served at least twenty days before application for relief shall be made to the court. In case of an appearance for the state by the governor, or any other authorized officer, the pleadings and trial shall be conducted in such manner as the court shall direct. If an issue of fact shall be joined on the pleadings, the court shall transfer it to the superior court of some convenient county for trial by a jury, as other issues of fact are directed to be tried, and the judge of the court before whom the trial is had shall certify to the supreme court, at its next term, the verdict and the case, if any, made up and settled as prescribed in cases of appeal to the supreme court. If the state shall not appear in the action by any authorized officer, the court may make up issues and send them for trial, as aforesaid. The supreme court shall in all cases report the facts found, and their recommendation thereon, with the reasons thereof, to the general assembly at its next term. Code, s. 948. 1539. Jurisdiction as court of review. The supreme court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said court over "issues of fact" and "questions of fact" shall be the same exercised by it before the adoption of the constitution of one thousand eight hundred and sixty-eight, and the court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts. Const., Art. IV, s. 8. 1540. How cases taken to. Cases shall be taken to the supreme court by appeal, as provided by law. Code, s. 946. 1541. May make rules of court. The justices of the supreme court shall prescribe and establish from time to time rules of practice for that court and also for the superior courts. The clerk shall certify to the judges of the superior court the rules of practice for said court, to be entered on the records thereof in each county. Code, s. 961; R. C., c. 33, s. 13; 1818, c. 963. 1542. Judgment on record; execution, where returnable. In every case the court may render such sentence, judgment and decree as on inspection of the whole record it shall appear to them ought in law to be rendered thereon; and it may at its discretion make the writs of execution which it may issue returnable either to the said court, or to the superior court: Provided, that when an execution shall be made returnable as last mentioned, a certificate of the final judgment of the supreme court shall always be transmitted to the superior court aforesaid, and there be recorded: Provided further, that the said superior court may enforce obedience to the execution, and in the event of its not being executed may issue new or further execution or process thereon in the same manner as though the first execution had issued from the said superior court: Provided also, that in criminal cases the decision of the supreme court shall be certified to the superior court from which the case was transmitted, which superior court shall proceed to judgment and sentence agreeable to the decision of the supreme court and the laws of the state. Code, s. 957; R. C., c. 33, s. 6; 1799, c. 520; 1818, c. 963; 1830, c. 2; 1868-9, c. 962. 1543. Appeals dismissed, when. Suits and appeals pending in the supreme court may be dismissed on failure to prosecute the same, after a rule obtained for that purpose and served on the plaintiff or appellant, his agent or attorney, at least thirty days before the term next ensuing that of entering the rule; when, if the party shall fail to prosecute his suit or appeal, the court shall, at the election of the adverse party, dismiss the suit or appeal at the costs of the plaintiff or appellant, or proceed to hear and determine it. Code, s. 967; R. C., c. 33, s. 20; 1848, c. 28; Supm. Ct. Rules, 15, et seq. 1544. No judgment on interlocutory order; opinion certified below. When an appeal shall be taken to the supreme court from any interlocutory judgment, the supreme court shall not enter any judgment reversing, affirming or modifying the judgment, order or decree so appealed from, but shall cause their opinion to be certified to the court below, with instructions to proceed upon such order, judgment or decree, or to reverse or modify the same according to said opinion, and the court below shall enter upon its records the opinion at length, and proceed in the cause according to the instructions. Code, s. 962. 1545. Power over amendments; further testimony, when. The supreme court shall have power to amend any process, pleading or proceeding either in form or substance for the purpose of furthering justice, on such terms as shall be deemed just at any time before. final judgment. Also to amend by making proper parties to any case where the court may deem it necessary and proper for the purposes of justice and on such terms as the court may prescribe. And also, whenever it shall appear necessary for the purpose of justice, to allow and direct the taking of further testimony in any case which may be pending in said court under such rules as may be prescribed, or the court may remand the case to the intent that amendments may be made, further testimony taken or other proceedings had in the court below. Code, s. 965; R. C., c. 33, s. 17; 1777, c. 115, s. 75; 1785, c. 233; 1792, c. 360; 1831, c. 46. 1546. Petition to rehear may be filed when; execution restrained. A petition to rehear may be filed during the vacation succeeding the term of the court at which the judgment was rendered, or within twenty days after the commencement of the succeeding term, and upon the filing of such petition the chief justice, or either of the associate justices, may, upon such terms as he sees fit, make an order restraining the issuing of an execution, or the collection and payment of the same, until the next term of said court, or until the petition to rehear shall have been determined. Code, s. 966; R. C., c. 33, s. 18; Supm. Ct. Rules, 52, 53, 54. 