USA > Alabama > Hand-book of Alabama. A complete index to the state, with map > Part 15
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Infants, married women, insane persons and persons im- prisoned for any term less than for life, have three years after the termination of their respective disabilities, to bring suit or make defense; but no disability shall extend the period of limitation beyond twenty years from the time the cause of action accrued, and this additional time does not extend to a married woman in respect to her separate estate.
The limitations above do not apply to such actions as concern the trade of merchandise between merchants and merchants, their agents and factors, while the accounts be- tween them are current.
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When there are mutual accounts between persons who are not merchants, the time must be computed from the date of the last item, unless the account is liquidated and a balance struck.
No act, promise or acknowledgment is sufficient to remove the bar, except a partial payment before the bar is complete, or an unconditional promise in writing, signed by the party to be charged.
Where relief is sought on the ground of fraud, where the statute has created a bar, the cause of action does not accrue until the discovery of the facts constituting the fraud, after which suit must be brought within one year.
THE LAW OF ATTACHMENTS.
For What Demands Attachments Issued .- By the Code of Alabama, attachments may issue-
1. To enforce the collection of a debt, whether it be due or not at the time the attachment is taken out.
2. For any moneyed demand, the amount of which can be . certainly ascertained.
3. To recover damages for a breach of contract, when the damages are not certain or liquidated.
4. When the action sounds in damages merely.
Cases in Which Issued .- 1. When the defendant resides out of the State.
2. When the defendant absconds.
3. When the defendant secretes himself so that the or- dinary process of law cannot be served on him.
4. When the defendant is about to remove out of the State.
5. When the defendant is about to remove his property out of the State, so that the plaintiff will probably lose his debt, or have to sue for it in another State.
6. When the defendant is about fraudulently to dispose of his property.
7. When the defendant has fraudulently disposed of his property.
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8. When the defendant has moneys, property, or effects, liable to satisfy his debts, which he fraudulently withholds.
By What Officers Issued .- When the attachment is to enforce the collection of a debt, or is for any moneyed demand, the amount of which can be certainly ascertained, it may be issued by any judge of the circuit court, returnable to any county in the State, or by the clerk of the city or circuit court, judge of probate, or any justice of the peace, or notary public with the jurisdiction of a justice, within their respective coun- ties. When it is to recover for a breach of contract, the dam- ages not being certain, or when the action sounds in damages merely, the attachment may be issued only by a judge of the circuit or probate court or chancellor, returnable to any county.
Oath .- The plaintiff, his agent or attorney must make affi- davit to the debt or demand, and that it is justly due, and that one of the causes enumerated above, under the head, "cases in which issued,"exists, and that the attachment is not vexatiously sued out. And when the attachment is to recover for a breach of contract, the damages not being certain or liquidated, or when the action sounds in damages merely, the special facts and circumstances must be set forth in the affidavit, so as to enable the judge issuing it to determine the amount for which a levy must be made.
Bond .- In all cases of attachments, the plaintiff, his agent or attorney, must execute a bond to the defendant, with suffi- cient surety, in double the amount claimed, conditioned to prosecute the attachment to effect, or pay damages.
Attachment by Non-Resident Against Non-Resident .- A non-resident of this State may sue out an attachment against a non-resident for an existing debt or ascertained lia- bility ; but the plaintiff, his agent or attorney, in addition to the oath necessary in other cases, must swear that, according to the best of his knowledge, information and belief, the de- fendant has not sufficient property within the State of his resi- dence wherefrom to satisfy the debt, and must give bond as in other cases, with surety resident in this State.
Attachment by Corporation .- A corporation, either for- eign or domestic, may sue out an attachment for any debt or ascertained demand, its president, cashier, agent or attorney,
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making the affidavit and executing the bond as in other cases.
Attachment Against Foreign Corporation .- An attach- ment may issue against a foreign corporation, having property in this State, in the same manner as in cases of natural per- sons residing without the State.
