Imágenes de páginas

Ib. Sec. 4.


first term.

Ib. Sec. 5.

$ 16. At the time of filing his answer, the defendant shall also file Exceptions, his exceptions, if he chooses to except to the bill, for scandalous or

impertinent matter; and the complainant also, on or before the first day of the term next after the filing of the answer, shall file his ex

ceptions thereto, if he chooses to except for scandal, impertinence, or To be heard insufficiency :-All exceptions shall be heard and determined by the millede at the presiding judge, in open court, the first term after they are filed, and

if filed on the first day of the term, they shall be heard and determined Consequen- during that term :-If any of the exceptions are sustained, the party ces of sus. taining or

filing them shall be entitled to his costs thereon, and a continuance over-ruling of the suit to the next term if he prays it: if all the exceptions are exceptions.

overruled, the opposite party shall be entitled to his costs thereon, and a continuance if he prays it: Provided, That where exceptions filed to the insufficiency of an answer are sustained, the defendant shall forth with file a sufficient answer and come to trial immediately, if the complainant prays it, unless the court, for good cause, grant further time, otherwise the bill shall be taken pro confesso as to the insufficient matter, and an attachment may issue to compel a sufficient answer : And provided also, That at any time before the hearing of the cause, the court may grant either party leave to amend his bill or answer, whether exceptions are taken or not.

§ 17. It shall not be required to file a replication to an answer; and Replication, in all cases where the answer is filed ten days before the sitting of the Cause, when court, or the bill is taken pro confesso for want of an answer, the cause to be heard. shall be heard and determined at that term, if practicable, unless on

good cause shown, either party continue the same.

18. Before a decree is pronounced on a bill taken pro confesso, the court shall be satisfied, by sufficient evidence, of ihe justice of

the complainant's claim or demand ; but in all cases, before the hearing porno confesso. of the cause, the defendant shall have leave to set aside the order pro confesso may confesso, by filing a full and complete answer; and where an attachand attach" ment may issue for want of an answer, or sufficient answer, or for

not obeying the order, or performing the decree of the court, or for charged.

disobedience to its process, the defendant shall be discharged therefrom by a compliance at or before the next term.

§ 19. The presiding judge shall render his decree in writing, on or Judge shall

before the adjournment of the court, unless in weighty and difficult in writing. cases, in which he may be indulged to the ensuing term.

$ 20. All answers and bills for injunctions, and for writs of ne exeat

shall be sworn to before any clerk of a circuit court, judge, or justice whom sworn of the peace.

$ 21. It shall be lawful to grant writs of ne exeat, not only in cases Ne ez cat may where a sum of money is due, but also where the complainant has an

equitable claim or demand against the defendant: Provided, That all writs of injunction and ne exeat may be dissolved at the next term after they were granted, on good cause shown. (1)

§ 22. When it is necessary to the justice of the case to have a reference of matters of account, the court in its decree shall order the same

Ib. Sec. 6.
Evidence for
decree on
bill taken

ment dis

Ib, Sec. 7.

render decree

Ib. Sec. 8. Answers, &c. before


1b. Sec. 9.

issue on
of injunc-
tions, &c.
Ib. Sec. 10.
Court may
refer matters
of account
to clerk.
Parties may

(1) Writs of ne exeat may be properly granted in the following cases :

i. Where the demand is exclusively equitable, whether a sum certain be due or not, and the defendant is about to remove beyond the jurisdiction of the court.

2. In aid of an action at law, where the courts of law and equity have concurrent jurisdiction, the defendant being about to remove, and bail not having been obtained.

3. Where the two courts have concurrent jurisdiction, and no action at law, but a suit in equity has been instituted. Lucas v. Hickman, 2 Stewt. Rep. 111.

ceeding ten dollars.

See. 1.

or abscond

such defend ant to ap

to be referred to the clerk, to ascertain and report thereon, ator before the next term; and from which either party may appeal to the court, having given the opposite party ten days' notice thereof, with the grounds of Notice of appeal distinctly set forth, and if the party appealing does not prevail, appeal. he shall pay cost thereon ; but if a decree cannot be given on the merits of the case, until matters of account between the parties are referred, then the same shall be referred and ascertained before the hearing, under such rules as the court may prescribe. In ascertaining and ad- Parties aljusting accounts, sums and items not exceeding ten dollars each, shall lowed to be allowed on the party's oath, unless disproved by sufficient testi-items notex mony ; and sums and items above ten dollars each, shall be proved by sufficient vouchers or evidence.

