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13. Penal Bonds.

cipal and in

$ 83. In all actions, which shall be brought upon any penal bond 1911—(11) or bonds, for the payment of money, wherein the plaintiff shall recover, Judgment to judgment shall be entered for no more than the principal and interest be entered

only for prindue on said bond.

$ 84. In all actions, in any court of record, upon any bond, or op terest. any penal sum, for nonperformance of any covenants or agree- Sec. 1. ments contained in any indenture, deed, or writing, the plaintiff or Plaintiff may plaintiffs may assign as many breaches as he or they may think fit; number of and the jury upon trial of such action or actions, shall assess damages damages alfor such of the breaches as the plaintiff shall prove; and the like judg- lowed for ment shall be entered on such verdict, as hereofore has been usually proved. done in such actions.

$ 85. If judgment shall be given for the plaintiff on confession for ID. Sc. 2. an indefinite sum, or on demurrer, or by nil dicit, in any such action, may be asthe plaintiff may assign as many breaches as he shall think fit; upon signed and which a jury shall be empannelled at the same term of the court in judgment by which judgment has been rendered as aforesaid, to inquire of the truth default for of those breaches, and to assess the damages the plaintiff shall have sum. sustained thereby.

$ 86. In case the defendant, after such judgment, and before execu- Ib. Sce. 3. tion, shall pay into court, to the use of the plaintiff, the damages of the dama assessed, and costs, a stay of execution shall be entered upon the re- ges, stay of cord ; or if, by reason of an execution, the plaintiff shall be fully paid he centered on all the damages and costs, and the charges of the execution, the de- the record, fendant's body, lands, or goods shall be thereupon forth with discharged to remain as from the execution, which shall likewise be entered upon record; but a farther sein each case the judgment shall, notwithstanding, remain as a farther other security, to answer to the plaintiff such damages as he may sustain by breaches. any further breach of covenant contained in the same indenture, deed, or writing ; upon which the plaintiff may have a scire facias upon the said judgment against the defendant, his heirs, executors, or administrators, suggesting other breaches of the said covenants or agreements, and to summon him or them respectively to show cause why execution should not be awarded upon the said judgment ; upon which there shall be the like proceeding as was in the action upon the said bond, for assessing of damages upon trial of issue joined upon such breaches, or inquiring thereof upon em pannelling a jury in manner aforesaid; and upon payment or satisfaction as aforesaid, of such future damages, costs, and charges, as aforesaid, all further proceedings on the judgment are again to be stayed, and so toties quoties ; and the defendant's body, land, or goods, shall be discharged out of execution as aforesaid.

14. Penalties. (1)

Penalties re

$ 87. In all cases where a penalty may be incurred, or a sum of 1828—(47) money forfeited by any person or persons, by reason of the violation Seciali

coverable by (1) Where a penalty is incurred under a statute, it must be recovered while action of the statute is in force: and when the statute is repealed, penalties incurred no mode is under it, though before the repeal, cannot be recovered. The State v. Tom- pointed out becbee Bank, 1 Stewt. Rep. 347. But the repeal of the statute, pending a byther station writ of error, does not divest the plaintiff's right. Taylor v. Rushing, them. 2 Stewt. Rep. 160.

county.

of, or non-compliance with, the provisions of any statute of this state, when by such statute no mode is pointed out for the recovery of such penalty, or the use to which the same shall be applied is not by such statute declared, the said penalty, sum or sums forfeited, shall be recoverable by action of debt in the circuit or county court of the county

wherein such penalty may have been incurred, or sum forfeited, or beAppropriated fore a justice of the peace of any such county ; which action shall be tor, and pau: brought and prosecuted jointly in the name of any such county as aforepers of the

said, and of the person or persons suing for the same ; and when recovered, shall inure, the one moiety to any such county, for the use of the paupers thereof, and the other moiety to the person or persons suing for and recovering the same.

§ 88. In all qui tam actions, or suits in the nature thereof, the pared in qui tam ty prevailing in the suit, shall be entitled to recover costs as in other

actions at law. 1829–(14) · § 89. In all actions which may be brought by virtue of any statute

which now is, or may hereafter be in force, for the recovery the county of any penalty or penalties, or of a part thereof: and when the the penalty,

whole, or a part thereof, shall inure to any county in which any such not incompe-action shall be brought, it shall not be lawful, nor shall any defendant tent as ju:

or defendants to any such action or actions, be permitted to except to the competency of any citizen as a juror, on account of his residence in the county in which such action or actions may be brought.