Provisions Applicable to Corporations .- The provisions of the Code of Alabama on the subject of attachments and gar- nishments are applicable to all private corporations, and all affidavits and answers required to be made under such pro- visions, may be made by the president, cashier, secretary, or other duly authorized agent of such corporation.
Lien of Attachment .- The levy of an attachment, or ser- vice of a garnishment, creates a lien in favor of the plaintiff.
Indemnity .- When a doubt exists as to the title of the defendant to personal property, the officer, before levying the attachment, may demand indemnity.
Replevy of Attached Property. - The defendant, or in his absence a stranger, may replevy the goods or chattels, or any part thereof, by executing bond, with sureties, payable to the plaintiff, in double the value of the property replevied, conditioned as prescribed by law.
Auxiliary Attachment .- When a suit has been com- menced by the suing out of a summons, whether such sum- mons has been executed or not, the plaintiff, his agent or attorney, may, at any time before judgment, sue out an attach- ment in aid of such suit, upon making affidavit and giving bond, as in the case of an original attachment.
Attachment by Justice .- A justice of the peace has power to issue an attachment, returnable before himself, when the amount claimed does not exceed one hundred dollars, for the demands and in the the cases mentioned on pages 159-160, and such attachment is governed, in nearly all respects, by the foregoing provisions.
THE LAW OF GARNISHMENTS.
Garnishment in Aid of Pending Suit .- A garnishment may issue in aid of a pending suit, at any time before judg- ment, whether the summons has been executed or not, upon
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the plaintiff giving bond as in case of attachment; but if the suit be for the recovery of damages merely, or for the recovery of uncertain or unliquidated damages for a breach of contract, the garnishment must be issued only on the order of a judge of the probate, circuit or city court, or chancellor, after the plaintiff has made the special affidavit of the facts and cireum- stances of the case as prescribed on page 160, so as to enable the judge to determine the amount involved, and to fix the penalty of the bond.
Notice to Defendant .- When the garnishment is in aid of a pending suit, notice must be given to the defendant of the issuance of the garnishment, to be served at least ten days before judgment against the garnishee.
Garnishment on Judgment .- Garnishment may issue on a judgment or decree, on which execution can issue, without bond, and may be sued out by the assignee of the judgment or decrec.
Garnishment to Subject unpaid Stock .- Any creditor of a corporation may sue out a garnishment to subject the unpaid subscription of any stockholder in such corporation.
Affidavit .- Garnishment must not issue on a judgment or decree, or in aid of a pending suit commenced in the ordinary form, without an affidavit by the plaintiff, his agent or attor- ney, that garnishment is believed to be necessary, and that the garnishee is, or is believed to be indebted to the defendant, or to have in his possession, or under his control, effects of the defendant.
Answer of Garnishee .- The garnishee must answer under oath, and may be required to answer orally in court. The answer of a corporation may be made by its president, cashier, or other duly authorized agent, but the person making such answer must make affidavit that he is the authorized agent of the corporation to make the same.
Contest of Answer .- Either the plaintiff or the defend- ant may controvent the answer, in the mode prescribed by law.
Garnishee Protected by Judgment Against Him .- The judgment againt the garnishee is conclusive as between him and the defendant, unless the defendant prosecutes to effect an appeal from such judgment, which he may do in his own
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name; and if the judgment is superseded by bond, and the garnishee is notified, he is not permitted to discharge it pend- ing the appeal.
Garnishment Dissolved on Execution of Bond .- When garnishment has been issued in a suit before judgment is obtained, the defendant may dissolve the garnishment by exe- cuting bond, with surety, as prescribed by law.
Garnishment by Justices .- All the foregoing provisions relating to garnishments, so far as applicable, apply to and govern in cases of garnishments sued out before a justice of the peace, for the collection of any debt or enforcement of any demand within his jurisdiction.
JURY EXEMPTIONS.
