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the proceed.

ings an issue

must be re

non pros, or

may be enter

defendant pleads specially, the plaintiff shall reply or demur, within Throughout three days after the time allowed for filing the declaration, or a non pros may be entered by the defendant; and if the plaintiff replies, and tendered in his replication tenders an issue, the defendant shall join issue or plied to withdemur in three days, otherwise the plaintiff may have judgment; and in 3 days, or where the defendant rejoins to the plaintiff's replication, he shall file his judgment of rejoinder within three days, or judgment shall go against him, unless by default, the term for pleading shall be enlarged as aforesaid, and the same time ed,shall be given, and rules observed, through the whole course of the proceedings: Provided, That in every case, the pleadings shall be made but pleadings up during the term to which the process is returned, (1) unless the up at return time be extended by the consent of parties, their attorneys, or by di- term, unless =rection of the court. Where a special verdict shall be found, a case parties. agreed, a demurrer filed, or a bill of exceptions to the evidence tendered, the court may, for a good cause shown, continue the same until the next term for argument. When a plea in abatement shall be costs, on pleaded, and upon argument, the same shall be adjudged insufficient, overruling the plaintiff shall recover against the defendant, full costs to the time ment. of overruling such plea, including the costs of court.

shall be made

by consent of

plea of abate

Sec. 1.

pleaded on

105. No de claration, plea, or replication, which sets forth or 1823—(29) states any obligation or instrument of writing under which such party Lost instru claims a benefit, and which is alleged to be lost, and not in the power ment must be of the party to produce said instrument or obligation in court, shall be oath. received in any of the courts of this state, unless such party make oath of the truth of such statement in his declaration, plea, or replication, as the case may be.

Sec. 1.

§ 106. It shall not be required of the plaintiff, in any suit by at- 1832—(3) tachment, founded upon a cause of action not due, to file his plead- Declaration ings before the first term of the court, after such cause of action falls in attachdue, and the same may be dated as of the term when filed.

ment may be filed when debt falls due.

DEMURRERS.

Sec. 6.

§ 107. When any demurrer to evidence, demurrer to the declara- 1807—(17) tion or plea in any cause depending before the several courts in this Frivolous deterritory, shall appear frivolous and intended for delay, it shall be law-murrer may ful for the court where the cause is depending, to reject such demur- on motion. rer on motion, and proceed to trial as if the same had not been offered.

be rejected

Sec. 2.

amended.

108. No demurrer shall have any other effect than that of a ge- 1824-(20) neral demurrer, and the courts at any time previous to the term at All demurwhich such demurrer shall stand for argument, may allow the party rers general. on application, to amend his pleadings without terms, and after judg- Pleadings ment in favor of the demurrer, may authorize an amendment on terms. may be And if the demurrer be overruled, the court shall grant leave to the Plea to the party demurring to withdraw the demurrer, and plead to the merits of merits, after the action, upon such terms as the justice of the case may require. overruled, § 109. All demurrers to any part of the pleadings in suits at law, Ib. Sec. 3. shall be tried when the cause is called for trial, and shall not be de- Demurrers to layed until motion day, or the last four days of the term. And it shall the cause is be the duty of the circuit and county courts respectively, to hear and

demurrer

be tried when

called.

Motions to dissolve injunctions to

(1) Judgment by default for want of a plea, cannot be taken until three be heard each days after the time allowed for filing declaration, although the term of the term. court may not continue so long. Rather v. Owen, 1 Stewt. Rep, 38. Gwynn r. Weaver, ib. 219.

determine, at each and every term, all motions for the dissolution of injunctions.

17. PROCESS.

Con. Ala.

Art. 5, Sec.

17.

1807-(20)

Sec. 16.

be returnable

on first day

of the term,

and executed

five days be

fore court.

