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but if the judges whose opinions shall be against affirming, request, the case shall be retained for one term only.
12. A certiorari to perfect or to bring up a complete record, Certiorari. may
be awarded at the first term, on motion of either party : if its object be to sustain a judgment, without a shewing; but if to reverse a judgment, a sufficient shewing must be made.
13. The clerk may permit either of the attorneys concerned Records. in a cause to take the record and papers thereof from the clerk's office, to be returned at such time as by the rules of the office
be directed. 14. The public examination for licences to practice law, shall Students. be on the first Tuesday and on each Saturday of the term.
15. No private agreement or consent between the parties, or their attorneys, relating to the proceedings in any cause, shall ments. be alledged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby.
16. The counsel for the plaintiff in error or appellant, one Briefs. day at least before the trial, shall furnish to the court three briefs, succinctly stating therein the material facts, out of which the points in controversy arise, and referring to the authorities on which he relies; and shall not be heard in argument unless such briefs be furnished.
17. After the first day of January next, all transcripts of re- Transcripts ---cords sent up to this court, shall be on paper of uniform size, (according to a sample to be furnished by the clerk of this court,) with a blank
margin of an inch and a half, along the side of each page where the leaves unite.
18. No original bill of exceptions or paper, read or offered Copies of pain evidence shall be sent to this court. Copies of bills of ex- pers. ceptions, and of papers therein referred to, shall be inserted in their proper places in the transcripts.
19. The pages of the transcripts shall be numbered. Each Index of. transcript shall be prefaced by an index to its contents; specifying the pages at which the various matters, (as the writ, declaration, pleas, bill of exceptions, judgment, bill in chancery, answer of each defendant, deposition of each witness, each interlocutory order or decree, final decree, &c. &c.) are to be found. Marginal references to the several matters, as above, shall be made throughout the transcript.
20. The several sheets of each transcript shall be so stitched Clerks seal in. together, that every part can conveniently be read. The clerk's seal shall be so placed across the fastening of the cord with which the sheets are stitched, that no part of the transcript can be detached, without separating the seal, cord, or paper. No paper attached by wafer, paste, nor in any
other manner than as above, shall be considered as part of the transcript.
21. A copy of the bond for prosecuting the writ of error, Copy of bond or appeal, (when such bond is given,) shall be sent with the citation. transcript; such copy, the writ of error, citation, &c., may be sent detached from the transcript. When the citation shall not be sent, the clerk shall certify whether a citation issued or not.
22. The clerk of this court shall transmit, by mail or otherwise, to the clerks of the several circuit and county courts, a copy of this rule, and a sample as required thereby-and no
transcript shall be here filed, unless it conform to the first, se
cond, and third clauses of this rule, as above stated. Transcript. 23. As the practice of this court in relation to the filing of
transcripts, and the setting aside of judgments rendered on certificates and citations, seems to be but imperfectly understood, the court will state, for the information of the bar, the rules,
which will hereafter be rigidly adhered to:* Transcript. 24.-1st. If the transcript of the record is not delivered to
the clerk, and errors assigned within the first three days of the term, the defendant in error is entitled, at any time before the record is filed, and the errors assigned, to bis judgment of affir
mance, on production of the proper certificate or citation.* Transcript. 25.—2d. Whenever a judgment shall be taken before a call
of the division, to which the case properly belongs, it will be deemed a sufficient cause to reinstate the case, and to set aside the judgment, if the transcript is filed at any time before the
first motion day, after the call of the division.* Transcript. 26.-3d. In all other cases where a motion is submitted to
set aside a judgment rendered on certificate or citation, affidavits must be produced, shewing satisfactory reasons why the transcript was not filed within the three first days after the call of the division to which the case belongs. If the transcript offered, is defective, the affidavits must show, either that application has been made for a correct transcript, or that there was not sufficient time, after the defect was discovered, to procure one before the adjournment of the court. And, in either event, the deficient matter must be stated with sufficient certainty, to enable the defendant in error to admit the existence of the
same, and to proceed as if the record was complete.* Advisement. 27. Ordered by the court, In all cases which shall be held
under advisement, it shall be the duty of the clerk to furnish two copies of the record, or such parts thereof as may be required by the court, and that the costs of the same be taxed in the bill of costs.*
28. Ordered, That in all cases where writs of error, or apceedings at re-peals, shall have been allowed, returnable to this court, if at the
proper return term, no proceedings are had in the cause; and the same be neither affirmed, reversed, dismissed nor continued, the defendant in error, or appellee, shall be entitled to proceed to execution in the court below, as if no writ of error or appeal had been allowed, upon filing with the clerk below, the certificate of the clerk of this court, that no proceedings have been had in such cause at the return term. . And the clerk of this court shall issue such certificate on the application of any party requiring the same, certifying that no proceedings have been had in such cause as the applicant shall name, when
such is the fact : Provided, That where such certificate shall have been applied for and issued from this court, no affirmance on certificate from the court below at any after term shall be allowed, unless the
Where no pro
Adopted January term, 1839.-It is ordered by this court, that the rules of coust collected and published in the fifth volume of Stewart & Porter's Reports, and as there respectively mbered and arranged, be, and the same are hereby adopted as rules of practice in the supreme, circuit and county courts of the state of Alabama.
