Imágenes de páginas

for costs.

§ 27. If any person resident in this territory, shall institute any suit, 1811—(11) whether at common law or in chancery, in any of the courts of this series

Plaintiff reterritory, and shall after the institution thereof remove out of this ter- moving ont ritory, such person shall be bound to give security for the costs of pfotlir state, such suit, in the same manner and under the same restrictions pointed give security out for nonresident plaintiffs, in the ninth section of the act entitled “ An act establishing the fees of the several officers therein named, and for other purposes," passed the sixth day of February, one thousand eight hundred and seven.a

a See § 25. $28. Any clerk may require security for costs of non-residents, 1812–(16) before he issues any writ.

§ 29. On all bonds hereafter made by non-resident plaintiffs for the require secuprosecution of suits in the county or circuit courts, and to secure the residents, becosts of such suits, it shall be lawful for such courts, at the time of fore issuing rendering final judgment in the cause, to render judgment against the 1-30—(3) security of such non-residents for the costs adjudged.

give judg: Note.—The plaintiff, on suing out a bail-writ, is required to give security security of for costs. See“ Bail in Civil Cases,'—$ 7.

dents, at the

Sec. 9.

Clerk may

Sec. 1.
Court shall

non resi

time of ren. dering final judgment in the cause.


the sheriff

possession of property sued

Defendant to give bond in

$ 30. In any action of detinue, if the plaintiff, his agent or attorney, 1830–(14) shall make affidavit that the property sued for belongs to the plaintiff, Sen pla and shall give bond with sufficient security, to be approved of by the filing attida

vit and bond, clerk of the court issuing the writ, conditioned that if the plaintiff shall fail in the suit, he shall pay the defendant all costs and damages shall take he may sustain by the wrongful suing out of the writ, it shall be the duty of the clerk of the court issuing the writ by endorsement for unless on the same, to require the sheriff or other officer serving it, to take will give the property sued for into his possession, unless the defendant shall bond for its

delivery, if give bond with sufficient security in double the amount of the value of cast. the property to be taken, payable to the plaintiff, and conditioned that the defendant, if cast in the suit, shall within thirty days after its determination, deliver to the plaintiff the property recovered by such suit.

$ 31. If the defendant in such suit shall neglect for five days, to th. See. 2. give the bond required by the first section of this act, the property taken shall be delivered to the plaintiff, on his giving bond and 3 days, or sufficient security in double the amount of the value of the property, bivereddo payable to the defendant, conditioned to deliver the property to the plaintiff, on

bis giving defendant within five days after demand made, in case he shall fail to recover the same in his said suit; and if the plaintiff shall neglect to give such bond within five days after the time allowed ing, defendthe defendant, it shall be the duty of the officer serving the writ to return the property taken, to the defendant.

§ 32. When the defendant shall have given such bond, and a reco- Ib. See. 3. very shall be had against him, and he shall neglect to deliver to the plaintiff the property recovered, as provided for by the first section of to deliver îhis act, it shall be the duty of the sheriff, at the plaintiff's request, fendant's to make a demand of the property recovered, of the defendant or his bond shall be security ; and if it shall not be delivered within five days after such" forfeited," demand, the sheriff shall return the bond taken in the suit, to the of- and exccufice of the clerk of the court where the recovery shall be had, as for- against him feited ; and such bond so returned, shall have the force and effect of a judgment, and execution thereon shall issue against principal and security for the alternative judgment.


Plaintiff fail.

ant to have property.

On recovery, and failure

and securi. ties.

Ib. Sec. 4. § 33. If the plaintiff shall fail in such action, and shall neglect to Plaintiff fail. ing in his deliver the property taken, after demand made, as provided for by the suit, and not second section of this act, he, and his securities, shall be liable to an property, fiaaction on such bond, and in case of recovery thereon, damages, not ble with his exceeding fifty per centum on the value of the property, shall be given

for the detention thereof. damages.

action and


1811–(11) Sec, 2. Clerk to keep separate docket for is. sues, &c.


Sec. 1.
Clerk to as.
sign causes


tried out of their order.

