1824-(16) Sec. 1. Plaintiff for whose use suit is brought, lia ble for costs. 1826-(24) Sec. 1. Party suc ble for his before whom the suit was tried, shall certify that more damages ought to have been awarded by the jury. (1) § 22. On all suits instituted in any court of record in this state, in the name of one or more persons for the use of another, and judgment thereon rendered against the plaintiff or plaintiffs for costs, it shall be lawful to enter up judgment and issue execution against the person or persons for whose use such suit or suits may be instituted. § 23. The clerks of the several circuit and county courts, and the justices of the peace in the several counties in this state, are hereby ceeding lia authorized, whenever any sheriff, coroner, or constable shall return own costs, in on an execution, directed to them or either of them, that the defendant case of other in said execution has no property in his county, out of which he can party's inability to pay, make the amount of costs due on said execution, forthwith to issue execution against the plaintiff in said execution, for all costs due on said execution, created by the plaintiff in obtaining his judgment and execution; and no costs created by any defendant on the part of the defendant, shall be taxed or collected in said execution. (2) and execu tion may is sue against him. 1831-(10) Sec. 1. No county § 24. Hereafter, no county tax on judgments rendered in favor of the Bank of the State of Alabama, without the intervention of a jury, tax allowed either by the circuit or county court of Tuscaloosa county, shall be judgments, taxed in the bill of costs in said causes. on bank without a jury. 1807-(14) Sec. 9. be dismissed, if security be costs. SECURITY FOR COSTS. § 25. Every action at common law, or suit in chancery, commenced Suits of non- in the name of any person residing out of this territory, shall be disrésidents to missed if security be not given with the clerk of the court from whence the process shall issue, or wherein it shall be depending, within sixty not given for days after notice shall, at any time during such non-residence, have been given to the plaintiff or his attorney, by some person interested, that such is required for the payment of the costs which may be awarded to the defendant, and also of the fees that are or may become Judgment due to the officers of the court; (3) and after security shall be so given, tion against and the fees not paid at the time the same become due, it shall be security, on, lawful for the court in which the cause was commenced, to enter up motion. judgment on motion against such security, and award execution accordingly. and execu § 26. When any process shall issue from any of the courts of this territory, by the direction of any attorney, for any person or persons residing out of this territory, against any person or persons residing within the same, the person or persons suing for such process, or prosecuting such suit, at the return of such process, or at any time. thereafter when required, shall, upon motion, be ruled to give sufficient security for all costs, accruing in such action or suit; and if such attorney shall fail to give such security, being thereto required, the suit shall be dismissed, and execution may issue against such attorney for all such costs. (1) It does not vary the case, though the jury find costs for the plaintiff. Reid v. Gordon, 2 Stewt. Rep. 469. This statute does not extend to cases of trespass to try titles. McGehee v. Evans, 1 Stewt. Rep. 589. (2) The costs chargeable against the successful party, include all except the appearance of the opposite party, and such acts as are done at his instance. Anon.-2 Stewt. Rep. 228. (3) Held not to include non-resident parties to suits in the supreme court. Harris & Farrow v. Clapp, Min. Rep. 328. Security for costs may be required as well in appeals from justices, as in other cases. Thompson v. Miller, 2 Stewt. Rep. 470. Plaintiff re of the state, § 27. If any person resident in this territory, shall institute any suit, 1811—(11) whether at common law or in chancery, in any of the courts of this Sec. 8. territory, and shall after the institution thereof remove out of this ter- moving out ritory, such person shall be bound to give security for the costs of required to such suit, in the same manner and under the same restrictions pointed give security out for nonresident plaintiffs, in the ninth section of the act entitled "An act establishing the fees of the several officers therein named, and for other purposes," passed the sixth day of February, one thousand eight hundred and seven.a for costs. a See § 25. §28. Any clerk may require security for costs of non-residents, 1812—(16) before he issues any writ. Sec. 9. rity of non § 29. On all bonds hereafter made by non-resident plaintiffs for the require secuprosecution of suits in the county or circuit courts, and to secure the residents, becosts of such suits, it shall be lawful for such courts, at the time of fore issuing rendering final judgment in the cause, to render judgment against the 1-30-(3) security of such non-residents for the costs adjudged. NOTE.