Ib. Sec. 2. Costs allow

actions.

Sec. 7.
Citizens of

entitled to

rors.

15. PETITION AND SUMMONS.

1820—(21) Sec. 1.

Petition.

$ 90. When any person or persons, holding a bond or note for the direct payment of money, may desire to bring suit thereon, he or they may do so, by filing such bond or note, with the clerk of any court having jurisdiction thereof, with a petition purporting as follows: “State of Alabama, Circuit or County, ss. A. B. plaintiff, states that he holds a bond or note, (as the case may be) on the defendant, C. D., in substance as followeth : (here insert a copy of the bond or note :) yet the said debt remains unpaid, wherefore he prays judgment for his debt, and damages for the detention of the same, together with his costs, &c. A. B."

§ 91. If such bond or note is held by an assignee or endorsee, then, after reciting the bond or note, “ on which is the following assignment or endorsement, (recite the assignment or endorsement,) whereby the plaintiff hath become the proprietor thereof, of which the defendant hath had due notice."

$ 92. A copy of the petition, with a summons annexed thereto, re

quiring the deferidant to appear and answer the demand on the first with copy of day of the next succeeding term, shall be issued by the clerk, and ale rettion, served by the sheriff by delivering a copy of the petition and summons mons annex: 10 the defendant, and each of the defendants, if there be more than

Ib. Scc. 2. Endorsement to be recited.

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Ib. Sec. 3. Defendant to be served

ed.

one.

Ib. Sec. 4.

five days be

$ 93. The sheriff in his return shall note the day on which it shall Judgment at have been executed, and whenever it shall appear therefrom that it has

been executed five days or more before the return day, judgment may if executed be rendered the first term, subject, however, to be continued for cause fore, &c. shown; but if the process be not executed five days before the return

day thereof, a continuance shall be entered, unless a trial shall be had

by consent of parties. Ib. Scc. 5.

$ 94. The petition shall stand in the place of a declaration, and the defendant may appear and plead thereto, as in an action of debt, and

Petition in lieu of declaration,

default.

return term,

filed

Judgment, lien on es

cution.

may be stay.

issue be joined accordingly; which issue shall stand over to, and be tried at, the next term of the court in which such suit may be instituted, unless a trial is had at the first term by consent of the parties, but Judgment by if the defendant does not appear and plead, judgment may be taken by default. $95. It shall be lawful, in all actions of debt, assumpsit and cove- Th. Sec. 6.

Judgment at nant, to take judgment at the return term thereof, but ihe defendant

unless plea may, upon filing a plea to the merits, have the suit continued.

§ 96. In all cases, when judgment passes against the defendant at Ib. Sec. 7. the first term, such judgment from the date thereof shall be a lien on the estate of the defendant, but execution shall not issue thereon, un- tate.

Stay ef exetil the expiration of sixty days after the end of said term.

$97. If the defendant shall, before execution issues on such judg- Ib. Sec. 8. ment, tender to the clerk of the court where the judgment was render- Judgment ed, good and sufficient security, to be approved of by the said clerk, ed." for the amount of the judgment, interest, and costs of suit, the clerk shall take a recognizance to the effect following:

- Whereas, Recogni. A. B., plaintiff, at the

term of

court, obtained zance. a judgment against C. D., defendant, for the sum of

debt, interest, or damage, (as the case may be,) and costs of suit: (or if the judgment be in damages therefor, the sum of damages, and

costs of suit;) and whereas the said C. D. hath tendered E. F. to be bound with him to the said A. B., for the amount of the said judgment, interest and costs, I, G. H., clerk of the said court, do hereby accept for the said A. B., the following recognizances, to wit: We, the said C. D. and E. F., hereby acknowledge ourselves to be bound to the said A. B. in the sum of debt, interest or damage, and

costs of suit; (or damages, and

costs of suit, as the case may be,) and the further sum of

for taking this recognizance, to be paid to the said A. B. six months after the date hereof, with interest thereon from the date of said judgment; and if we shall delay payment thereof, for the space of sixty days after the said term of six months, then execution is to issue against our estates or bodies, as the said A. B. may direct, for the amount of this recognizance with interest as aforesaid.' Signed, sealed, and delivered, in the presence of the said G. H., clerk of

C. D., (l.s.] E. F., (L.s.]”. Which recognizance shall have the force and effect of a judgment, and Recogni execution may issue thereon as upon other judgments. But after the force of a execution of the recognizance as aforesaid, the lien created by the judgment, judgment shall cease.

