determine, at each and every term, all motions for the dissolution of injunctions. 17. PROCESS. Con. Ala. Art. 5, Sec. 17. 1807-(20) Sec. 16. on first day and executed fore court. § 110. The style of all process shall be "The State of Alabama.” 111. All original process, and all subsequent process thereupon to bring any person or persons to answer to any action, suit, bill, or Process shall plaint, in any court in this territory, (except subpoenas for witnesses, be returnable which, in term time, may be made returnable immediately,) shall be of the term, issued by the clerk of such court, and shall be returnable to the first five days be- day of the term, and shall be executed at least five days before the return thereof; (1) and if any person shall take out any writ or process while such court is sitting, or within five days before the beginning of the term, such writ or process shall be made returnable to the term next after that then held, or to be held within five days as aforeOtherwise is said, and not otherwise: and all writs and process issued, made returnasued or exe- ble, or executed, in any other manner, or at any other time, than is herein before directed, may be abated on the plea of the defendant: [a 1819-(6) Provided nevertheless, That nothing herein contained shall be conSec. 6.] strued to invalidate or vacate any process, warrant, or precept, to be process may issued by any of the judges of the said court, or any justice of the any time, re- peace, or clerk of any court, or any original prosecution, in behalf of turnable to the state; but that the same may be issued at any time, and made rethe term. turnable to any day of the term: and the like proceedings on criminal Proceedings suits and prosecutions, shall be agreeable to the practice heretofore in under the ter use in the territorial government, except where the same is, or may ritorial gov be otherwise directed, by this or some other act.1 cuted, may be abated. Criminal be issued at any day of as heretofore ernment. 1807-(19) Sec. 31. dorsed, and copy of § 112. It shall not be necessary that any declaration or copy thereof, such writ or process, but a copy of such writ shall be left Cause of ac- accompany tion to be en- with the defendant, at the time of serving, and by the officer serving the same. (2) And it shall be the duty of the clerk, or plaintiff's writ and en- attorney, to endorse on the back of the writ, the cause of the action, the nature of the specialty, or the other grounds on which the action the defend is founded: and the sheriff, on executing the writ, shall deliver to the defendant, together with a copy of the writ, a copy of the said endorsement. (3) dorsement to be left with ant. 1818-(18) Sec. 1. and signed. Day of issu § 113. All writs issued from any of the courts, shall bear teste in the name of, and be signed by, the clerk of the court from which they may be issued. § 114. The clerk or attorney issuing process, shall mark thereon the day on which such process issued; and the sheriff or other officer ance and re receiving the same, in order to execute, shall in like manner mark on sheriff, to be each process the day on which he received it; and every clerk, attor ceipt by the endorsed. Penalty for neglect. 1 The previous part of the section from which this proviso is taken, is substantially the same with the one to which it is appended, but is omitted as not being so full and explicit. (1) Writs should be executed and returned in the name of the sheriff, and not in that of the deputy. Land v. Patteson, Min. Rep. 14. But if the deputy uses the name of the principal, so that the act done purports to be the act of the principal, though done by his deputy, the return is sufficient.— Briggs & M'Clure v. Greenlee, ib. 123. (2) Acknowledgment of service by one partner is binding on the firm. Click & Morgan v. Click, Min. Rep. 79. (3) Omission of endorsement is cause of error, unless cured by some act of the defendant, such as appearing, pleading, &c. Howell & Smith v. Hallett, Min. Rep. 102. After the return term of the writ, no exception can be taken for the want of an endorsement. Tankersley v. Richardson, 2 Stewt. Rep. 130. ney, sheriff, or other officer, neglecting so to do, shall forfeit and pay the sum of one hundred dollars, to be recovered by action of debt in any court of record having cognizance thereof, by any person who will sue for the same, with costs. Sec. 7. § 115. When a writ or other process shall issue to the sheriff of the 1818 (14) county where the defendant resides, service of such writ or other pro- May be serv cess shall be good and valid, if the said sheriff shall execute the said ed in any adwrit or other process in any adjacent county, or in lands to which the ty, or on InIndian title has not been extinguished, and return the same to the dian lands. court from which the writ or other process issued. jacent coun § 116. All writs returnable to any court of record, shall bear teste on 1819-(10) the day on which the same shall be issued. Sec. 4. 