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Entered according to act of Congress, on the 6th July, 1838, by P. Phillips, in the Clerk's
Office of the District Court, for the Southern District of Alabama.
The following work, commenced in the hour of leisure, for my own use, to be completed as time favored, has been mostly matured amid the toilsome occupation of a profession, which, pursued as it is in this State, allows of no relaxation or period of repose during the business portion of the year. I now offer the work with its many errors, to my brethren of the Bar, believing, that with all its imperfections, it will relieve those who are in full practice, of some portion of their present burthen, and will be as a sign to the student, directing him on the road he desires to travel.
What was thus intended for private use, has been, by the desire of friends, both of the Bar and the Bench, converted into this public enterprise, and the amusement of a leisure hour changed into a business demand, extending its urgent claims into the very midst of winter. These considerations are properly stated in mitigation of a severe criticism.
In regard to the arrangement, simplicity has been my aim. I believed that by concentrating the matter under the fewest heads, provided they were appropriate, though more time might be necessary to acquire a knowledge of the order, yet when once obtained, the facility of an examination would be thereby greatly increased. Thus, finding that the titles of“ County Court” and “Orphans Court,” were used synonymously in the statutes, I nave joined them, and included under the head “ County and Orphan's Court,” all decisions relating to the sale and settlement of estates of deceased persons.
I desire to say, also, that whenever it was possible to convey the decision in the language of the Court, I have done so, although in many instances, I might possibly have stated it more pointedly:-Regarding the Digest in its true light, as a mere index, occasional indistinctness seemed preferable to the risk of error,
As to the mechanical execution of the work I have wished to spare no expense, and in this, I believe it will be found to bear a favorable comparison with any published in the south west. The cost of publication has been very great, and when the contract was entered into, it was under the assurance that the enterprise would meet with the approbation and patronage of the Legislature;-whether it will finally receive these is yet to be seen. But whatever may be the result in a pecuniary point of view, if the Digest shall answer the purpose which principally induced its publication, I shall feel perfectly contented in having added something, however small, to advance the interests of a profession to which I am, with a sincere pride, attached.
RULES OF COURT AND OF PRACTICE.
NOTE.—“In the arrangement of these rules, the Reporter has had reference to an arbitrary division-founded on the collection of such only as appear of force, or not repealed. It will thus be seen that the present numbers bear no analogy to those in previous publications."
Reporter of 5 S. & P.
1. The clerk of every court of record in the state, shall Appearances. keep in court, in term time, and in his office in vacation, a book, to be called, The Book of Appearances. Any attorney or solicitor, desiring to appear in any civil cause, shall make in said book, or cause to be made therein by the clerk, an entry of his name, stating the cause in which he appears, (and if there be several of the same name, its number or other mark of identity,) the party or person for whom he appears, and the date of such entry. Such entry shall be considered an appearance of record. The counsel whose name shall be so first entered, shall be considered the leading counsel in the cause, for the party or person for whom he so appears, until he abandon the cause, and then the counsel whose appearance shall be next in date, and so on. Such notices, &c. as are authorized to be served on the attorney of a party shall be served on his leading counsel.
2. No one shall be permitted to appear in a cause as counsel Appearances. or attorney, unless he has been employed therein, and his appearance has been entered as aforesaid, or unless he represent other counsel, whose appearance has been so entered, or may have the special leave of the court.
3. Counsel shall be considered as having abandoned a cause Abandonment. by entry to that effect, by failing at two successive terms of the court, to appear or be represented therein, by removal from the state, by quitting the practice, or by death; in any of which, and in such other cases as the court may direct, the clerk may enter such abandonment on the book of appearances. . 4. The attorney's fee, taxed in the bill of costs, shall be taxed Fees. in the name of the leading counsel, at the time of final trial.
5. All declarations, pleas, bills, answers, assignments of er- Assigning er. rors, joinders in error, briefs, &c., must be signed by counsel rors. where counsel is employed.
RULES OF PRACTICE IN THE SUPREME COURT.
Assigning er 1. In assigning errors, it shall be sufficient to state concisely, is. in writing, in what the error consists. The words “there is
no error in the record,” shall be a sufficient joinder in error. Assigning er- 2. On application to the court, add tional assignments may be rors.
filed at any time before joinder, but after joinder, such only as
will affect the merits of the controversy. Trial of causes. 3. Each cause, (not being within the rule concerning delay
cases, nor the rule concerning criminal cases,) must be called and tried according to its order on the docket, unless, for good
cause shown, it be continued or passed over. Authorities. 4. A list of the authorities to be used in the argument of any
cause, shall, if applied for, be furnished to the counsel for the adverse party, one day before the trial; otherwise they shall not be read or commented on in the argument, on behalf of the
party so in default, but they may be cited. Authority.
5. No authority which was not read in the opening argument shall be read in the conclusion, unless by leave of the court, or
to rebut authority introduced by the adverse counsel. Roll of attor- 6. The clerk shall keep a list or roll of all attornies of this nies. court, entering their names in the order in which they were ad
mitted. Special motions 7. Special motions shall be heard on each Thursday of the
term: and for this purpose the clerk shall call over the names of the attornies, beginning with the attorney general, and pro
ceeding with the others according to their order on the roll. Motions.
8. The clerk shall keep a motion docket, in which shall be entered all motions for argument which are not ex parte, or of course. In such entry, the nature and particular grounds of the motion shall be designated, and at least one day before the hearing of the motion the entry shall be shown to the counsel for the adverse party, or he shall have such written notice
as will enable him to refer to it. Criminal
9. On the second Thursday of each term, after the motions have been heard, the criminal causes shall be called, and shall be in order until all are disposed of; but the court for sufficient reason shown, may postpone any such cause until another day. In such causes, the party seeking to reverse, shall assign errors
and furnish briefs. Delay cases. 10. On any motion day, if the counsel for the defendant in
error, or appellee, state that it is his belief that the case is brought into this court merely for delay, the record shall be submitted to the court without argument on either side, If the court, on examining the record, consider it a delay case, the judgment shall be affirmed; but if it appear to be doubtful or difficult, or if when so offered to be submitted, or at any time during the term the counsel for the plaintiff in error, or appellant, state to the court that it is his opinion, that on more full examination, the judgment will be reversed or corrected, it shall not be so affirmed; or if such judgment of affirmance has been entered, it shall be set aside, and the case shall stand over
for argument in its regular order. Division of 11. In cases where the judges are equally divided in their court.
opinions, the judgment of the court below shall be affirmed ;