§ 110. The style of all process shall be "The State of Alabama.” 111. All original process, and all subsequent process thereupon to bring any person or persons to answer to any action, suit, bill, or Process shall plaint, in any court in this territory, (except subpoenas for witnesses, which, in term time, may be made returnable immediately,) shall be issued by the clerk of such court, and shall be returnable to the first day of the term, and shall be executed at least five days before the return thereof; (1) and if any person shall take out any writ or process while such court is sitting, or within five days before the beginning of the term, such writ or process shall be made returnable to the term next after that then held, or to be held within five days as afore Otherwise is said, and not otherwise: and all writs and process issued, made returnasued or exe- ble, or executed, in any other manner, or at any other time, than is herein before directed, may be abated on the plea of the defendant: [a 1819-(6) Provided nevertheless, That nothing herein contained shall be conSec. 6.] strued to invalidate or vacate any process, warrant, or precept, to be process may issued by any of the judges of the said court, or any justice of the any time, re- peace, or clerk of any court, or any original prosecution, in behalf of the state; but that the same may be issued at any time, and made rethe term. turnable to any day of the term: and the like proceedings on criminal as heretofore suits and prosecutions, shall be agreeable to the practice heretofore in under the ter- use in the territorial government, except where the same is, or may ernment. be otherwise directed, by this or some other act.1

cuted, may

be abated.

Criminal

be issued at

turnable to

any day of

Proceedings

ritorial gov.

Sec. 31.

Cause of ac

dorsed,

and copy of

1807-(19) § 112. It shall not be necessary that any declaration or copy thereof, accompany such writ or process, but a copy of such writ shall be left tion to be en with the defendant, at the time of serving, and by the officer serving the same. (2) And it shall be the duty of the clerk, or plaintiff's writ and en- attorney, to endorse on the back of the writ, the cause of the action, be left with the nature of the specialty, or the other grounds on which the action the defend is founded: and the sheriff, on executing the writ, shall deliver to the defendant, together with a copy of the writ, a copy of the said endorsement. (3)

dorsement to

aut.

1818 (18)
Sec. 1.
How tested

and signed.
1819-(6)
Sec. 5.

§ 113. All writs issued from any of the courts, shall bear teste in the name of, and be signed by, the clerk of the court from which they may be issued.

§ 114. The clerk or attorney issuing process, shall mark thereon the Day of issu day on which such process issued; and the sheriff or other officer ance and re receiving the same, in order to execute, shall in like manner mark on ceipt by the sheriff, to be each process the day on which he received it; and every clerk, attor

endorsed. Penalty for neglect.

1 The previous part of the section from which this proviso is taken, is substantially the same with the one to which it is appended, but is omitted as not being so full and explicit.

(1) Writs should be executed and returned in the name of the sheriff, and not in that of the deputy. Land v. Patteson, Min. Rep. 14. But if the deputy uses the name of the principal, so that the act done purports to be the act of the principal, though done by his deputy, the return is sufficient.— Briggs & M'Clure v. Greenlee, ib. 123.

(2) Acknowledgment of service by one partner is binding on the firm. Click & Morgan v. Click, Min. Rep. 79.

(3) Omission of endorsement is cause of error, unless cured by some act of the defendant, such as appearing, pleading, &c. Howell & Smith v. Hallett, Min. Rep. 102. After the return term of the writ, no exception can be taken for the want of an endorsement. Tankersley v. Richardson, 2 Stewt. Rep, 130.

ney, sheriff, or other officer, neglecting so to do, shall forfeit and pay the sum of one hundred dollars, to be recovered by action of debt in any court of record having cognizance thereof, by any person who will sue for the same, with costs.

Sec. 7.

jacent coun

§ 115. When a writ or other process shall issue to the sheriff of the 1818 (14) county where the defendant resides, service of such writ or other pro- May be serv cess shall be good and valid, if the said sheriff' shall execute the said ed in any adwrit or other process in any adjacent county, or in lands to which the youn Indian title has not been extinguished, and return the same to the dian lands. court from which the writ or other process issued.

116. All writs returnable to any court of record, shall bear teste on 1819-(10) the day on which the same shall be issued.

Sec. 4.
When to bear

Sec. 1.

ventus in a

$117. On the return of a capias ad respondendum, against any teste. person or persons legally liable to be sued in the court from which 1811-(11) such writ may issue, that the defendant or defendants is or are not to On non est inbe found, the plaintiff or plaintiffs may have a testatum capias, or ju- local action, dicial attachment to any other county, which process shall be execut- plaintiff may ed according to its commands, and returned to the court from which tatum capi the same issued, as in other cases: Provided, Nothing in this sec- as, or judicial tion shall extend to any but such actions as are termed in law local to any counactions.

have a tes

attachment

ty.

§ 118. In every case, where persons who are within age may sue, 1807—(24) their next friends shall be admitted to sue for them.

