1821-(4) Judges of form the du fore assigned the commissioners in case of insol vency. Creditors claims in the sioners. § 7. When the estate of any testator or intestate shall be reported insolvent, it shall be the duty of the judge of the county court to audit and determine on the accounts relating thereto, according to the regula courts to per- tions heretofore prescribed for commissioners in such cases. But in ties hereto- cases where the whole value of the assets according to the inventory and appraisement, shall appear to be less than one hundred and fifty dollars, it shall not be necessary (unless special cause therefor appear) to publish the notification in any gazette. Creditors may in all cases file the evidences of their claims in the clerk's office, and when, in may file their the opinion of the judge, the case so requires, he may appoint comclerk's office. missioners as heretofore. The notification in such cases shall set forth the times and place appointed for the meeting of the commisProceedings sioners; commissioners may be appointed, and if any of them refuse by commis- or fail to act, others may be appointed in their stead at any time before the report shall be agreed on. The commissioners, within three days before the time of their first meeting, shall apply at the clerk's office for such evidences of claims as may have been there filed, and shall return the same to the office within ten days after making up their report, or after the last time appointed for meeting. Exceptions to their report shall be heard and determined by the judge: if no report be returned by them, as required by the order, the judge shall appoint some time, not more than four weeks distant, at which he will examine and decide on the case, and notification thereof shall be made by the clerk, by advertisement at the door of the court-house. § 8. Whenever it shall be made to appear to the satisfaction of any county court, that the estate of any deceased person, or those who are entitled to inherit the same, will be less injured by a sale of the land, or part thereof, for the payment of debts, than by a sale of of land or slaves, such court may, on the petition of any party interested, cause a citation to issue to all other interested persons, if in the county, or when that is not the case, by publication of notice in some paper, for such interested party or parties to appear at the next county court, and show cause if any they can, why sale of the land belonging to the estate so situated should not be ordered; and on the return of such citation made known, or proof of the publication of the notice hereby required, at the next term of such county court, if no cause be shown which the court deem sufficient, such court may order sale of such land, or whatever parts thereof, as may be necessary to satisfy debts, without a sale of negroes; and such sale shall vest in the purchaser, the same title in law or equity of which such decedent died possessed. 1818-(14) Sec. 2. Discretionary with orphans' court to order sale slaves. 1826-(15) Sec. 4. Slaves to re premises until the last day of December. § 9. If any person shall die after the first day of January, the servants and slaves of which he was possessed, whether held for life or main on the other interest, and which were employed in making a crop, shall be continued on the plantation in the occupation of the decedent at the time of his death, until the last day of December following, and then delivered to those who shall have a right to demand the same; and their crops shall be assets in the hands of the executors and administrators, subject to debts, legacies and distribution; the levies and taxes, their tools, the expense of feeding them and their families to that time, and delivering them well clothed, being first deducted. 1826-(35) Sec. 2. Provisions deceased not § 10. The dead victuals and liquors, which at the death of any testator or intestate, shall have been laid in for consumption in his famlaid in by the ily, shall not be sold by the executor or administrator, but shall remain for the use of such family, without account thereof being made. When they If, however, before their final consumption any child shall leave the family, such child shall have a right to carry with him or her an equal to be sold. may be di vided. share of what shall then be on hand. Any live stock which may be necessary for the food of the family, may be also killed for that use at any time before the sale, division or distribution of the estate. § 11. All such property as now is, or hereafter may be exempt 1827-(26) from execution, is hereby exempt from sale by an executor or admin- Executor, istrator, and the family shall be suffered to retain the same. .Sec 1. &c, not to estates when sell property 12. Whenever any person or persons die intestate, and leaving exempt from an estate not involved in debt so as to enforce a sale of any part of execution. 1820-(20) his or her estate, real or personal, it shall be the duty of the chief sec. 1. justice of the county court, or presiding magistrate, within three Division of months after such estate is represented by the administrator or admin- clear of debt. istratrix to be solvent, to appoint five commissioners, who, or a majority of them, shall, within six months after their appointment, being first duly sworn, make division and distribution of such estate, (reserving to the widow her dower in all cases,) among the legatees or other legal representatives of the deceased; and such division and distribution, shall be reduced to writing, and signed by said commissioners, and certified by the justices of the peace, or other magistrate, before whom said commissioners are sworn, and returned to the office of the clerk of the county court, or such other office as may be prescribed by law for that purpose, whose duty it shall be to record the same, as now required by law in cases of inventories: Provided always, That when such division and distribution cannot be equitably effected, without manifest injury to the legatees, or other legal representatives, in that case, such estate shall be exposed to public sale as