1811-(11) ventus in a § 117. On the return of a capias ad respondendum, against any teste. person or persons legally liable to be sued in the court from which Sec. 1. such writ may issue, that the defendant or defendants is or are not to On non est inbe found, the plaintiff or plaintiffs may have a testatum capias, or ju- local action, dicial attachment to any other county, which process shall be execut- plaintiff may ed according to its commands, and returned to the court from which tatum capithe same issued, as in other cases: Provided, Nothing in this sec-as, or judicial tion shall extend to any but such actions as are termed in law local to any counactions. have a tes attachment ty. § 118. In every case, where persons who are within age may sue, 1807—(24) their next friends shall be admitted to sue for them. Sec. 2. Infants may 1821-(30) Writs and executions to § 119. It shall be the duty of the sheriffs in the several counties sue by their in this state, to return all writs and executions to the clerk's office next friends. from which they shall issue, at least three days previously to the Sec. 1. term of the court to which they shall be returnable; and if any sheriff shall fail to return any writ or execution, according to the provi- be returned 3 sions of this act, he shall be liable to all the penalties provided by the the first day laws now in force, for failing to return any writ or execution to the of the termi. first day of the term of the court to which they are returnable.1 (1) 18. REAL AND POSSESSORY ACTIONS. days before In certain improve fore writ of § 120. In all actions real or possessory, hereafter brought or prose- 1816 (12) cuted in any court in this territory, for any lands, tenements, or here- cert ditaments, against any person or persons, body politic or corporate, real actions, deriving title to such lands, tenements, or hereditaments, by, from, or ments to be under the United States, or by, from, or under any Spanish grant, or paid for, beorder of survey recognized or confirmed by the United States' board possession is of commissioners, east or west of Pearl river, the person or persons awarded. prosecuting any such action against any person or persons, body politic or corporate, claiming and deriving title under the United States, or by, from, or under any Spanish grant, or order of survey recognized and confirmed by either of the said boards of commissioners, and recovering judgment for any lands, tenements, and hereditaments, from any person or persons, body politie or corporate, having derived title by, from, under, or through the United States, or any Spanish 1 See "Executions,"-§ 22, 23, and note 1. (1) The statute requiring the return of execution three days before court, admits of a ressonable excuse for a failure so to return: and where judgment has been rendered against a sheriff, he may have relief in chancery by showing a sufficient excuse for the failure, and also for not making a defence at law. Roberts & Battle v. Henry, 2 Stewt. Rep. 42. pointed by value the improve improve claration, grant, or order of survey recognized and confirmed as aforesaid, the person or persons so obtaining judgment, shall not have any writ of possession or seisin, nor obtain possession or seisin of such lands, tenements, or hereditaments, until he, she, or they shall have first paid to the person or persons, body politic or corporate, possessing the title thereto, derived from or under the United States, or by, from, or under any Spanish grant, or order of survey recognized and confirmed as aforesaid, the full value of all improvements, made thereon, as the same shall be estimated, valued, and ascertained, on oath, by five apAppraisers may be appraisers, which appraisers shall be, by rule for that purpose, appointed the court to by the court in which such judgment shall have been obtained, unless the parties shall agree on the value of such improvements, or agree on ments. and submit to appraisers to value the same: Provided always, That Unnecessary this act shall not extend and be so construed, as to compel any plainments after tiff or plaintiffs in any of the said actions to pay for any improvement service of de- or improvements, not needful and necessary, which may be made on not included. the premises, after the service of the writ or declaration in ejectment. § 121. If any person or persons, body politic or corporate, deriving Persons oust- title to any lands, tenements, or hereditaments, by, from, or under the ed, and fail. United States, or under any Spanish grant, or order of survey recogtion for the nized and confirmed as aforesaid, be disseised, ousted, or turned out premises, may recover of possession of said lands, tenements, or hereditaments, by any perthe value of son or persons claiming, or pretending to claim title to such lands, tements, nements, or hereditaments, and on a trial in due course of law, a judgment should be rendered in favor of the title of said person or persons, ousting, dispossessing, or disseising the person or persons, body politic or corporate, deriving title by, or under the United States, or by order of any Spanish grant, or order of survey recognized and confirmed as aforesaid, it shall and may be lawful for the person or persons, body politic or corporate, so disseised, ousted, or turned out of possession, to recover from the person or persons so ousting, dispossessing, or disseising, the full value of all improvements made on said lands, tenements, or hereditaments, together with double damages damages and and costs, in any court having jurisdiction of the same. Tb. Sec. 2. ing in an ac the improve with double costs. 