$ 23. If the defendant in any suit in equity, against whom subpæna 180.5—(2) or other process may issue, shall not cause an appearance to be entered within such time and in such manner as by the rules of the court the failing 10 ap. same ought to have been entered, in case such subpena or cther pro-ing to the cess had been duly served, and affidavit being made that such defend-rules of ant resides beyond the limits of the territory, or that upon inquiry at atidavit be his usual place of abode, he could not be found so as to be served with ing made of such process, and that there is just cause to believe that such defend- absence from

the territory, ant is gone out of the limits of the territory, or otherwise absconded to avoid being served with such subpæna or other process, then, in ing, either case, the court may make an order, directing such defendant to make an or. appear at a certain day therein named; a copy of which order shall der directing be published within forty days thereafter, in some gazette regularly published in this territory, for such space of time as the court shall pear to be direct, and shall within the time aforesaid, be posted up at the door of some gazette the court-house where made ; and said court may, at their discretion, tory, &c.. direct such order to be published in any gazette in the United States, and at disi and for such space of time as they may deem reasonable; and if the court, in that defendant do not appear within the time limited by such order, or with-of any state; in such further time as the court shall appoint, then, on due proof of or failure to publication as aforesaid, the court may order the plaintiff's bill to be anean Suci taken pro confesso, and make decree thereon, and carry such decree proof of pub into full effect'as in other cases : Provided, That proceedings in equity may be taken against absent defendants, and decrees made on such proceedings, shall puro confesso, be subject to the restrictions, limitations, and provisos, hereinafter rendered. mentioned.

$24. The complainant shall, before obtaining any decree by virtue 11. Sec. 2. of the foregoing section of this act, give good and sufficient security Complain . in such sum as the court may direct, to abide such order touching the security to restitution of the estate or effects to be affected by such decree as the order

, touchcourt may make concerning the same, on the appearance and petition ing the resti of the defendant to have said cause re-heard ; and if any decree shall tate to be af be made in pursuance of this act, against a person residing beyond the fected by delimits of the territory, at the time of pronouncing such decree, and court may such person shall, within two years after making the same, reside minkecon de within the territory, or become publicly visible therein, then such pearance. defendant shall be served with a copy of such decree in a reasonable defendant aptime after such residence or public appearance shall be known to the pearing complainant; and in case such defendant depart this life within two years after years after making such decree, and before the service of such copy, served with then if the heir of such defendant shall have any real estate, whereof copy thereof. possession shall have been given to the complainant, and such heir may be found, or if such heir be a feme covert, infant, or person non compos mentis, the husband, or guardian of such heir, or if the per- his executors sonal estate of such defendant shall have been levied on, or possession

trators, in 37


In case of defendant's death within

or adminis

certain cases,

they are known.

I. Sec. 3. Decree to stand confirmed, un less rehear.

tioned for within 12


Ib. Sec. 4. Such persons may, upon

to be served thereof given to the complainant, then the executor or administrator, with a copy if any such there be, shall be served with a copy of such decree, within ble time after a reasonable time after the death of the defendant, and his heirs, exe

cutors, or administrators in this territory shall be known to the complainant.

§ 25. If any person or persons served with a copy of such decree, shall not within twelve months thereafter appear and petition to have

the cause re-heard, such decree made as aforesaid shall stand absoluteing is peti: ly confirmed against the person or persons served with a copy as

aforesaid, his, her, or their heirs, executors, or administrators, and all months after persons claiming under him, her, or them, by virtue of any act done

after the commencement of the suit.