$98. The said recognizance may be satisfied and discharged by the Ib. Sec. 9. payment of the amount thereof to the clerk of said court, at any

Recogni.

time before execution issues thereon, and by paying one half per centum satistied. thereon to said clerk, for his trouble in collecting and securing the money. And upon the payment thereof, the clerk shall, in the presence of the said defendant, his agent or attorney, enter on said recognizance, satisfaction in full, and carefully file and preserve the same among the papers of the suit. And he shall also execute to the defendant a receipt in full upon such payment.

$99. If any clerk shall fail to pay over to the plaintiff money re- Ib. Sec. 10. ceived as aforesaid when required, he shall pay the same with six per clerks for cent. per month thereon, to be recovered by motion, upon ten days' failing to pay notice thereof before said court, with such costs as may be awarded against him.

$ 100. Nothing in this act shall be so construed as to take away this law re

zance to have

cease.

zance, how

over inoney

medial.

1b. Sec. 12. Clerk's fees.

any remedy or defence heretofore allowed by law, nor shall this act be otherwise construed, than as a remedial statute.

$ 101. The clerk shall be allowed for issuing a summons and copying the petition, fifty cents ; and for taking recognizance under this act, fifty cents; and for receiving and paying over money to the plaintiff, one half per centum thereon, to be taxed in the bill of costs.

16. PLEADING.

vided, &c.

sworn to. Ib. Sec. 34.

be verified.

Sec. 7. Declaration to be filed within three

the time Cause dig. missed for

1807—(19) § 102. The defendant in any cause, may plead as many several Sec. 33. Any number matters as he may judge necessary to his defence; Provided he be o wpleased: not admitted to plead and demur to the whole: And provided also,

that no plea of non est factum shall be admitted to be pleaded, but Non est face when accompanied with an affidavit of its truth. (1)

§ 103. No plea in abatement shall be received in any court, unless Plea in abate. accompanied with an affidavit of the truth of such plea, or the truth of ment must it otherwise appear. 181946) § 104. The following rules and regulations shall be observed in the

said courts until otherwise directed by law, viz: That every plaintiff

or his attorney when employed in any suit, in any of the circuit days after recourts? of this state, shall file his declaration in the clerk's office, any turn of writ, time within the first three days of the term, to which the writ is maycenlarge made returnable ; and on failure thereof, such suit shall be dismissed

by the court, at the cost of the plaintiff; Provided nevertheless, That

the judge on good cause shown, may grant a longer time; which varation dat, cost being paid by the plaintiff to the clerk of said court, he or they torney liable paying such cost in consequence of a declaration not being filed in due

time, as aforesaid, may warrant such attorney for all such cost paid by him as aforesaid, and the receipt of the clerk shall be evidence in

support of such claim; and the justice before whom such warrant and to an ac- shall be tried, may give judgment and issue execution thereon ; and

such attorney shall be further liable to the action of such plaintiff, for Defendant such damages as he or they may have sustained in consequence of shalbierear such declaration not having been filed as aforesaid. The defendant demur, with shall appear and plead or demur, within the first three days after the after declara- time allowed for filing declaration, otherwise the plaintiff may have fig filed or judgment by default, which in actions of debt shall be final, unless judgment by

where damages are suggested on the roll; and in that case, and in all others not herein specially provided for, when the recovery shall be

in damages, a writ of inquiry shall be executed at the next succeedTime for spe- ing term :: Provided, That where the nature of the actions requires

special pleading, the time for pleading may be enlarged :—where the

for the costs,

mages.

default.

cial pleading may be ex. tended.

