendency of the action by one or more of the partners, upon their executing and filing with the clerk an undertaking, in such a sum and with such sureties as the order prescribes, to the effect that they will obey all orders of the court, in the action, and perform all things which the judgment therein requires them to perform. The court may impose such other conditions, as it deems proper, and it may in its discretion at any time thereafter require a new undertaking to be given. The court also ascertain the value of the partnership property, and of the interest of the respective partners by a refer ence or otherwise, and may direct an accounting between any of the partners; and the judgment may make such provision for the payment to the retiring partners, for their interest, and with respect to the rights of creditors, the title to the partnership property, and otherwise, as justice requires, with or without the appointment of a receiver, or a sale of the partnership property.

may

ART. 1

CHAPTER XVI.

ACTIONS IN BEHALF OF THE PEOPLE, AND SPECIAL
PROCEEDINGS INSTITUTED, IN THEIR BEHALF, BY
STATE WRIT.

TITLE I.-ACTIONS IN BEHALF OF THE PEOPLE.

TITLE II.-SPECIAL PROCEEDINGS INSTITUTED BY STATE WRIT.

TITLE 1.

Actions in behalf of the people.

ARTICLE 1. Action against the usurper of an office or franchise.

2. Action to vacate letters patent.

3. Action for a fine, penalty, or forfeiture, or upon a forfeited recog-
nizance.

4. Certain actions, founded upon the spoliation, or other misappropriation
of public property.

5. Action to recover property escheated, or forfeited for treason.

6. Miscellaneous provisions, relating to actions, etc., in behalf of the
people.

ARTICLE FIRST.

ACTION AGAINST THE USURPER OF AN OFFICE OR FRANCHISE.

SEC. 1948. Attorney-general may maintain action.

1949. Proceedings when complaint names rightful incumbent.

1950. Action triable by jury.

1951. Assumption of office by person entitled.

1952. Proceedings to obtain books and papers.

1953. Damages; how recovered.

1954. One action against several persons.

1955. When injunction may be granted.

1956. Final judgment in action for usurping office, etc.

ney-gene

§ 1948. The attorney-general may maintain an action, Attorupon his own information, or upon the complaint of a pri- ral may vate person, in either of the following cases:

[20]

153

maintain action.

TITLE 1.

Proceed

ings when

names

incum

bent.

1. Against a person who usurps, intrudes into, or unlaw fully holds or exercises, within the State, a franchise, or a public office, civil or military, or an office in a domestic corporation.

2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office.

3. Against one or more persons who act as a corporation, within the State, without being duly incorporated; or exer. cise, within the State, any corporate rights, privileges, or franchises, not granted to them by the law of the State.

§ 1949. In an action, brought as prescribed in the last complaint section, for usurping, intruding into, unlawfully holding, rightful or exercising an office, the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge. The provisions of title first of chapter seventh of this act apply to such an order, and the proceedings thereupon and subsequent thereto, except where special provi sion is otherwise made in this title. For that purpose, the order is deemed to have been made as prescribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party so alleged to be enti tled; or only upon the right of the defendant, as justice requires.

Action triable by

jury.

§ 1950. An action, brought as prescribed in this article, is triable, of course and of right, by a jury, in like manner as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act.

ART. 1.

tion of

person

§ 1951. Where final judgment is rendered, upon the Assumpright and in favor of the person so alleged to be entitled, office by he may, after taking the oath of office, and giving an entitled. official bond, as prescribed by law, take upon himself the execution of the office. He must, immediately thereafter, demand of the defendant in the action, delivery of all the books and papers in the custody, or under the control, of the defendant, belonging to the office from which the defendant has been so excluded.

ings to

books

papers.

1952. If the defendant refuses or neglects to deliver Proceed any of the books or papers, demanded as prescribed in the obtain last section, he is guilty of a misdemeanor; and the same and proceedings must be taken, to compel the delivery thereof, as are now or shall hereafter be prescribed by law, where a person, who has held an office, refuses or neglects to deliver the official books or papers to his successor.

how re

§ 1953. Where final judgment has been rendered, upon Damages the right and in favor of the person so alleged to be enti- covered tled, he may recover, in the same action, against the defendant, the damages which he has sustained, in consequence of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office.

action

several

§ 1954. Where two or more persons claim to be entitled One to the same office or franchise, the attorney-general may against bring the action against all, to determine their respective persons rights thereto.

injuno

may be

§ 1955. In an action, brought as prescribed in subdivi- When sion third of section 1948 of this act, the final judgment, in tion favor of the plaintiff, must perpetually restrain the defend. granted ant or defendants, from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof, may be granted, upon proof, by affidavit, that the defendant or

TITLE 1.

Final

judgment

for usurp

etc.

defendants enjoined have acted as a corporation, within the
State, without being duly incorporated, or have usurped,
exercised, or claimed, within the State, a franchise, liberty,
or corporate right, not granted to them by law. The pro-
visions of title second of chapter seventh of this act apply
to such a temporary injunction, and the proceedings there-
upon, except where special provision is otherwise made in
this title. For that purpose, the injunction order is deemed
to have been granted as prescribed in section 603 of this

act.

§ 1956. In any other action, brought as prescribed in this In action article, where a defendant is adjudged to be guilty of usurp ing office, ing or intruding into, or unlawfully holding or exercising, an office, franchise, or privilege, final judgment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or, where there are two or more defendants, that one or more of them, pay to the people a fine, not exceeding two thousand dollars. The judgment for the fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been rendered in an action to recover the fine. The fine, when collected, must be paid into the treasury of the State.

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When

attorney

ARTICLE SECOND.

ACTION TO VACATE LETTERS-PATENT.

SEC. 1957. When attorney-general may maintain action.
1958. Action triable by jury.

1959. Copy of judgment-roll to be filed, etc.

1960. Transcript to be sent to county clerk, etc.

1957. The attorney-general may maintain an action to

general vacate or annul letters-patent, granted by the people of the maintain State, in either of the following cases:

may

action.

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