certificate of no proceedings obtained from this court, be returned with an affidavit that the same has not been used, or other satisfactory evidence thereof.*
.29 This court has hitherto been very indulgent in admitting Students. to its bar applicants for license. That none may hereafter present himself for examination who is not well skilled in his profession, the court deems it proper to declare, that in future, examinations conducted under its eye, will be thorough, and well calculated to test the extent of the applicant's professional attainments; and where these are defective, the court will not hesitate to withhold a license.t
RULES OF PRACTICE IN CIRCUIT AND COUNTY COURTS.
1. The clerk shall enter all causes on the appearance docket, Appearances. according to the order in which the writs were received by the sheriff.
2. He shall keep a separate docket in which shall be entered Docket. all motions made during the term, (not incidental to the cause,) in the order of time in which they are made, and they shall be called in the same order.
3. He shall keep on his table when the court is sitting, and Order Book. at all other times in his office, a memorandum book, in which the attorneys may respectively enter precipes and other directions to him.
4. On every final judgment and decree rendered during the Executions. term, (unless the party to be benefitted thereby, or his attorney, shall, in writing, otherwise direct,) the clerk shall issue execution, as soon after the adjournment as the law will permit.
5. An attorney may be security for costs, but shall not be Attornies. bail for his client, either in a civil or a criminal case.
6. To every scire facias returned "made known," the defen-Scire Facias. dant shall plead within the first two days of the term to which the same is returned, the plaintiff shall reply on the day next thereafter, and so on from day to day, until issue in fact or in law be joined; but either party may demand a trial at the return term, although the court may not continue in session three days.
7. When oyer of any instrument which is the foundation of Oyer. the action, is demanded, and notice thereof given to the attorney for the plaintiff, oyer shall be granted within two days thereafter; unless the instrument be out of the possession of the plaintiff, and a subpæna duces tecum be necessary, in which case oyer shall be granted on the return of the subpæna, duly executed; and in default thereof, in either case, judgment of non pros shall be entered. When oyer of letters testamentary or letters of administration, is demanded, it shall be granted on or before the first day of the term next after the return of the writ, but the trial shall not, on that account, be delayed.
8. When the action is on any instrument purporting tom Production of been signed by the defendant, and within the time pre sved papers.
for pleading, he shall give notice to produce it, it shall, within one day thereafter be produced for his inspection. In default thereof, non-suit may be entered, unless sufficient excuse he
shown. Defaults. 9. Defaults may be entered on the docket in vacation, which
shall relate to the preceding term, and advantage thereof may
be claimed at the next term. Defaults. 10. After a default has been duly entered, the party claiming
the benefit thereof shall not be bound to receive any plea or pleading of the party so in default.
11. On timely application, on affidavit shewing merits and Defaults.
sufficient matter of excuse, a default may be set aside on such
terms as the court may impose. Plea in abate
12. No plea in abatement shall be received if objected to, unless by the indorsement of the clerk it appear to have been
filed within the time allowed for pleading: Atšachment.
