him in delivering all orders to the regiment, and to do such other services as he may be required to perform, or that may belong to the station of sergeant major. SEC. 70. It shall be the duty of the quarter-master general, to apply for and receive all arms that are or may become due to this State from the general government, to deposit all arms so received, or which may have heretofore been received, and not otherwise disposed of, in some safe place at the seat of government of this State; also, to employ such means to preserve all such arms from damage, as in his opinion may, from time to time, become necessary; to furnish, when required so to do by any superior officer, a full exhibit of all the arms in his possession belonging to the State; also, to do and perform all other duties that may, in anywise appertain to the office of quarter-master general.

SEC. 71. All officers belonging to the general or regimental staff, whose duties are not defined particularly by this chapter, shall attend all musters held by their respective commanding officers, to obey all orders from them, or any superior officer, and to do and perform such other duties as may, in anywise appertain or belong to their respective stations.

SEC. 72. Each regimental paymaster appointed under the provisions of this chapter, shall, and is hereby required to give bond to the county commissioners of the county where he may reside, and their successors in office, with good and sufficient security, in the sum of two hundred dollars, conditioned for the faithful performance of his duty; which bond shall remain on file in the clerk's office of said commissioners, and be prosecuted on a failure in the conditions thereof, at the suit of the adjutant, in the same manner that a suit could be prosecuted against a sheriff or county treasurer for a failure of the conditions of his bond: it shall also be his duty to receive all money belonging to his regiment or odd battalion, (as the case may be,) which he shall only pay out by an order from the regimental court; taking at all times, proper vouchers for any moneys so paid; to attend all courts of inquiry held in his regiment or battalion, and lay before the board an account of the finances of the regiment, stating particularly all moneys received and paid out, with his several proceedings relative to the duties of his office; and all accounts so exhibited and settled by the board, shall be entered by the adjutant on his order book: and to do and perform such other services as may be required, or which may, in anywise appertain to the office of paymaster.

SEC. 73. If any paymaster shall neglect or refuse to pay over any moneys that may be in his hands, the adjutant of the regiment shall make an application in writing to the circuit court held in the proper county against such paymaster, setting forth the facts; and the adjutant shall give the said paymaster a copy of any such application five days before the session of said court; whereupon the court shall, at that term, proceed to render judgment against such paymaster and his securities, for the amount of such moneys so retained, with twenty per cent. added, and interest until paid, with costs of suit; and the testimony of the adjutant or other parol evidence of such delinquency, shall be sufficient for the court to render judgment; from which there shall be no appeal or stay of execution.

SEC. 74. When any necessary expense shall accrue in carrying into effect the provisions of this chapter, for the payment of which no provision is herein before made, the same shall be paid out of the contingent fund, by the order of the commander-in-chief.

SEC. 75. Whenever there is any new division or brigade created, the elections to fill such vacancies shall be held on the third Saturday of September; the elec

tion to be held at the same places that the regimental musters are held, and conducted by the colonels or majors commanding odd battalions; and when there is no commissioned officer in the county, it shall be held by the sheriff, and advertised by him according to law; and when there is any county in the State that the militia is not organized, the sheriff of such county shall advertise and hold all such elections at the county seat, on the first Saturday in June; or if there be pressing necessity therefor, at any other time he may appoint.

SEC. 76. Whenever any volunteer or independent company shall be organized according to the laws of this State, it shall be lawful for such company, at any regular meeting thereof, to adopt a constitution and by-laws for the regulation and government of said company, which shall not be inconsistent with the constitution of the United States or of this State.

SEC. 77. It shall be the duty of the acting orderly sergeant of the company to keep a perfect and complete record of the constitution and by-laws of said company, which shall be signed by the acting captain of the company, and countersigned by the acting orderly sergeant, and said constitution and by-laws shall, at all times, be subject to the inspection of any member of the company, and of all militia officers, and any person interested therein.

SEC. 78. Said constitution and by-laws may fix the fines and penalties which shall be imposed on any member of the company for an infraction of any of the provisions of said constitution or by-laws, and may also fix the fines which shall be imposed on any member for a failure to parade at any muster which may be called, according to the constitution or by-laws of the company.

SEC. 79. No company shall be entitled to any of the benefits hereof, which shall not provide in its constitution or by-laws for company musters at least once in each year.

