Gambar halaman
PDF
ePub

warrant.

articles, or for any sum or balance due either by written or verbal contract, or assumpsit in any case not sounding in damages merely, are hereby declared to be exclusively cognizable and determinable by a May issue justice of the peace. Any such justice is hereby authorized, on complaint made to him, to issue his warrant, capias, summons, or attachment, as the case may require, returnable at a certain time and place therein mentioned, not less than ten nor more than thirty days from the time of issuing the same, and on return thereof, proceed to hear and determine the case on the merits, if the parties appear; give judg ment by default if the defendant fail to appear and contest the plaintiff's demand, or enter judgment of nonsuit against the plaintiff if he fail to appear and prosecute his claim, and issue execution against the person or goods and chattels of the party against whom judgment is so entered, for the debt and costs, or costs alone, as the case may require, returnable at a certain time and place therein mentioned, not less than twenty, nor more than thirty days from the time of issuing the same; but such justice may, by consent of the parties, or on good cause shown by oath or affidavit, adjourn the trial of any cause to any time not exceeding ten days.

1827-(36)

Sec. 1.

§ 2. All contracts for the payment of specific articles, or for the To have ju- performance of services, when the value of the article contracted for, risdiction of or of the services to be performed, does not exceed fifty dollars, shall be cognizable and determinable by justices of the peace, subject to of specific ar the same rules and regulations as are now provided by law for the trial of causes before justices of the peace. (1)

contracts for

the payment

ticles, &c., not exceed

ing fifty dollars.

1814-(7) Sec. 5.

name time

2. PROCESS.

§ 3. All process issued by a justice of the peace, shall name the Process to time and place of trial, and shall be served five days1 previously and place of thereto, and any such justices respectively, shall issue all summonses for witnesses, and compel their attendance, under a penalty not exted, and con- ceeding ten dollars, and the constable shall endorse on the back of all stable's re- process how he has executed the same..

trial.

When execu

turn.

Summonses

es.

1814-(17)

Sec. 2.

hand and

§ 4. All warrants, or other precepts issued by any justice of the for witness- peace, shall be under the hand and seal of such justice, and shall be directed to the officer whose duty it is to execute the same; and the To be under justices shall cause fair entries to be made in books to be by them provided for that purpose, of the names of the plaintiff and defendant, tice. in any suit brought before them, with the debt and costs adjudged, Justices to and the time when the warrant issued, was made returnable, and when of their pro- judgment was given, together with the return made upon all such ceedings, &c. process. (2)

seal of jus

make entries

Process to be

Ib. Sec. 14. § 5. Every warrant, attachment, summons, subpoena, or other proreturnable cess issued by a justice of the peace, shall be returnable at a day ceron a day certain, giving a reasonable time for attendance; and if any witness reasonable duly summoned, fail to appear agreeably to the command of such

tain, giving

time.

1 But see § 5.

Warrants issued for the breach of any by-law of an incorporated town, may be made returnable forthwith. See "Incorporated Towns."

(1) Justices of the peace have jurisdiction for the recovery of the value of specific articles bailed and not re-delivered according to promise. Spannr. Boyd, 2 Stewt. Rep. 480. Where more than $50 is due on a contract, the creditor may relinquish all over that amount, and sue for $50 in a justice's court. King v. Dougherty, 2 Stewt. Rep. 487.

(2) Proceedings before justices (except on writ of forcible entry, &c.) are not records. Gayle v. Turner, Min. Rep. 204.

default

against wit

made final

summons or subpœna, he or she so failing shall be called out on such Judgment by summons or subpoena, and forfeit the sum of ten dollars with costs, for the use of the county, and for which the justice shall immediately nesses, to be enter judgment by default against said witness, to be made final in after ten case said witness do not attend within ten days after notice served on days' notic. said witness, of such judgment by default, and after the rendition of such judgment, and show cause to the satisfaction of said justice, on oath or affidavit, for such default.

6. It shall not be necessary for justices of the peace, to annex a 1816—(1) copy of the note or account to any warrant, summons, or capias, but to endorse thereon the cause of action.

Sec. 3. Cause of action to be endorsed on

Sec. 2.

Sec. 2.]