§ 26. If any person served with a copy of such decree as aforesaid,

shall, within twelve months thereafter, or if any person not so served, notice, with. shall

, within three years after pronouncing such decree, appear and or without' petition to be heard touching the matter of such decree, and pay the notice, with costs of suit, such person or persons, his, her, or their representative, years, upon or any person claiming under him, her, or them, by virtue of any act payment of

done before the commencement of the suit, may be admitted to anthe bill and swer the bill, and such proceedings had, as if no decree had passed. decree;

$ 27. If any person or persons against whom such decree shall be

made, his, her, or their heirs, executors, or administrators, shall not do so, the de. within three years next after making such decree, appear and petition to cree to stand have such cause reheard, and pay costs of suit as aforesaid, such decree

made as aforesaid, shall stand absolutely confirmed against the defendant or defendants, his, her, or their heirs, executors, and administrators, and against all persons claiming or to claim by, from, or under him, her, or them, or any of them, by virtue of any act done or to be done subsequent to the commencement of such suit: Provided, That this act shall not be so construed as to authorize proceedings against persons residing out of the territory, unless the ground or cause of action, or the transaction on which the bill may be brought, took place within the territory.

costs, answer

set aside the

Ib. Sec. 5.


1822–(27) Sec.'1. Venue may

where judge has been

Tb. Sec. 2.

§ 28. It shall be lawful for any plaintiff or defendant in any suit in

chancery, in any of the circuit courts in this state, to change the venue be changed of such suit in chancery, where it shall appear to the court, that the

judge of the circuit in which such suit in chancery is pending, has at counsel, or any time previous to his appointment as judge, been employed in the with either suit so pending by either plaintiff or defendant, as counsel in the said of the par- suit; or where it shall appear to the court, that the judge of the cir

cuit is connected to the parties interested in such suit by affinity or consanguinity.

§ 29. When a change of venue under the provisions of this act shall To be chang- be allowed for the reasons above set forth, the judge of the circuit not liable to where such suit is pending, shall, on application, change the venue the same er, thereof to an adjoining circuit free from the like exceptions; and the

clerk of the circuit court where such suit was instituted, shall transtransmitfull mit without delay, to the clerk of the circuit court to which such suit

may be changed, a full transcript of all orders, motions, and records

entered on his books in relation to the suit so pending, with all the All bonds, original papers and proceedings in the case ; and all bonds and recog

nizances, and all other matters in relation to the cause in controversy, shall be as valid to all intents and purposes as they would have been,

clerk to


&c., valid.

had such change of venue not been made ; and the suit so changed shall be placed in the same situation in the court to which it shall be changed, as if the same had been instituted in said court.

$ 30. The decrees, orders, and other proceedings in the case, shall 15. Sec. 3. be as binding on the parties concerned in such suit, as if the same to be binding had been determined in the court where the suit originated, in every respect whatever.


junction to file a release


Sec. 1.

$31. No injunction shall be granted to stay an execution of a judg- 1816—(10) ment at law, unless the party applying for such injunction, or to be Saray

Party apply. benefited thereby, shall first sign and seal a release of errors in such ing for injudgment at law, and file the same in the office of the clerk of the court, in which such judgment shall have been obtained ; and when- of errors at ever an injunction shall be dissolved, damages after the rate of six per Damages on centum shall be added to the amount of the judgment, provided, the dissolution court be of opinion that the injunction was obtained for delay.

§ 32. Where any bill of injunction may be dissolved on an interlo- 1823—(12) cutory order of the courts exercising chancery jurisdiction, and said bill after such interlocutory order of dissolution, shall be set for a to bills of inhearing ; it shall be the duty of the court before whom such order of junction redissolution may be made, to require of the defendant or defendants to give refund. such bill of injunction, bond and security, payable to the complainant their dissoluor complainants, in double the amount of the sum enjoined on the tion; judgment at law, conditioned to refund the money, interest, and costs to the complainant or complainants, in the event of said judgment at law being perpetually enjoined, on the final hearing of said bill of injunction.

$ 33. The bond and security taken as aforesaid, in the event of Ib. See. 2. said bill of injunction being perpetuated on the final hearing, shall shall have have the force and effect of a judgment, and execution may issue the force of a thereon against the principal and security, as on forthcoming bonds the injunc. for the delivery of property on the day of sale ; except that the decree tion is made shall be conclusive evidence of a forfeiture of any such bond; and an endorsement on said bond that the same is forseited shall not be necessary.