13. A motion to quash an attachment, appeal or process, must be made at the first term at which it can be made, and not
afterwards. Private agree
14. No private agreement or consent between the parties or ment.
their attornies, relating to the proceedings in any cause, shall be alledged or suggested by either against the other, unless the
same be in writing and signed by the party to be bound thereby. Trial of causes.
15. The docket of civil causes for trial shall be called absolutely on the first day of the term, unless the presiding judge shall order otherwise. Each cause shall be taken
ир according to its priority on the docket, and tried or continued. If passed over, it shall not be called again during the term until the other
causes for trial have been disposed of. Continuance. 16. The party applying for a continuance of any civil action,
must state in the affidavit the names and places of residence of the absent witness or witnesses; what diligence he has used to obtain his or their testimony, and what he expects to prove thereby. If the adverse party will admit what it is so alledged such absent witness will swear, the cause shall not be continued by reason of the absence of such testimony. After the first continuance, such other shewing must be made, and such terms may be imposed, as to the court shall seem proper.
17. No cause shall be continued twice in succession by conIbid.
sent of parties. Examination of
18. On trial, only one counsel on each side shall examine a witnesses.
19. If the counsel for the plaintiff waives the right of openArgumente
ing the argument, he shall not have the right of concluding Change of ve
20. Whenever a change of venue shall be awarded, the clerk shall subjoin to the original papers, a transcript of all entries relating to the suit; and by some discreet person send the whole inclosed under seal, to the clerk of the court to which the case is ordered to be removed. Such messenger, on producing the receipt of the clerk to whom the
papers, &c., have been so sent, shall be entitled to receive from the clerk by whom he was employed, five cents per mile for going and for returning from the one clerk's office to the other. The clerk shall not be bound to transfer said papers, &c. until the party obtaining the change of venue has deposited with him a sum sufficient to pay the compensation of the messenger aforesaid.
21. A particular day in each term shall be set apart for hear- Motions. ing motions, but they may be heard at an earlier day by leave of the court.
22. Reasons in arrest of judgment, and reasons for new New trials,&c. trial, and the affidavits in support thereof, if any are relied on, shall be filed with the clerk, and notice thereof be given to the adverse party, one day before the argument. If the cause is tried on the last day of the term, the notice shall be given when the motion is entered. The party making such motion is entitled to the opening and conclusion of the argument. All such motions not acted on, or continued by order of the court, are to be considered as discharged of course, on the last day of the term.
23. In cases brought from a county court into a circuit court, Appeals. by writ of error or appeal, the rules of the supreme court so far as applicable, shall be in force in the circuit court.
24. Ordered, That from henceforth, in every action of eject- Ejectment. ment, the defendant shall specify in the consent rule, for what premises he intends to defend, and shall consent in such rule, to confess upon the trial, that the defendant, (if he defends as tenant, or in case he defends as landlord, that his tenant,) was at the time of the service of the declaration, in possession of such premises, and that if upon the trial, the defendant shall not confess such possession, as well as lease, entry and ouster, whereby the plaintiff shall not be able further to prosecute his suit against the said defendant, then no costs shall be allowed for not further prosecuting the same, but the said defendant shall pay costs to the plaintiff, in that case to be taxed.
RULES OF PRACTICE IN CHANCERY.
1. Where it is satisfactorily shown, by affidavit to the bill, or Non-residents. by other means, that a defendant resides out of the state, an order of publication may be made at the first term.
2. An injunction to stay proceedings at law, either before or Injunction. after judgment, shall in no case issue until bond and security have been given in such sum, and with such condition as the judge may direct. On awarding an injunction for any other purpose it shall be in the discretion of the judge to require security, or not.
3. All bills for injunction shall be filed with the clerk, within Injunction. twenty days after obtaining the fiat therefor, and not afterwards. The clerk shall issue the writ of injunction immediately after the terms on which it was awarded shall have been complied with.
4. If the complainant shall not before the second term after Bringing in defiling his bill, have taken measures to bring in the defendant, his fendant. bill shall be dismissed,
5. Where a defendant resides out of the state, on the appli- Non-residents. cation of his solicitor, the clerk shall issue a commission, directed to one or more persons, to take and certify his answer. The affidavit to the answer shall be attached thereto, sworn to