-p J 
 
 Duke University Libraries 
 
 An act of the G 
 Conf Pam #749 
 
AN ACT 
 
 GENERAL ASSEBIBLY OF ALABAMA, 
 
 REGULATE JUDICIAL PROCEEDINGS, &c., 
 
 ACT E\PL.WATI)RV THEREOF, 
 
 PASSED AT THB CALLED SESSION, 18G1 
 
 f 
 
 3000-Publislied by Authority. 
 
 I 
 
 MONTGOMERY : 
 
 SHOETER & RKID, STATE PRIXTEKS, ADVERTISER OFFICE* 
 1861. 
 
Digitized by the Internet Archive 
 in 2010 with funding from 
 Duke University Libraries 
 
 http://www.archive.org/details/actofgeneralasseOOalab 
 
AN ACT 
 
 To regulate Judicial Proeeedinge, and for other purposes. 
 
 Sec. 1. Be it enacted bu the Senate ana ..ouse of liejjre- 
 sentatkes of the State of Alabama in Qenual Assembly con- 
 vened, That hereafter in the commencement of any suit 
 in any of the courts of law or equity in this State, the 
 court to which any i^u't, writ, sumuions, complaint, or 
 bill may be made return^ole shall ue deemed and held as 
 the return term of such suit, writ, summons, complaint 
 or bill, and the same shall stand for trial at the next suc- 
 ceeding regular term of such court appointed by law to 
 be holden after such return term ; and the parties in the 
 law courts shall not be required to plead at the first term 
 except that pleas in abatement shall be filed as now re- 
 quired by law: Provided, The provisions of this section 
 shall not apply to bills in chancery for partition and sales 
 of property, or in cases for divorce : And i^rovided farther, 
 That the defendant or party against whom a bill may be 
 exhibited in a chancery suit may come in and consent to 
 a trial at the first terra. Under this section, when suits 
 are hereafter brought in the City Court of Mobile to the 
 March or June term of said court, said term shall be held 
 as the return term, and said suits* shall stand for trial at 
 the next succeeding December term; and suits that may 
 be brought returnable to the December terms, said De- 
 cember terms shall be held as the return term, and said 
 suits shall stand for trial at the next succeeding June 
 term ; the said June terra shall comraence on the third 
 Monday in May of each year during the continuance of 
 
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 tliis act: Provided further, That the provisions of this sec- 
 tion sliall apply to all writs, sunniioiises, complaints, and 
 bills returnable to the Spring turni, 18G1, of the Circuit 
 and Chancery Courts, whether issued before or after the 
 passage of this act. 
 
 Sec. 2. Be it farther enacted. That in any case where 
 mv execution shall have issued or may be issued, found- 
 eduiion any judgment or decree of any court of record 
 in this State, it shall aiitl may be lawful for the sheriff or 
 other officer authorized to levy such execution to take 
 from the defendant or defendants therein a forthcoming 
 bond with at least two good sureties, conditioned for the 
 delivery (^f any property levied upon to satisfy such execu- 
 tion at the [jlace where the same may be made returnable 
 on the return day of such execution ; and in the event of a 
 failure to deliver such property on the return day i>f the 
 execution, according to the condition of the forthcoming 
 bond the sheriff or other ofKcer levying such execution 
 shall return such forthcoming bond "forfeited;" and such 
 return shall have the force and effect of a judgment 
 ao-ainst Ihe principal and sureties therein for the full 
 amount of the original judgment and interest and costs 
 thereon, and execution shall issue thereon accordingly. 
 
 Sec. 3. Be it further enacted, That in case any deed of 
 trust or mortgage, with power of sale, has been or may 
 be executed in this State, to secure the payment of any 
 debt or debts, it shall not be lawful for the trustee or the 
 creditor nanied in such deed or mortgage to sell any 
 property so conveyed, without having the actual posses- 
 sion thereof, so as to deliver the same to the purchaser 
 upon making said sale.. And in the event the grantor 
 in any such deed of trust or mortgage, with power of sale, 
 shall fail on demand to deliver possession of any property 
 dr estate so conveyed, after having made default in the 
 payment of the debt thereby secured, it shall be lawful 
 for the trustee or creditor claiming to have legal title to 
 sue for the possession of the same; and, if personal prop- 
 erty, the slieriff, upon such suit being brought and affida- 
 
vit of title made, shall take tlie property into possession, 
 unless the grantor give bond with good and sufficient 
 sureties, as in detinue cases, to be approved by the sheriff 
 or officer serving the summons or writ, conditioned for 
 the forthcoming of the property sued for, to answer the 
 lien created by any such deed of trust or mortgage, or in 
 default thereof to pay such debt and interest thereon, 
 with all costs : Prorided, hoivcrcr, The surety to said bond 
 shall not be made liable for the value of any such prop- 
 erty as may die before the law day of the bond, without 
 fault on the part of the defendant. 
 
