or pluries writ. or issue alias fendants, on whom such writ, or alias writ, shall not have been executed, and proceed to judgment against any one or more of said defendants on whom said writ shall have been executed, or proceed to issue an alias or pluries writ, at his election. (1) Ib. Sec. 8. ners. § 57. Whenever any cause of action may exist against two or more Writs may partners, of any denomination whatever, it shall be lawful to prosecute issue against any one or an action against any one or more of them; and when a writ shall be more partissued against all the partners of any firm, service of the same on any one of them shall be deemed equivalent to a service on all: and the equivalent to plaintiff may file his declaration and proceed to judgment, as if the said service on the writ had been served on each defendant; and the judgment shall be equally valid and effectual against all the defendants. Service on one partner firm. Ib. Sec. 12. Suit may be discontinued § 58. Where any suit shall be instituted against two or more persons as partners in any firm, if one or more persons, not partners in against such said firm, shall have been sued as such, the court before whom such of the de- suit is pending, shall discontinue said suit against such person or perappear not to sons, as shall appear not to be partners in said firm, and proceed to be partners. judgment and execution against all or any of the defendants in such action, who shall appear to be partners. fendants as Sec. 1. Joint obligors when sued sepa. rately may move against co-obligors. Sec. 1. cess, 1833-(18) § 59. Where suit is brought on any joint, or joint and several bond or note, and all the obligors or payers thereto shall not be served with proit shall be lawful for all or any one of the obligors served with process, to give notice in writing to the other obligors or payers not so notify and served, ten days before the trial term of said suit, that he or they have been sued on such bond or note, and that he or they will at the time when said suit is tried, move the court where the same is depending, a 1820-(13) for judgment against him or them. And it shall be the duty of said Court to give court, upon sufficient proof, to give judgment according to the right judgment ac- and justice of the case, and direct execution to issue, either for the obthe justice of ligee or payee, in such bond or note, or for the plaintiff or plaintiffs in the motion, as may best comport with the justice of the case, and issue simul the rights of the parties, and with such endorsements as may be ne[b 1833-(18) Cessary to effect the object; and the executions in both cases, shall be Sec. 1.] put into the hands of the sheriff or other officer at the same time. Ib. Sec. 2. § 60. In all cases of motions being made as aforesaid, the defendant Defendant in therein may plead any plea which may be necessary to try the cause plead. according to the right and justice thereof; and a jury shall be empannelled to try the issue joined between the parties, as in other cases. cording to the case, and executions to taneously. motion may 1807-(19) Sec. 38. Executions to issue on judgments for sum cer 9. JUDGMENT AND INQUIRY OF Damages. § 61. In all judgments on demurrer, confession, non sum informatus, or by default, in actions of debt for a sum certain, the courts are authorized to issue executions for the sums of such judgments, with such interest, by way of damages, as may be legally due, and costs of tain-on in suit; and in all interlocutory judgments, a writ of inquiry shall be judgments, awarded, and such writ of inquiry may be executed at the next succeeding term, and the damages assessed by a jury attending the court in which they were awarded. terlocutory writ of in quiry to be executed. c See § 63 & 64. (1) Held not to extend to defendants jointly liable on an unliquidated account, as for goods, wares, &c., and that in such case, a discontinuance can be entered as to those not served with process, only after an alias and pluries writ returned "not found." Kennedy v. Russell & Patten, Min. Rep. 77. It embraces warrants issued by justices of the peace, and a discontinuance may be entered in court after an appeal. Wade et al. v. Robinson, 1 Stewt. Rep. 423. It also extends to actions against joint endorsers. Martin v. Townsend, 2 Stewt. Rep. 329. Sec. 3. a jury, where amount is 62. In all actions founded on any writing ascertaining the plain- 1812-(8) tiff's demand, or sum sued for, if judgment by default, nihil dicit, or Judgment by non sum informatus, or on demurrer, be entered therein, the court final without where the same action shall be pending, shall and may lawfully enter judgment for the debt or demand, and interest thereon, to be calculat- ascertained ed by the clerk of such court, up to the time of rendering judgment, ment sued without the intervention of a jury to inquire of the damages, and award on. execution thereon as in other cases. (1) by the instru On overrul inquiry may at the same Proviso. default, in § 63. Whenever the demurrer to the