{3}

ACTS

OF THE

Legislature of Alabama

__________

 

An act to regulate the proceedings in the Courts of Law and Equity in this State.

SECTION 1. BE it enacted by the Senate and House of Representatives of the State of Alabama. in General Assembly convened, That from and after the passage of this act, this State shall be, and hereby is, divided into five Judicial Circuits, whereof the counties of Mobile, Baldwin, Washington, Clarke, Monroe and Conecuh, shall compose the first Circuit; the counties of Henry, Butler, Wilcox, Dallas, Autauga and Montgomery, shall compose the second Circuit; the counties of Marengo, Greene, Perry, Cahawba, Tuskaloosa and Jefferson, shall compose the third Circuit; the counties of Limestone, Lauderdale, Franklin, Lawrence and Marion, shall compose the fourth Circuit; and the counties of Blount, Shelby, St. Clair, Cotaco, Jackson and Madison, shall compose the fifth Circuit.

Sec 2. And be it enacted, That the Circuit Courts shall be holden twice annually, in each of the counties composing the several Circuits, at the following times and places, viz:- THE FIRST CIRCUIT, in Conecuh county, on the second Mondays in March and September: in the county of Monroe, on the third Mondays in March and September: in the county of Clarke, on the first Mondays in April and October, in the county of Washington, on the second Mondays in April and October, in the county of Baldwin, on the third Mondays in April and October, in the county of Mobile, on the fourth Mondays in April and October;- SECOND CIRCUIT, in the county of Montgomery, on the third Mondays in January and July; in the


{4}

 

county of Autauga, on the fourth Mondays in January and July in the county of Dallas, on the second Mondays in February and August: in the county of Wilcox, on the third Mondays in February and August; in the county of Butler, on the fourth Mondays in February and August; in the county of Henry, on the first Monday after the fourth Monday in February and August- THIRD CIRCUIT,- in the county of Jefferson, on the second Mondays in March and September; in the county of Cahawba, on the third Mondays in March and September; in the county of Perry, on the fourth Mondays in March and September; In the county of Marengo, on the first Mondays after the Fourth Mondays in March and September; in the county of Greene, on the second Mondays after the fourth Mondays in March and September; in the county of Tuskaloosa, on the third Mondays after the fourth Mondays in March and September-FOURTH CIRCUIT- in the county of Marion, on the last Mondays in January and July; in the county of Franklin, on the first Mondays in February and August; in the county of Lawrence, on the second Mondays in February and August; in the county of Lauderdale, on the third Mondays in February and August; in the county of Limestone, n the fourth Mondays in February and August-FIFTH CIRCUIT,- in the county of Madison, on the first Mondays in March and September; in the county of Jackson, the third Mondays in March and September; in the county of Cotaco, the fourth Mondays in March and September; in the county of Blount, the first Mondays after the fourth Mondays in March and September; in the county of St. Clair, the second Mondays after the fourth Mondays in march and September; in the county of Shelby, the third Mondays after the fourth Mondays in March and September.

Sec. 3. Be it enacted, That the Circuit Courts shall be holden by one judge, who shall have been elected or appointed, and qualified, in manner and form prescribed by the Constitution; and shall have cognizance, and legal jurisdiction of all pleas, real, personal, and mixed,-And also of all suits and demands, relative to legacies, filial portions, and estates of intestates: all pleas of the state, and criminal matters, of what nature, degree or denomination so ever, whether brought before them by original or mesne process, or by certiorari, writ of error, appeal from any inferior court, or by any other ways or means whatsoever. And the Circuit Courts are hereby declared to have as full power and authority, to give judgement, and to award execution, and all other necessary process thereupon, as heretofore belonged to the Superior Court of law and equity in the Territory and to have, use, exercise, and enjoy, the same powers and authorities, rights, privileges, and


[5]

pre-eminences, as were had, used, exercised, and enjoyed by the said Superior Courts heretofore, except, where it is otherwise directed by this or some other act or, where such authorities, rights, privileges or pre-em-eminences, or any of them, may be inconsistent with, or repugnant to, the present form of government.