SEC. 80. When any member of the company shall have been guilty of a violation of any of the provisions of the constitution or by-laws of the company, and a fine shall have been assessed on him in accordance with the provisions of said constitution and by-laws, it shall be the duty of the acting orderly sergeant of the company, or in case he is interested, then of the next sergeant of the company, to demand of such member said fine, and in case of his neglect or refusal to pay the same, it shall be lawful to bring suit for the same in the name of the company before any justice of the peace of the county, subject to an appeal to the circuit court, as in cases of debt or assumpsit: Provided, however, That when said suit shall be brought, security for costs shall be given by some responsible person or persons, in case said suit shall be determined against said company.

SEC. 81. It shall be sufficient evidence that the constitution or by-laws have been regularly adopted if they are signed by the acting captain, and countersigned by the acting orderly sergeant of the company; and any member of said company may be a witness in all cases brought under the provisions of this law.

SEC. 82. All fines collected shall be received by the acting orderly sergeant or acting captain of the company, and shall be used for the benefit and under the direction of the company.

SEC. 83. It shall be lawful for any two or more volunteer companies to organize themselves into an odd battalion, and elect their major and all other staff officers: Provided, The parade grounds of said companies are in the same county and not more than twenty-five miles apart, and in case there shall be four or more volunteer companies in one county, they may organize themselves into a regiment and

two battalions, and elect their colonel and staff officers in such manner as may be mutually agreed upon by the respective companies.

SEC. 84. Whenever any battalion or regiment shall become organized as aforesaid, it shall be lawful for the same to adopt a constitution and by-laws for their government, as is above provided for in the cases of companies, the acting colonel or major, (as the case may be,) supplying the place of the acting captain, and the acting adjutant the place of the orderly sergeant.

SEC. 85. Any person serving eight years in one or more volunteer or independent companies, shall be exempt from performing any military duty in time of peace, upon obtaining a certificate or certificates that he has faithfully discharged his duty as a member of said company.

APPROVED: March 3, 1845.

CHAPTER LXXI.

MILLS AND MILLERS.

SECTION

1. Persons desiring to erect mills and not owning lands on both sides of the stream, may have writ of ad quod damnum, 10 assess damages due to other owner.

2. Jury to be summoned, and notice given.

3. Jury to assess damages, and set apart the necessary quantity of land.

4. After return of jury, owner of lands to be taken, to be notified to appear at county commissioners' court, &c.

5. When writ may be had as to overflowing lands and endangering the public health.

6. When leave to erect dam not to be given; when to be given.

SECTION 1. When any person owning lands on one side of any stream or water course, the bed of which wholly or in part belongs to himself or herself, and may be desirous of building a water grist mill or saw mill on such lands, or of erecting any dam across such water course for that purpose, and shall not own the lands on the opposite side of such stream or water course, such person, on application to the county commissioners' court of the county where the opposite lands may lie, may obtain a writ of ad quod damnum to be issued, directed and proceeded on as is hereinafter directed: Provided, That notice in writing of such application be given four weeks before the said application, by personal service on the owner or owners of such lands, his, her or their agents, if to be found in the county, and if not, then by affixing such notice on the court house door of the county.

SEC. 2. The said writ shall be directed to the sheriff of the county in which the lands to be affected thereby may lie, commanding him to summon twelve good and lawful men of his county, to meet upon the lands in such writ named, on a day therein to be specified; and ten days' notice of the execution of such writ shall be given by the sheriff to the proprietor of such lands, as before directed in the case of

notices, unless the party, his, her or their agent were present in court when such writ was obtained.

SEC. 3. The jury so summoned, when met, shall be sworn and charged by the sheriff, impartially and to the best of their skill and judgment, to view the lands in the said writ described, and the lands above and below the proposed dam, and ascertain the damages, as by said writ directed, and shall locate and set apart, by metes and bounds, so much land as they may think necessary for the purpose of erecting such dam, not exceeding three acres, having due regard in such location, to the interest of both parties, and shall appraise the same at its true value; also, to examine the lands of other persons, which may probably be overflowed by the erection of such dam, and say what damage each owner will sustain thereby, and whether the dwelling house, out-house, orchard or garden of any such owner will be overflowed; and whether, in their opinion, the health of the neighborhood will be injuriously affected by such overflowing; which inquisition shall be made and signed by all the jurors, and returned by the sheriff, with the writ, to the next term of the court whence it issued.

SEC. 4. When the inquest aforesaid shall be taken, the party obtaining the same, shall notify the owner or owners of lands mentioned in such inquisition, whose lands are to be affected by the same, to appear at the next county commissioners' court and show cause why leave should not be granted to build such mill and dam; which notice shall be served as before directed.

