1827-(7) Sec. 1. diction 128. The several circuit courts of this state shall have original Circuit court jurisdiction in all civil causes, in which the citizens or inhabitants of to have juris- the state of Alabama may be parties plaintiff, and the state of Alabama may be defendant, saving to the plaintiffs or defendant in all state, where cases, the right to remove their said causes to the supreme court after judgment by appeal or writ of error, pursuant to the provisions of the existing laws. against the its own citi. zens are plaintiffs. Suits to be by summons on the governor. § 129. The manner of instituting suits against the said state, shall be by the plaintiff or plaintiffs, in suit at law, suing out of the circuit commenced court clerk's office, in which the action may be originated, a sumor subparna; mons, and in cases of chancery, a subpoena in chancery, returnable to the next succeeding term of the circuit court of the county in which to be served the action may be brought; which summons or subpoena shall be served on the governor by the sheriff of the county in which the suit may be brought, or by the sheriff of the county in which he may be at the time of the commencement of the suit, and shall be deemed the leading process in such suit, and shall have the like effect and incidents, as writs, and other subpoenas in chancery, sued out, and made return[a 1820-(11) able to said courts respectively. And it shall be the duty of the court Court to re- to receive and record all testimony applicable to the merits of the case, ceive and re- and to give judgment for or against the state, as to justice shall apper Sec. 9.] cord testi mony. Jury to return a special verdict. lb. Sec. 3. the tain: Provided, That if the plaintiff shall demand a trial by jury, the court shall thereupon empannel a jury of by-standers, and it shall be the duty of said jury in all cases to return a special verdict, and in that case, it shall not be the duty of the court to record the testmony; but the judgment of the court shall be rendered upon such verdict. § 130. No appeal or writ of error shall be prosecuted by the state Appeals by to reverse any judgment obtained against it, in any of the circuit mited to the courts of this state, except such writ of error be sued out, or such appeal be taken within the time prescribed by law, in cases to which the state is not a party. usual time. Ib. Sec. 4. Comptroller, on certificate of the clerk, to draw his warrant for of the judg ment. Certificate for six months. Judge to attest certifi § 131. It shall be the duty of the comptroller of public accounts, on the certificate of any clerk of the circuit court in this state, or of the supreme court of this state, that a judgment has been rendered in the court of which he is clerk, against the state in favor of any plainthe amount tiff, specifying the amount of recovery, to draw his warrant on the state treasurer in favor of the party recovering such judgment, for the amount thereof: Provided, That no clerk of any circuit court shall not to issue issue any certificate pursuant to the foregoing provisions, until six months after the rendition of the judgment: And provided further. That in addition to the certificate of the clerk of the circuit court, the judge who presided at the trial shall certify that the same is correcl 132. It shall be the duty of the solicitor or attorney general attending any circuit court, where any suit is pending against the eral and so state, to attend to the same in behalf of the state, whose duty it shall Writ of error be to order a writ of error on the rendition of any judgment against to state with the state, if he thinks proper, which shall be issued by the clerk as a out security. matter of course, without security, and shall operate as a supersedeas. § 133. The court, before whom any suit is tried pursuant to the Court may foregoing provisions of this act, shall, if necessary, appoint one additional attorney, to aid the solicitor or attorney general; who, with cate. Ib. Sec. 5. Duty of attorney gen licitors. Ib. Sec. 6. appoint assistant counsel. 1 This clause is taken from the act which directed suits against the state to be commenced by petition to the supreme court. It is the only part of that act which is not repealed or superseded by the act of 1827, and seems neces sary, so far as it is applicable to proceedings in the circuit courts, to supply the deficiency of the existing law. the solicitor or attorney general, shall receive for his services out of His compen the public treasury, a compensation to be fixed by the said judge, who sation. shall certify the same to the comptroller. 