Sec. 4 Be it enacted, That where any Circuit judge shall fail to attend, on the first day of any term, the business thereof shall stand adjourned until the second day; and if the Judge fails to attend on the second day, the business shall stand adjourned until the third day: and if the Judge does not attend, before the hour of three o'clock in the evening on the third day, it shall be the duty of the Sheriff to adjourn all suits, causes, and prosecutions therein depending, to the next succeeding term of the Circuit Court: and the Clerk of such Court, shall enter on his docket, a continuance of all such suits and cases, and shall bind over all witnesses on behalf of the State, to appear next term of the said Court, unless previously bound over: Provided, that nothing herein contained, shall be so construed, as to prevent the parties from making up their pleadings, on the appearance causes.

Sec. 5. Be it enacted, That the Clerk or Attorney issuing process, shall mark thereon, the day on which such process issued and the Sheriff, or other officer receiving the same, in order to execute, shall in like manner, mark on each process, the day on which he received it: and every Clerk, Attorney, 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 shall sue for the same, with costs.

Sec. 6. And be it enacted. That all writs and other process (except subpoenas) for witnesses, returnable immediately,) shall be returned the first day of the term, to which the same shall be returnable, and shall be executed at least five days before the beginning of the term, and if any original or mesne process shall be taken out, within five days before the beginning of any term, such process shall be made returnable to the term next succeeding that, which shall commence within five days after taking out such process, and not otherwise: and all process made returnable at any other term, or executed at any other time, or in any other manner, than by this act is directed, shall be adjudged void, upon the plea of the defendant. Provided nevertheless, that nothing herein contained shall be construed, to invalidate or vacate any process, warrant or precept, to be issued by any of the Judges of the said Court, or any Justice of the Peace, or Clerk of any court, on any original prosecution in behalf of the State, but, that the same may be issued at any


[6]

 

time, and made returnable to any day of the term, and the like proceedings on criminal suits and prosecutions, shall be agreeable to the practice heretofore in use in the Territorial Government, except where the same is, or may be or otherwise directed, by this or some other act.

Sec. 7. And be it enacted, That 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 Courts of this State, shall file his declaration in the clerk's office, any time within the first three days of the term, to which the writ is made returnable; and on failure thereof such suit shall be dismissed by the court, at the cost of the plaintiff: Provided nevertheless, that the Judge, on good cause shown, may grant a longer time, which cost being paid by the plaintiff to the clerk of the said court, he or they, paying such cost in consequence of a declaration not being filed in due time, as aforesaid, may warrant such attorney, for all such cost paid by him aforesaid, and the receipt of the clerk shall, and may be evidence in support of such claim; and the Justice before whom such warrant shall be tried, may give judgement and issue execution thereon; and such attorney shall be further liable to the action of such plaintiff, for such damages, as he or they may have sustained, in consequence of such of such declaration not having been filed as aforesaid. The defendant shall appear and plead or demur, within the three first days after the time allowed for filing declaration, otherwise the plaintiff may have judgement by default, which in actions of debt, shall be final unless where damages are suggested on the roll; and in that case, and in all others not herein specially provided for, when the recovery shall be in damages, a writ of inquiry shall be executed at the next succeeding term. Provided, that where the nature of the actions require special pleading, the time for pleading may be enlarged; where the defendant pleads specially, the plaintiff shall reply or demur, within 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 in his replication tenders an issue, the defendant shall join an issue or demur in three days; otherwise the plaintiff may have judgement; where the defendant rejoins to the plaintiff's replication, he shall file his rejoinder within three days, or judgment shall go against him, unless the term for pleading shall be enlarged as aforesaid, and the same time shall be given, and rules observed, through the whole course of the proceedings. Provided, that in every case the pleadings shall be made up during the term, to which the process is returned, unless the time be extended by the consent of the parties, their attorneys or by direction of the court; where a special verdict shall