SEC. 5. Any person wishing to build such mill, and to dam any water course, who may own the land on both sides of such stream, shall make application as aforesaid, to the court of the county where such mill is proposed to be erected, for a writ to examine as aforesaid, what lands may be thereby overflowed, and what damage will be sustained by the owner or owners of such lands, and whether the health of the neighborhood will be affected by such overflowing; which writ shall be issued, directed and returned as before prescribed.

SEC. 6. If, on such inquest, or other evidence, it shall appear to the court that the dwelling house of any proprietor, or any out-house, garden or orchard will be overflowed, or the health of the neighborhood impaired, they shall not give leave to erect such dam. If the said court shall judge it reasonable, and for the public benefit, they may give leave, and lay the party applying, under such regulations and restrictions in respect to the navigation of such stream, as they shall judge proper.

SEC. 7. If the party applying, obtain leave to build the said dam, he shall, on paying to the proprietor or proprietors of the lands located the damages assessed by the jury as aforesaid, become seized in fee of the land so located, to him, his heirs and assigns. But if he shall not, within one year thereafter, begin to build the said mill, and finish the same within three years, and afterwards keep it in good repair for the accommodation of the public, or in case the said mill or dam be destroyed, shall not begin to rebuild in one year after its destruction, and finish it in three years, the said land shall revert to the former owner and his heirs; ununless at the time of such destruction the owner of such mill be an infant, or otherwise disabled in law; in which case the same time shall be allowed after such disability is removed.

SEC. 8. The inquest of the jury aforesaid, or the opinion of the court, shall not bar any prosecution or action which would otherwise be maintained in law, had this chapter never been passed, other than for such injuries as were foreseen and estimated by the jury.

SEC. 9. Any person, having obtained leave to erect any dam and mill as aforesaid, who shall neglect to finish the same within the time before prescribed in this chapter, or having erected such mill, shall fail to keep it in repair and running, for the accommodation of the public, for the space of one year, at any one time, shall forfeit all rights acquired by virtue of the provisions of this chapter.

SEC. 10. All mills now in operation, or which may hereafter be put in operation in this State, for grinding wheat, rye, corn or other grain, and which shall grind for toll, shall be deemed public mills.

SEC. 11. The owner or occupier of every public mill within this State, shall grind the grain brought to his mill as well as the nature and condition of his mill will permit, and in due turn as the same shall be brought, and may take for the toll, if a water mill or steam mill, for grinding and bolting wheat or rye, one-cighth part: for grinding Indian corn, oats, barley and buckwheat, not required to be bolted, one-seventh part: for grinding malt, and chopping all kinds of grain, oneeighth part: For an ox or a horse mill, for grinding and bolting wheat or rye into flour, one-fourth part: for grinding all other grain, one-fourth part, in full of all compensation: Provided, If the owner of any such grain, ground at an ox or horse mill, shall furnish team to grind the same, with the consent of the owner or occupier of such mill, the same toll shall be taken, as is allowed for a water or steam mill, and no more.

SEC. 12. It shall be the duty of each and every owner and occupier of every public mill, to give due and punctual attendance when his mill shall not be out of repair, and to aid and assist in loading and unloading all grain which shall be brought to him to be ground. And he shall keep in his mill an accurate half bushel measure, and an accurate set of toll dishes. And for a failure to perform any of the duties required by this chapter, every occupier of a public mill shall forfeit and pay the sum of five dollars, to the use of any person who will sue for the same, in any court having cognizance thereof.

SEC. 13. Every owner or occupier of a public mill as aforesaid, shall be accountable for the safe keeping of all grain received in his mill for the purpose of being ground, with the bags or casks containing the same; and shall, when required, deliver the same or the flour or meal thereof, to the owner or his or her agent or servant, with the bags or casks in which the same was received: Provided, That such miller shall not be accountable for any bags or casks, unless the same be distinctly marked with the initial letters of the owner's name; nor for the loss of grain, bags or casks, which happen by unavoidable accident.

SEC. 14. If any miller or the occupier of any mill, shall take a greater proportionate quantity of toll than is allowed by this chapter, or shall not sufficiently grind or grind and bolt, (as the case may be,) agreeably to the capacity of his mill, and in due time, as the same may have been brought, all grain received into such mill for the purpose of being ground, or ground and bolted, as directed by the owner, every miller of a public mill, so offending, shall forfeit and pay the sum of five dollars to the party injured, to be sued for and recovered as before provided for.

SEC. 15. All penalties under the provisions of this chapter may be sued for and recovered before any justice of the peace of the county where such penalties are incurred.

APPROVED: March 3, 1845.