22. TRIAL AND EVIDENCE. not 1807—(19) 134. The judges of the superior and inferior courts shall charge juries with respect to the matters of fact, but may state the testimony, and declare the law. (1) Sec. 5. Judges not to charge on matters of fact. Nonsuits § 135. Every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the Tb. Sec. 37. bar: (2) and no more than two new trials shall be granted in the same and new cause: and two nonsuits shall be considered equal to a verdict against the party suffering the same. trials. Sec. 10. lenge four of Sec. 3. 136. In all jury trials, either party shall have the right to a pe- 1820-(28) remptory challenge of four of the jury. §137. Whenever suit shall be commenced in any of the courts may chalfounded on any writing, whether the same be under seal or not, the the jury. court before whom the same is depending, shall receive such writing 1811—(11) as evidence of the debt or duty for which it was given; and it shall Writing on not be lawful for the defendant or defendants in any such suit, to deny founded, to the execution of such writing, unless it be by plea, supported by the be evidence affidavit of the party putting in such plea; which affidavit shall accom- and not to be pany such plea, and be filed therewith, at the time such plea is filed; denied, exwhich affidavit may be made before any justice of the peace, or before and affidavit. the clerk of the court where such suit may be depending. which suit is of the debt, cept by plea Considera § 138. Whensoever any suit is depending in any of the courts found- Ib. Sec. 4. ed on any writing, under the seal of the person to be charged therewith, tion of writ it shall be lawful for the defendant or defendants therein, by a special ing under plea, to impeach, or go into the consideration of such bond, in the same impeached manner as if the said writing had not been sealed. § 139. All private acts of assembly may be given in evidence, out being specially pleaded, and as printed with the general acts legislature. seal, may be by special plea. with- 1b. Sec. 10. Private acts of the may be given in evidence without be ing pleaded. Ib. Sec. 11. from the bar. 1-12-(16) 140. Papers read in evidence to the jury on the trial of any cause, though not under seal, may be carried from the bar by the jury. $141. Interpreters may be sworn truly to interpret, when necessary. be carried § 142. All certificates issued in pursuance of any act of congress, b. Sec. 13. by any of the boards of commissioners, register of a land office, or any Interpreters. other person duly authorized to issue such certificate upon any war- Sec. 8. rant, or order of survey, or to any donation or preemption claimants, Certificates for any lands in this territory, shall be taken and received as vesting d as evi a full, complete, and legal title in the person in whose favor the said dence of title certificate is granted, to the lands therein mentioned, and his, her, or their assigns, so far as to enable the holder of such certificate to maintain any action thereon, and the same shall be received in evidence as such in any court in this territory. to be receiv to lands. Assignment 143. When any suit shall be instituted by any person or persons, 1919—(6) as assignee or assignees of any bond or other writing, it shall not be Sec. 37. necessary for the plaintiff or plaintiffs to prove the assignment or as- need not be signments, unless the defendant or defendants shall annex to the plea (1) The judge may lawfully sum up the evidence to the jury, and instruct them hypothetically. Brandon v. Snows & Cunningham, 2 Stewt. Rep. 255. (2) The court, unless so directed by statute, cannot order a nonsuit. Taylor's adm'r. v. Seaton, Min. Rep. 75. proved, unless defendant files an affidavit of its forgery. 1828 (32) Sec. 2. Laws of U.S. or other denying such assignment or assignments, an affidavit, stating that such defendant or defendants verily believe, that some one or more of such assignments were forged, or make oath to the same effect in open court, at the time of filing such plea. 144. It shall be the duty of the secretary of state for the state of Alabama, on application, to give certified copies of any of the acts of the several states, or of the United States, which are now or may herebe proved by after be in his office, and the copy so certified shall be evidence in any certificates court of law or equity in this state. (1) states, may of secretary of state. 1807-(19) Sec. 11. Where personal and other actions are to be and tried. 