Alias Executions. SUBDIV. III. EXECUTIONS. Sec. 47. Alias Executions, order for issu- | Sec. 48. This Act extended to the City ing, may be granted in vaca tion. Courts of the State. 49. Repealing clause. (No. 76.) Alias execu cation by or Jadge. An Act to authorize the issuing of alias Executions in vacation, by the several Courts of Law within this State, when the origin" als have been lost. 47. Section I. Be it enacted, That from and after the passage tions may be of this Act, whenever any execution which shall have been reguissued in va- larly issued out of any of the Courts of this State, shall be lost, it der of the shall and may be lawful for the Judges of any of said Courts, at any time in vacation, upon proper application being made, to grant orders for the issuing of alias executions, in all cases in which they may be required, upon the same terms and with the same restrictions, as are now prescribed for the issuing of the same in term time.. Aet extend Courts. 48. Sec. II. Be it further enacted, That the provisions of this ed to City Act shall also extend to the different City Courts of this State. 49. Sec. III. (Repeals conflicting laws.) Approved December 22d, 1857.*† * See title Justices' Courts, No. 88. +SUP. CT. DECIS.-1. Where an original execution has been lost or destroyed, a copy should be established, and not an alias fi. fa. issued. 11 Ga. Rep. 636. 2. Under the laws of this State, an alias fi. fa. can issue only upon the revival of a dormant judgment. Idem. 3. A fi. fa., which by special order of the Court, is to stand in lieu of a lost original, though so called, is not an alias fi. fa., but an established copy of a lost fi. fa. 17 Ga. Rep. 187. 4. The mere indorsement of "alias fi. fa.," upon an execution, will not give that character to the process, which in all other respects appears to be an original. 19. Ga. Rep.8. 5. A sale and purchase by a plaintiff in fi. fa. under an enjoined fi, fa., conveys no title. Idem 527. 6. Presumption of satisfaction of fi. fa. from levy, how rebutted. 20 Ga. Rep. 210. 7. If a plff. in fi. fa. bids off land levied on by his fi. fa. he cannot claim other money till he accounts for his bid. Idem 401. 8. Execution may be assigned to the Sheriff. Idem 637. 9. Levy on realty is no presumption of satisfaction. Idem 676. DIV. IV. CERTIORARI. Sec. 50. Affidavit to obtain certiorari, form | Sec. 51, 20 per cent. damage for frivolous of. certiorari. Sec. 52. Repealing clause. (No. 77.) No certiorari 20 issue but An Act to amend the several laws of this State upon the subject of writs of certiorari. 50. Section I. Be it enacted, That from and after the (1st) first apon affid's day of January next, no writ of certiorari shall be granted or issued of party, etc. to any Justices Court in this State, unless the party applying for the Certiorari. same, his agent or Attorney, shall make and file with his petition, the following affidavit, to-wit: GEORGIA, I, A B do solemnly swear that the petition for Form of alCounty. J certiorari is not filed in this case for purposes of fidavit. delay only, and I verily believe I have good cause for certiorari. Sworn to and subscribed before me, this 18-. day of} damages for certiorari. 51. Sec. II. Be it further enacted, That it shall and may be lawful for the presiding Judge, before whom any writ of certiorari per centr hereafter granted may be heard on motion of the opposite party, to frivolous order not more than twenty per cent. damages against the plaintiff in certiorari in case it shall be made appear to him that the said certiorari was frivolous, and applied for without good cause for the same, or for purposes of delay only, and judgment may be entered accordingly, any law, usage, or custom to the contrary notwithstanding. 52. Sec. III. (Repeals conflicting laws.)* Assented to December 22d, 1857. REF. NOTE-By former laws no similar affidavit to obtain certiorari was required, neither was the Plff. in certiorari liable to 20 per cent. or any damages for frivolous certiorari. For Acts regulating the issuing of certiorari to Justices' Courts, see sec. 1. of Act 1811, (Cobb's Dig., 523) and Act of 1850, (Cobb's Dig., 529.) SUP. CT. DECIS.