$ 34. Before any superior or county court, the clerks of said courts shall enter in a particular docket, all such causes, (and those only) in which an issue is to be tried, or inquiry of damages to be made, or a special verdict, or case agreed, or demurrer, or other matter of law is to be argued, in the same order as they stand in the course of

proceeding, setting as near as may be, an equal number of causes to each day, and no cause shall be taken up for trial or hearing, at a day previous to that at which it may be set; and the clerk shall issue subpenas for

witnesses to attend on the days on which the causes stand for trial ;To keep sub- and it shall be the duty of the clerk to keep a regular subpæna docket, penisducket, and to issue subpænas before every term of the court, for all the wit

nesses, in every cause, that either party may at any time have direct

ed to be suminoned." 1815—(12) § 35. It shall be the duty of the clerks of the superior courts in

this territory to keep a trial docket, and to assign not less than fifteen

causes ready for trial each day of the term, commencing on the first to particular

day, and continuing until the docket be gone through. And it shall Causes not not be lawful to take up any cause out of the order in which it shall


upon the trial docket, unless by consent of parties. 1819—(6) § 36. All jury causes shall be first tried; all motions in arrest of

judgment shall be argued within the three last days of the term, in

which the issue shall be tried; the defendant's attorney first serving judgment,

the plaintiff's attorney with a copy of the reasons in arrest of judgment, the day immediately following that on which such motion shall be made : arguments on writs of error, special verdicts, cases agreed, demurrers, petitions for legacies, and distributions of intestate estates,

· shall be heard during the four last days of the term.” 1807--(19) § 37. No proceedings in any court shall be discontinued by the

death of any of the judges or justices thereof, or by their nonattend

ance at any term ; but in such cases, all actions and suits, matters and judge.

things depending therein, shall stand continued of course, to the next

succeeding term. (1) Jan. 5, 1833. § 38. The presiding judge of the circuit court of Mobile shall, at

every term of said court, try causes in the following order, to wit: causes in cir- appeals from justices of the peace; appeals from the county court;

actions of assumpsit; actions of debt, covenant, and detinue, during the first week of the term. The state docket shall be taken up on Monday of the second week, and disposed of, when the residue of the actions of assumpsit, debt, covenant, and detinue, if any there be, shall be tried, dismissed, or continued, when land cases (so called) and all other cases remaining on the common law docket, shall be

Sec. 7.
Order of pro-
Arrest of

error, &c.

Sec. 39. Death or absence of

Sec. 1.
Order of

cuit court of Mobile.

1 Witnesses, once subpænaed, shall attend from term to term, until discharged, or the suit is decided. See “Witnesses,”—$ 2.

2 Arguments on demurrer shall be heard at the trial in chief. See this title,- 109.

(1) A suit not tried at trial term, is discontinued, unless continued by the court, or by operation of law. Kennon v. Bell, Min. Rep. 98.

called in their order and disposed of. Motions shall then be heard and determined, and the term shall close with the trial of all chancery business: Provided, That by agreement and consent of the judge, any case may be tried out of its order.

Note.-Motions against banks for refusing to pay their notes, &c. have precedence of all other causes. See “Bariks,”~$ 2.


Sec. 1. When de

for the rent.

$ 39. In all actions of ejectment tried in any of the courts of this 1815—(7) territory, if it shall be made to appear to the satisfaction of the jury trying such cause, that the defendant has a crop then planted, or grow-fendant has ing upon the premises in question, they shall, if they find the defen- a crop rowdant guilty of the trespass and ejectment complained of, assess at the premises, the same time such rent as shall be reasonable and just for the plaintiff to sess rent unreceive, for the use of said premises during such time as shall be, in til the crop. their opinion, sufficient to enable the defendant to gather and secure ered. his crop from off said premises : and no writ of habere facias pos- Defendant sessionem shall issue upon any such verdiet, until the expiration of retain posthe time determined by the jury, if the defendant in such action shall session until enter into bond at any time during the term of the court before which ered, on givsuch cause is tried, with sufficient security, to be approved of by said

ing security court, in the penalty of double the amount of the rent assessed by the jury, payable to the plaintiff, conditioned for the payment of the rent so assessed at the expiration of the time fixed by the jury, for the defendant to hold possession of the said premises.