7. It shall not be lawful for any sheriff or coroner, to execute warrant. process in civil cases issued by any justice of the peace, except attach- 1823-(30) ments, and precepts of forcible entry and detainer,' and where any a 1826—(13) civil process, issued by any justice of the peace, is executed by any process not sheriff or coroner, (except as aforesaid,) the same shall be null and to be served void and of no effect.-No judgment thereon shall be rendered, any coroner, exlaw to the contrary notwithstanding.

by sheriff or

cept, &c.

To be return

beat of the

where the

tracted, or if

to some ad

58. Every process issued by a justice of the peace, whereby any per- 1830-(21) son or persons are required to answer before such justice, for any debt Sec. 1. or debts which he, she, or they may owe, shall be returnable to some able to some place either in the beat where the defendant or defendants reside, or in place in the the beat where the debt or debts were contracted; and if there should be defendant's residence, or no justice in the beat where the defendant or defendants reside, or the justice, from interest or other legal objection, is incompetent to try debt was conthe cause, then the process may be returnable to some place in any justice be inadjoining beat; and if there should be several defendants, the process competent, may be returnable to some place in any beat, in which one of them may joining beat. reside; and every process issued contrary to the provisions of this Process not act, shall be void on motion and proof made by the defendant or de- so returna. fendants thereof, to the satisfaction of the justice trying such cause; motion and and in every case by appeal in the circuit or county court, the process shall be adjudged void on plea of the defendant or defendants, provided Subpoenas to that subpoenas for witnesses shall issue as heretofore: Provided, merly. That nothing in this act contained, shall have force or effect in the county of Mobile.

ble, void, on

proof.

issue as for

3. BAIL.

Bail bond

taken.

made liable.

9. In case it becomes necessary to issue a capias, the officer ar- 1814—(17) resting any person by virtue thereof, may take a bail bond of the de- Sec. 13. fendant, with security in double the amount of the debt, payable to the may be plaintiff, conditioned for his or her appearance on the day of trial; and in case he or she fail to appear, judgment shall be entered against him or her; but judgment shall not be entered against the bail, until an Bail, how execution against the defendant shall have been returned by the offirer, that the defendant is not found within his county, and until notice shall have been served on such bail, requiring him or her to bring in the body of the principal: but in case the defendant cannot give Defendant, bail, or in case the bail surrender him or her before the day of trial, give bail, or he or she shall be committed to the jail of the county, until he or she surrendered satisfy the demand against him or her, or be otherwise discharged by to be commitlaw.

NOTE.-Bail bonds taken by constables, shall be payable to the plaintiff in the action. See "Bail in Civil Cases,"-§ 19.

1 See "Forcible Entry and Detainer."-Note 1, to page 203.

unable to

by his bail,

ted to jail.

1814-(17) Sec. 4.

Justice to is

nas for wit

county, or

commission

4. TRIAL AND JUDGMENT.

§ 10. The justice before whom any cause is depending, shall issue all subpoenas for witnesses who reside within his county, which the sue subpoe parties or either of them require; and in case any witness reside withnesses in the out the limits of his county, such justice may, on satisfactory evidence shown him, that sufficient and reasonable notice has been given to the to take depo- adverse party, of the time and place of taking his or her deposition, sitions out issue a commission to some justice of the peace, where such witness resides, to take his or her deposition, which deposition so taken and returned under the hand and seal of such justice, shall be read in evidence; and the justice from whose judgment any appeal is taken, shall issue all subpoenas for witnesses, which either of the parties may require, returnable to the next superior court after such appeal is taken.

of the county.

On appeal taken, jus

tice to issue subpœnas returnable to

court.

Ib. Sec. 10.

be examined on oath, if amount does not exceed

§ 11. If the sum claimed be twenty dollars or under, the justice of Parties may the peace may, at the trial of the cause, proceed to examine plaintiff and defendant on oath, and give judgment as to him the right of the cause may appear; and in all cases where the sum of money claimed twenty dol exceeds twenty dollars, the oath of neither party shall be admitted, but the same evidence shall be required by every justice of the peace, as is required in the superior court.

lars.

Ib. Sec. 30.

dies, &c.,

§ 12. When any justice of the peace dies, resigns, or removes from When justice the county, or is removed from office, his papers shall be transferred nearest jus to the nearest justice to his place of residence, who shall finish the tice to take business of said justice in the same manner as business originally with unfin commenced by him.

and proceed

ished busi

ness.