declaration in an action of cove- 1922-(8) nant, trespass, or trespass on the case, shall be overruled, and an in- Sec. 1. quiry of damages directed by the court, it shall be lawful for the ing demurinquiry thereof to be had at the same term at which such demurrer er, writ of shall be overruled: Provided, That nothing herein contained shall be be executed so construed as to authorize the said inquiry of damages to be made at term. the term to which the writ in said actions may be made returnable. §64. In all actions of covenant, case, trespass, and assumpsit, when Ib. Sec. 2. the declaration is filed in due time, and the defendant has failed to Judgment by plead, a judgment by default may be taken either in vacation, or at the vacation, next succeeding terin, and a writ of inquiry executed at said term. at next term. § 65. It shall be lawful for the plaintiff or plaintiffs in any suit at 1829—(19) common law, in any court of record in this state, to dismiss his, her, Suits may be or their suit, at any time in vacation, on application to the clerk of the dismissed in court in which said suit may be pending, upon giving the defendant or defendants, his, her, or their attorney, six days' notice of such appli- No notice, cation: Provided, That the notice aforesaid shall not be required in executed. suits, in which the writ has not been executed. and inquiry Sec. 1. vacation. unless writ is confession of costs. § 66. The clerks of said courts shall, before dismissing said suit, 1. Sec. 2. take a confession of judgment for the costs which may have accrued Clerk to take on the same up to the time of said dismissal; and he shall have full judgment for power and authority to issue execution therefor, in the same manner, and under the same regulations, as executions are now issued upon judgments rendered by the circuit and county courts of this state: Costs to be Provided, That the costs shall be paid before dismissal, in all cases in residents be which the plaintiff or plaintiffs do not reside in this state. 10. JURISDICTION. [For the jurisdictions of the courts respectively, See "Judiciary."] fore dismiss al. Sec. 10. for a less sum take cogni § 67. If any suit shall be commenced in any court for a less sum 1807—(19) than such court can legally take cognizance of, or if any person shall When suit is demand a greater sum than is due, on purpose to evade this act, in either commenced case, the plaintiff shall be nonsuited, and pay costs: Provided always, than the That if the plaintiff, or any other person for him, will make an afflida- court can vit, (to be filed in the clerk's office,) that the sum for which the suit zance of shall be brought is really due, but that for want of proof, or that the plaintiff to time limited for the recovery of any article, bars a recovery, in that ed, unless he case, such plaintiff shall have a verdict and judgment for what appears vit. to be legally proved, anything to the contrary notwithstanding: And provided also, That nothing herein contained shall be construed to Exceptions. extend to suits on bonds, penal bills, or any other action of debt (1) But if the common money counts be added in assumpsit on a promissory note, a nol. pros. must be entered as to them, before judgment final, without the intervention of a jury, or it will be error. Moreland v. Ruffin, Min. Rep. 18. Neither can final judgment be entered without a jury, upon an unliquidated account. Martin v. Price, ib. 68. 1802-(1) Sec. 1. Trespass, detinue, trover, count, and grounded on a penalty, where the balance due on such bond or penal bill, or other action of debt, is not of less value than the sums limited for bringing suits in the said court. (1) 11. LIMITATION OF ACTIONS. § 68. All actions of trespass quare clausum fregit, all actions of trespass, detinue, trover, and replevin, for taking away of goods and chattels; all actions of debt founded upon any lending, or contract, debt, ac- without specialty, or for arrearages of rent due on a parole demise, case, limited and all actions of account, and upon the case, except actions for slanto six years. der, and except also such actions as concern the trade of merchandise, between merchant and merchant, their factors or agents, shall be commenced within six years next after the cause of such actions shall have accrued, and not after. Ib. Sec. 2. § 69. All actions of trespass for assault, menace, battery, wounding, Assault, bat- and imprisonment, or any of them, shall be commenced and sued within two years next after the cause of such actions shall have accrued, and not after. tery, &c., to two years. Ib. Sec. 3. Actions on the case for year. Proviso § 70. Every action upon the case for words, shall be commenced and sued within one year next after the words spoken, and not after: words, to one Provided always, That if any person or persons, who is, are, or shall be entitled to any of the actions hereinbefore specified, is, are, or shall as to minors be, at the time of any such cause of action accruing, within the age and insane of twenty-one years, feme