[7]

be found, a case agreed, a demurer 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. For the better preservation of the records of the courts, where any cause is finally determined, the clerk of each court shall enter all the proceedings therein, in a book bound, and make an entire and perfect record thereof. All jury causes shall be first tried; all motions in arrest of judgement, shall be argued within these last days of the term, in which the issue shall be tried; the defendant's attorney first serving the plaintiff's attorney, with a copy of the reasons in arrest of judgement, the day immediately following that, on which such motion shall be made: arguments on writs of error, special verdicts, cases agreed, demurers, petitions for legacies, and distributions of intestates'estates shall be heard during the last four days of the term When a plea in abatement, shall be pleaded, and upon argument the same shall be adjudged insufficient, the plaintiff. shall recover, against the defendant, full costs to the time of overruling such plea, including the costs of court: and a defendant in any action, may plead as many as several matters as may be necessary for his defence, so that he be not admitted, to plead and demur to the whole.

Sec. 8. And be it enacted, That when the Circuit Judges shall have been elected, in manner prescribed by the Constitution, they shall be commissioned by the Governor, and shall hold the Circuit Courts, at the times and places, in this act mentioned, and shall reside within the circuit to which they may be severally elected; and in case of the removal of any such Judge, out of the circuit, to which he is elected, his office shall be vacated thereby: Provided, that nothing in this act contained, shall be so construed, as to prevent the interchange of ridings by such Judges in their several circuits, in the manner hereafter pointed out; that is to say, the Judges holding the courts aforesaid, shall be so alternate, that no one Judge shall hold the courts of the same circuit for two courts in succession, unless called on to do so, by the Judge whose duty it may be to hold such circuit, on account of sickness or other inability to attend.

Sec. 9. And be it enacted, That when the Clerk of any Circuit Court shall give a certified copy of any decree judgment, record, or proceeding of any Superior Court of Law and Equity, heretofore existing the papers and records of which may be delivered to him, pursuant to the directions of this act, the same faith and credit shall be given to such certified copy, as to a certified copy of any record, or proceeding of the Circuit Court, to which said Clerk may belong and it shall be the duty of the Clerks of said Superior Courts of Law and Equity, to transfer all the proceedings, suits and cases, within the same, to the Circuit Courts


[8]

 

of the respective counties, in which such Superior courts have been holden; and all process, heretofore issued, or which may be hereafter issued, returnable to the Superior Courts previous to the commencement of the first terms of the Circuit Courts, within their respective circuits, shall be returned to the first term of said Circuit Courts respectively.

Sec. 10. And be it enacted, That the Sheriffs of the different counties shall be the Sheriffs of the Circuit Courts, within their respective counties, and the Sheriff of the county, in which the Supreme Court shall be holden, shall also be the Sheriff of the said Supreme Court.

Sec. 11. And be it enacted, That the common Jail of each county shall be the Jail of the Circuit Court for the said county: Provided, however, That nothing in this act contained, shall be so construed as to prevent civil officers, judges, justices, & etc from transferring prisoners to the nearest Jail which is good and sufficient, when the Jail of the county where such prisoner may be arrested shall be considered insufficient.

Sec. 12. And be it enacted, That Judges of the Circuit Courts within their respective circuits, at or before the first trial term of any suit, civil or criminal, shall have power to change the venue thereof, on good and sufficient cause 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 a change of venue shall in no instance be allowed, more than once in the same cause or suit: Provided also, That in criminal prosecutions the right to change venue under the provisions of this section, shall be confined to the party prosecuted.