1547. Exhibits, how proved. Exhibits or other documents relative to cases pending in the supreme court may be proved by the parol testimony of witnesses to be examined in said court in the same manner and under the same rules as such exhibits or documents may be proved in the superior court and suitors in said court may have subpoenas to enforce the attendance of witnesses, who shall be liable to the same penalties and actions for nonattendance, and be entitled to the same pay for traveling, ferriage and attendance as witnesses in the superior court: Provided, that witnesses attending the supreme court shall be taxed in the bill of costs and paid by the party on whose behalf they may be summoned. Code, s. 963; R. C., c. 33, s. 21; 1820, c. 1070; 1825, c. 1282; 1842, c. 1. 1548. Opinions and judgments to be in writing. The justices shall deliver their opinions and judgments in writing, and the clerk shall make no entry upon the records of the court that any cause pending therein is decided, nor give to any person a certificate of such decision, nor issue execution in such suit, until after the opinion of the court shall have been delivered publicly in open court, and a written copy of the same opinion shall have been delivered to the clerk; which shall afterwards be filed among the records of the court and published in the reports of the decisions made by the court: Provided, that the justices shall not be required to write their opinions in full except in cases in which they deem it necessary. Code, s. 964; 1893, c. 379, s. 5; R. C., c. 33, s. 16; 1810, c. 785. 1549. Certificates transmitted, when; execution for costs; penalty. The clerk on the first Monday in each month shall transmit by some safe hand, or by mail, to the clerks of the superior courts certificates of the decisions of the supreme court in cases sent from said court, which shall have been on file ten days; and thereupon the said clerks respectively shall issue execution for the costs incurred in the courts from which the cases were sent; and the clerk of the supreme court shall issue execution for the costs incurred in that court, including all publications in newspapers made in the progress of the cause in that court, and by order of the same, and all postage on letters which concern the transfer of original papers. And if the clerk shall fail for the space of twenty days to perform the duty herein enjoined of transmitting the said certificates of decisions, he shall forfeit and pay to the party or parties in whose favor the supreme court shall have decided, one hundred dollars. Code, s. 968; 1887, c. 41; R. C., c. 33, s. 21; 1820, c. 1070; 1825, c. 1282; 1842, c. 1, s. 3. 1550. Records recorded. The court may order the clerk to record such parts of the record of cases as it may deem necessary. Code, s. 959. III. OFFICERS OF. 1551. May appoint acting attorney general. If the attorney general should fail at any term of the supreme court to attend to the business which by law is assigned him, the court may appoint some counsel learned in the law to discharge his duties during the term. Code, s. 969; R. C., c. 33, s. 22; 1846, c. 29. 1552. Reporter. The supreme court may employ a reporter of its decisions. Code, s. 3363; 1893, c. 379, s. 4; 1897, c. 429. 1553. Clerk. The clerk of the supreme court shall be appointed by the court, and shall hold his office for eight years. Const., Art. IV, s. 15. 1554. Money in hands of clerk. The clerk of the supreme court shall, at the beginning of each fall term, produce to the court a statement on oath of all moneys remaining in his hands which have been paid into his office three years or more previous thereto, whether received directly from parties or from his predecessor in office, and is not detained in his hands by special order of the court, specifying therein the name of the person to whom the same is payable, and his address, if known; a copy of which report shall be transmitted to the state treasurer and to the auditor. Code, s. 1864; R. C., c. 73; 1823, c. 1186; 1831, c. 3. 1555. Marshal. The supreme court may appoint an officer to be styled "marshal of the supreme court," removable at will, who shall attend upon the court during its sessions. Code, s. 950; 1873-4, c. 34; 1881, c. 306. Note. NOTE. For compensation, see s. 2770. For power of justices to take probates, see s. 989. For clerk's bond and oath of office, see s. 290. For duty of clerk on affirmance in capital felony, see s. 3284. CHAPTER 30. DESCENTS. (Section 1556.) 1556. Rules of. When any person shall die seized of any inheritance, or of any right thereto, or entitled to any interest therein, not having devised the same, it shall descend under the following rules: Code, s. 1281; R. C., c. 38, s. 1. RULE 1. Lineal descent. Every inheritance shall lineally descend forever to the issue of the person who died last seized, entitled or having any interest therein, but shall not lineally ascend, except as hereinafter provided. Code, s. 1281; R. C., c. 38, Rule 1. RULE 2. Females inherit with males, younger with older children; advancements accounted for. Females shall inherit equally with males, and younger with older children: Provided, that whenever a parent shall die intestate, having in his or her lifetime settled upon or advanced' to any of his or her children, any real or personal estate, such child so advanced in real estate shall be utterly excluded from any share in the real estate descended from such parent, except so much thereof as will, when added to the real estate advanced, make the share of him. who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And any child so advanced in personal estate shall be utterly excluded from any share in the per |