heretofore. § 13. Any person entitled to the distribution of an intestate's es- 1812 (11) tate, may at any time after the expiration of eighteen months from County court granting the letters of administration, petition the county court, setting may order forth his claim, whereupon it shall be the duty of the said court to in 18 months grant a rule on the administrator, administratrix, or administrators (as after adminthe case may be,) to make the distribution agreeably to law; but no granted. administrator, administratrix, or administrators, shall be compelled to a 1833—(18) make distribution at any time, until bond and security be given by the person entitled to distribution, to refund a due proportion of any debts Distributee or demands, which may afterwards appear against the intestate, and to give bond the costs attendant on the recovery of such debt. Sec. 1. distribution istration Sec. 1.] and security. ment. §14. Any person entitled to a legacy, or any estate by will, shall b Sec. 2. be entitled to the provisions of the foregoing section, as in case of quired after administrators: Provided, That nothing herein contained, shall be so final settleconstrued, as to compel any distributee to give bond and security as aforesaid, for his or her distribution of the estate of any intestate, after a final settlement shall have been made by the administrator or administratrix. Sec. 1. ed may be § 15. When any of the children of a person dying intestate shall 1822-(7) have received from such intestate in his or her lifetime, any real or Estate previpersonal estate by way of advancement, and shall choose to come in- ously receiv to the partition of the estate with the other parceners, such advance- brought into ment both of real and personal estate, or the value thereof, shall be hotch-pot. brought into hotch-pot with the whole estate, real and personal descended; and such party bringing into hotch-pot such advancement as aforesaid, shall thereupon be entitled to his, her, or their portion of the whole estate so descended, both real and personal. Property §16. When one or more of the heirs of any deceased intestate 1828—(1) shall have received property of the ancestor in his lifetime, and shall Sec. 2. wish to bring the same into hotch-pot, and the parties cannot agree brought into as to the value of such property, the same shall be ascertained by tes- how valued. timony, and affixed by the judge of the county court of the county hotch-pot, where letters testamentary or of administration shall have been granted; and it shall be his duty to do so, on the application of any person concerned in interest, on due notice to the other persons interested; and the said judge may at his discretion impannel a jury to assess the value of the property in question; and on the application of either party for a jury, it shall be the duty of the judge to cause the same to be impannelled; and in all cases, the value of the property at the time it was delivered, shall be fixed by said judge or jury, as the case Its value to may be; and the value so fixed, or the value agreed upon by the parties, shall be deducted from the share of such heir or heirs. be deducted from the heir's por tion. Ib. Sec. 1. Judgment subject lands to sale by scire facias. § 17. Whenever an executor of any deceased testator, or adminis trator of any deceased intestate, shall fail to apply to the county court for the sale of real estate, for the purpose of paying the debts due thereof, the judgment creditor may, upon filing a suggestion in the creditors may clerk's office in which judgment shall have been rendered, that real estate has descended to the heirs, and that sale of the same, or some part thereof is necessary for the satisfaction of said judgment, and that said executor or administrator has failed or refused to make application for the sale thereof, and setting out the names of said personal representative and heirs, sue out a scire facias against said executor or administrator and heirs, returnable to the next term of said court, requiring them, then and there, to show cause, why said plaintiff should not have execution against said real estate, and if sufficient cause to the contrary be not shown, execution shall be awarded against said real estate: (1) and all executors and administrators who fail to apply for leave to sell real estate three months after reporting administra the estate insolvent, shall be deemed guilty of a devastavit, and may applying for be sued on their bond together with their securities. (2) Penalty against ex ecutors and tors for not leave to sell Executor or terest on funds of the estate applied to his § 18. When any executor or administrator shall apply any of the funds of the estate of his testator or intestate to his own private use, or shall have heretofore done so, he shall pay interest for the same: tor to pay in- and in making their returns to the court, they shall state the sum so used, and the time at which it was applied, or shall expressly deny on oath, that they have so used any of the funds of their testator or intestate; and if any person interested in such estate shall controvert the statement so made, the same shall be determined by the judge of the county court, on evidence to be adduced; and if the judge deems it necessary he may, and if either party request it, he shall impannel a jury to decide on such disputed facts. own use. Ib. Sec. 4. § 19. When the heirs may reside without the limits of this state, Publication the court shall direct publication to be made, as in the case of non-reare non-resi. sident defendants in chancery. when heirs dents. (1) On judgment against an administrator, lands descended cannot, by sci. fa. against the heirs, be made liable to execution. Bells et. al. v. Heirs of Robinson, 1 Stewt. Rep. 193. (2) A decree of the county court, ordering the sale of the lands of an insolvent estate is evidence against third persons, concerning the lands sold, Such decree cannot be inquired into or impeached, while unreversed :-and is evidence, although the whole of the proceedings on the intestate's estate, be not shown. Richardson v. Hobart, i Stewt. Rep. 500. EXECUTIONS. The legislative enactments on the subject of executions, naturally divide themselves into the following heads, viz: 1. Issuance of, and proceedings under executions, generally. 