1827-(37) Sec. 1.

defendant, if

§ 13. In any trial before a justice of the peace, in civil cases, when the defendant's off-set is satisfactorily proven to be greater than the Judgment to plaintiff's claim, the justice shall give judgment in favor of the debe given for fendant for the overplus, provided it does not exceed fifty dollars. his off set is And if the overplus should exceed fifty dollars, then the justice shall the plaintiff's give judgment in favor of the defendant for costs: Provided, The defendant will enter a credit on his claim for the amount of the plaintiff's but defend demand, or give the plaintiff a receipt for so much; And provided "further, That no claim shall be allowed as a set-off, unless it belonged to the defendant at the time he was sued.

greater than

claim,

ant shall credit his ac

count.

What admitted as set-off. 1811-(13)

Sec. 2.

final on the

§ 14. Whenever any suit brought before a justice of the peace has been finally decided on its merits by such justice, it shall be a bar to Judgment a recovery for the same cause of action brought before any other jusmerits, to bar tice of the peace; and all justices of the peace before whom any trial recovery for shall have been had as aforesaid, shall, on application of either of the cause of ac- parties, or their legal representatives, or any other person in his, her, tion. or their behalf, grant a transcript of the record of such judgment in favor of such party, which shall be sufficient evidence to bar any rebefore any other justice of the peace as aforesaid, for the same script on ap- covery cause of action.

the same

Justice re

quired to give tran

plication.

1814-(17)

Sec. 11.

Stay of execution.

5. EXECUTION.

§ 15. When any judgment is rendered by any justice of the peace, he shall, if the applicants give bond and security in double the amount of such judgment, including interest and costs, for the payment of the same, at the expiration of the stay given by law, give a stay of execu

At expira

execution to

security.

tion, on all sums not exceeding twenty dollars, thirty days, and on [ 1816—(1) all sums over that amount, sixty days; and in case the money be Sec. 1.), not paid at the expiration of such stay, execution shall issue against tion of stay, the principal and security, or either of them, for the principal, interest, issue against and costs, due on such judgment; and such judgments, and all other principal and judgments rendered by justices, shall bear legal interest from the time Judgment to of their rendition until paid; and all executions and summonses for bear legal ingarnishees in attachment shall issue to the county where such principal, security, or garnishee may reside, and shall be duly executed and returned, by any sheriff, coroner, or constable of the county to which the same is sent.

terest.

No execution

after rendi

§ 16. In order to give either party an opportunity to appeal, no r. sec. 12. execution shall issue on the judgment of any justice, until five days to issue, unafter rendering such judgment, unless the plaintiff, his or her agent or til five days attorney, will make oath, that he or she has just reasons to believe tion of judg that the plaintiff will be in danger of losing his or her demand by such ment, unless the plaintiff delay, in which case execution shall issue immediately; but shall not make oath. deprive him or her of the right of appeal within the time prescribed by law.

NOTE. See this Title-§ 1: also the several divisions of the Title-"Executions." When justices are allowed to issue against the successful party for his own costs,-See "Judicial Proceedings at Common Law,”—§ 23.

6. MOTIONS AGAINST JUSTICES.

Sec. 6.

be moved

other justice.

§ 17. Any justice of the peace in this state, who shall fail or re- 1829—(14) fuse to pay, on application, any moneys received or collected by vir- Justice detue of his office, to the plaintiff, his, or her agent, or attorney, shall faulting may be liable to have a judgment entered against him upon motion before against beany other justice of the peace, of the county in which such default-fore any ing justice may reside, for the debt and interest so received or collected, with ten per cent. a month damages thereon, a written notice of such motion having been given to such defaulting justice three days previous to the trial of the motion, provided the amount of If amount the judgment so rendered shall not exceed fifty dollars; and in all exceed fifty cases where the amount exceeds that sum, the same remedy shall be dy by motion had before the county or circuit courts, with damages thereon as or county aforesaid.

dollars, reme

in the circuit

court.

JURORS AND JURY.

1. THE right of trial by jury shall remain inviolate.

Con. Ala.

Sec. 28. Sec. 2.

§ 2. No person under the age of twenty-one years, or above the Art. 1. age of sixty, nor any person continually sick, or who may be diseased 1807-(33) at the time of the summons, nor any person who has been convicted Who disquaof any felony, perjury, forgery, cheat, or conspiracy, or offence, shall lifled as jube summoned on a jury.

rors.

