=prove the same to be a nuncupative will, unless such words, or the substance thereof, were reduced to writing within six days after speaking the same. not revoked tive will, ex 5. No will in writing, or bequest therein of goods and chattels, b. Sec. 6 shall be revoked by any subsequent will, codicil, or declaration, unless Written will the same be in writing: Provided always, That any soldier in actual by nuncupamilitary service, or mariner or seaman being at sea, may dispose of cept in case and bequeath his goods and chattels, as he could have done before the of soldiers, passing of this act, anything herein contained to the contrary notwithstanding. seamen, &c. Posthumous §6. When any child shall be born after the death of the father, Ib. Sec. 7. without having any provision made in his will, every such posthumous children prochild shall have the same share of the estate of his or her father, that vided for. such child would have had, if the father had died intestate, and such share shall be assigned to him or her accordingly, to be taken in proportion from the legatees and devisees of such will. § 7. All such estate, both real and personal, as is not devised or be- Ib. Sec. 8. queathed in the last will and testament of any person, shall be distri- Estate not bequeathed, buted in the same manner as the estate of an intestate, and the exe- how disposed cutor or executors shall administer the same accordingly. of. Attesting legatees to for quests in cer 8. If any person shall be a subscribing witness to a will, wherein Ib. Sec. 9. any devise or bequest is made to such subscribing witness, and the will cannot be otherwise proved, the devise or bequest to such witness feit their beshall be void, and he or she compellable to appear and give testimony tain cases. on the residue of the will, in like manner as if no such devise or bequest had been made. But if such witness would have been entitled to any share of the testator's estate, in case the will was not established, then so much of such share shall be saved to such witness as shall not exceed the value of the said devise and bequest made to him or her in the said will. creditor com 9. If lands, tenements, or hereditaments shall be charged with any r. Sec. 10. debt or debts by any will or codicil, and the creditor whose debt is Attesting so secured, shall attest the execution of such will or codicil, such cre- petent witditor may notwithstanding be admitted as a witness of the execution thereof. ness. Wills, where 10. If any testator shall have a mansion-house, or known place of Ib. Sec. 12. residence, his will shall be proved in the orphans' court of the county to be proved. wherein such mansion-house or place of residence may be; but if he has no place of residence, and lands be devised in the will, it shall be proved in the county wherein the lands so devised are situate, or in one of them, where there shall be lands so devised in several counties; and if he has no such known place of residence, and there be no lands devised, then the will may be proved either in the orphans' court of the county where the testator shall die, or that wherein his estate, or the greater part thereof shall be. Testimony of § 11. When the subscribing witnesses to any will shall reside out b. Sec. 13. of this territory, the court to which the probate of the said will may subscribing appertain, is authorized to issue a dedimus potestatem to take the witnesses testimony of such witnesses in proof of said will, and receive the tes- territory. timony so taken accordingly. out of the Foreign 12. Authenticated copies of wills, proved according to the laws of Ib. Sec. 14. any of the United States, or of any country out of the limits of the wills, how to United States, and touching or concerning estates within this territory, be proved. may be offered for and admitted to probate in the said courts; but such will shall be liable to be contested and controverted, in the same manner as the original might have been. Ib. Sec. 15. Secreted wills to be produced. § 13. If the court having jurisdiction as aforesaid, shall be informed that any person hath the last will and testament of a testator, such court is authorized to compel such person, by proper process, to proWills, after duce the same; and all original wills, after probate thereof, shall be recorded, and remain in the register's office of the court wherein they are respectively proved, except during such time as they may be in the supreme court, having been removed thither for inspection, by certiorari or otherwise, after which they shall be returned into the said office. probate, how preserved. Ib. Sec. 54. § 14. The sale and conveyance of lands, tenements, and hereditamay sell by ments, directed or devised to be sold by any last will and testament, direction of a shall be made by the executors, or such of them as undertake the execution of the will, if no other person be therein appointed for that purpose, or if the person so appointed shall refuse to perform the trust, or die, before he shall have completed it. will. Ib. Sec. 55. disputed by five years, § 15. Within five years from the time of the first probate of any Wills may be will, any person interested in such will may, by bill in chancery, conbill in chan- test the validity of the same; and the court of chancery may thereupon cery within direct an issue or issues in fact to be tried by a jury as in other cases, and in all such trials, the certificate of the oath of the witnesses at the time of taking the original probate, shall be admitted as evidence to and not af the jury, to have such weight as they may think it deserves; but after the expiration of the said five years, the original probate of any will shall be conclusive and binding on all parties concerned; saving however to infants, femes covert, persons non compos mentis, or absent from the territory, the like period of five years from and after the removal of their respective disabilities. terwards. 