-1. The provisions of the Judiciary of 1799, as to certiorari, refer to the writ, when directed to the Inferior Courts proper, and to them only. 16 Ga. Rep. 172. 2. The Act of 1850, authorizing the Superior Courts to make a final decision on certioraris, without sending the case back, does not apply to certioraris from Inferior Courts. 17 Ga. Rep. 426. 3. The parties to a certiorari are entitled to be heard personally or by Attorney, as in all other cases. 17 Ga. Rep. 615. 4. Certiorari does not lie to a decision upon a possessory warrant. 18 Ga. Rep. 739. 5. Where the Court orders a certiorari to issue and without fault of the plaintiff or his counsel, it is not issued, the case should not be dismissed on that account. Idem 518. 6. Certiorari stops the case at the stage when it is served. 20 Ga. Rep. 77. 7. Lies to Justices trying a forcible entry. Idem. 8. Affidavit supported by answer of Justices will be sustained, though originally deficient. Idem. 9. In a forcible entry case, no bond for "condemnation money," necessary, Idem. 10, Act of 1850 applies only to Justices' Courts, Idem, 11. A certiorari will lie from the decision of the Inferior Court sitting as a habeas corpus court. 22 Ga. Rep. 93. Bills to be served on Equity Practice. DIV. V. EQUITY PRACTICE. Sec. 53. Bills served 30 days before Court. | Sec. 59. Plff may amend at any time-Deft. 54. Trial term the 2d term. 55. No replication, nor order setting 57. No cross bill necessary-equitable (No 78.) to have reasonable time to answer. Amendment not to open whole case to demurrer, unless it makes a new bill. Capricious amendment for delay only not allowed. 60. Deft. to answer only the amendment, and one of substance only, and not merely of form-reasonable time allowed. 61. Construction of this Act. 62. This Act not to apply to cases now pending, or that may be filed before the 1st day of April, 1858. 63. Repealing clause. 61. Certain writs to issue, upon Plff”s. making atidavit of inability to give the bond and security required by statute. 65. Repealing clause. An Act to aller and amend the practice in Courts of Equity in this 53. Section I. Be it enacted, That bills shall be served on dedeft. 30 days fendants at least thirty* days before the term of the Court to which before Co'rt. the bill is returnable. Trial term 54. Sec. II. And be it further enacted by the authority aforethe 2d from said, That all Equity causes shall stand for trial at the second term of the Court from the filing of the bill, and service thereon on defendant or defendants. filing bill. No replica der setting 55. Sec. III. Be it further enacted by the authority aforesaid, tion nor or- That it shall not hereafter be necessary to file replication, or take down for tri- any order setting down a case for trial, as now practiced in this al necessary. State, but upon service on defendants, plaintiff may at once pro ceed to prepare his case for trial.‡ By former law (Cobb's Dig. 467) a copy of the bill must have been served on the opposite party at least 30 days before the filing of such bill in Court. SUP. CT. DECIS-A copy of the bill and subpoena may be served by a private individual, as well as the Sheriff. 5 Ga. Rep. 251. See also 19 Ga. Rep. 527. †By Act of 1779 (Cobb's Dig. 467) the Courts were required so to order the proceedings in equity causes as that the same should be ready for trial, at the furthest, at the third term from the filing of the bill inclusive, unless there should be cause for continu ance. SUP. CT. DECIS.-1. The statute evidently contemplates that equity causes shall be set down for trial at the next succeeding term after the bill has been filed. 12 Ga. Rep. 553. 2. When the cause is set down for trial, neither party will be required to proceed to trial at that term, but will be allowed till next term to procure their testimony.-Idem. 3. At the third term of the Court, from the filing of the bill inclusive, the cause will be for trial, and must be tried, unless very special cause be shown for a continuance, which shall not extend to more than four terms.-Idem. On the filing of a replication the cause is at issue, and the parties proceed to the proof of their respective cases. If the Plaintiff omit to file a replication in time, the defendant may dismiss the bill for want of prosecution. See Adams' Equity marginal, p. 347. Story's Equity Plead. Sect. 880. L SUP. CT. DECIS.