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the solicitor or attorney general, shall receive for his services out of his the public treasury, a compensation to be fixed by the said judge, who sation. shall certify the same to the comptroller.
22. TRIAL AND EVIDENCE.
Judgeg not to charge on matters of fact.
which suit is
Considera tion of writ.
$ 134. The judges of the superior and inferior courts shall not 1807-(19) charge juries with respect to the matters of fact, but may state the testimony, and declare the law. (1)
Ø 133. Every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the h. See: 37. bar: : (2) and no more than two new trials shall be granted in the same and new cause : and two nonsuits shall be considered equal to a verdict against the party suffering the same.
9 136. In all jury trials, either party shall have the right to a pe 1820—(28) remptory challenge of four of the jury.
§ 137. Whenever suit shall be commenced in any of the courts may chalfounded on any writing, whether the same be under seal or not, the the jury. court before whom the same is depending, shall receive such writing
1811-11) as evidence of the debt or duty for which it was given ; and it shall writing on not be lawful for the defendant or defendants in any such suit, to deny
founded, to the execution of such writing, unless it be by plea, supported by the be evidence affidavit of the party putting in such plea; which affidavit shall accom- and not to be pany such plea, and be filed therewith, at the time such plea is filed ; denied, ex which affidavit may be made before any justice of the peace, or before and atħdavit. the clerk of the court where such suit may be depending.
§ 138. Whensoever any suit is depending in any of the courts found- 1b. Sc. 4. ed on any writing, under the seal of the person to be charged therewith, it shall be lawsul for the defendant or defendants therein, by a special ing under plea, to impeach, or go into the consideration of such bond, in the same impeached
by special manner as if the said writing had not been sealed.
plea § 139. All private acts of assembly may be given in evidence, with. Tb
. Sec. 10. out being specially pleaded, and as printed with the general acts of the Private acts legislature.
§ 140. Papers read in evidence to the jury on the trial of any cause, ing pleaded. though not under seal, may be carried from the bar by the jury.
Papers may $ 141. Interpreters may be sworn truly to interpret, when necessary. be carried
§ 142. All certificates issued in pursuance of any act of congress, fo. Sec. 13. by any of the boards of commissioners, register of a land office, or any Interpreters.
1212—(16) other person duly authorized to issue such certificate upon any warrant, or order of survey, or to any donation or preemption claimants, Certificates for any lands in this territory, shall be taken and received as vesting ed as evi. a full, complete, and legal title in the person in whose favor the said dence of title certificate is granted, to the lands therein mentioned, and his, her, or their assigns, so far as to enable the holder of such certificate to maintain any action thereon, and the same shall be received in evidence as such in any court in this territory.
$143. When any suit shall be instituted by any person or persons, 1819–(6) as assignee or assignees of any bond or other writing, it shall not be Sec. 37. necessary for the plaintiff or plaintiffs to prove the assignment or as- need not be signmenis, unless the defendant or defendants shall annex to the plea less defend
in evidence without be.
Ib. Sec. 11.
ant files an affidavit of ils forgery.
(1) The judge may lawfully sum up the evidence to the jury, and instruct them hypothetically.' Brandon v. Snows & Cunningham, 2 Stewt. Rep. 255.
(2) The court, unless so directed by statute, cannot order a nonsuit. Taylor's adın'r. v. Seaton, Min. Rep. 75.
denying such assignment or assignments, an affidavit, stating that such defendant or defendants verily believe, that some one or more of such assignments were forged, or make oath to the same effect in open
court, at the time of filing such plea. 1898—(32) § 144. It shall be the duty of the secretary of state for the state of
Alabama, on application, to give certified copies of any of the acts of
the several states, or of the United States, which are now or may herebe proved by after be in his office, and the copy so certified shall be evidence in any certificates court of law or equity in this state. (1) of secretary
1b. Sec. 12.
county of their residence.