1830-(8) Sec. 1. state. § 16. Whenever any last will and testament shall have been, for the Will may be space of one year, proved and recorded in any county of this state, in withdrawn the manner the law directs, and such last will and testament shall be for probate in another required to be proved in any other of the United States, to enable the executors, or administrators with the will annexed, to comply with its provisions, or some part of the provisions thereof; it shall be the duty of the judge of the county court in which such will and testament shall be, to allow the executor or executors, or administrators, to withdraw the will for the purposes aforesaid. 1807-(32) moning wit nesses. WITNESSES. § 1. FOR taking the testimony of witnesses in all causes, which may Mode of sum be depending in any of the courts of this territory, the following rules shall be observed and put in practice, to wit: In all suits where wit nesses are to appear at any of the said courts, the clerk, at the request of the party, shall issue a subpoena, directed to the sheriff or other offi cer of the county where such witness or witnesses are said to re side, mentioning the time and place, for his, her, or their appearance, the names of the parties to the suit wherein the testimony is to be given, and the party at whose instance such witness or witnesses is of are summoned. Subpœnas returnable immediately. When copy Every subpoena made returnable immediately shall be issued only in term time, and shall be personally served on the witness or witnesses therein named. A copy of every subpoena issued by the clerk in vacation, in case of subpoena the witness or witnesses therein named is or are not to be found, may be left at their usual places of residence, and such copy certified by the may be left. sheriff or other officer, left as aforesaid, shall be deemed a legal summons, and the person or persons therein named, shall be bound to appear in the same manner as if personally summoned. to attend un charged. 2. Every witness being summoned to appear at any of the said Witnesses courts, in manner as herein before directed, shall appear accordingly, summoned, and continue to attend from term to term until discharged by the court, til disor the party at whose instance such witness shall be summoned, and [a 1832-(1) the clerk shall not issue subpoenas for the same witnesses from term to Sec. 1.] term during the pendency of the cause; and if it shall so happen that the suit so depending shall in vacation be accommodated and settled by the parties, and the party at whose instance such witness was summoned, shall neglect or omit to discharge him or her from further attendance, and he or she for want of such discharge, shall attend at the next term, in that case, the witness, upon oath made of the facts, shall be entitled to a ticket from the clerk, in the same manner as other witnesses, and shall receive from the party at whose instance he was summoned, the same allowance which by this act is given to witnesses for their attendance at the said court, with costs. not attend ing in civil §3. If any person duly summoned as a witness shall fail to appear Penalty for and attend as herein required, he shall pay to the party at whose instance the subpoena issued, the sum of one hundred dollars, to be re- cases. covered by scire facias with costs, and shall be further liable to the action of such party, for the full damages which may be sustained, for want of such witness's testimony: Provided, That if sufficient cause Proviso. be shown by the person so summoned and failing to appear, of his or her incapacity to attend at the time and place mentioned in the subpœna, no forfeiture or penalty shall be incurred by such failure. not attend §4. Every witness being summoned to appear in any of the said courts Penalty for on a criminal prosecution, or plea of the territory, shall appear accord-ing in crimi ingly, and continue to attend from day to day, until discharged by the nal cases. court, the attorney for the territory, or the party at whose instance he shall be summoned; and in default thereof, shall forfeit and pay the sum of one hundred dollars for the use of the territory, or the party summoning him, as the case may be, unless on or before the return of a scire facias "made known," sufficient cause be shown for such failure. give testimo prisoned. § 5. If any person who shall be summoned as a witness in any of Persons rethe said courts, or before any person appointed to take depositions, fusing to shall refuse to give testimony on oath, such person so refusing shall by ny, to be imthe court or by the commissioners, before whom he or she shall be summoned, be committed to the common prison, there to remain without bail or mainprize until he or she shall be willing to give testimony, in such manner as the law may direct. exempt from while attend § 6. During the attendance of any person summoned to attend as a witnesses witness in any court whatsoever, and during the time that such person service of is going to and returning from the place of such attendance, (allowing process, one day for every twenty-five miles such witness has to travel from ing. and return to his place of residence,) no sheriff or other officer shall serve or execute on any person so attending, going to, or returning from such court, any writ or process, warrant, order, judgment, or decree, in any cause, (summons for witness excepted,) and if any such be executed, the service thereof shall be null and void. compensa §7. For every mile any witness shall travel, either going to or Witnesses' coming from the court, to which such witness shall be summoned to tion. appear, there shall be paid to him by the party at whose instance the subpœna shall have issued, four cents per mile, together with the necessary ferriages, and one dollar per day, for every day he shall attend, until