-The plaintiff, on suing out a bail-writ, is required to give security for costs. See "Bail in Civil Cases,"-§ 7. 4. DETINUE. writ. Sec. 1. Court shall give judg ment against security of non residents, at the time of rendering final judgment in the cause. Sec. 1. vit and bond, possession of defendant 30. In any action of detinue, if the plaintiff, his agent or attorney, 1830-(14) shall make affidavit that the property sued for belongs to the plaintiff, on plaintiff and shall give bond with sufficient security, to be approved of by the filing affidaclerk of the court issuing the writ, conditioned that if the plaintiff the sheriff shall fail in the suit, he shall pay the defendant all costs and damages shall take he may sustain by the wrongful suing out of the writ, it shall be the property sued duty of the clerk of the court issuing the writ by endorsement for, unless on the same, to require the sheriff or other officer serving it, to take will give the property sued for into his possession, unless the defendant shall delivery, if give bond with sufficient security in double the amount of the value of cast. the property to be taken, payable to the plaintiff, and conditioned that the defendant, if cast in the suit, shall within thirty days after its determination, deliver to the plaintiff the property recovered by such suit. bond for its give bond in property de 31. If the defendant in such suit shall neglect for five days, to Ib. Sec. 2. give the bond required by the first section of this act, the property Defendant to taken shall be delivered to the plaintiff, on his giving bond and 3 days, or sufficient security in double the amount of the value of the property, livered to payable to the defendant, conditioned to deliver the property to the plaintiff, on defendant within five days after demand made, in case he shall bond. fail to recover the same in his said suit; and if the plaintiff shall Plaintiff failneglect to give such bond within five days after the time allowed ing, defendthe defendant, it shall be the duty of the officer serving the writ to property. return the property taken, to the defendant. his giving ant to have On recovery, property, de returned, § 32. When the defendant shall have given such bond, and a reco- Ib. Sec. 3. very shall be had against him, and he shall neglect to deliver to the and failure plaintiff the property recovered, as provided for by the first section of to deliver this act, it shall be the duty of the sheriff, at the plaintiff's request, fendant's to make a demand of the property recovered, of the defendant or his bond shall be security; and if it shall not be delivered within five days after such forfeited," demand, the sheriff shall return the bond taken in the suit, to the of- and execu fice of the clerk of the court where the recovery shall be had, as for- against him feited; and such bond so returned, shall have the force and effect of a and securi Judgment, and execution thereon shall issue against principal and security for the alternative judgment. tion issue ties. Ib. Sec. 4. Plaintiff failing in his § 33. If the plaintiff shall fail in such action, and shall neglect to deliver the property taken, after demand made, as provided for by the suit, and not second section of this act, he, and his securities, shall be liable to an delivering up property, lia action on such bond, and in case of recovery thereon, damages, not ble with his exceeding fifty per centum on the value of the property, shall be given for the detention thereof. securities, to action and damages. 1811-(11) Sec. 2. Clerk to keep separate docket for issues, &c. 5. DOCKETING and Order of Causes. § 34. Before any superior or county court, the clerks of said courts shall enter in a particular docket, all such causes, (and those only) in which an issue is to be tried, or inquiry of damages to be made, or a special verdict, or case agreed, or demurrer, or other matter of law is to be argued, in the same order as they stand in the course of proceeding, setting as near as may be, an equal number of causes to each day, and no cause shall be taken up for trial or hearing, at a day previous to that at which it may be set; and the clerk shall issue subpoenas for witnesses to attend on the days on which the causes stand for trial;To keep sub- and it shall be the duty of the clerk to keep a regular subpœna docket, pona docket, and to issue subpoenas before every term of the court, for all the witnesses, in every cause, that either party may at any time have directed to be summoned.1 and issue subpœnas. 