Sec. 13. And be it enacted. That the Judges of the Circuit Courts, within their respective circuits, shall set apart a particular day or particular days, of each term, for the trial of criminal causes, and all fines inflicted, and forfeitures accruing in the several Circuit Courts, shall go to, and be applied to the use of the county, in which they may be thus inflicted, or shall accrue and the said Judges at their discretion, shall have power on the application of any person charged with a criminal offence, to hold a special session for the trial of such person: and the said Judges shall direct the Sheriff of the county in which such special session shall be holden to return thereto, twenty-four persons, property qualified to serve as jurors, who shall be selected in the manner now prescribed by law in such cases, any or all of whom failing to attend, or being challenged or set aside, a jury of the bystanders shall be empannelled for the trial of the cause.


[9]

Sec. 14. And be it enacted, That the Clerks of the several Circuit Courts shall give bond with security, payable to the Governor and his successors in office, in the penalty of ten thousand dollars, for the safe keeping of the records, and the faithful discharge of the duties of his office, which said bond shall be lodged in the office of the Secretary of State, and may be put in suit on the assignment of the Governor, by the party or parties injured, in his, or their own name, and shall not become void upon the first recovery, but may from time to time be put in suit by action of debt, until the whole penalty be recovered, and if it shall be discovered that any of the said clerks shall have violated the oath prescribed by the Constitution, or willing or corruptly have done any thing contrary to the true intent and meaning of the same, such clerk shall be deemed upon conviction, guilty of misbehaviour in office, and shall be removed therefrom, and shall forever be incapable of holding any office civil or military in the State.

Sec. 15. Be it enacted, That the records of the respective courts within this State for each preceding day of every session, shall be read in open court on the morning of the succeeding day, except on the last day of the term, on which day they shall be signed by the Judge or Judges presiding in said court.

Sec. 16. Be it enacted, That either party may appeal from any final judgment or decree of any Circuit Court during the term at which the judgment or decree was rendered, to the Supreme Court, upon entering into bond with security to be approved by the court, in double the amount of the debt or damages in such, his, or their suit for prosecuting the same with effect, or performing the judgment, sentence or decree which the Supreme Court shall pass or make thereon, in case the appellant shall have the cause decided against him: and the appellant shall file a transcript of the record with the clerk of the Supreme Court, on or before the third day of the first term of the said Supreme Court, after the appeal was granted, and on failure thereof, the appeal shall be dismissed with costs and damages upon the appellee's producing a certificate from the clerk of the Circuit Court of the amount of the judgment or decree, and that bond had been executed according to the order of the court granting the appeal: Provided, That for good cause shewn, the appeal may be reinstated any time during the term, upon payment of costs.

Sec. 17. And be it enacted, That the equity of jurisdiction heretofore belonging to the Superior Courts of Law and Equity in the Territorial Government, shall be and hereby is vested in the Circuit Courts of this State.

Sec. 18. And be it enacted, That the said court (when a bill praying a review of the proceedings, in which a decree shall


[10]

have been pronounced shall be present, may upon such bill and the circumstances of the case as the same shall appear satisfactory, direct the proceedings on such decree to be stayed until a decree on the said bill of review shall be made, or until further order of said court or the said court may refuse to grant a stay of proceedings, in that case as may seem right: Provided, That said court may in either of said cases direct each security to be given, and in such places, as is usual in cases of injunction, or such other security as may seem reasonable: Provided, That no bill of review, shall be brought on motion made therefor, except it be within three years from the time of pronouncing such decree, saving it to infants, femes coverts, persons non compos mentis, persons imprisoned or beyond seas, a right to move bill of review within three years after such disability shall have been removed.

