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Ib. Sec. 2. Actions on open ac

years, feme covert, or insane, within the time limited by this act, then such person or persons, his, her, or their heirs or assigns, shall and may, at any time within three years next after his, her, or their coming to full age, of sound mind, or discovert, bring, sue, and prosecute such suit or action, and at no time thereafter.

§ 78. No action shall be brought to recover any money due by open account, after the expiration of three years from the accruing of the counts limit cause of action: Provided, That nothing in this act shall apply to the trade of merchandise between merchant and merchant, their factors or agents.

ed to 3 years, except between merchants.

Ib. Sec. 3.

infants,

non compos

§ 79. If any person or persons that is or shall be entitled to any of Proviso for the personal actions enumerated and mentioned in this act, and in the femes covert, act for the limitation of actions, and for avoiding vexatious law-suits," and persons be, or shall be, at the time of any such cause of action given or acmentis. crued, fallen or come, within the age of twenty-one years, feme covert, ding act, § 68 or non compos mentis, then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, or of sane memory, as other persons having no such impediment should have done.

a The prece

to 76.

1832-(11) Sec. 1. Actions

against securities of

ed to six years,

§ 80. No action, suit, or motion, shall be maintained against the security or securities of any sheriff, constable, or other public officer of this state, for any misfeasance, malfeasance, or other cause whatsoofficers limit. ever, hereafter committed, unless the same be commenced and prosecuted within six years next after the commission of the act complained of; or if the claim be in favor of an infant or person non compos mentis, or other person disabled by law from bringing suit, then within three years after such disability to sue shall cease to exist: except as to Provided, That this limitation shall not be extended or applied to any infants, &c. action, suit, or motion, which may be maintained by law, against tion does not such officer, his executors, administrators or heirs: And provided cers them further, That nothing in this act shall be so construed as to have a retrospective operation upon suits now pending.

This limita

apply to offi

selves.

Not retrospective. Ib. Sec. 2.

Actions lim

ited to three

years for

causes here

tofore exist

ing.

1822-(20) Sec. 1. Where re

ney by offi

record, court

§ 81. For any misfeasance, malfeasance, or other cause of action heretofore committed by any sheriff, constable, or other officer, no suit, action, or motion shall be maintained against the security or securities of any such sheriff, constable or other officer, unless the same be commenced and prosecuted within three years after the passage of this act; subject always to the proviso in the first section of this act.

12. MOTIONS AGAINST OFFICERS OF COURT.

§ 82. Whenever a motion shall be made against any officer of any of the courts of this state for not paying over any money received by ceipt of mo him in his official capacity, and the receipt of the same shall not appear cer does not by the record or any paper filed in the clerk's office, it shall be the duty appear by the of the court to cause an issue to be made up, and tried by the jury shall direct attending the court; and in case it shall be found by the jury that the same has been received by the officer against whom the motion shall be made, judgment shall be rendered by the court against the said officer, for the principal, interest, and such damages as are now in such cases directed by law.

the issue to

be tried by a

jury,-
and render
judgment.

NOTE. For the mode of proceeding against officers holding executions, See "Executions," 8. Attorneys refusing to pay over money collected by them, are liable to the same summary proceeding as sheriffs. See "Attorneys,”—§ 5.

13. PENAL BONDS.

Sec. 24.

(83. In all actions, which shall be brought upon any penal bond 1811-(11) or bonds, for the payment of money, wherein the plaintiff shall recover, Judgment to judgment shall be entered for no more than the principal and interest be entered due on said bond.

only for principal and in

1824-(6)

Plaintiff may

breaches, and

such as are

§ 84. In all actions, in any court of record, upon any bond, or on terest. any penal sum, for nonperformance of any covenants or agree- Sec. 1. ments contained in any indenture, deed, or writing, the plaintiff or assign any plaintiffs may assign as many breaches as he or they may think fit; number of and the jury upon trial of such action or actions, shall assess damages damages alfor such of the breaches as the plaintiff shall prove; and the like judg- lowed for ment shall be entered on such verdict, as heretofore has been usually proved. done in such actions. §85. If judgment shall be given for the plaintiff on confession for b. Sec. 2. an indefinite sum, or on demurrer, or by nil dicit, in any such action, the plaintiff may assign as many breaches as he shall think fit; upon signed and which a jury shall be empannelled at the same term of the court in judgment by which judgment has been rendered as aforesaid, to inquire of the truth default for of those breaches, and to assess the damages the plaintiff shall have sum. sustained thereby.