23. VENUE. § 145. All civil causes and suits to be instituted for determination before the territorial judges, shall be commenced in the circuit court of the county in which the defendant may be found, or if it be a real action, an action of ejectment, or trespass quare clausum fregit, then commenced in the county in which the cause of action arose; and all causes and actions so commenced in any circuit court, shall be brought to issue, according to the rules that may be ordained and established for the ot derly conducting and management of business in the said courts; and if the said issue be an issue in fact, the same shall be tried by the jurors attending the said circuit court, at the next succeeding term, if there be time for trial thereof, and the same be not continued by order of court; and all causes remaining on the docket of any circuit court, at the rising thereof, shall be continued over of course for trial, at the next succeeding term. Ib. Sec. 12. not to be su 5 146. No freeholder of this territory, shall be sued out of the county Freeholders of his permanent residence, provided the same be within this terried out of the tory, unless it be in the actions enumerated in the last section; nor shall any person who may reside in this territory, be held to bail if sued out of the district or county of his residence and freehold. (2) county of their residence. 1812-(16) Sec. 4. In division ment of counties, § 147. In all cases where, by the division of any county, new counties have been established, and in the establishment of all future or establish counties, all unfinished business in the courts of such county previous to such division, which would be properly cognizable in the courts of causes to be such newly established county, whether of suits, probate of matters. or other business, shall be transferred to the proper court of such new counties, to be there acted on and determined as if they had therein originated. transferred. 1818-(14) Sec. 8. 5 148. Any person or persons may be sued in the county in which he, she, or they may be found, without regard to his, her, or their re county, the sidence, if oath be made before the clerk issuing the writ, or any Suit in any plaintiff ma king oath. (1) The acts of congress, as published in the pamphlet acts of the session, may be read on the trial of a cause, without proof that the pamphlet is authentic. White v. Saint Guirons, Min. Rep. 331. (2) This does not embrace motions against tax-collectors. Armstrong & Pinkston v. The State, Min. Rep. 160. It extends to suits before justices of the peace. Read v. Coker, 1 Stewt. Rep. 22. A plea in abatement, that defendant was a resident citizen of another county when the writ was served, is not sufficient, unless it appear he was a freeholder of such county. Wilson t Oliver, 1 Stewt. Rep. 46. A certificate of the register of the land office of the United States, showing a purchase of land, part payment, and an extension of time given for the balance, is sufficient evidence of a freehold, to support a plea in abatement; and in the absence of proof to the contrary, is to be taken as genuine. Cox v. Jones & Jones, 1 Stewt. Rep. 379. Residence and freehold in another county may be pleaded in abatement and proved, notwithstanding it may contradict the sheriff's return. Ib. justice of the peace, that such person or persons hath or have gone from the county of his, her, or their residence, for the purpose of avoiding service of process in their proper county. 1 Venue may on sufficient cause shown. § 149. Judges of the circuit courts within their respective circuits, 1819-(6) at or before the first trial term of any suit, civil or criminal, shall Sec. 12. have power to change the venue thereof, on good and sufficient cause, be changed, set forth and duly supported by oath or affirmation: and when a change of venue shall be allowed in any suit, the trial thereof shall be adjourned under the direction of the judge, to the nearest adjoining county, which is free from the like exception, and the trial of such cause in the court to which it may be adjourned, shall be by a jury of freeholders or householders: Provided, That such change of venue But one shall in no instance be allowed, more than once in the same cause or change of vesuit: Provided also, That in criminal prosecutions, the right to the cause. change of venue under the provisions of this section, shall be confined to the party prosecuted. nue, in same In criminal cases, allowed only to the defendant. Change of actions may county, but opposite have dedimus aged or in § 150. It shall be lawful for the several courts within this territory, 1818-(6) when any real action may be instituted or pending in such courts, to Sec. 1. erder the change of venue in such action to any adjacent county, on venue in real the party wishing such change making affidavit, that he, she, or they be to any verily believe that justice cannot be done in the county where such adjacent suit may be pending: Provided, That the party opposed to such change of venue, shall have the right to take the testimony of aged party shall or infirm witnesses, in all cases where a change of venue may be to take the prayed, by dedimus potestatem, to be directed to any justice of the testimony of quorum or of the peace, in the county from whence the said venue firm wit may be changed; the party wishing such dedimus, previously making an application for that purpose, to the judge who may preside in the judicial district where such suit may