Sec. 19. And be it enacted, That the Supreme Court for this State, both in Law and Equity, shall be held by, and the powers if the same shall be vested in, and its duties shall be performed by the Judges of the several Circuit Courts: and they or a majority of them shall hold the sessions of said court at Cahawba, twice in each and every year, the first session to begin on the second Monday in May, and the second session to begin on the second Monday in November: and the said Court shall continue to hold their sessions until the business thereof be completed, or the Judges or a majority of them may deem it expedient and necessary to rise for the purpose of attending to their respective Circuit Courts; and the said sessions of the Supreme Court shall be holden on the same days in each and every year, until otherwise by law directed. And the said Judges, shall at their first session, appoint one of their own body, Chief Justice of the Supreme Court, which appointment shall be entered of record; and in case of his absence at any succeeding time, one of the Judges present shall be appointed Chief Justice pro tempore, and all orders of the court, shall be signed by him: Provided always, That one Judge, or, if no Judge appears, the Sheriff may adjourn the court from day to day, until a sufficient number of Judges appear, to constitute a court, if that shall be before the sixth day of the term; at which time, if a sufficient number of Judges do not appear, to form a court, the Judge or Sheriff, (as case may be) shall adjourn the court to the next stated term, to which term all cases shall stand continued.

Sec. 20. And be it enacted, That writs of error shall lie from the courts of errors and appeals to the respective circuit courts throughout the State; and it shall be the duty of the Judges or any of them on application, either in vacation or term time, to grant such writ of error, and to take good and sufficient security from the party demanding


[11]

the same, that the said party shall prosecute his writ to effect, and answer all damages and costs, if he fails to make his plea good; and in all cases bottomed on a contract, note, agreement, or liquidated account, where the judgment of the Circuit Court may be affirmed, fifteen per cent, damages shall be allowed the party, in whose favor judgment was awarded in the court below.

Sec. 21. And be it enacted, That when any judgment. decision, or decree of the Circuit Court, shall be reversed, or affirmed, in the court of errors and appeals, it shall be the duty of said court, to pass such judgment, decision or decree, as the circuit court shall have passed except where the damages to be assessed, or matter to be decreed, are uncertain; in which case, the said court shall remand the same for the final hearing.

Sec. 22. And be it enacted, That the Judges of courts of errors and appeals, as well as the circuit court Judges, shall as to the decisions on all material points, file their opinions in writing, among the papers of the cause, in which such opinion may be given, within ten days after such opinion may be delivered; and when a writ of error shall be allowed to reverse the judgement of any circuit court in any cause, the clerk thereof shall send a transcript of the opinion of the Judge, to the court of errors and appeals, as a part of the record of the cause, properly certified.

Sec. 23. And be it enacted, That it shall be the duty of the Judges of the court of errors and appeals, at the first term of said court, or as soon thereafter as may be practicable, to ordain and establish rules and regulations, for the government of the proceedings and practice in said court also to establish a regular and uniform practice throughout all the courts of record in the State: Provided, however, That the rule prescribed for the government of the circuit court, shall be in force, and govern the proceedings of the Supreme Court, until the said Judges of the Supreme Court shall establish such other rules, as are by this act directed.

Sec. 24. And be it enacted, That all causes under the jurisdiction of this State, now pending in the General Court of the Territorial Government, be, and the same are, hereby transferred to the court of errors and appeals and that it shall be the duty of the clerk of the said court of errors and appeals, at the first session thereof, at the town of Cahawba. And the Supreme Court aforesaid, shall proceed, to hear and determine all such causes, except those which exclusively belong to the courts of the United States, and all writs of error, which have heretofore issued or may hereafter issue, returnable to the General Court, shall be returned to the first term of the Supreme Court, as in other cases.


{12}

Sec. 23. And be it enacted, That it shall be the duty of the said Judges, at the first session of the said courts of errors and appeals, to appoint a clerk, to continue in office for the term of four years from and after the time of his appointment, and shall conform to the same regulations, and perform the same duties of office, in the same manner, and under the same penalties as, do the Clerks of the Circuit Courts, are by this act directed.

Sec. 26. And be it further enacted, That from and after the passage of this act, there shall be established, in and every county in this State, an Inferior Court, to consist of five Justices, to be appointed by the Legislature, and to hold their offices during good behavior: any three of whom, shall be competent to hold said court, and shall be styled Justices of the County Court.