§ 3. It shall be lawful for the court to fine any talesmen, who, be- . Sec. 3. ing present when they are called, do not appear in court; or who, after appearance, wilfully withdraw themselves during the same day.

Court may fine default

ing talesmen.

1811-(3) Sec. 1.

Sheriff to fur

§ 4. The sheriff of every county within this territory, shall, every two years, furnish to the clerk of the superior court of his county, a nish clerk list of the freeholders and householders within his county; which list with a list of shall be filed in the office of the clerk of the court to which the same and house is furnished; and the names so returned, shall be put in a box to be kept by the clerk for that purpose.

freeholders

holders, bien

nially.
Ib. Sec. 2.

Jurors, how
drawn.

Venire faci

as.

moning ju

rors.

5. There shall be drawn by the clerk and sheriff of the superior courts within this territory, in open court, one by one, after the names are shaken together, thirty-six1 jurors, which shall be entered on the minutes of said court; and the clerk shall issue a venire facias for the jurors so drawn, returnable to the next term of said court; and it shall Mode of sum be the duty of the sheriff, at least five days before the term, to summon the jurors so drawn, either by summoning them personally, or leaving a written notice at their usual place of abode, to attend accordfaulting, lia. ingly; and every juror who being summoned as aforesaid, shall not ble to fine of attend, shall be liable to a fine not exceeding twenty dollars, unless a good cause for his nonattendance be shown on or before the first day of the next regular term of the court, after such nonattendance: Provided, That if good cause be shown by such delinquent juror, the fine cause shown. imposed shall be remitted without the payment of costs.a

Juror de

twenty dol

lars.

May be remitted on

a See § 14.

Ib. Sec. 3.

to be drawn

as traverse

6. From the whole number of jurors attending the superior court of any county, and summoned as aforesaid, there shall be drawn by Grand jury lot, not less than thirteen, nor more than eighteen, who shall consti by lot; resi tute the grand jury for the term of the court to which they are sumdue to serve moned, and the residue shall serve as traverse jurors during such term: jurors. Provided, That traverse juries where the title of land is in issue, shall Freholders to be composed of freeholders; and that when from challenges or other causes, there shall be a defect of jurors, the sheriff shall, by order of the court, return a sufficient number of qualified by-standers to comto be sum- plete the pannel; but, if the sheriff be interested, the return of quali complete the fied by-standers shall be made by such disinterested person as the pannel. court shall appoint.

try land ti

tles.
b See § 11.
By-standers

moned to

Ib. Sec. 4.
Names

ther box.

§ 7. After they have drawn from the jury-box the number of jurors drawn to be required by this act, the names so drawn shall be put into another box, put into ano- to be kept by the clerk of the court for that purpose, where they shall remain until the whole of the names are drawn out of the jury-box first mentioned, when they shall again be put in the box from which they were drawn; and if the clerk or sheriff shall use any fraud, collusion, or partiality in drawing jurors, such clerk or sheriff shall be deemed guilty of a misdemeanor, and shall be punished accordingly.

Fraud in

clerk or sheriff punished.

Ib. Sec. 5.
Jury-boxes.

Ib. Sec. 6. When from any cause

courts have failed to

§ 8. The jury-boxes aforesaid, shall be furnished by the different clerks, and secured with sufficient locks, to which no person but the clerk and sheriff in drawing the jury shall have access, and the same shall be a county charge.

§ 9. Whenever any superior court shall not have been holden in any county in this territory, as required by law, or if when held, they the superior should neglect to draw the number of jurors required, the sheriff and clerk of the court where such failure may happen, shall, in presence of one of the justices of the quorum, at least thirty days previous to the next term of said court, proceed to draw one by one from the jury quired, she box, the number of jurors required for said court; and if any justice

draw the

number of jurors re

riff and clerk to draw.

1 Forty-eight jurors for the first week, and twenty-four for each additional week the court may continue in session.-See hereafter 1823-(32).—The mode of selecting jurors pointed out in this act has been materially altered by a later law, but is retained, inasmuch as it becomes of force, on the failure of the judge of the county court, commissioners, &c. to perform the duty assigned them.-See § 23.

« SebelumnyaLanjutkan »