ed may be placed in his hands, to the return term of said court named in said execution, it shall be lawful for the party at whose instance said execution issued from the supreme court, to obtain judgment against said sheriff or coroner for the amount of money named in said execution, Costs collect- and costs of the motion: Provided always, That the certificate of the transmitted postmaster living at the seat of justice of the county of which he is by mail, and sheriff or coroner, or (the 'nearest one thereto, that said sheriff or certificate of Coroner has placed in his office, sealed up in his presence, and directdeposit, a bar ed to the clerk of the supreme court, any execution, and the amount tion. of money collected thereon, which has been placed in his hands, shall be sufficient evidence on the part of said sheriff or coroner, to prevent judgment from being obtained against him and his securities as afore postmaster's to the mo 1827-(34) Sec. 1. returned, said. § 25. The clerk of the supreme court is hereby authorized, whenever On execution any sheriff or coroner shall return on an execution, directed to them or either of them, that the defendant or defendants in said execution, found," clerk or either of them, have no property in his county out of which he can may issue ex- make the amount of costs due on said execution, forthwith to issue against the execution against the plaintiff or plaintiffs in said execution, for all plaintiff for costs due on said execution, created by the plaintiff or plaintiffs in casioned by obtaining his judgment and execution; and no costs created by any ecution the costs oc him. 1826-(39) Sec. 1. Judgment in supreme court to be entered rity, and certified to rior court. defendant or defendants on the part of him or them, shall be taxed or collected in said execution: Provided, That an execution which may be returned" no property found," shall have issued to the county from which the case was brought into said court, before an execution under this act shall issue against the plaintiff or plaintiffs. § 26. In all cases in which the judgment, sentence, or decree of any inferior court, shall be affirmed in the supreme court, it shall be the duty of said supreme court to render judgment against the security or securities in the bond executed on obtaining the appeal or writ of error, against secu- in the same manner and for the same sum for which judgment shall judgment be rendered against the plaintiff or plaintiffs, complainant or complainclerk of infe. ants, in said supreme court; and it shall be the duty of the clerk of said supreme court, to certify the judgment thereof to the court from which the cause came, against both the principal and the surety or to issue exe- sureties; and it shall be the duty of the clerk of the court whose judgment or decree shall have been affirmed, immediately on the reception of the certificate, to issue execution returnable to the next term of the said court, against the person or persons against whom judgment shall have been rendered in the supreme court, and for the amount of said judgment, in pursuance of the certificate from the clerk of the supreme Clerk of inferior court cution agree ably to the certificate. 1830-(2) Sec. 1. Circuit court. § 27. The same power and authority that is now vested in the supreme court to render judgment final against the security in bonds for courts may the prosecution of appeals or writs of error to said court, is hereby vested in the circuit courts of this state, upon all bonds for the proseagainst secu-cution of appeals or writs of error from the county courts, to the said peals from circuit courts. enter judg ment final rities, on ap the county courts. § 28. The same percentage shall be assessed upon appeals and writs 1830-(22) of error taken from the county to the circuit court, as is now assessed Damages on in the supreme court, upon appeals or writs of error taken from the appeals from several county or circuit courts to the supreme court. Sec. 1. county to cir cuit court, the same as in supreme court. NOTE. For other provisions on the subject of errors, See next title, "Errors and Amendments." JUDICIAL PROCEEDINGS AT COMMON LAW. This title comprehends the following subdivisions, arranged alphabetically, viz: 1. Abatement of suits. 2. Appeals from Justices of the Peace. 3. Costs. 4. Detinue. 12. Motions against officers of court. 13. Penal bonds. 14. Penalties. 