Sec. 2. Infants may

Writs and

§ 119. It shall be the duty of the sheriff's in the several counties sue by their next friends. in this state, to return all writs and executions to the clerk's office 1821-(30) from which they shall issue, at least three days previously to the Sec. 1. term of the court to which they shall be returnable; and if any she- executions to riff shall fail to return any writ or execution, according to the provi- be returned 3 sions of this act, he shall be liable to all the penalties provided by the the first day laws now in force, for failing to return any writ or execution to the of the term. first day of the term of the court to which they are returnable.1 (1)

days before

18. REAL AND POSSESSORY ACTIONS.

Sec. 1.

improve

fore writ of

awarded.

§ 120. In all actions real or possessory, hereafter brought or prose- 1816—(12) cuted in any court in this territory, for any lands, tenements, or here- In certain ditaments, against any person or persons, body politic or corporate, real actions, deriving title to such lands, tenements, or hereditaments, by, from, or ments to be under the United States, or by, from, or under any Spanish grant, or paid for, be order of survey recognized or confirmed by the United States' board possession is of commissioners, east or west of Pearl river, the person or persons prosecuting any such action against any person or persons, body politic or corporate, claiming and deriving title under the United States, or by, from, or under any Spanish grant, or order of survey recognized and confirmed by either of the said boards of commissioners, and recovering judgment for any lands, tenements, and hereditaments, from any person or persons, body politic or corporate, having derived title by, from, under, or through the United States, or any Spanish

1 See "Executions,"-§ 22, 23, and note 1.

(1) The statute requiring the return of execution three days before court, almits of a ressonable excuse for a failure so to return: and where judgment has been rendered against a sheriff, he may have relief in chancery by showing a sufficient excuse for the failure, and also for not making a defence at law. Roberts & Battle v. Henry, 2 Stewt. Rep. 42.

Appraisers pointed by

value the

improve.

ments.

improve.

claration,

grant, or order of survey recognized and confirmed as aforesaid, the person or persons so obtaining judgment, shall not have any writ of possession or seisin, nor obtain possession or seisin of such lands, tenements, or hereditaments, until he, she, or they shall have first paid to the person or persons, body politic or corporate, possessing the title thereto, derived from or under the United States, or by, from, or under any Spanish grant, or order of survey recognized and confirmed as aforesaid, the full value of all improvements, made thereon, as the same shall be estimated, valued, and ascertained, on oath, by five apmay be appraisers, which appraisers shall be, by rule for that purpose, appointed the court to by the court in which such judgment shall have been obtained, unless the parties shall agree on the value of such improvements, or agree on and submit to appraisers to value the same: Provided always, That Unnecessary this act shall not extend and be so construed, as to compel any plainments after tiff or plaintiffs in any of the said actions to pay for any improvement service of de- or improvements, not needful and necessary, which may be made on not included. the premises, after the service of the writ or declaration in ejectment. § 121. If any person or persons, body politic or corporate, deriving Persons oust title to any lands, tenements, or hereditaments, by, from, or under the ed, and fail- United States, or under any Spanish grant, or order of survey recog tion for the nized and confirmed as aforesaid, be disseised, ousted, or turned out premises, may recover of possession of said lands, tenements, or hereditaments, by any perthe value of son or persons claiming, or pretending to claim title to such lands, tements, nements, or hereditaments, and on a trial in due course of law, a judgment should be rendered in favor of the title of said person or persons, ousting, dispossessing, or disseising the person or persons, body politic or corporate, deriving title by, or under the United States, or by order of any Spanish grant, or order of survey recognized and confirmed as aforesaid, it shall and may be lawful for the person or persons, body politic or corporate, so disseised, ousted, or turned out of possession, to recover from the person or persons so ousting, dispossessing, or disseising, the full value of all improvements made on said lands, tenements, or hereditaments, together with double damages damages and and costs, in any court having jurisdiction of the same.

Tb. Sec. 2.

ing in an ac

the improve

with double

costs.

1826-(39)

Sec. 4.

Scire facias

served in

19. SCIRE FACIAS AND NOTICE.

§ 122. The return of any sheriff, that he has served, executed, or made known, any scire facias, shall be good and sufficient, without need not be its being served, executed, or made known in the presence of wit nesses; and a scire facias to the legal representatives of any plaintiff or defendant, who may have died pending the suit, may at any time issue from the office of the clerk of the court in which the said cause may be pending.

presence of witnesses.