he shall have given testimony, or shall be discharged: Provided, That in any bill of costs, there shall not be allowed the charges of attendAttendance, ance of more than two witnesses to any one matter of fact. And the how proved. attendance of the witness as to the number of days, shall be ascertained by the oath of the witness, to be made at the court at which the cause is determined, or within five days after, before the clerk of the said court, who shall grant certificates of the same after the termination of the suit: (1) Provided also, That if any witness shall swear falsely, in order to obtain a ticket, he shall upon conviction, be adjudged guilty of perjury, and suffer as in cases of corrupt and wilful perjury. Compensa tion of wit state cases. nesses in In what 8. All witnesses appearing in behalf of the territory in any criminal prosecution, shall be allowed the same compensation for their daily attendance, as is allowed to witnesses attending upon civil prosecutions; and such fees for attendance, together with all costs of the prosecution, shall be paid by the defendant upon conviction; and if the territory shall fail upon the prosecution of any offence of an inferior nature, the court may at their discretion, order the costs to be paid by the prosecutor, in case such prosecution shall appear to have been frivolous or malicious;1 and in case the defendant shall not be able to pay costs, or the court shall not think fit to order the prosecutor to pay the same, in that case the clerk of the court, wherein the matter may have been pending, shall grant a certificate of attendance for the witness of the territory, in manner as tickets are granted to (a 1823 (31) jurors, and such tickets may be received by the sheriffs in payment of County trea- public dues, and it shall be the duty of the county treasurer in each surer to pay county, to pay off and discharge all certificates, granted to state witnesses, according to the provisions of this section, out of any fines fines, &c., in and forfeitures, which may come into said county treasury. cases certificate to be granted to witness. Sec. 1.] certificates out of the County trea sury. dians, &c., § 9. All negroes, mulattoes, Indians, and all persons of mixed blood, Negroes, In- descended from negro or Indian ancestors, to the third generation incluincompetent. sive, though one ancestor of each generation may have been a white person, whether bond or free, shall be taken and deemed to be incapable in law to be witnesses in any case whatsoever, except for and against each other. Witnesses may affirm. 1826-(40) Sec. 1. § 10. The liberty of giving testimony by way of solemn affirmation, shall be admitted in all cases whatsoever, criminal as well as civil. § 11. Every person who may be summoned to attend before any Witnesses justice of the peace, to give evidence in any matter of controversy, before jus pending before such justice, and shall attend accordingly, shall receive fifty cents per day for such attendance, to be taxed in the bill of costs, and recovered from the party cast in the suit. tices, allowed fifty cents per day. 1 See "Criminal Law,"-§ 55. 2 See note 1, page 82. (1) A witness at the instance of one who is a party in several suits, is entitled to compensation in each case in which he is summoned. He may transfer his certificate by delivery, and the holder can maintain an action in the name of the witness for his own use. Findley & Cummins v. Wiser, use, &c. 1. Stewt. Rep. 23. APPENDIX. NO. I. RULES OF PROCEEDINGS AND PRACTICE IN THE COURTS. Ar a supreme court begun and held at the capitol, in Tuscaloosa, on the first Monday in July, 1830, the court proceeded to ordain and establish rules and regulations for the government of the proceedings and practice of the several courts of record in this state, as follows, viz: GENERAL RULES. I. THE clerk of every court of record in the state, shall keep in court, in term time, and in his office in vacation, a book to be called, The Book of Appearances. Any attorney or solicitor desiring to appear in any civil cause, shall make in said book, or cause to be made therein by the clerk, an entry of his name, stating the cause in which he appears, (and if there be several of the same name, its number or other mark of identity,) the party or person for whom he appears, and the date of such entry. Such entry shall be considered an appearance of record. The counsel whose name shall be so first entered, shall be considered the leading counsel in the cause, for the party or person for whom he so appears, until he abandon the cause, and then the counsel whose appearance shall be next in date, and so on. Such notices, &c. as are authorized to be served on the attorney of a party, shall be served on his leading counsel. II. No one shall be permitted to appear in a cause as counsel or attorney, unless he has been employed therein, and his appearance has been entered as aforesaid, or unless he represent other counsel whose appearance has been so entered, or may have the special leave of the court. III. Counsel shall be considered as having abandoned a cause, by entry to that effect, by failing at two successive terms of the court to appear or be represented therein, by removal from the state, by quitting the practice, or by death, in any of which, and in such other cases as the court may direct, the clerk may enter such abandonment on the book of appearances. IV. The attorney's fee taxed in the bill of costs, shall be taxed in the name of the leading counsel at the time of final trial. V. All declarations, pleas, bills, answers, assignments of errors, joinders in error, briefs, &c. must be signed by counsel where counsel is employed. RULES OF PRACTICE IN THE SUPREME COURT. I. IN assigning errors, it shall be sufficient to state concisely in writing in what the error consists. The words "there is no error in the record," shall be a sufficient joinder in error. |