$ 40. All bonds taken in virtue of this act, shall be filed in the clerk's 1b. Sec. 2. office of the proper court, and shall have the force and effect of a judg- bond to be ment; and if the same be not discharged according to the condition tiled with thereof, execution shall issue thereon against the principal and his se- forfeited, excurity, for the sum therein mentioned, as upon other judgments in ecution to issaid court.

$41. The fictitious proceedings in the action of ejectment are hereby 1821–(31) abolished; and hereafter the mode of trying the right and title to lands, Fictitious tenements, or hereditaments, shall be by action of trespass, in which the proceedings

in ejectment plaintiff shall endorse on his writ and copy-writ, that the action is

abolished, brought as well to try titles as to recover damages; and it shall not be and titles to necessary to file the original note, bond, or paper sued on, with the actions of clerk, but a copy thereof shall be sufficient.

trespass. $ 42. The laws now in force in relation to the action of ejectment, Ib. Scc. 2. except as far as relates to fictitious proceedings therein, shall be


ment appli. plied to the action of trespass, to try titles as aforesaid.

§ 43. If the plaintiff in the aforesaid action of trespass recover, shall be entitled to an execution for possession, as well as for costs Plaintiff re. and damages. (1)

covering, to

Law of eject.

cable to tres

he pass.

To. Sec. 3 & 4.

have execu. tion for pos. session.


§ 44. No summons, writ, declaration, return, process, judgment, or 1807-(19) other proceedings, in any of the courts of this territory, shall be Sco.c.36. abated, arrested, quashed, or reversed, for any defect or want of form ; but the said courts respectively, shall proceed and give judgment, accord-Pashed for

Process, &c., not to be


(1) Various points decided under this statute. White v. Saint Guirons, Min. Rep. 331.

amend mis. takes, or want of form.

ing as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form, in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demur

rer, which the party demurring shall specially set down and express, Court may together with his demurrer, as the cause thereof;? and the said courts

respectively, shall and may, by virtue of this act, from time to time,
amend all and every such imperfections, defects, and want of form,
(other than those which the party demurring shall express as afore-
said,) or any mistake in the Christian name or surname of either par-
ty, sum of money, quantity of merchandise, day, month, or year, in
the declaration or pleading, the name, sum, or quantity, or time, be-
ing right in any part of the record or proceedings; and may at any
time permit either of the parties to amend any defect in the process
or pleadings, upon such conditions as the said courts respectively shall,

in their discretion, and by their rules, prescribe. a 1811–(11) a § 45. Judgment on confession shall amount to a release of errors. (1)

b § 46. After issue joined, in an ejectment on the title only, no exception to form or substance shall be taken to the declaration in any court.

C47. No cause shall be reversed, arrested or otherwise set aside, in ejectment after verdict or judgment, for any matter on the face of the pleadings

'not previously objected to; Provided, The declaration contains a C1824—(20) substantial cause of action, and a material issue be tried thereon.

d$ 48. Nocause shall be reversed by the supreme court or any çirnot previous

cuit court, for any miscalculation of interest, or other clerical misprily objectedsion in entering judgment, so as to give costs to the plaintiff in error; doib

. Sec. 4. but in all such cases, the supreme court may order the judgment to be Judgment amended at the costs of the plaintiff in error.

e$ 49. The circuit and county courts respectively, shall and may

any time within three years after final judgment, upon the applicae 10. Sec. 5. tion of either party, amend any clerical error, or misprision, in calcuCorite may rilation of interest, or other mistake of a clerk, where there is sufficient

matter apparent upon the record to amend by; and no cause shall be reversed for any such error or defect, by the supreme court, unless the court of original jurisdiction, where the same was determined, shall, upon application, refuse the amendment.


Sec. 12.
Judgment on
confession, a
release of er
blb. Soc. 14.
No exception

after issue on title.

Sec. 1. Judgment to cure defects

not to be reversed for clerical mistake.


cal errors within three years.