1826-(39) Sec. 4. served in 19. SCIRE FACIAS AND NOTICE. § 122. The return of any sheriff, that he has served, executed, or Scire facias made known, any scire facias, shall be good and sufficient, without need not be its being served, executed, or made known in the presence of witpresence of nesses; and a scire facias to the legal representatives of any plaintiff or defendant, who may have died pending the suit, may at any time legal repre. issue from the office of the clerk of the court in which the said cause may be pending. witnesses. May issue to sentatives at any time. 1818-(14) Sec. 10. Written notice to the torney, sufficient. 1826-(34) Sec. 1. § 123. In all cases pending before any of the courts of record, written notice to the attorney of record shall be as valid and legal, to all intents and purposes, as if served on the party in person. § 124. All notices in writing, which may be necessary or proper to be given by either plaintiff or defendant in any suit, either at common law or in chancery, may be served by the sheriff of any county, be served by and the return of the sheriff of the service of the same, shall be good and sufficient in any court of record in this state. Notice may the sheriff. Ib. Sec. 2. § 125. The sheriff's of the several counties in this state, shall have Fee 50 cents and receive the sum of fifty cents for each notice served by them, by virtue of this act. 20. SET-OFF And Tender. Sec. 2. off, either un issue, or no ing by penal See. 1.] plaintiff's ally, or over § 126. In all cases where there are or shall be mutual debts sub-1824--(3) sisting between the plaintiff and defendant, or if either party sue or Mutual debts be sued as executor or administrator, where there are mutual debts may be set subsisting between the testator or intestate and either party, one debt der plea in may be set against the other, (1) either by being pleaded in bar, or bar, general given in evidence on the general issue, or notice given of the particu- tice of set-off. lar sum intended to be set off, and on what account the same is due, notwithstanding such debts may be deemed in law to be of a different nature; but if either debt arose by reason of a penalty, the sum in- Debt accrutended to be set off shall be pleaded in bar, setting forth what is justly ty to be pleadue on either side, any law, usage, or custom to the contrary notwith- ded in bar. standing; and if it shall appear that the defendant hath fully paid or [a 1799-(1) satisfied the debt or sum demanded, the jury shall find for the defen- Judgment dant, and judgment shall be entered, that the plaintiff shall take no- where the thing by his writ, and shall pay the costs. And if it shall appear that demand is any part of the sum demanded be paid, then so much as is found to fully, partibe paid shall be defalked and deducted out of the plaintiff's demands; paid. and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, then they shall give in their verdict for the defendant, and withal, certify to the court, how much they find the plaintiff to be indebted, or in arrear to the defendant, more than will answer the debt or sum demanded: (2) band it shall be the duty of the court to enter up judg- [b 1827-(37) Sec. 2.] ment for the amount so certified, for which execution may issue as Plaintiff af in other cases: Provided always, That in all cases where a tender ter tender, shall be made, and full payment be offered by discount or otherwise, to costs. in such specie as the party by contract or agreement ought to do, and the party to whom such tender shall be made doth refuse the same, and yet afterward will sue for the debt or goods so tendered, the plaintiff shall not recover any costs in such suit: Provided also, That in Award of reall cases where the plaintiff and defendant having accounts to produce a rule of one against another, shall by themselves, or attorneys, or agents, con- court, to sent to a rule of court, for referring the adjustment thereof to certain force of a persons mutually chosen by them in open court, (the award or report- judgment. of such referees being made according to the submission of the parties, approved of by the court, and entered upon the record, or roll,) shall have the same effect, and be deemed and taken to be as available in law, as a verdict given by twelve men. And the party to whom any sum or sums of money are hereby awarded to be paid, shall have judgment for the recovery thereof, as is hereinbefore directed, concerning sums found and settled by a jury. 21. SUITS AGAINST THE STATE. not entitled ferees under have the § 127. The general assembly shall direct, by law, in what manner Con. Ala. and in what courts, suits may be brought against the state. 