covert, or insane, then such person or persons may institute such action, so that the same be instituted within such time as is before limited, after his, her, or their coming to or being of full age, discovert, or of sane memory. femes covert, persons. Ib. Sec. 5. Actions on leases, specialties, and awards, limited to sixteen years, Jast pay ment. § 71. Every action of debt, or covenant, for rent or arrearages of rent, founded upon any lease under seal, and every action of debt upon any single or penal bill, for the payment of money only, or upon any obligation, with condition for the payment of money only, or upon any award under the hands and scals of arbitrators, for the payment of money only, shall be commenced and sued within sixteen years from time of after the cause of such action shall have accrued, and not after; but if any payment shall have been made on any such lease, specialty, or award, within or after the said period of sixteen years, then an action instituted on such lease, specialty, or award, within sixteen years after such payment, shall be good and effectual in law, and not after: Minors, &c. Provided always, That the time, during which the person who is or shall be entitled to any of the actions specified in this section, shall haye been within the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the said limited period of sixteen years. Proviso, Ib. Sec. 6. § 72. Judgment in any court of record in this territory, may be reSeire facias, vived by scire facias, or an action of debt may be brought thereon, debt on judg. Within twenty years next after the date of such judgment, and not afment, in 20 ter: Provided, That the time during which the person who is or shall years. Proviso. Ib. Sec. 7. Entries of land within 20 years. be entitled to the benefit of such judgment, shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the said limited period of twenty years. §73. No person who now hath, or hereafter may have, any right or title of entry unto any lands, tenements, or hereditaments, shall (1) The decisions under this statute are contradictory. See Howard v. Wear, Min. Rep. 84, Curtis v. Gary, ib. 118. Carter v. Dade, 1 Stewt. Rep. 18. make an entry therein, but within twenty years next after such right or title shall have accrued, and such person shall be barred from any entry afterward: (1) Provided always, That the time during which Proviso. the person who hath or shall have such right or title of entry, shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed as part of the same limited period of twenty years. fendant's ab the state not to be compu § 74. If any person or persons against whom there is or shall be Ib. Sec. 8. any cause of action, as is specified in the preceding sections of this Time of deact, is, or are, or shall be, out of this territory, at the time of the cause sence from of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons, who is ted. or shall be entitled to such action, shall be at liberty to bring the same against such person or persons, after his, her, or their return into this territory; and the time of such person's absence shall not be accounted or taken as a part of the time limited by this act. (2) Suits respect menced with Proviso. U. S. lands. § 75. Every real, possessory, ancestral, mixed, or other action, for Ib. Sec. 9. any lands, tenements, or hereditaments, shall be brought and institu- ing lands, to ted within thirty years next after the right or title thereto or cause of be com such action accrued, and not after: Provided always, That the time in 30 years. during which the person who hath, or shall have such right or title, or cause of action, shall have been under the age of twenty-one years, feme covert, or insane, shall not be taken or computed part of the said limited period: Provided also, That nothing in this act contain- Not to affect ed, shall be so construed, as in any wise to affect or interfere with the primary disposal of the vacant lands of the United States within this territory. § 76. If in any of the said actions specified in any of the preceding b. Sec. 10. sections of this act, judgment be given for the plaintiff, and the same If plaintiff's judgment be be reversed by writ of error; or if a verdict pass for the plaintiff, and reversed or upon matter alleged in arrest of judgment, the judgment be given may be reagainst the plaintiff, then the said plaintiff, his or her heirs, executors, commenced or administrators, as the case shall require, may commence a new ac- year thereaf tion within one year after such judgment reversed or given against ter. the plaintiff, and not after. arrested, suit within one Sec. 1. Limitation tion for lands. § 77. No person or persons, body politic or corporate, who now 1816—(13) have, or shall, or may hereafter have any estate, right, title, claim, or demand, by virtue of any title which has not been confirmed by either of certain ac of the boards of commissioners of the United States, appointed for settling and adjusting land claims in the Mississippi territory, and not