No person must be drawn as a juror who is under twenty- one or over sixty years of age, or who is a habitual drunkard, or afflicted with permanent disease, and the following persons are exempt from jury duty, unless by their own consent : professors and students of universities and colleges, teachers and pupils of academies and common schools, ministers in charge of churches, judges of the several courts, attorneys at law during the time they practice their profession, practicing physicians, practicing dentists, county commissioners, officers of the United States, officers of the executive departments of the State government, sheriff's and their deputies, clerks of court and coroners, justices of the peace and constables during their continuance in office, keepers of public mills, ferries, toll bridges and toll gates, the officers of any railroad or other road constructed under the authority of this State, whose duties would naturally interfere with serving on juries, the officers and crew of any steamboat navigating the rivers of this State, members of incorporated fire companies, officers of the peni- tentiary, the superintendent and physician of the Insane Hos- pital and his assistants, all mail contractors, mail agents and publie stage drivers, one druggist in town or village having but one drug store, every member and musician of the State troops during the time he is such, all township superin- tendents of public schools, and consular agents of foreign governments resident of the State.
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THE PLEADINGS.
The Code system of pleadings is in force in Alabama, and all pleadings must be as brief as is consistent with perspicuity, and no objection is allowed for defect of form, if the facts are so presented that a material issue can be taken thereon, and the defendant may plead more pleas than one.
Amendments of Pleadings .- The Code of Alabama is very liberal as regards the amendment of pleadings, and the courts are required, whilst the cause is in progress, to amend all imperfections and defects of form in the pleadings, on motion, without costs or delay, when it can be done without injustice to the opposite pariy.
SET-OFFS.
Mutual debts, liquidated or unliquidated demands not sounding in damages merely, subsisting between the parties at the commencement of the suit, may be set-off, one against the other, by the defendant or his personal representative, whether the legal title be in the defendant or not; and such set-off, if found for the defendant, extinguishes, either in whole or in part, as the case may be, the plaintiff's demand; but the wages or hire of any head of a family in this State, not having property liable to levy and sale under execution, cannot be defeated or abated by any set-off of a money demand acquired by the person contraeting to pay such wages by assignment or transfer, unless the parties otherwise agree in writing.
RULES OF EVIDENCE.
In common law actions, except in a few cases, testimony must be given in open court, on oath or affirmation.
In civil actions there is no exclusion of any witness because of pecuniary interest ; but a person so interested is not allowed
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to testify against the party to whom his interest is opposed, as to any transaction with, or statement by, the deceased person whose estate is interested in the result of the action, or when such deceased person, at the time of said transaction or state- ment, acted in any representative or fiduciary relation to the party against whom such testimony is sought to be introduced, unless called to testify thereto by the party to whom such interest is opposed, or unless the testimony of such deceased person in relation to such transaction or statement, is intro- duced in evidence by the party whose interest is opposed to that of the witness; and no person who is an incompetent witness, as aforesaid, can render himself competent by a transfer of his interest.
Conviction of perjury or subornation of perjury goes to competency of witness ; other convictions go to his credibility only.
All receipts, releases and discharges in writing must have effect according to the intention of the parties.
An account, itemized, and sworn to in accordance with law, is evidence of its correctness, unless the defendant files a sworn denial.
A settlement in writing, made in good faith for the compo- sition of debts, operates according to the intention of the parties, though no release under seal is given, and no new consideration has passed.
In civil causes depositions or interrogatories may be taken; when the witness is a woman; or, from age, infirmity or sickness, is unable to attend court ; or resides more than one hundred miles from the place of trial; or resides out of or is absent from the State; or is about to leave the State, and will probably not return until after the trial ; or when the claim or defense, or a material part thereof, depends exclusively on the evidence of the witness ; or when the witness is the Governor, treasurer, auditor, chancellor, judge or clerk of any court of record, register in chancery, or sheriff ; or president, director, or other officer of a bank incorporated in this State; or post- master, or other officer of the United States; or practicing physician or lawyer ; or a person constantly employed on any steamboat or other water craft, or on any turnpike or manu- factory, or about the engine or other machinery of a railroad ;
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or is a superintendent, secretary, treasurer, master of road repairs, or conductor of any railroad; or is a telegraph operator, or a teacher of a public or private school actually engaged in teaching; or a minister of the gospel, or pastor of a religious society, in charge of any diocese, parish, church, district or circuit.