be pending, and giving the opposite party sufficient notice of the time and place of taking such testimony; which testimony, in form aforesaid taken, together with the dedimus, shall be sealed up by the person by whom the said testimony may be taken, and be directed to the clerk of the court to which the venue may be changed, and shall be read in evidence in the case in which it may be taken, subject to such restrictions and formalities as are now prescribed by law. nesses. Writ of ha. to be issued § 151. When the venue has been changed in any real action, and Ib. Sec. 2. judgment had and rendered in favor of the plaintiff, it may be lawful, bere facias and it is hereby required, that the clerk of the court where such judg- possessionem ment shall be rendered, shall issue the writ of habere facias possessio- by the clerk nem, in favor of the plaintiff, directed to the sheriff of the county where suit where the action originated, any law, usage, or custom, to the contra- is tried. ry notwithstanding. 1 A change of venue in criminal cases may be allowed at any time before trial, or after new trial granted. See "Criminal Law-Change of Venue." of the court Con. Ala. Art. 5, Sec. 8. courts. 1807-(19) Sec. 43. lish rules. JUDICIAL PROCEEDINGS IN CHANCERY. 1. Equity Jurisdiction. 3. Change of Venue. 2. Mode of proceeding in Equity. 4. Injunctions. 1. EQUITY JURISDICTION. § 1. THE general assembly shall have power to establish a court or courts of chancery, with original and appellate equity jurisdiction; and until the establishment of such court or courts, the said jurisdiction shall be vested in the judges of the circuit courts respectively: Provided, That the judges of the several circuit courts shall have power to issue writs of injunction, returnable into the courts of chancery. § 2. The said courts1 shall have and exercise all the power, authoMay estab. rity and jurisdiction incident to courts of chancery, and may ordain and establish all necessary rules for the orderly conducting of business in equity, and for hearing and taking orders on interlocutory matters in vacation. And the clerks of said courts shall keep the rolls, records, and proceedings in equity, separate and distinct from the proceedings in law in said courts. Records in equity to be kept distinct. Ib. Sec. 44. § 3. The said courts of chancery may direct an issue in fact to be issues in fact tried whenever they judge it necessary; and such issue shall be tried to be tried. in the same manner, and by the same jury, and the same mode of proceedings observed in the trial thereof in every respect, as if it were an issue in fact joined in a suit in law in the same court. How tried. Ib. Sec. 45. nc exeat. § 4. Each of the territorial judges shall have power and authority writs of in- to issue writs of injunction, and of ne exeat, when the case may rejunction and quire it; but every person shall be discharged from a writ of ne exeat, on giving good and sufficient security, and for that purpose, the judge of the court granting such writ, shall endorse thereon, the sum and number of securities required. Ib. Sec. 46. § 5. Said courts sitting in chancery, shall have power and authority May issue all usual chan to order and issue all such process as hath usually belonged to courts cery process, of chancery; and in cases where decrees shall be passed for a sum of tions for mo- money, it shall be lawful for execution to issue thereon against the ney decreed. defendant's goods and chattels, lands and tenements, or against the and execu Ib. Sec. 48. 1811-(11) Sec. 28. Judges may defendant's body, to satisfy such decree and costs, in like manner, and with the same force and effect, as executions may issue on judg ments obtained at law in the supreme court of this territory. § 6. Costs in equity shall be paid by either party, at the discretion of the court. § 7. The judges of the superior courts of law and equity shall have power in vacation to examine all answers to bills in chancery: and examine an if any defendant or defendants have been held to bail, any judge, on application, may, and he is hereby authorized to reduce or discharge such bail taken as aforesaid.2 swers in vacation. Sec. 10. or to 1812-(16) § 8. The courts of equity shall have jurisdiction in all cases of Jurisdiction gambling consideration, so far as to sustain a bill for discovery, of gambling enjoin judgments at law. considera tions. 1 The supreme and superior territorial courts. Their chancery powers were transferred to the circuit courts. See hereafter—§ 10. * The 20th section of this act (Dec. 18. 1811,) provides "That so much of the forty-seventh section of the act entitled, An Act establishing superior courts, and declaring the powers of the territorial judges,' as authorizes either of the territorial judges to hold to bail any defendant or defendants in suits in chancery, be, and the same is hereby repealed." |