recognized or confirmed by any act of congress, in or to any lands, tenements, or hereditaments in this territory, shall after the expiration of three years from and after the passage of this act, have, prosecute, or maintain any action or suit at law for the recovery thereof, in any court in this territory: Provided, That this act shall not ex- Provisos. tend to claims in that part of this territory formerly a part of West Florida, which have been registered and not acted on by congress : Provided also, That if any person or persons who is, are, or shall be entitled to sue or prosecute such suit or action, or who hath, have, or shall have such right or title, shall be within the age of twenty-one (1) In this state, a possession for twenty years, under claim of title, creates a presumption of a grant. Stodder v. Powell, 1 Stewt. Rep. 287. (2) When the statute of limitations begins to run, it continues to run, notwithstanding an intervening disability to sue. But if the time limited has not elapsed at the death of one having the right of action, his executor or administrator may sue within twelve months from his death. Grice v. Jones, 1 Stewt. Rep. 254. Ib. Sec. 2. Actions on open ac counts limit ed to 3 years, infants, non compos mentis. years, feme covert, or insane, within the time limited by this act, then such person or persons, his, her, or their heirs or assigns, shall and may, at any time within three years next after his, her, or their coming to full age, of sound mind, or discovert, bring, sue, and prosecute such suit or action, and at no time thereafter. § 78. No action shall be brought to recover any money due by open account, after the expiration of three years from the accruing of the cause of action: Provided, That nothing in this act shall apply to the trade of merchandise between merchant and merchant, their factors or agents. § 79. If any person or persons that is or shall be entitled to any of Proviso for the personal actions enumerated and mentioned in this act, and in the femes covert, act for the limitation of actions, and for avoiding vexatious law-suits, and persons be, or shall be, at the time of any such cause of action given or accrued, fallen or come, within the age of twenty-one years, feme covert, ding act, § 68 or non compos mentis, then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, or of sane memory, as other persons having no such impediment should have done. a The prece to 76. 1832-(11) Sec. 1. Actions against securities of ed to six years, § 80. No action, suit, or motion, shall be maintained against the security or securities of any sheriff, constable, or other public officer of this state, for any misfeasance, malfeasance, or other cause whatsoofficers limit. ever, hereafter committed, unless the same be commenced and prosecuted within six years next after the commission of the act complained of; or if the claim be in favor of an infant or person non compos mentis, or other person disabled by law from bringing suit, then within three years after such disability to sue shall cease to exist: except as to Provided, That this limitation shall not be extended or applied to any infants, &c. action, suit, or motion, which may be maintained by law, against tion does not such officer, his executors, administrators or heirs: And provided cers them further, That nothing in this act shall be so construed as to have a retrospective operation upon suits now pending. This limita apply to offi selves. Not retrospective. Ib. Sec. 2. Actions lim ited to three years for causes here tofore exist ing. 1822-(20) Sec. 1. Where re ney by offi § 81. For any misfeasance, malfeasance, or other cause of action heretofore committed by any sheriff, constable, or other officer, no suit, action, or motion shall be maintained against the security or securities of any such sheriff, constable or other officer, unless the same be commenced and prosecuted within three years after the passage of this act; subject always to the proviso in the first section of this act. 12. MOTIONS AGAINST OFFICERS OF COURT. § 82. Whenever a motion shall be made against any officer of any of the courts of this state for not paying over any money received by ceipt of mo- him in his official capacity, and the receipt of the same shall not appear cer does not by the record or any paper filed in the clerk's office, it shall be the duty appear by the of the court to cause an issue to be made up, and tried by the jury shall direct attending the court; and in case it shall be found by the jury that the same has been received by the officer against whom the motion shall be made, judgment shall be rendered by the court against the said officer, for the principal, interest, and such damages as are now in such cases directed by law. record, court the issue to be tried by a jury,and render judgment. NOTE. For the mode of proceeding against officers holding executions, See "Executions," 8.. Attorneys refusing to pay over money collected by them, are liable to the same summary proceeding as sheriffs. See "Attorneys,❞—§ 5. |