When the deposition of any witness, residing in the county in which the canse is pending, has been taken as above, either party may require his personal attendance by making affidavit that he believes such is necessary.
Either party to a civil suit may file written interrogatories to his adversary, and is not concluded by the answers.
Provision is made by the Code for the taking of testimony de beneesse.
In chancery either party may require witnesses residing within one hundred miles of the place of trial to be examined orally, instead of by interrogatories, and such examination may be taken before the register, or before an examiner ap- pointed by the court, or by a special commissioner of the appointment of the register, as the applicant may desire.
In all other cases testimony in chancery causes must be taken by interrogatories, in the mode prescribed by law.
The rules of evidence as to the competency of witnesses in courts of chancery are the same as in courts of law.
Costs in Civil Actions .- In civil actions, the successful party is entitled to full costs ; but when execution against the defendant is returned "no property," the plaintiff is liable for all costs created by him in obtaining his judgment.
When the action is for tort, the plaintiff recovers no more costs than damages, unless the judge certifies that greater damages should have been awarded.
In civil actions, non-residents of the State must give secur- ity or make a deposit of money for costs.
APPEALS.
Appeals to Supreme Court .- An appeal lies to the Su- preme Court :
1. From any final judgment or decree of a chancery,
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circuit, city or probate court, to be taken within one year, unless the law has prescribed a different time.
2. From any decree of a chancery court or chancellor sustaining or over-ruling a demurrer or plea to a bill in equity, or motion to dismiss such bill for want of equity, to be taken within thirty days and to be a preferred appeal ; but if no such appeal be taken, the decree may be assigned as error on any appeal taken after the final determination of the cause.
3. From any interlocutory order sustaining or dissolving an injunction, to be heard and determined at the first term after the appeal is taken, or if the supreme court is in session when the appeal is taken, then during such session, at least three days notice of the appeal having been first given to the adverse party.
4. From any order of a chancellor appointing or refusing to appoint a receiver, to be taken within thirty days and to be a preferred appeal.
5. From any judgment over-ruling a motion to dismiss or quash an attachment, or sustaining a demurrer to a plea in abatement to an attachment, or sustaining an attachment against matters set up in abatement of it; 'such an appeal to be taken only with the consent of the opposite party.
6. From any final judgment of any circuit or city court on an application for a writ of certiorari, supersedeas, po warranto, mandamus or other remedial writ, to be taken within thirty days and to be a preferred appeal ; and from any jndg- ment of a judge of such court, on any such application, to be taken within sixty days .*
7. From any decision of a circuit or city court, in a civil case, granting or refusing a motion for a new trial.t
8. In contested election cases tried in the chancery or circuit court ; from any order of a court of record granting or refusing substitution of lost papers : from the decree of a probate court on exceptions to exemption set apart to a widow ; from the award of arbitrators in a pending suit, and in a few other cases, to be taken within the time prescribed by
*See Code of Alabama, sections 3160 and 3616.
tAs the art of February 16, 1-91, giving the right to appeal in such cases, does not prescribe the time within which the appeal must be taken. it would seem to be gov- erned by section 3419 of the Code of Alabama, which prescribes one year as the time within which an appeal must be taken, unless a different time is provided by law.
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law in each particular case, and if no time is prescribed, then within one year.
Security for Costs, etc .- In all cases of appeal to the supreme court, the appellant must give security for the costs of the appeal; and if he wishes to stay the execution of the judgment, must give a supersedeas bond, in the penalty and conditioned as prescribed by law. But a married woman may appeal to the supreme court from any judgment or decree of a chancery, circuit, eity or probate court, subjecting to sale any part of her separate estate, without giving security for the costs, on making affidavit that she is unable to give such, and such appeal operates as a stay of all proceedings under such judgment or decree.
Damages on Affirmance .- When the appeal is to the supreme court, and the execution or decree has been sus- pended, pending the appeal, and the judgment or decree is affirmed, ten per cent. damages must be added thereon.