15. Petition and Summons. When cause not to abate ty: but to in sentative.. § 1. When any suit shall be depending in any court in this territo- 1802—(2) ry, and either of the parties shall die before final judgment, the execu- of action sur tor or administrator of such deceased, who was plaintiff, petitioner, or vives, suit defendant, shall have full power, (in case the cause of action by law by the death survive) to prosecute or defend such action until final judgment: and of either par the defendant is hereby obliged to answer thereto accordingly. And ure to reprethe court before whom such cause may be depending, is hereby em-" powered and directed to hear and determine the same, and to render judgment for or against such executor or administrator, as the case may require and if such executor or administrator, having been duly Executor of served with a scire facias, or citation, from the office of the clerk of defendant the court, where such suit is depending, fifteen days before the meeting come a party thereof, shall neglect or refuse to become a party to the suit, the court judgment may render judgment against the estate of the deceased party, in the against the same manner as if the executor or administrator had voluntarily made estate. himself a party to the suit; and the executor or administrator, who Executor enshall become a party as aforesaid, shall, upon motion to the court continuance. where the suit is depending, be entitled to a continuation of the same until the next term, or time of holding the court. failing to be when cited, titled to one Sec. 19. vive for and ecutors and § 2. The action of trover shall survive for and against executors 1811-(11) and administrators. §3. Where any person or persons shall institute any suit in the ver to surname of any other person or persons, for his or their own use and against exbenefit, the death of such person or persons in whose name or names administrathe suit or suits are instituted, shall not abate such suit; but the same tors. 1812-(8) shall progress and be tried in the same manner as though such suit Sec. 4. was actually brought in the name of the person or persons, for whose Suits for use, use the same was instituted. not abated by the death of the nomi Sec. 1. § 4. Where there are two or more plaintiffs or defendants to any al plaintiff. suit or suits, in any court in this state, and one or more of them die; 1824—(2) if the cause of such action shall survive to the surviving plaintiff or on the death plaintiffs, or against the surviving defendant or defendants, the writ or of joint deaction shall not be thereby abated; but such death being suggested plaintiff, suit upon the record, the action shall proceed at the suit of the surviving me by the plaintiff or plaintiffs, against the surviving defendant or defendants. survivors. fendant or may be con 1826-(16) Sec. 1. Executor or § 5. Where any person who may sue out a writ of ad quod damnum, may die before the termination of the proceedings on such writ, administra his or her executor or administrator may, on motion, revive the provive proceed. ceedings, and prosecute the same to a final termination. tor may re ings on writ or action of § 6. All actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his, her, or their retrespass for presentatives, in the same manner as actions on contracts. injury to pro- § 7. No suit instituted by a feme sole shall abate by her intermar1827 (28) riage: provided, the person marrying such feme sole will make himself a party to such suit, which may be done by motion to the perty. Sec. 1. sole not abat- court. ed by her Ib. Sec. 2. § 8. It may be lawful, when a feme sole defendant shall have intermarried, for the plaintiff to sue out a scire facias to her husband, and husband of make him a party; and such suit shall not abate by reason of the marriage. feme sole de fendant. 1814-(7) Soc. 2. be taken within five days after judgment. 2. APPEALS FROM JUSTICES OF THE PEACE. § 9. Any person aggrieved by the judgment of any justice of the Appeal may peace, may, within five days thereafter, appeal to the next superior court sitting for his county, first giving to such justice, bond, with good security, in double the amount of such judgment, conditioned to prosecute such appeal with effect; and in case he be cast therein, to pay and satisfy the condemnation of the court. (1) And the justice before whom the cause was originally tried, shall issue subpoenas for all witnesses that the parties in such appeals may require. And in case Interest and the superior court affirms the judgment of the justice below, execution firmance of with interest and costs shall issue as in other cases. Appellant to give bond. Justice to summon wit. nesses. costs on af judgment. 1814-(17) Sec. 3. Sum not ex tried without § 10. In all cases where the sum claimed does not exceed twenty dollars, the trial shall be by the court without the intervention of a ceeding 20 jury; and in cases where the sum claimed exceeds twenty dollars, dollars, to be the court shall try such appeal de novo, as any other cause is tried, jury. at the first term, on an issue (2) to be made up at or before the trial; Over 20 dolls, and it shall be the duty of the justice of the peace trying such cause, novo, as other to send up to the clerk of the superior court of his county, a statement Justice to of the case, with all the papers and the bond thereunto belonging, besend upstate fore the sitting of said superior court. to be tried de causes. ment and all papers. 