Sec. 8.
Judge, on in


$ 50. Any judge of the circuit courts, on an inspection of the re

cord or the transcript thereof, of any cause in which final judgment spection of shall have been rendered, may, if he shall be of opinion that any materecord, mayrrial mistake or error has been committed by a ministerial officer after error, coram the rendition of judgment, grant a writ of error coram vobis, returnable

to the next term of the circuit court in which such judgment shall have been rendered, and may direct the said writ to operate as a supersedeas, on the party applying for the same, entering into bond and security in the clerk's oflice, to be approved by the judge grant

ing the same, conditioned for prosecuting the said writ of error to f See g 52.

effect, and pay and satisfy the judgment of the court.

1 No demurrer shall have any other effect than that of a general demurrer. See this title,- 108.

(1) Therefore neither a writ nor declaration is necessary to sustain a judgment by confession. Caller v. Denson, Min. Rep. 19. Gayle v. Foster, ib. 125 ; and nothing can be assigned as error, which arose or existed previous to the judgment by confession : M'Connell v. White, ib. 112.


$ 51. It shall be the duty of the court to which the writ of error Ib. Sec. 9. coram vobis shall be returned, to try the same at the return term, and Writ to be in all cases of affirmance, judgment shall be rendered against the plain- turn term. tiff in error, and his, her, or their security, for the amount of judg- Damages on ment which shall have been suspended, together with five per cent. damages, interest and costs.

$ 52. No writ of error coram vobis shall be granted, unless the 189—(23) de fendant shall pay the amount of principal and interest actually due, Judge may before obtaining the same ; unless otherwise ordered by the judge requirejuig. granting the said writ: Provided, That no security shall be required paid before of the defendant under this act.

granting writ.


Sec. 13.

in different counties.

when return.


$ 53. Whereas joint obligors and other persons, against whom a 1807—(19) joint cause of action may exist, frequently reside in different districts,

Separate or counties, so that the same individual process cannot reach both or writs may all of such persons, whereby parties having just demands are greatly joint obli. delayed in prosecuting the same : for remedy whereof, Be it enacted, gors, residing That where any such joint cause of action shall exist, it shall be lawful for the plaintiff in such suit or action, to sue out two or more writs, directed to the sheriffs or other proper officers of the different counties where such defendants or parties jointly chargeable may be found, which process such sheriff or other officer shall execute accordingly, and return to the court from which the same issued, as in other cases ; and such To be filed writs, so issued and returned, shall be filed together, and shall have together the same force and effect, and the same proceedings and recovery may ed. be thereupon had, as if one single writ had issued against all the de- Clerk or at. fendants jointly: but it shall be the duty of the clerk or attorney torney haenissuing such process to endorse thereon, ihat both or all of the said they are all writs are for one and the same cause of action, or otherwise the same cause of me shall abate on the plea of the defendant.

§ 54. And whereas it is a rule of common law, that in case of the Tb. Scc. 14. death of a joint obligor, the debt can never survive against his heirs, joint obligor, executors, or administrators, which rule is frequently injurious and the debt oppressive to the surviving obligors: to remedy which, Be it enacted, against his That, in case of the death of one or more joint obligor or obligors, ti presentathe joint debt or contract shall survive against the heirs, executors, and administrators of the deceased obligor or obligors, as well as against the survivor or survivors : and when all the obligors shall die, the debt or contract shall survive against the heirs, executors, and administrators of all the said joint obligors.

$ 55. Every joint bond, covenant, bill, promissory note, or judg. 1918–(2) ment of any court of record of any state or territory of the United Sointi

Joint obliga States, shall be deemed and construed to have the same effect in law, tions conas a joint and several bond, covenant, bill, promissory note, or judg- joint and sement; and it shall be lawful to sue out process and proceed to judg- veral, and ment against any one or more of the obligors, covenanters, or drawers ssue accorů. of any such joint bond, covenant, bill, or promissory note, or against ingly. any one or more of the defendants to any such joint judgment.

§ 56. Whenever a writ shall issue against any two or more joint, Ib. Sec. 2. or joint and several obligors, covenanters, or drawers of any such bond, Plaintiff may covenant, bill, or promissory note, or against two or more of the de-action fendants to any such joint judgment, it shall be lawful for the plaintiff against such or his attorney, at any time after the return of said writ, or an alias fendants as writ, to discontinue such action against any one or more of the de- served upon,

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