$ 145. All civil causes and suits to be instituted for determination before the territorial judges, shall be commenced in the circuit court of the county in which the defendant may be found, or if it be a real
action, an action of ejectment, or trespass quare clausum fregit, then comnienced in the county in which the cause of action arose ; and all causes and
actions so commenced in any circuit court, shall be brought to issue, according to the rules that may be ordained and established for the orderly conducting and management of business in the said courts; and if the said issue be an issue in fact, the same shall be tried by the jurors attending the said circuit court, at the next succeeding term, if there be time for trial thereof, and the same be not continued by order of court; and all causes remaining on the docket of any circuit court, at the rising thereof, shall be continued over of course for trial, at the next succeeding term.
§ 146. No freeholder of this territory, shall be sued out of the county Freeholders. of his permanent residence, provided the same be within this terried out of the tory, unless it be in the actions enumerated in the last section ; nor
shall any person who may reside in this territory, be held to bail if
sued out of the district or county of his residence and freehold. (2) 1812–(16)
§ 147. In all cases where, by the division of any county, new coun
ties have been established, and in the establishment of all future or establish- counties, all unfinished business in the courts of such county previous
to such division, which would be properly cognizable in the courts of counties, causes to be such newly established county, whether of suits, probate of matters,
or other business, shall be transferred to the proper court of such new counties, to be there acted on and determined as if they had therein
originated. 1818—(14) Š 148. Any person or persons may be sued in the county in which
he, she, or they may be found, without regard to his, her, or their recounty, the sidence, if oath be made before the clerk issuing the writ, or any plaintiff ma king oath.
(1) The acts of congress, as published in the pamphlet acts of the session, may be read on the trial of a cause, without proof that the pamphlet is authentic. White v. Saint Guirons, Min. Rep. 331.
(2) This does not embrace motions against tax-collectors. Armstrong & Pinkston v. The State, Min. Rep. 160. It extends to suits before justices of the peace. Read v. Coker, 1 Stewt. Rep. 22. A plea in abatement, that de. fendant was a resident citizen of another county when the writ was served, is not sufficient, unless it appear he was a freeholder of such county. Wilson v. Oliver, 1 Stewt. Rep. 46. A certificate of the register of the land office of the United States, showing a purchase of land, part payment, and an extension of time given for the balance, is sufficient evidence of a freehold, to support a plea in abatement; and in the absence of proof to the contrary, is to be taken as genuine. Cox v. Jones & Jones, 1 Stewt. Rep. 379. Residence and freehold in another county may be pleaded in abatement and proved, notwithstanding it may contradict the sheriff's return. Ib.
Suit in any
on sufficient cause shown.
change of venue, in same
In criminal cases, allow ed only to the defendant.
justice of the peace, that such person or persons hath or have gone from the county of his, her, or their residence, for the purpose of avoiding service of process in their proper county.
§ 149. Judges of the circuit couris within their respective circuits, 1919–(6) at or before the first trial term of any suit, civil or criminal,1 shall Sce: 12. have power to change the venue thereof, on good and sufficient cause, be chang-d. set forth and duly supported by oath or affirmation : and when a change of venue shall be allowed in any suit, the trial thereof shall be adjourned under the direction of the judge, to the nearest adjoining county, which is free from the like exception, and the trial of such cause in the court to which it may be adjourned, shall be by a jury of freeholders or householders : Provided, That such change of venue But one shall in no instance be allowed, more than once in the same cause or suit: Provided also, That in criminal prosecutions, the right to the cause. change of venue under the provisions of this section, shall be confined to the party prosecuted.