1815-(12) Sec. 1. Clerk to assign causes § 35. It shall be the duty of the clerks of the superior courts in this territory to keep a trial docket, and to assign not less than fifteen causes ready for trial each day of the term, commencing on the first to particular day, and continuing until the docket be gone through. And it shall not be lawful to take up any cause out of the order in which it shall stand upon the trial docket, unless by consent of parties. days. Causes not tried out of their order. 1819-(6) Sec. 7. Order of proceedings. Arrest of judgment, error, &c. 1807-(19) Sec. 39. Death or absence of judge. Jan. 5, 1833. Mobile. § 36. All jury causes shall be first tried; all motions in arrest of judgment shall be argued within the three last days of the term, in which the issue shall be tried; the defendant's attorney first serving the plaintiff's attorney with a copy of the reasons in arrest of judg ment, the day immediately following that on which such motion shall be made arguments on writs of error, special verdicts, cases agreed, demurrers, petitions for legacies, and distributions of intestate estates, shall be heard during the four last days of the term.* : § 37. No proceedings in any court shall be discontinued by the death of any of the judges or justices thereof, or by their nonattendance at any term; but in such cases, all actions and suits, matters and things depending therein, shall stand continued of course, to the next succeeding term. (1) § 38. The presiding judge of the circuit court of Mobile shall, at every term of said court, try causes in the following order, to wit: causes in cir- appeals from justices of the peace; appeals from the county court; cuit court of actions of assumpsit; actions of debt, covenant, and detinue, during the first week of the term. The state docket shall be taken up on Monday of the second week, and disposed of, when the residue of the actions of assumpsit, debt, covenant, and detinue, if any there be, shall be tried, dismissed, or continued, when land cases (so called) and all other cases remaining on the common law docket, shall be 1 Witnesses, once subpœnaed, shall attend from term to term, until discharged, or the suit is decided. See "Witnesses,”—§ 2. 2 Arguments on demurrer shall be heard at the trial in chief. title,- 109. See this (1) A suit not tried at trial term, is discontinued, unless continued by the court, or by operation of law. Kennon v. Bell, Min. Rep. 98. called in their order and disposed of. Motions shall then be heard and determined, and the term shall close with the trial of all chancery business: Provided, That by agreement and consent of the judge, any case may be tried out of its order. NOTE-Motions against banks for refusing to pay their notes, &c. have precedence of all other causes. See "Banks,"—§ 2. 6. EJECTMENT. Sec. 1. a crop grow. jury shall as can be gath §39. In all actions of ejectment tried in any of the courts of this 1815—(7) territory, if it shall be made to appear to the satisfaction of the jury when detrying such cause, that the defendant has a crop then planted, or grow-fendant has ing upon the premises in question, they shall, if they find the defen-ng on the dant guilty of the trespass and ejectment complained of, assess at the premises, the same time such rent as shall be reasonable and just for the plaintiff to sess rent unreceive, for the use of said premises during such time as shall be, in til the crop their opinion, sufficient to enable the defendant to gather and secure ered. his crop from off said premises and no writ of habere facias possessionem shall issue upon any such verdict, until the expiration of the time determined by the jury, if the defendant in such action shall session until enter into bond at any time during the term of the court before which ered, on giv such cause is tried, with sufficient security, to be approved of by said ing security court, in the penalty of double the amount of the rent assessed by the jury, payable to the plaintiff, conditioned for the payment of the rent so assessed at the expiration of the time fixed by the jury, for the defendant to hold possession of the said premises. Defendant allowed to retain pos crop is gath for the rent. Defendant's 40. All bonds taken in virtue of this act, shall be filed in the clerk's Ib. Sec. 2. office of the proper court, and shall have the force and effect of a judg- bond to be ment; and if the same be not discharged according to the condition filed with thereof, execution shall issue thereon against the principal and his se- forfeited, excurity, for the sum therein mentioned, as upon other judgments in ecution to is said court. clerk, and if sue thereon. Fictitious in ejectment 41. The fictitious proceedings in the action of ejectment are hereby 1821–(31) abolished; and hereafter the mode of trying the right and title to lands, Sec. 14. tenements, or hereditaments, shall be by action of trespass, in which the proceedings plaintiff shall endorse on his writ and copy-writ, that the action is abolished, brought as well to try titles as to recover damages; and it shall not be and titles to necessary to file