Breaches

may be as

tried after

an indefinite

On payment of the dama

execution to

but judgment

curity for

breaches.

§ 86. In case the defendant, after such judgment, and before execu- b. Sec. 3. tion, shall pay into court, to the use of the plaintiff, the damages assessed, and costs, a stay of execution shall be entered upon the re- ges, stay of cord; or if, by reason of an execution, the plaintiff shall be fully paid be entered on all the damages and costs, and the charges of the execution, the de- the record,fendant's body, lands, or goods shall be thereupon forthwith discharged to remain as from the execution, which shall likewise be entered upon record; but a farther sein each case the judgment shall, notwithstanding, remain as a farther other security, to answer to the plaintiff such damages as he may sustain by any further breach of covenant contained in the same indenture, deed, or writing; upon which the plaintiff may have a scire facias upon the said judgment against the defendant, his heirs, executors, or administrators, suggesting other breaches of the said covenants or agreements, and to summon him or them respectively to show cause why execution should not be awarded upon the said judgment; upon which there shall be the like proceeding as was in the action upon the said bond, for assessing of damages upon trial of issue joined upon such breaches, or inquiring thereof upon empannelling a jury in manner aforesaid; and upon payment or satisfaction as aforesaid, of such future damages, costs, and charges, as aforesaid, all further proceedings on the judgment are again to be stayed, and so toties quoties; and the defendant's body, land, or goods, shall be discharged out of execution as aforesaid.

14. PENALTIES. (1)

§ 87. In all cases where a penalty may be incurred, or a sum of 1828-(47) money forfeited by any person or persons, by reason of the violation Sec. 1.

Penalties recoverable by

debt, when

(1) Where a penalty is incurred under a statute, it must be recovered while action of the statute is in force: and when the statute is repealed, penalties incurred no mode is under it, though before the repeal, cannot be recovered. The State v. Tom- pointed out becbee Bank, 1 Stewt. Rep. 347. But the repeal of the statute, pending a by the stat writ of error, does not divest the plaintiff's right. Taylor v. Rushing, them. 2 Stewt. Rep. 160.

ute imposing

of, or non-compliance with, the provisions of any statute of this state, when by such statute no mode is pointed out for the recovery of such penalty, or the use to which the same shall be applied is not by such statute declared, the said penalty, sum or sums forfeited, shall be recoverable by action of debt in the circuit or county court of the county wherein such penalty may have been incurred, or sum forfeited, or beAppropriated fore a justice of the peace of any such county; which action shall be tor, and pau- brought and prosecuted jointly in the name of any such county as afore

to prosecu

pers of the

county.

Ib. Sec. 2. Costs allow.

said, and of the person or persons suing for the same; and when recovered, shall inure, the one moiety to any such county, for the use of the paupers thereof, and the other moiety to the person or persons suing for and recovering the same.

§ 88. In all qui tam actions, or suits in the nature thereof, the pared in qui tam ty prevailing in the suit, shall be entitled to recover costs as in other actions at law.

actions.

1829-(14)

Sec. 7.

Citizens of

entitled to

the penalty,

§ 89. In all actions which may be brought by virtue of any statute which now is, or may hereafter be in force, for the recovery the county of any penalty or penalties, or of a part thereof: and when the whole, or a part thereof, shall inure to any county in which any such not incompe-action shall be brought, it shall not be lawful, nor shall any defendant or defendants to any such action or actions, be permitted to except the competency of any citizen as a juror, on account of his residence in the county in which such action or actions may be brought.

tent as ju

rors.

1820-(21) Sec. 1.

Petition.

Ib. Sec. 2.
Endorse-

ment to be
recited.

lb. Sec. 3.

be served

15. PETITION AND SUMMONS.

to

§ 90. When any person or persons, holding a bond or note for the direct payment of money, may desire to bring suit thereon, he or they may do so, by filing such bond or note, with the clerk of any court having jurisdiction thereof, with a petition purporting as follows: "State of Alabama, Circuit or County, ss. A. B. plaintiff, states that he holds a bond or note, (as the case may be) on the defendant, C. D., in substance as followeth: (here insert a copy of the bond or note;) yet the said debt remains unpaid, wherefore he prays judgment for his debt, and damages for the detention of the same, together with his costs, &c. A. B."