§ 150. It shall be lawful for the several courts within this territory, 1818-6) when any real action may be instituted or pending in such courts, to Shang order the change of venue in such action to any adjacent county, on venue in real the party wishing such change making affidavit, that he, she, or they actions may verily believe that justice cannot be done in the county where such adjacent suit may be pending: Provided, That the party opposed to such fut opposite change of venue, shall have the right to take the testimony of aged party shame or infirm witnesses, in all cases where a change of venue may be to take the prayed, by dedimus potestatem, to be directed to any justice of the testimony of quorum or of the peace, in the county from whence the said venue firm wit may be changed; the party wishing such dedimus, previously mak-nesses. ing an application for that purpose, to the judge who may preside in the judicial district where such suit may be pending, and giving the opposite party sufficient notice of the time and place of taking such testimony'; which testimony, in form aforesaid taken, together with the dedimus, shall be sealed up by the person by whom the said testimony may be taken, and be directed to the clerk of the court to which the venue may be changed, and shall be read in evidence in the case in which it may be taken, subject to such restrictions and formalities as are now prescribed by law.
§ 151. When the venue has been changed in any real action, and 1b. Sec. 2. judgment had and rendered in favor of the plaintiff, it may be lawful, and it is hereby required, that the clerk of the court where such judg- possessionem ment shall be rendered, shall issue the writ of habere facias possessio- by the clerk nem, in favor of the plaintiff, directed to the sheriff of the county of the court where the action originated, any law, usage, or custom, to the contra- is tried. ry notwithstanding.
Writ of ha. bere facias
1 A change of venue in criminal cases may be allowed at any time before trial, or after new trial granted. See “Criminal Law-Change of Venue."
JUDICIAL PROCEEDINGS IN CHANCERY.
1. Equity Jurisdiction.
3. Change of Venue. 2. Mode of proceeding in Equity. 4. Injunctions.
1. EQUITY JURISDICTION.
Ib. Sec. 44.
Ib. Sec. 45.
§ 1. The general assembly shall have power to establish a court or Art. 5. Sec. 8. courts of chancery, with original and appellate equity jurisdiction ; and
until the establishment of such court or courts, the said jurisdiction shall be vested in the judges of the circuit courts respectively: Provided, That the judges of the several circuit courts shall have power to issue
writs of injunction, returnable into the courts of chancery. 1807-(19) § 2. The said courtsshall have and exercise all the power, authoMay estab. rity and jurisdiction incident to courts of chancery, and may ordain
and establish all necessary rules for the orderly conducting of business in equity, and for hearing and taking orders on interlocutory mat
ters in vacation. And the clerks of said courts shall keep the rolls, equity, so be records, and proceedings in equity, separate and distinct from the pro
ceedings in law in said courts.
§ 3. The said courts of chancery may direct an issue in fact to be May direct issues in fact tried whenever they judge it necessary; and such issue shall be tried to be tried in the same manner, and by the same jury, and the same mode of
proceedings observed in the trial thereof in every respect, as if it were an issue in fact joined in a suit in law in the same court.
94. Each of the territorial judges shall have power and authority Ways of4in. to issue writs of injunction, and of ne exeat, when the case may rejunction and
quire it; but every person shall be discharged from a writ of ne exeat, on giving good and sufficient security, and for that purpose, the judge of the court granting such writ, shall endorse thereon, the sum and nuinber of securities required.
$5. Said courts sitting in chancery, shall have power and authority usual chan." to order and issue all such process as hath usually belonged to couris cery process, of chancery ; and in cases where decrees shall be passed for a sum of tions for mo. money, it shall be lawful for execution to issue thereon against the ney decreed.
defendant's goods and chattels, lands and tenements, or against the defendant's body, to satisfy such decree and costs, in like manner, and with the same force and effect, as executions may issue on judgments obtained at law in the supreme court of this territory.
96. Costs in equity shall be paid by either party, at the discretion
of the court. 18114(11) $ 7. The judges of the superior courts of law and equity shall have
in vacation 10 examine all answers to bills in chancery : and Judges inay
power examine an. if any defendant or defendants have been held to bail, any judge, on
application, may, and he is hereby authorized to reduce or discharge
such bail taken as aforesaid.” 1812–(16) 8. The courts of equity shall have jurisdiction in all cases of Jurisdiction gambling consideration, so far as to sustain a bill for discovery, or to of gambling enjoin judgments at law.