1816-(1) Sec. 4. § 11. Whenever any judgment rendered by any justice shall be removed into any superior court, by appeal, certiorari, or otherwise, and the judgment of the justice be affirmed, judgment shall be entered ment to be against the security as well as the principal, and execution may issue against both, or either of them. On affirm. ance, judg. awarded against principal and security. (1) The appeal bond is sufficient evidence that judgment was rendered. McAlpin & Read v. Pool, Min. Rep. 316. After the term to which an appeal is returned, if the appellee has been notified or has appeared, it cannot be dismissed for the insufficiency of the appeal bond, unless a motion to dismiss is made at the return term and continued; and the court before dismissal should allow a good and sufficient bond to be given in open court, if the first was informally or inartificially taken by the justice without the neglect or default of the appellant. Jenkins v. Cauley, 1 Stewt. Rep. 61. Payne v. Martin, ib. 407. But if no bond be filed, a dismissal may be claimed at any time. Payne v. Martin, ib. 407: (2) But if the defendant will not plead, and the instrument ascertains the amount due, judgment may be entered by default as in other cases. Bevin v. Goodman, Min. Rep. 90. Appeals to be ing to their § 12. In cases of appeals from judgments of justices of the peace, 1819—(6) the court before whom such appeal shall be brought, shall proceed to Sec. 38. try the same according to the justice and equity of the case, without tried accordregarding any defect in the warrant, capias, summons, or other pro- merits, with ceedings of the justice of the peace, before whom the same was out regard to tried. (1) 6 § 13. Appeals shall lie from justices of the peace to the respective 1822-(11) circuit or county courts, under the same regulations as heretofore pre- Sec. 5. scribed by law, for taking appeals to the circuit courts. defects in the proceedings below. Appeals may lie to the courts. ap- Ib. Sec. 6. § 14. In all appeals taken by virtue of this act, from a justice of county the peace, when it shall be made to appear to the court, that the peal was taken merely for delay, the court shall award fifteen per cent. damages. (2) 15 per cent. causes re tiorari, tria Ib. Sec. 2. and clerk to § 15. Any cause removed by writ of certiorari, shall stand for trial en merely for at the first term of the court to which the same is returnable. § 16. The clerk of the court after issuing any writ of certiorari, is authorized and required, at the request of either of the parties, to moved by cerissue subpoenas for witnesses, returnable to the same term to which ble first term, the writ of certiorari is returnable. § 17. Whenever the defendant in any cause that shall have been de- issue subpoe cided by a justice of the peace, shall appeal from the judgment of nas accordsuch justice, and the appellate court shall render judgment in favor of 1824—(18) the plaintiff for a less sum than that recovered before such justice; Judgment such appellate court may enter judgment for the costs of such appeal, affirmed for either against the plaintiff or the defendant according to the justice of recovered bethe case: but where the plaintiff or successful party shall appeal, and shall not recover more than was adjudged by the justice of the impose costs peace, in that case he shall pay all the costs. ingly. Sec. 1. less sum than fore justice, court may at its discretion. Plaintiff's appeal. § 18. No appeal shall be tried, unless it appear to the court that (a 1822—(11) Sec. 8.] the appellee, his agent, or attorney, shall have had five days' notice of Costs on such appeal previous to the term at which the same shall be tried, or unless the return of non est inventus be made by the constable on the 7. Sec. 2. notice issued by the justice, and for want of such notice or return, the cause shall stand for trial at the ensuing term. § 19. On all appeals taken, the justice shall issue a notice to appellee of the same, which shall be served and returned by the stable, and sent up with the papers. the Appellee to have notice of appeal, or cause to be con- Ib. Sec. 3. continued. Justice shall issue, and constable serve notice. 