§ 91. If such bond or note is held by an assignee or endorsee, then, after reciting the bond or note, " on which is the following assignment or endorsement, (recite the assignment or endorsement,) whereby the plaintiff hath become the proprietor thereof, of which the defendant hath had due notice."

§ 92. A copy of the petition, with a summons annexed thereto, reDefendant to quiring the defendant to appear and answer the demand on the first with copy of day of the next succeeding term, shall be issued by the clerk, and the petition, served by the sheriff by delivering a copy of the petition and summons mons annex to the defendant, and each of the defendants, if there be more than

and sum

ed.

Ib. Sec. 4.

first term,

one.

§ 93. The sheriff in his return shall note the day on which it shall Judgment at have been executed, and whenever it shall appear therefrom that it has been executed five days or more before the return day, judgment may if executed be rendered the first term, subject, however, to be continued for cause shown; but if the process be not executed five days before the return day thereof, a continuance shall be entered, unless a trial shall be had by consent of parties.

five days before, &c.

Ib. Sec. 5. Petition in lieu of declaration.

§ 94. The petition shall stand in the place of a declaration, and the defendant may appear and plead thereto, as in an action of debt, and

issue be joined accordingly; which issue shall stand over to, and be tried at, the next term of the court in which such suit may be instituted, unless a trial is had at the first term by consent of the parties, but Judgment by if the defendant does not appear and plead, judgment may be taken by default.

default.

Judgment at return term, unless plea

filed.

Judgment,

on lien on es

Stay ef exe

cution.

may be stay.

§ 95. It shall be lawful, in all actions of debt, assumpsit and cove- b. Sec. 6. nant, to take judgment at the return term thereof, but the defendant may, upon filing a plea to the merits, have the suit continued. § 96. In all cases, when judgment passes against the defendant at Ib. Sec. 7. the first term, such judgment from the date thereof shall be a lien the estate of the defendant, but execution shall not issue thereon, un- tate. til the expiration of sixty days after the end of said term. 697. If the defendant shall, before execution issues on such judg- b. Sec. 8. ment, tender to the clerk of the court where the judgment was render- Judgment ed, good and sufficient security, to be approved of by the said clerk, ed." for the amount of the judgment, interest, and costs of suit, the clerk shall take a recognizance to the effect following: "Whereas, Recogni A. B., plaintiff, at the a judgment against C. D., defendant, for the sum of interest, or damage, (as the case may be,) and costs of suit (or if the judgment be in damages therefor, the sum of damages, and costs of suit;) and whereas the said C. D. hath tendered E. F. to be bound with him to the said A. B., for the amount of the said judgment, interest and costs, I, G. H., clerk of the said court, do hereby accept for the said A. B., the following recognizances, to wit: We, the said C. D. and E. F., hereby acknowledge ourselves to be bound to the said A. B. in the sum of interest or damage, and

debt,

term of

damages, and

court, obtained zance.

debt,

costs

costs of suit, as the
for taking this recog-

of suit; (or case may be,) and the further sum of nizance, to be paid to the said A. B. six months after the date hereof, with interest thereon from the date of said judgment; and if we shall delay payment thereof, for the space of sixty days after the said term of six months, then execution is to issue against our estates or bodies, as the said A. B. may direct, for the amount of this recognizance with interest as aforesaid. Signed, sealed, and delivered, in the presence of the said G. H., clerk of C. D., [L.S.] E. F., [L.S.]" Which recognizance shall have the force and effect of a judgment, and Recogni execution may issue thereon as upon other judgments. But after the force of a execution of the recognizance as aforesaid, the lien created by the judgment, judgment shall cease.

zance to have

but lien to cease.

§ 98. The said recognizance may be satisfied and discharged by the Ib. Sec. 9. payment of the amount thereof to the clerk of said court, at any Recognitime zance, how before execution issues thereon, and by paying one half per centum satisfied. thereon to said clerk, for his trouble in collecting and securing the money. And upon the payment thereof, the clerk shall, in the presence of the said defendant, his agent or attorney, enter on said recognizance, satisfaction in full, and carefully file and preserve the same among the papers of the suit. And he shall also execute to the defendant a receipt in full upon such payment.

