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Genealogical Gleanings From
Reports of Cases Determined in the
Supreme Court of Alabama, 1820-1826
JUDGE SAFFOLDAt the August term, 1820, of Dallas Circuit Court, Pender recovered judgment against Davis. On the 18th day of January, 1822, Davis sued out this writ of error. The Act of February, 1818, provides, that no writ of error shall issue after the expiration of twelve months from the rendition of the judgment. By the Act of December, 1820, a writ of error may issue to reverse any final judgment in the circuit at any time within three years from the rendition of the judgment.
In resistance of the motion to dismiss, it is contended by the plaintiff in error, that this matter can only be taken advantage of by plea. In the inferior courts, it is competent for the plaintiff to reply and prove the matters which may take his case out of the operation of the statute, as a subsequent promise, infancy, etc.; the plea must show that defendant relies on the statute, in order that the plaintiff may have an opportunity to reply such matter as will prevent the statute from attaching. In this court nothing dehors the record can be considered; the reason for requiring the statute to be plead, therefore does not apply, and the defendant in error is entitled to avail himself of it by motion.
The Act of 1820, from its terms, can apply only to judgments rendered since its enactment. When this writ of error was sued out, more than twelve months had elapsed since the rendition of the judgment. It was barred by the Act of 1818, and must be dismissed with costs.
Source: Henry Minor, Reporter, Reports of Cases Determined in the Supreme Court of Alabama From May, 1820, to July, 1826 (Atlanta: 1891), pp. 57-58.
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