2. Supersedeas of executions. 3. Priority and lien of executions. 4. Property exempt from execution. 5. Right of property executed. 6. Delivery bonds. 7. Sales under execution. 8. Proceedings against officers holding executions. 1. ISSUANCE OF, AND PROCEEDINGS UNDER EXECUTIONS, GENERALLY.1 : tions may is § 1. All persons who shall recover any debt, damages, or costs, by 1807-(21) the judgment of any court of record within this territory may, at their How execu election, prosecute writs of fieri facias, elegit, and capias ad satisfa- sue on judg ciendum, within the year, for taking the goods, lands, or body, of the ments. person or persons against whom such judgment is obtained, in manner following all such writs shall run in the name of athe State of Alaba- (a Con. Ala. ma, and bear teste by the clerks of the said courts respectively, shall Art. 5, Sec. 17.) be returnable to the first day of the next succeeding court, so that there be always at least fifteen days between the teste and return of each of the said writs: Provided, That if the plaintiff shall desire an execution to issue returnable at a further day, the clerk shall issue the same accordingly, so as the day of such return be upon a court-day, within ninety days next after the teste thereof. The forms of the said several writs shall be as follows, mutatis mutandis : "The state of Alabama, to the sheriff of -county, Greet- (b Con. Ala. ing: We command you, that of the goods and chattels3 of A. B. late Art. 5, Sec. of your county, you cause to be made the sum of which C. D. lately in our for debt; also the sum of 17.) Form of a in debt. court hath recovered against him fieri facias, the same court were adjudged for his damages; as well by reason of said court, on the day of to the said C. D. of his debt and damages aforesaid; and have then and there this writ. Witness," &c. The same in case upon a promiseAs before, unto "for his damages which he hath sustained, as well by reason of the non-performance of a certain promise and assumption, by the said A. B. to the said C. D. lately made, 1 The law in relation to executions issued by justices of the peace, is introduced at the conclusion of this division, except such parts of it as fell incidentally and more properly under the other divisions. * They are required to be returned three days previously to the term of the court. See Judicial Proceedings at Common Law,-Process.” * Lands, tenements, and hereditaments, are by act of December 23, 1812, made subject to the payment of all judgments, or decrees of any court of record in this state, and the clerks are required to frame the execution accordingly.—See § 18. In assumpsit. In trespass. In covenant. (a Con. Ala. Art. 5, Scc. 17.) Form of a writ of elegit. as for his costs by him about his suit in that behalf expended," &c. If for the defendant, say, 66 • For his costs about his defence in a certain action at the suit of the said," &c. As before unto "for damages, &c. by reason of a breach of a certain covenant between the said A. B. and C. D. lately made," &c. "The state of Alabama,a to the sheriff of Whereas A. B. at our county, greeting: court, &c. before our judge held, hath recovered against C. D. the sum of which to the said plaintiff was adjudged, for a certain debt or damages, (as before) and the said A. B. hath chosen to have delivered to him all the goods and chattels of the said C. D., saving only the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your county, to have and to hold the goods and chattels aforesaid, as his own proper goods, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof, the debt and damages afore. said; therefore we command you, that you cause to be delivered all the goods and chattels of the said C. D., saving the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your county, whereof he, at the day of obtaining the said judgment, was seized, or at any time afterward, by reasonable price and extent, to have and to hold the said goods and chattels, to him the said A. B. as his own proper goods and chattels, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof, the debt and damages aforesaid; and that you certify to our said judge, under your own seal, and the seals of those by whose oath you shall make this extent and appraisement, how you execute this writ; the day of ; and have then and there this writ. "The State of Alabama,b to the sheriff of county, greeting: Art. 5, Sec. We command you, that you take A. B., late of your said county, if Form of a he be found therein, and him safely keep, so that you have his body capias ad sat before the judge of our (b Con. Ala. 17.) isfaciendum. day of Form of the turns of a court, &c. the next, to satisfy C. D. the sum of which the said C. D. hath recovered against him for debt, also," &c. as before, in case, trespass, or covenant, as in the fieri facias. Which said writs, so issued, shall be executed by the sheriff or other officer, to whom the same shall be directed, and shall be returned according to the respective forms hereafter mentioned. 66 By virtue of this writ, to me directed, I have caused to be made several re- the within mentioned sum of of the goods and chattels' of fieri factas. the within named A. B., which said sum of , before the judge within mentioned, at the day and place within contained, I have ready, as that writ requires." Ör:-"The within named A. B. hath no goods or chattels within my county, whereof I can make the sum of within mentioned, or any part thereof." Or:-" By virtue," &c. "I have caused to be made of the goods and chattels of the within named C. D., the sum of in part of the debt and damages within mentioned, and I do further certify that the said A. B. hath no more goods and chattels within my county, whereof at present I can make the residue of the said debt and damages, as by the said writ is required." Return of writ of elegit. "Inquisition indented, taken at in the county aforesaid, 1 See the preceding note. |