 Sec. 4. Be it further enacted, That hereafter justices' 
 courts in this State for tlie trial of civil causes shall be 
 held quarterly, at such times as the justices in each beat 
 may appoint, and may continue three days, if necessary; 
 and the term to whicli any original process, summons, 
 warrant, or complaint shall be made returnable shall be 
 deemed and held the docket term of said court, and the 
 cause shall stand for trial at the next ensuing term there- 
 after; and on all judgments rendered by any justice in 
 any civil cause the party or parties against whom such 
 judgment may be rendered shall, at any time after the 
 rendition thereof and before the payment of the same, 
 have the right of appeal to the next terra of the Circuit 
 or County Court of the county in which such judgment 
 may be rendered, upon giving such appeal bond with 
 surety as is now required bylaw in appeal cases; and 
 the term to which such appeal may be taken shall be 
 the return term thereof, and the next succeeding term 
 the trial term thereof; and in no case of appeal shall a 
 county tax be charged unless the expense of a jury trial 
 be incurred; nor shall any damages over and above the 
 debt and interest thereon be allowed. Justices of the 
 peace shall make executions issued by them returnable to 
 the quarterly term of their courts next after the rendition 
 of any judgment. 
 
 Sec. 5. Be it further enacted, That the provisions of 
 this act shall not be held to apply to suits of any descrip- 
 
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 tion or jutlcrments ii: any court against (lefiiulting public 
 officers, for failing to pay over money, or for auy broach 
 of the duties required of them by law ; nor against trus- 
 tees lor any fraudulent use of trust funds, but such suits 
 and judgments and executions lounded thereon, shall be 
 reguJutcd in all respects by the laws heretofore in force 
 in such cases. 
 
 Skc. 6. Be it further enacted, Tbat the property, real 
 and personal, of all persons, who are or may be engaged 
 in the actual military service of this State, shall be ex- 
 empted from levy and sale under legal process while so 
 engaged, and for at least sixt}- days after such persons shall 
 have been released or discharged from such services. 
 
 Sec. 7. Be it further enacted, That all laws and parts of 
 laws, assessing damages upon appeals to the Supreme 
 Court be and the same are hereby repealed, and no tax 
 fee shall be allowed in the Supreme Court on appeals, 
 unless the appellant appears by counsel and litigates the 
 same. 
 
 Sec. 8. And be it further enacted, That in all cases 
 where executions have been or may be issued upon exist- 
 ing judgments, orders or decrees of any court, and the 
 plaintitl', his agent or attornej', shall not authorize the 
 officer whose duty it is to levy the same, by endorsement 
 in writing on said execution, to take from the defendant 
 or purchaser of any property which may be sold by virtue 
 thereof, the bills of any of the banks in this State alpar, 
 it shall be the duty of such officer, upon the defendant 
 giving a forthcoming bond with surety for the delivery 
 of said property to be sold in satisfaction of said execu- 
 tion on the iirst Monday in February next. If said prop- 
 erty is not delivered at the law day of the bond, the same 
 shall have the force and efiect of a judgment, and the 
 clerk shall issue execution thereon for the debt, interest 
 and costs of said judgment and execution. 
 
 Approved, 8th February, 18G1. 
 
AN ACT 
 
 Explanatory of, and Supplemental to, an act passed at 
 the present session, entitled "An act to regulate judicial 
 proceedings, and for other purposes." 
 
 Sec. 1. -Be it enacted by the Senate and House of Repre- 
 sentatives^ of the State of Alabama in General Assembly con- 
 vened, That the duty of the officer which is left unex- 
 pressed in the last section of the act above referred to, 
 is hereby made and declared to be, in every case contem- 
 plated by said last section, to return the processor execu- 
 tion thus, "Stayed by the failure of the plaintiff or his 
 agent to make the endorsement required by law," and 
 afterwards no further prodeeding shall be had in any 
 such case until the first Monday in February next, on 
 and after which day, ever}^ such forthcoming bond shall 
 be deemed and taken as a judgment against the obligors' 
 therein. 
 
 Sec. 2. Be it further enacted, That none of the provi- 
 sions of the act to which this is a Supplement, shall be 
 so construed as to effect any contract which has been, or 
 may be entered into by the State of Alabama, with any 
 Railroad Company. 
 I;;^ Approved, 9th February, 1861. 
 
 Office of Secretary of State, i 
 
 Montgomer}^, Ala., February 9th, 1861. j 
 I hereby certify that the foregoing are .true copies 
 of the original acts now on file in my office. 
 
 r. II. BRITTAN, 
 Secretary of State, 
 
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