-1. Ordinarily where the answer and replication are filed the 2d term, Equity Practice. etc. at first Plea, etc., to term. murrer over 56. Sec. IV. Be it further enacted by the authority aforesaid, May plead That at the first term of the Court, the defendant may plead, an- term. swer or demur, and if a demurrer or plea is filed, the said plea or be disposed demurrer, or both, shali be tried and disposed of at the first term of of at first the Court to which the bill is returnable; and if overruled, defend- Plea or deant shall file his answer within thirty days from the time of the ruled deft. judgment on such demurrer or pleas, and if such answer is not full, must answ exceptions may be taken thereto, and on ten days notice, may be Exceptions argued and disposed of in vacation, and defendant required to an- 10 days noswer fully at such times and on such terms as the Judge may order fice, dispos or direct.* in 30 days. to answer. ed of in va cation. swer over as not file crosS 57. Sec .V. Be it enacted by the authority aforesaid, That Deft. to an defendant, if in his judgment, he has an equitable defence, Judge dircts. shall not be forced or obliged to file a cross bill, but may set up deft. need such equitable defence in his answer, and pray for and obtain such bill. relief as he may be entitled to upon the principles of justice, in as May set up full and ample a manner as he would now be entitled to under a fense in ancross bill. And may, if he desires it in writing, in his answer, com- Relief. pel an answer from plaintiff at such time and upon such terms as the Court may order and direct.† equitable de swer. Delt, may, by his answer, comp'l Either party That piff. to ans'r party make the filed, ness by sub 58. Sec. VI. Be it enacted by the authority aforesaid, either party may examine, in open Court, the opposite on the stand, as a witness, notwithstanding the answer may be the cause should be set down for trial at the next, being the third term after filing bill. 16 Ga. Rep. 1. 2. The replication should be filed and the cause set down for trial before the proofs are taken. The replication however may be filed, nunc pro tunc, after the proofs are taken. Idem. By the 5th of the "Rules in Equity," a general replication is required to be filed, but no special one is allowed-and the same rule provides that the cause shall be at issue after replication filed without rejoinder. 3. When the demurrer or plea, and exceptions to the answer, are all disposed of by the Court, and the parties are at issue upon the bill, answer and replication, it is the duty of the Court to have an order entered on the Minutes, setting down the cause for trial. 12 Ga. Rep. 553. * By Act of 1799 (Cobb's Dig. 468) the party against whom the bill is filed, must "appear and answer to the same at the next Court." SUP. CT. DECIS.-1. A defendant in equity is not required to answer at the term to which the bill is returned. The words "nert Court," in the Act of 1799 construed to mean the next Court after that to which the bill is returned. 7 Ga. Rep. 107. See also 12 Ga. R. 553. By the 3d of the "Rules in Equity," a plea or demurrer shall be filed at the return term, and be argued during the term or at such other time as the Court may direct. Defts. may also, at first term, plead, demur, and answer at the same time--and these may be separately disposed of in their order. 2. Exceptions to the defendant's answer must be filed before the hour for Jury business on the second day of the term in which the answer is filed, and be determined by the Court during that term. 12 Ga. Rep. 553. 3. The Court has a discretion in granting time for filing exceptions to answer. 20 Ga. Rep. 29. †SUP. CT. DECIS.-1. A cross bill is one brought by a defendant against the complainant, touching the matters in the former bill, and should be so framed that both causes may be heard together, and one decree cover both. 14 Ga. Rep. 674. A cross-bill is usually brought either to obtain a discovery in aid of the defense, or to obtain full relief to all parties. Story's Eq. Pl. Sect. 359. 2. In this State a cross-bill must be brought before the pleadings are made up. 13 Ga. Rep. 478. But see 20 Ga. Rep. 472. 