May issue to legal representatives at any time.

1818 (14) Sec. 10.

Written notice to the

torney, sufficient. 1826-(34) Sec. 1.

§ 123. In all cases pending before any of the courts of record, writ ten notice to the attorney of record shall be as valid and legal, to all intents and purposes, as if served on the party in person.

§ 124. All notices in writing, which may be necessary or proper to be given by either plaintiff or defendant in any suit, either at com. mon law or in chancery, may be served by the sheriff of any county, be served by and the return of the sheriff of the service of the same, shall be good and sufficient in any court of record in this state.

Notice may

the sheriff.

Ib. Sec. 2.

§ 125. The sheriffs of the several counties in this state, shall have Fee 50 cents. and receive the sum of fifty cents for each notice served by them, by

virtue of this act.

20. SET-OFF AND TENDER.

Sec. 2.

off, either un

issue, or no

ing by penal

Sec. 1.]

plaintiff's

ally, or over

126. In all cases where there are or shall be mutual debts sub-1824—(3) sisting between the plaintiff and defendant, or if either party sue or Mutual debts be sued as executor or administrator, where there are mutual debts may be set subsisting between the testator or intestate and either party, one debt der plea in may be set against the other, (1) either by being pleaded in bar, or bar, general given in evidence on the general issue, or notice given of the particu-tice of set-off: lar sum intended to be set off, and on what account the same is due, notwithstanding such debts may be deemed in law to be of a different nature; but if either debt arose by reason of a penalty, the sum in- Debt accrutended to be set off shall be pleaded in bar, setting forth what is justly ty to be pleadue on either side, any law, usage, or custom to the contrary notwith- ded in bar. standing; and if it shall appear that the defendant hath fully paid or [a 1799—(1) satisfied the debt or sum demanded, the jury shall find for the defen- Judgment dant, and judgment shall be entered, that the plaintiff shall take no- where the thing by his writ, and shall pay the costs. And if it shall appear that demand is any part of the sum demanded be paid, then so much as is found to fully, partibe paid shall be defalked and deducted out of the plaintiff's demands; paid. and the plaintiff shall have judgment for the residue only, with costs of suit. But if it appear to the jury that the plaintiff is overpaid, then they shall give in their verdict for the defendant, and withal, certify to the court, how much they find the plaintiff to be indebted, or in arrear to the defendant, more than will answer the debt or sum demanded: (2) band it shall be the duty of the court to enter up judg-[b 1827-(37) ment for the amount so certified, for which execution may issue as Plaintiff af in other cases: Provided always, That in all cases where a tender ter tender, shall be made, and full payment be offered by discount or otherwise, to costs. in such specie as the party by contract or agreement ought to do, and the party to whom such tender shall be made doth refuse the same, and yet afterward will sue for the debt or goods so tendered, the plaintiff shall not recover any costs in such suit: Provided also, That in Award of reall cases where the plaintiff and defendant having accounts to produce a rule of one against another, shall by themselves, or attorneys, or agents, con- court, to sent to a rule of court, for referring the adjustment thereof to certain force of a persons mutually chosen by them in open court, (the award or report judgment. of such referees being made according to the submission of the parties, approved of by the court, and entered upon the record, or roll, shall have the same effect, and be deemed and taken to be as available in law, as a verdict given by twelve men. And the party to whom any sum or sums of money are hereby awarded to be paid, shall have judgment for the recovery thereof, as is hereinbefore directed, concerning sums found and settled by a jury.

21. SUITS AGAINST THE STATE.

Sec. 2.1

not entitled

ferees under

have the

$127. The general assembly shall direct, by law, in what manner Con. Ala. and in what courts, suits may be brought against the state.

The first section of this act repeals so much of the act of 1799, "as permits defendants under the plea of payment, to give any bond, bill, receipt, or account, in evidence."

(1) Plaintiff's note assigned to defendant cannot be set off, unless assigned before suit brought. Gross v. Van Wick et al., Min. Rep. 7.

(2) The holder of a note may erase credits entered by mistake. Whether 50 entered, must be determined by the jury, and not the court. Tubb v. Madding, Min. Rep. 129.

Art. 6.
Sec. 9.

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