3. COSTS. ance, Party pre titled to costs. § 20. In all cases, in civil actions, the party in whose favor judg- 1807—(19) ment shall be given, or in case of nonsuit, dismission, or discontinu-35 the defendant, shall be entitled to full costs, except when it is or vailing enmay be otherwise directed by law. § 21. In all suits brought to recover damages for slander or trespass, 1822—(1) assault and battery, the plaintiff shall not recover more costs than Sec. 1. damages, if the damages do not exceed five dollars; unless the judge In certain cases plaintiff to recov. er no more (1) What defects in the proceedings of justices have been held to be cured costs than by this statute, See Perry v. Brown, Min. Rep. 55. M'Grew v. Adams & El- damages, liott, 2 Stewt. Rep. 502. It does not cure a misjoinder of parties. Smith & Hill v. Cobb, 1 Stewt. Rep. 62. On appeal, objection cannot be made to the return of the warrant, unless it has been made before the justice, and the court should permit the constable to amend his return. Needham v. Newsom, Min. Rep. 407. (2) Damages not allowed on certiorari from justices' judgments. Hudnall & McCabe v. McCarta, Min. Rep. 402. 1824-(16) Sec. 1. before whom the suit was tried, shall certify that more damages ought to have been awarded by the jury. (1) § 22. On all suits instituted in any court of record in this state, in Plaintiff for the name of one or more persons for the use of another, and judgment thereon rendered against the plaintiff or plaintiffs for costs, it shall be brought, lia lawful to enter up judgment and issue execution against the person or persons for whose use such suit or suits may be instituted. whose use · suit is ble for costs. 1826-(24) Sec. 1. Party suc ble for his party's ina § 23. The clerks of the several circuit and county courts, and the justices of the peace in the several counties in this state, are hereby ceeding lia authorized, whenever any sheriff, coroner, or constable shall return own costs, in on an execution, directed to them or either of them, that the defendant case of other in said execution has no property in his county, out of which he can bility to pay, make the amount of costs due on said execution, forthwith to issue tion may is execution against the plaintiff in said execution, for all costs due on sue against said execution, created by the plaintiff in obtaining his judgment and execution; and no costs created by any defendant on the part of the defendant, shall be taxed or collected in said execution. (2) and execu him. 1831-(10) Sec. 1. No county § 24. Hereafter, no county tax on judgments rendered in favor of the Bank of the State of Alabama, without the intervention of a jury, tax allowed either by the circuit or county court of Tuscaloosa county, shall be judgments, taxed in the bill of costs in said causes. on bank without a jury. 1807-(14) Sec. 9. SECURITY FOR COSTS. § 25. Every action at common law, or suit in chancery, commenced Suits of non- in the name of any person residing out of this territory, shall be disresidents to missed if security be not given with the clerk of the court from whence be dismissed, the if security be process shall issue, or wherein it shall be depending, within sixty not given for days after notice shall, at any time during such non-residence, have costs. been given to the plaintiff or his attorney, by some person interested, that such is required for the payment of the costs which may be awarded to the defendant, and also of the fees that are or may become Judgment due to the officers of the court; (3) and after security shall be so given, tion against and the fees not paid at the time the same become due, it shall be lawful for the court in which the cause was commenced, to enter up judgment on motion against such security, and award execution accordingly. and execu security, on motion. 1807-(17) Sec. 9. Attorney is suing writ for non-resi dents, may be ruled for security-fail ing to give it, suit dismissed, and execution against attorney for costs. § 26. When any process shall issue from any of the courts of this territory, by the direction of any attorney, for any person or persons residing out of this territory, against any person or persons residing within the same, the person or persons suing for such process, or prosecuting such suit, at the return of such process, or at any time thereafter when required, shall, upon motion, be ruled to give sufficient security for all costs, accruing in such action or suit; and if such attorney shall fail to give such security, being thereto required, the suit shall be dismissed, and execution may issue against such attorney for all such costs. (1) It does not vary the case, though the jury find costs for the plaintiff. Reid v. Gordon, 2 Stewt. Rep. 469. This statute does not extend to cases of trespass to try titles. McGehee v. Evans, 1 Stewt. Rep. 589. (2) The costs chargeable against the successful party, include all except the appearance of the opposite party, and such acts as are done at his instance. Anon.-2 Stewt. Rep. 228. (3) Held not to include non-resident parties to suits in the supreme court. Harris & Farrow v. Clapp, Min. Rep. 328. Security for costs may be required as well in appeals from justices, as in other cases. Thompson v. Miller, 2 Stewt. Rep. 470. |