3. Upon special application and cause shown, the Court will extend the time for filing a cross-bill.-Idem. 4. A cross-bill should not introduce new and distinct matters not embraced in the original suit. Idem. other wit pœna. lives out of co. may sue Equity Practice. When party upon serving such party with subpoena, as now provided by law, when such party resides in the county where the trial is had; and out comm'n. if such party resides out of the county, may sue out commission must testify and examine such party as now provided by law. And if the parsubpoenaed. ty is in Court at the time of trial, he may be examined without Piffs may having been served with subpoena.* Party in C't though not amend at any time. time to an ment. Am'd't does not open whole case unless new bill. 59. Sec. VII. Be it further enacted by the authority aforesaid, Deft to have That plaintiffs may amend at any time, and defendants shall have swer amend-reasonable time to answer such amendment; but making an amendment shall not open the whole case to demurrer, unless the amendment makes a new bill. Provided, however, plaintiffs shall not cato demurrer priciously amend his pleadings for the purpose of delay only. 60. Sec. VIII. Be it further enacted by the authority aforesaid, Capricious That defendants shall only be required, when an amendment is not allowed. made, to answer such amendment, and if the amendment is merely Deft. to an- formal, the answer may be waived, and the cause proceed. If the the am'd'nt. amendment is one of substance, and not of form merely, the defendant shall have reasonable time to answer such amendment, as the Court may order and direct.† amendment swer only Formal amendment need not be answered. Deft. to have time to an 61. Sec. IX. Be it further enacted by the authority aforesaid, reasonable That Courts of Justice, in construing this act, shall give it a reasonswer am'd- able interpretation, to speed the trial of equity causes, allowing reament of sub- sonable time for defendants, and discouraging any unnecessary deAct to be. lay, and no right shall be defeated or prejudiced, on account of mere interpreted technicality or form, not affecting the real justice and merits of the to speed trial case.I stance. reasonably of equity cases. Unnecess❜ry 62. Sec. X. Be it enacted by the authority aforesaid, That delay to be this act shall not extend to, or be applicable to any case now discouraged. pending, or any case which may be filed and served before the first eality not to day of April next. Mere techni prejudice rights. This Act does not apply to cases filed, etc. before 1st of April, 1858. 63. Sec XI. (Repeals conflicting laws.)|| *See No. 31 in Title "Evidence," for Act authorizing paties to be made witnesses at law. See as to amending bills of Injunction Act of 1811, Sect. 7, (Cobb's Dig. 524.) See general amendment Act (Acts of 1853-4, p. 48.) SUP. C'T DECIS.-1. When an amendment is made to a bill before answer filed, even if it be immaterial and trivial, a defendant may demur de novo to the hill. 10 Ga. Rep., 109. 2. When an amendment is made at any time to a bill, the defendant may demur to the amendment.-Idem. 3. When an amendment is made to a bill after demurrer made and decided, and answer filed, the defendant cannot demur again to the whole bill, unless the amendment is material.-Idem. 4. An amendment is material, when it so varies the case made in the original bill as to change the complainant's equity. Idem. See also 16 Ga. Rep. 1. 5. Allegations which do not essentially vary the case made by a bill, may be inserted by way of amendment. 15 Ga. Rep. 213. Also 14 Ga. Rep. 665. SUP. CT. DECIS.-Mis-pleading should never be allowed to defeat substantial rights, but every case should be ultimately heard and determined upon its real merits. 14 Ga. Rep. 665. SUP. CT. DECIS.-1. When a cause in equity is set down for trial, the parties are entitled to continuances as at common law. 12 Ga. Rep. 534. 2. An interrogatory not sustained by the charging part of the bill, need not be answered. 17 Ga. Rep. 92. 3. The rule as to overcoming the answer by two witnesses, &c., does not apply to an answer upon information and belief. 19 Ga. Rep. 316. |