§ 34. Every bond executed for the purpose of obtaining an injunc- 1826—(22) tion shall, on the dissolution of the said injunction, have the force All bonds and effect of a judgment; and it shall be lawful for the party or parties, given to ob: whose judgment may have been enjoined, to take out execution tions, to against all the obligors in the bond, for the amount of the judgment

force of judg. which shall have been enjoined, together with lawful interest thereon, ments on and also the costs incurred in and about the said chancery proceedings.

have the

their dissolu, tion.



§ 1. All debts and demands not exceeding fifty dollars, for a sum or 1811=(17) balance due on any specialty, note, bond, cotton receipt, contract, or agreement in writing, or for goods, wares and merchandise, sold and diction of delivered, or for work or labor done, or for money lent, or for specific cceding fifty

Justices to have juris.



articles, or for any sum or balance due either by written or verbal contract, or assumpsit in any case not sounding in damages merely, are

hereby declared to be exclusively cognizable and determinable by a May issue justice of the peace. Any such justice is hereby authorized, on com

plaint made to him, to issue his warrant, capias, summons, or attachment, as the case may require, returnable at a certain time and place therein mentioned, not less than ten nor more than thirty days from the time of issuing the same, and on return thereof, proceed to hear and determine the case on the merits, if the parties appear; give judg. ment by default if the defendant fail to appear and contest the plaintiff's demand, or enter judgment of nonsuit against the plaintiff if he fail to appear and prosecute his claim, and issue execution against the person or goods and chattels of the party against whom judgment is so entered, for the debt and costs, or costs alone, as the case may require, returnable at a certain time and place therein mentioned, not less than twenty, nor more than thirty days from the time of issuing the same; but such justice may, by consent of the parties, or on good cause shown by oath or affidavit, adjourn the trial of any cause to any

time not exceeding ten days. 1927—(36) 92. All contracts for the payment of specific articles, or for the To have ju- performance of services, when the value of the article contracted for, risdiction of or of the services to be performed, does not exceed fifty dollars, shall

be cognizable and determinable by justices of the peace, subject to of specific ar- the same rules and regulations as are now provided by law for the

trial of causes before justices of the peace. (1) ing fifty dol. lars.

Sec. l.

contracts for the payment

, not exceed


Sec. 5.
Process to
name time
and place of
When execu:

stable's re. turn. Summonsce for witnesses.

Sec. 2.

1814—(7) § 3. All process issued by a justice of the peace, shall name the

time and place of trial, and shall be served five days' previously thereto, and

any such justices respectively, shall issue all summonses for witnesses, and compel their attendance, under a penalty not exled, and con: ceeding ten dollars, and the constable shall endorse on the back of all

process how he has executed the same.

§ 4. All warrants, or other precepts issued by any justice of the

peace, shall be under the hand and seal of such justice, and shall be 1814—(17) directed to the officer whose duty it is to execute the same; and the To be under justices shall cause fair entries to be made in books to be by them

provided for that purpose, of the names of the plaintiff and defendant, seal of jus.

in any suit brought before them, with the debt and costs adjudged, Justices to and the time when the warrant issued, was made returnable, and when of their pro- judgment was given, together with the return made upon all such ceedings, &c.

process. (2) Ib. Sec. 14. § 5. Every warrant, attachment, summons, subpæna, or other pro

cess issued by a justice of the peace, shall be returnable at a day ceron a day cer- tain, giving a reasonable time for attendance ;' and if any witness reasonable duly summoned, fail to appear agreeably to the command of such

hand and


Process to be returnable


1 But see $ 5.

% Warrants issued for the breach of any by-law of an incorporated town, may be made returnable forthwith. See “ Incorporated Towns.”

(1) Justices of the peace have jurisdiction for the recovery of the value of specific articles bailed and not re-delivered according to promise. Spann r. Boyd, 2 Stewt. Rep. 480. Where more than $50 is due on a contract, the creditor may relinquish all over that amount, and sue for $50 in a justice's court. King v. Dougherty, 2 Stewt. Rep. 487.

(2) Proceedings before justices (except on writ of forcible entry, &c.) are not records. Gayle v. Turner, Min. Rep. 204.

« AnteriorContinuar »