Sec. 27. And be it further enacted. That the said court shall hold its terms quarterly, or four times in each and every year, in several counties, in this State, at the times following:

In the county of Mobile, on the first Mondays in June, February, March, and October:

In the county of Baldwin, on the first Mondays in June, February, March, and October:

In the county of Clarke, on the first Mondays in February, August, May and November:

In the county of Washington, on the second Mondays in February, August, May, and November:

In the county of Monroe, on the first Mondays in June, February, March and October:

In the county of Conecuh, on the first Mondays in June, February, March, and October:

In the county of Henry, on the fourth Mondays in March, October, and June and December:

In the county of Butler, on the fourth Mondays in March, October, June, and December:

In the county of Wilcox, on the fourth Mondays in March, October, June and December.

In the county of Marengo, on the second Mondays in February, April, July, and October:

In the county of Greene, on the first Mondays in February, April, July, and October:

In the county of Perry, on the third Mondays in February, April, July, and October.

In the county of Dallas, on the fourth Mondays in March, October, June, and December:

In the County of Autauga, on the fourth Mondays in March, October June, and December.

In the county of Montgomery, on the fourth Mondays in March, October, June, and December:


[13]

In the county of Cahawba, on the fourth Mondays in February, April, July, and October:

In the county of Shelby, on the third Mondays in March, September, June and December:

In the county of St. Clair, on the second Mondays in March, September, January, and May:

In the county of Tuskaloosa, on the last Mondays in January, May, August, and November:

In the county of Jefferson, on the first Mondays in March, June, September, and December:

In the county of Blount, on the first Mondays in January, May, August, and December:

In the county of Cotaco, on the first Mondays in February, May, August, and November:

In the county of Franklin, on the second Mondays in February, August, May, and November:

In the county of Marion, on the third Mondays in February, August, May, and November:

In the county of Lawrence, on the first Mondays in February, August, May and November:

In the county of Lauderdale, on the fourth Mondays in January, April, July, and October:

In the county of Limestone, on the third Mondays in January, April, July, and October.

In the county of Madison, on the fourth Mondays in January, July, April, and November.

In the county of Jackson, on the third Mondays in January, July, April, and November: and the first and third terms of said courts may continue in session, for and during the time of six judicial days, each unless the business thereof shall be, in a shorter time, completed.

Sec. 28. And be it furthered enacted. That the said county courts shall, in addition to the jurisdiction heretofore given to the County court and Orphan's court in the Territorial Government, have concurrent jurisdiction, in all actions of debt and assumpsit, with the Circuit Courts, under the limitations prescribed by this act.

Sec. 29. And be it enacted. That at the second and fourth terms of said court, in each and every year, it shall have that jurisdiction only, which has heretofore been exercised by the Orphan's court established under the Territorial government. Provided, That such terms shall not exceed three days each.

Sec. 30 And be it enacted, That the clerks of the Inferior courts shall be the clerks of the said courts, and shall give the same bond, and be liable to the same penalties, and be governed by the same regulations and restrictions, as clerks of the Circuit courts are

Sec. 31. And be it enacted, That the same rules of practice, methods, and proceedings, shall be had, kept, and ob-


{14}

 

served, by the said County courts and the officers thereof, in granting, issuing, executing, and returning process, and awarding judgments, on judicial attachments, and the like remedy, recovery, and relief, against the sheriff and bail, as in like cases are provided by law, in suits depending, or to be commenced in the circuit courts within this State.