Tb. Sec. 46.
1). See. 48. Costs.
swers in va cation,
1 The supreme and superior territorial courts. Their chancery powers were transferred to the circuit courts. See hereafter 10.
2 The 20th section of this act (Dec. 18. 1811,) provides “That so much of the forty-seventh section of the act entitled, · An Act establishing superior courts, and declaring the powers of the territorial judges,' as authorizes either of the territorial judges to hold to bail any defendant or defendants in suits in chancery, be, and the same is hereby repealed.”
Sec. 17. Powers vested in the cir cuit court.
$ 9. The superior courts of this territory sitting in chancery, shall, 1818—(2) in all cases where a bill is pending, or may be hereafter filed to com
May convey pel the specific performance of a contract, have power to make a de- title by de cree, vesting title to any property, real or personal, in the complain-cific performant, as fully and effectually as if conveyed by the defendant, in con-ance, and formity with the contract on which such bill and decree are founded : of and a writ shall issue to the sheriff or other officer, commanding him sion. forth with to put such complainant in possession.
§ 10. The equily jurisdiction heretofore belonging to the superior 1819–(6) courts of law and equity in the territorial government, is hereby vested in the circuit court of the state.
$11. The said court, when a bill praying a review of the proceed- lv. Sec. 16: ings, in which a decree shall have been pronounced, shall be presented, Court may may, upon such bill and the circumstances of the case, as the same ings, on a bill shall appear satisfactory, direct the proceedings on such decree to of review. be stayed until a decree on the said bill of review shall be made, or until further order of the said court; or the said court may refuse to grant a stay of proceedings in that case as may seem right: Provided, That May require the said court may, in either of the said cases, direct such security to be security. given, and in such places, as is usual in cases of injunction, or such other security as may seem reasonable: Provided, That no bill of review Bills of reshall be brought on motion made therefor, except it be within three view limited years from the time of pronouncing such decree ; saving to infants, years. femes covert, persons non compos mentis, persons imprisoned or be- Proviso. yond seas, a right to move a bill of review, within three years after such disability shall have been removed.
$ 12. The equitable title or claim to land or other real estate, shall 1820–(19) hereafter be liable to the payment of debts by suit in chancery, and Security
Equitable ti. not otherwise; and when a bill shall be filed for that purpose, all per- tle to lands, sons concerned in interest, shall be made parties thereto.
liable by suit in equity.
2. Mode of PROCEEDING IN EQUITY.
Defendant to answer or de.
§ 13. The mode of commencing suits in equity, shall be by filing 1823—(1) a bill with the clerk of the circuit court of the county in which the suit is instituted, wherein the clerk shall issue a subpæna ad respon- menced by dendum, with a copy of the bill, which shall be served by the sheriff Service on of the county where the defendant resides, or may be found, and returned to the first day of the next term. : $ 14. The defendant shall file his answer or demiurrer within thirty Th. Sec. 2. days after the service of the subpæna, unless within that period he shall obtain further time from the clerk of the said court, or from a mar within circuit judge, on reasonable cause shown, which further time shall or bill taken not extend beyond the first day of the next term, otherwise the bill proconfesso, shall be taken pro confesso, and the complainant, if he deem it neces- ment may sary, may take an attachment to compel an answer.
Ś 15. No plea or special demurrer shall be filed to any bill or an- fb. Sec. 3. swer, but it shall be lawsul for the defendant to embrace all the matter No plea or of his plea and demurrer, either general or special, in his answer, and murrer to be shall have the same benefit thereof as if the same had been pleaded :
filed, Provided, That the defendant may demur generally to the bill, which but defendif overruled, he shall pay costs thereon, file a sufficient answer, and go to trial forthwith if the complainant requires it, otherwise the bill rally., shall be taken pro confe880, and an attachment may issue lo compel
ant may deinur gene