Penalty on

99. If any clerk shall fail to pay over to the plaintiff money re- Ib. Sec. 10. ceived as aforesaid when required, he shall pay the same with six per clerks for cent. per month thereon, to be recovered by motion, upon ten days' failing to pay notice thereof before said court, with such costs as may be awarded against him.

§ 100. Nothing in this act shall be so construed as to take

over money.

away

Ib. Sec. 11. This law remedial.

Ib. Sec. 12.
Clerk's fees.

1807-(19) Sec. 33.

any remedy or defence heretofore allowed by law, nor shall this act be otherwise construed, than as a remedial statute.

§ 101. The clerk shall be allowed for issuing a summons and copying the petition, fifty cents; and for taking recognizance under this act, fifty cents; and for receiving and paying over money to the plaintiff, one half per centum thereon, to be taxed in the bill of costs.

16. PLEADING.

§ 102. The defendant in any cause, may plead as many several Any number matters as he may judge necessary to his defence; Provided he be not admitted to plead and demur to the whole: And provided also, that no plea of non est factum shall be admitted to be pleaded, but when accompanied with an affidavit of its truth. (1)

of pleas allowed, provided, &c.

Non est face

tum must be sworn to.

Ib. Sec. 34.

§ 103. No plea in abatement shall be received in any court, unless Plea in abate. accompanied with an affidavit of the truth of such plea, or the truth of ment must it otherwise appear.

be verified.

1819-(6)

Sec. 7.
Declaration

to be filed

days after re

but court

Cause dis

missed for

claration, at

§ 104. The following rules and regulations shall be observed in the said courts until otherwise directed by law, viz: That every plaintiff or his attorney when employed in any suit, in any of the circuit within three courts of this state, shall file his declaration in the clerk's office, any turn of writ, time within the first three days of the term, to which the writ is may enlarge made returnable; and on failure thereof, such suit shall be dismissed the time. by the court, at the cost of the plaintiff; Provided nevertheless, That the judge on good cause shown, may grant a longer time; which want of de cost being paid by the plaintiff to the clerk of said court, he or they torney liable paying such cost in consequence of a declaration not being filed in due for the costs, time, as aforesaid, may warrant such attorney for all such cost paid by him as aforesaid, and the receipt of the clerk shall be evidence in support of such claim; and the justice before whom such warrant and to an ac- shall be tried, may give judgment and issue execution thereon; and such attorney shall be further liable to the action of such plaintiff, for Defendant such damages as he or they may have sustained in consequence shall appear, such declaration not having been filed as aforesaid. The defendant demur, with shall appear and plead or demur, within the first three days after the after declara- time allowed for filing declaration, otherwise the plaintiff may have tion filed, or judgment by default, which in actions of debt shall be final, unless default. where damages are suggested on the roll; and in that case, and in all others not herein specially provided for, when the in damages, a writ of inquiry shall be executed at the next succeedTime for spe- ing term: Provided, That where the nature of the actions requires cial pleading special pleading, the time for pleading may be enlarged :—where the

tion for da

mages.

and plead or

in three days

judgment by

may be extended.

1 See "Judiciary-County Court,”—§ 12.

2 See this title,-§ 61 to 64.

recovery

of

shall be

(1) A joint and several plea of non est factum by a firm, may be verified by the affidavit of either partner. Garner et al. v. Simpsons, Min. Rep. 67. An affidavit is sufficient if it state special facts, from which the truth of the plea may be inferred. Tindal's Administratrix v. Bright, Min. Rep. 103. An administrator pleading non est factum to an instrument purporting to be made by his intestate, must verify the plea by oath :-But an affidavit to the best of his knowledge and belief, is sufficient. Martin, Administrator, v. Dortch, 1. Steert. Rep. 479. A defendant is not compelled to plead non est factum generally, with an absolute affidavit, but may state in a special plea the particular facts which amount to a denial of the legal validity of the instrument, or may deny the authority of the agent who made it. ib. A replication of non est factum, is not required to be verified on oath. Parks & Burke v. Greening, Min. Rep. 178.

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