1 See “ Judiciary-County Court,"_$12.

See this title, -5 61 to 64. (1) A joint and several plea of non est factum by a firm, may be verified by the affidavit of either partner. Garner et al. v. Simpsons, Min. Rep. 67. An affidavit is sufficient if it state special facts, from which the truth of the plea may be inferred. Tindal's Administratrix v. Bright, Min. Rep. 103. An admmistrator pleading non est factum to an instrument purporting to be made by his intestate, must verify the plea by oath :—But an affidavit to the best of his knowledge and belief, is sufficient. Martin, Administrator, v. Dortch, 1. Stewt. Rep. 479. A defendant is not compelled to plead non est factum generally, with an absolute affidavit, but may state in a special plea the particular facts which amount to a denial of the legal validity of the instrument, or may deny the authority of the agent who made it. ib. A replication of non est factum, is not required to be verified on oath Parks & Burke v. Greening, Min. Rep. 178.

ings an issue

must be re

may be enter

shall be made up at return

defendant pleads specially, the plaintiff shall reply or demur, within Throughout three days after the time allowed for filing the declaration, or a non

the proceedpros may be entered by the defendant; and if the plaintiff replies, and tendered in his replication tenders an issue, the defendant shall join issue or

plied to with demur in three days, otherwise the plaintiff may have judgment; and in 3 days, or where the defendant rejoins to the plaintiff''s replication, he shall file his non pros, or rejoinder within three days, or judgment shall go against him, unless by default, the term for pleading shall be enlarged as aforesaid, and the same time ed, shall be given, and rules observed, through the whole course of the proceedings: Provided, That in every case, the pleadings shall be made but pleadings up during the term to which the process is returned, (1) unless the time be extended by the consent of parties, their attorneys, or by di-term, unless rection of the court. Where a special verdict shall be found, a case parties. agreed, a demurrer filed, or a bill of exceptions to the evidence tendered, the court may, for a good cause shown, continue the same until the nex term for argument. When a plea in abatement shall be Costs, on pleaded, and upon argument, the same shall be adjudged insufficient,

overruling

plea of abate. the plaintiff shall recover against the defendant, full costs to the time ment. of overruling such plea, including the costs of court.

$ 105. No declaration, plea, or replication, which sets forth or 1823—(29) states any obligation or instrument of writing under which such party Lost'instru. claims a benefit, and which is alleged to be lost, and not in the power ment must be

pleaded on of the party to produce said instrument or obligation in court, shall be received in any of the courts of this state, unless such party make oath of the truth of such statement in his declaration, plea, or replication, as the case may be.

106. It shall not be required of the plaintiff, in any suit by at- 1832—(3) tachment, founded upon a cause of action not due, to file his plead-Seclar ings before the first term of the court, after such cause of action falls in attachdue, and the same may be dated as of the term when filed.

debt falls due.

oath.

Declaration

ment may be filed when

DEMURRERS.

Sec. 6.
Frivolous de

on motion.

Sec. 2.
All demur

§ 107. When any demurrer to evidence, demurrer to the declara- 1807—(17) tion or plea in any cause depending before the several courts in this territory, shall appear frivolous and intended for delay, it shall be law-murrer may

be rejected ful for the court where the cause is depending, to reject such demurrer on motion, and proceed to trial as if the saine had not been offered.

§ 108. No demurrer shall have any other effect than that of a ge- 1824—(20) neral demurrer, and the courts at any time previous to the term at which such demurrer shall stand for argument, may allow the party rers general. on application, to amend his pleadings without terms, and after judg- Pleadings ment in favor of the demurrer, may authorize an amendment on terms. maybe And if the demurrer be overruled, the court shall grant leave to the Plea to the party demurring to withdraw the demurrer, and plead to the merits of penits, aner the action, upon such terms as the justice of the case may require. : $ 109. All demurrers to any part of the pleadings in suits at law, 1). Sec. 3. shall be tried when the cause is called for trial, and shall not be de. Demurrers to layed until motion day, or the last four days of the term. And it shall the cause is be the duty of the circuit and county courts respectively, to hear and

overruled.

called. Motions to dissolve in junctions to

(1) Judgment by default for want of a plea, cannot be taken until three be heard each days after the time allowed for filing declaration, although the term of the term. court may not continue so long. Rather v. Owen, 1 Stewt. Rer, 38. Gwynn v. Weaver, ib. 219.

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