the original note, bond, or paper sued on, with clerk, but a copy thereof shall be sufficient. the be tried by actions of trespass. § 42. The laws now in force in relation to the action of ejectment, b. Sec. 2. except as far as relates to fictitious proceedings therein, shall be plied to the action of trespass, to try titles as aforesaid. ap Law of ejectment applicable to tres Ib. Sec. 3 & 4. §43. If the plaintiff in the aforesaid action of trespass recover, he pass shall be entitled to an execution for possession, as well as for costs Plaintiff reand damages. (1) 7. ERRORS AND AMENDMENTS. covering, to have execution for possession. Sec. 36. $44. No summons, writ, declaration, return, process, judgment, or 1807—(19) other proceedings, in any of the courts of this territory, shall be abated, arrested, quashed, or reversed, for any defect or want of form; not to be but the said courts respectively, shall proceed and give judgment, accord (1) Various points decided under this statute. White v. Saint Guirons, Min. Rep. 331. quashed for want of form. amend mis takes, or want of ing as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form, in such writ, declaration, or other pleading, return, process, judgment, or course of proceeding whatsoever, except those only in cases of demurrer, which the party demurring shall specially set down and express, Court may together with his demurrer, as the cause thereof; and the said courts respectively, shall and may, by virtue of this act, from time to time, amend all and every such imperfections, defects, and want of form, (other than those which the party demurring shall express as afore said,) or any mistake in the Christian name or surname of either party, sum of money, quantity of merchandise, day, month, or year, in the declaration or pleading, the name, sum, or quantity, or time, being right in any part of the record or proceedings; and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said courts respectively shall, in their discretion, and by their rules, prescribe. form. a 1811-(11) Sec. 12. Judgment on confession, a release of er rors. b Ib. Sec. 14. No exception after issue on title. Sec. 1. ь a§ 45. Judgment on confession shall amount to a release of errors. (1) b§ 46. After issue joined, in an ejectment on the title only, no exception to form or substance shall be taken to the declaration in any court. § 47. No cause shall be reversed, arrested or otherwise set aside, in ejectment after verdict or judgment, for any matter on the face of the pleadings not previously objected to; Provided, The declaration contains a c 1824-(20) substantial cause of action, and a material issue be tried thereon. Judgment to § 48. Nocause shall be reversed by the supreme court or any cir cure defects cuit court, for any miscalculation of interest, or other clerical mispri ly objected sion in entering judgment, so as to give costs to the plaintiff in error; dib. Sec. 4. but in all such cases, the supreme court may order the judgment to be Judgment amended at the costs of the plaintiff in error. not previous to. not to be re versed for clerical mis take. e§ 49. The circuit and county courts respectively, shall and may at any time within three years after final judgment, upon the applica e Ib. Sec. 5. tion of either party, amend any clerical error, or misprision, in calcu Court may lation of interest, or other mistake of a clerk, where there is sufficient matter apparent upon the record to amend by; and no cause shall be reversed for any such error or defect, by the supreme court, unless the court of original jurisdiction, where the same was determined, shall, upon application, refuse the amendment. correct clerical errors within three years. 1820-(4) Judge, on in ERROR, CORAM VOBIS. § 50. Any judge of the circuit courts, on an inspection of the reSec. 8. cord or the transcript thereof, of any cause in which final judgment spection of shall have been rendered, may, if he shall be of opinion that any mate record, may rial mistake or error has been committed by a ministerial officer after error, coram the rendition of judgment, grant a writ of error coram vobis, returnable grant writ of vobis. f See § 52. to the next term of the circuit court in which such judgment shall have been rendered, and may direct the said writ to operate as 3 supersedeas, on the party applying for the same, entering into bond and security in the clerk's office, to be approved by the judge grant ing the same, conditioned for prosecuting the said writ of error to effect, and pay and satisfy the judgment of the court. 1 No demurrer shall have any other effect than that of a general demurrer. See this title,-§ 108. (1) Therefore neither a writ nor declaration is necessary to sustain a judg ment by confession. Caller v. Denson, Min. Rep. 19. Gayle v. Foster, ib. 125; and nothing can be assigned as error, which arose or existed previous to the judgment by confession: M'Connell v. White, ib. 112. |