Appeals to Circuit or Supreme Court .-- An appeal lies to the circuit or supreme court from any final deeree of the court of probate, or from any final judgment, order, or decree of the judge of probate, to be taken within one year, unless the law has prescribed a different time; and from certain other decrees and orders of such court or judge, specified in the Code of Alabama, to be taken within the time prescribed in each particular case. When the appeal, under this head, is taken first to the circuit court, an appeal from the judgment of the circuit court may be taken to the supreme court, within thirty days after such judgment.
In all such cases of appeal to the circuit or supreme court the appellant must give security for the costs of the appeal.
Appeals to Circuit Court .-- An appeal lies to the circuit court-
1. From any judgment of a justice of the peace, to be taken within five days, except in a case of forcible entry or unlawful detainer, when the appeal may be taken within ten days.
2. From any judgment of conviction for a violation of any municipal ordinance or by-law, to be taken within five days, unless otherwise provided in the charter of the eity or town.
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3. From any decree of a probate court for the sale of land for taxes, to be taken within thirty days.
4. In all other cases provided by law, to be taken within the time prescribed in each case.
Bond for Appeal to Circuit Court .- In all cases of appeal to the circuit court, unless the law has otherwise pro- vided, the appellant must give bond, with sureties, conditioned to pay such judgment as the circuit court may render against him.
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PART FIFTH.
. EDUCATION IN ALABAMA.
THE FREE PUBLIC SCHOOL SYSTEM OF ALABAMA.
By the act of March 2, 1819, for the admission of the State of Alabama into the Union, Congress granted the section of public land numbered sixteen in every township in the State ' (and when that section had been sold or disposed of, other lands equivalent thereto and most contiguous) to the inhab- itants of such township for the use of schools therein, and, in return for this grant, the State released to the United States all title to the other public lands within the State.
March 2, 1827, Congress authorized the State to sell these lands and invest the proceeds in some productive fund, the revenue from which was to be forever applied to the use of schools; but providing that each township should have the full benefit of its particular section, and that the proceeds of any given sixteenth section should be credited to the town- ship embracing such section, and the revenue arising therefrom applied to the support of schools in that township exclusively.
Under this authority, the lands, or the larger portion of them, were sold, and the proceeds became, in the hands of the State, the nucleus of its present school fund.
July 4, 1836, Congress made another grant of lands to Alabama for the use of schools, equal to the thirty-sixth part of the lands within the State, ceded to the United States by the Chickasaw Indians. By an act passed September 4, 1841,
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Congress donated to the State 500,000 acres of land for in- ternal improvements. Subsequently, by act of August 11, 1848, the State was authorized to apply these lands to the use of schools in those townships in which the sixteenth sections, granted by the act of March 2, 1819, were comparatively valueless.
In 1836 there was a surplus of revenue in the United States treasury, over and above what was necessary to meet the wants of the federal government, and Congress, by act passed June 23, 1836, declared that such surplus, in excess of $5,000,000, should be apportioned among the different States, according to their representation in Congress, to be held until called for by the United States. The amount received by Alabama under this act, and which was, by the Legislature, appropriated as a part of the school fund, was $669,086.80.
It has always been the policy of Alabama to foster educa- tion and promote learning among the masses, and the earliest ' constitution of the State - that adopted in 1819 -- declared that schools and the means of education should forever be encouraged in this State. The first legislative enactment establishing a system of free public schools in Alabama was passed February 17, 1854. This act was supplemented by a very important act, passed February 18, 1856. Prior to 1854 there was no such system, and the revenue accruing from the school fund was used to pay teachers of private schools, for the education of those entitled to the benefit of such revenue.
The present Constitution of the State requires the General Assembly to establish and maintain a system of public schools for all the children of the State between the ages of seven and twenty-one years; but there must be separate schools for white and colored children. It preseribes, also, in general terms, from what and how these schools are to be supported ; declares that no money raised for the support of the public schools of the State shall be appropriated to or used for the support of any sectarian or denominational school .*
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