1 The first section of this act repeals so much of the act of 1799, "as permits defendants under the plea of payment, to give any bond, bill, receipt, or account, in evidence." (1) Plaintiff's note assigned to defendant cannot be set off, unless assigned before suit brought. Gross v. Van Wick et al., Min. Rep. 7. (2) The holder of a note may erase credits entered by mistake. Whether so entered, must be determined by the jury, and not the court. Tubb v. Madding, Min. Rep. 129. Art. 6. 1827-(7) Sec. 1. Circuit court. diction § 128. The several circuit courts of this state shall have original jurisdiction in all civil causes, in which the citizens or inhabitants of to have juris- the state of Alabama may be parties plaintiff, and the state of Alabama may be defendant, saving to the plaintiffs or defendant in all state, where cases, the right to remove their said causes to the supreme court after judgment by appeal or writ of error, pursuant to the provisions of the existing laws. against the its own citi zens are plaintiffs. Suits to be by summons on the go vernor. § 129. The manner of instituting suits against the said state, shall be by the plaintiff or plaintiffs, in suit at law, suing out of the circuit commenced court clerk's office, in which the action may be originated, a sumor subpæna; mons, and in cases of chancery, a subpoena in chancery, returnable to the next succeeding term of the circuit court of the county in which to be served the action may be brought; which summons or subpœna shall be served on the governor by the sheriff of the county in which the suit may be brought, or by the sheriff of the county in which he may be at the time of the commencement of the suit, and shall be deemed the leading process in such suit, and shall have the like effect and incidents, as writs, and other subpoenas in chancery, sued out, and made return[a 1820 (11) able to said courts respectively. And it shall be the duty of the court Sec..] Court to re- to receive and record all testimony applicable to the merits of the case, ceive and re- and to give judgment for or against the state, as to justice shall apper cord testi. mony. Jury to re tain: Provided, That if the plaintiff shall demand a trial by jury, the court shall thereupon empannel a jury of by-standers,1 and it shall be the duty of said jury in all cases to return a special verdict, and in turn a spe that case, it shall not be the duty of the court to record the testimony; but the judgment of the court shall be rendered upon such verdict. cial verdict. Ib. Sec. 3. the state li § 130. No appeal or writ of error shall be prosecuted by the state Appeals by to reverse any judgment obtained against it, in any of the circuit mited to the courts of this state, except such writ of error be sued out, or such appeal be taken within the time prescribed by law, in cases to which the state is not a party. usual time. Ib. Sec. 4. on certificate to draw his of the judg ment. Certificate not to issue for six months. Judge to at § 131. It shall be the duty of the comptroller of public accounts, Comptroller, on the certificate of any clerk of the circuit court in this state, or of of the clerk, the supreme court of this state, that a judgment has been rendered in warrant for the court of which he is clerk, against the state in favor of any plainthe amount tiff, specifying the amount of recovery, to draw his warrant on the state treasurer in favor of the party recovering such judgment, for the amount thereof: Provided, That no clerk of any circuit court shall issue any certificate pursuant to the foregoing provisions, until six months after the rendition of the judgment: And provided further, That in addition to the certificate of the clerk of the circuit court, the judge who presided at the trial shall certify that the same is correct. 132. It shall be the duty of the solicitor or attorney general torney gen attending any circuit court, where any suit is pending against the eral and so state, to attend to the same in behalf of the state, whose duty it shall Writ of error be to order a writ of error on the rendition of any judgment against to state with the state, if he thinks proper, which shall be issued by the clerk as a out security. matter of course, without security, and shall operate as a supersedeas. § 133. The court, before whom any suit is tried pursuant to the Court may foregoing provisions of this act, shall, if necessary, appoint one additional attorney, to aid the solicitor or attorney general; who, with test certificate. Пb. Sec. 5. Duty of at licitors. Ib. Sec. 6. appoint assistant counsel. 1 This clause is taken from the act which directed suits against the state to be commenced by petition to the supreme court. It is the only part of that act which is not repealed or superseded by the act of 1827, and seems necessary, so far as it is applicable to proceedings in the circuit courts, to supply the deficiency of the existing law. |