Sec. 32. And be it enacted, That when any person or persons, either plaintiff or defendant, shall be dissatisfied with the judgement, sentence, or decree, of any county court, he may pray an appeal from such sentence, judgment, or decree, to any circuit court of the county, wherein such county court shall be: but before obtaining the same, shall enter into bond with two sufficient securities for prosecuting the same with effect, and for performing the judgment, sentence, or decree, which the circuit court shall make thereon, in case such the appellant shall have the cause decided against him: Provided, That before granting any appeal whatever, the attorney praying the same shall certify to the court in writing, reasons for his motion, with his opinion that the same are good and sufficient in law: Provided, That in all cases of appeal from the county court, the record of all proceedings shall be returned by the clerk of the said court, to the office of the clerk of the circuit court, twenty days previous to the term on which said appeal shall stand for trial, why such an appeal ought to be granted; which certificate aforesaid, signed with the name of the said attorney, shall make part of the record, and be transmitted, with the other transcript of the cause to the circuit court aforesaid; Provided, That in all cases of appeal obtained as aforesaid, which shall not be prosecuted, or the court before whom such appeal may be determined, shall affirm the judgment of the court below, then shall the appellant be decreed to pay the appellee, fifteen per centum damages, from the passing of the judgment in the county court.

Sec. 33. And be it enacted, That when any person shall be desirous of prosecuting a writ of error, from the county court, he shall move the court where such is, or hath been, depending, to all such writ of error, he first entering into bond and security to the satisfaction of the court, to abide by, perform, and fulfill the judgment which shall be given in the court above; and the same rules and regulations in prosecuting such writs of error, shall be observed and practiced in the county courts, as prescribed for prosecuting writs of error from the circuit courts.

Sec. 34. And be it further enacted, That it shall and may be lawful for every county court within this State, where any idiots, or lunatics, shall be within the jurisdiction thereof, to appoint them, or either of them, a guardian, taking bond with approved security for the faithful administration


[15]

of the trust reposed in such guardian, in the same manner, as bonds taken from the guardians of orphans: and such guardian, when so appointed, shall continue during the pleasure of the court, and shall have the same power, to all intents, constructions and purposes, and shall be subject to the same rules, orders, and restrictions, as guardians of orphans are: such lunacy to be ascertained by the inquisition of a jury, by virtue of a writ to be issued by the court, to the Sheriff of a county for the purpose.

Sec. 35. And be it further enacted, That the same mode of summoning jurors, and requiring their attendance, and all other provisions relative thereto, as prescribed by the act of the Legislature of the Mississippi Territory, passed in the month of December, 1811, be, and the same are here-be summoned by, declared, to remain in full force and effect throughout this state. Provided, however, That in every case, the number of jurors to be summoned for the circuit court, shall in no case, be less that thirty-six: and for the county courts, for the terms for the trial of causes in the counties respectively, throughout the State, the number of jurors shall not be less than twenty-four.

Sec. 36. And be it further enacted, That the clerks of the circuit and county courts, and sheriffs of the different counties in this State, shall, after the first day of July next, keep their offices at the several court-houses or places of holding courts therein, or within one mile thereof.

Sec. 37. And be it further enacted, That when any suit shall be instituted, by any person or persons, as assignee or assignees of any bond or other writing, it shall not be necessary for the plaintiff or plaintiffs to prove the assignment or assignments, unless the defendant or defendants, shall annex the plea, denying such assignment or assignments, an affidavit stating, that such defendant or defendants verily believe, that some one or more of such assignments are forged: or make oath to the same effect in open court, at the time of filing such plea.

Sec. 38. And be it further enacted, That in cases of appeals from the judgments of justices of the peace, the court, before whom such appeal shall be brought, shall proceed to try the same according to the justice and equity of the case; without regarding any defect in the warrant. capias, summons, or other proceeding, of the Justice of the Peace before whom the same was tried.

Sec. 39. And be it further enacted, That when any judgment shall be entered up for the plaintiff by any Justice, on the trial of any cause for a forcible entry and detainer, or forcible or unlawful detainer, no writ of restitution shall be issued by said justice within twenty days from the day of entering up said judgment.


{16}

Sec. 40. Be it further enacted, That the Judges of county courts in each and every county, shall elect one of their own number, who shall preside, and be styled Chief Justice.

(Signed)

JAMES DELLET,

Speaker of the House of Representatives

THOMAS BIBB,

President of the Senate.

Approved -December 14, 1819

(Signed)

WM. W. BIBB.

________