Ib. Sec. 4. Judgment at return term. Ground of contiuuance. ment of justice, to require the production of the original bond, contract, or other paper, specified in such affidavit. § 20. When suit shall be instituted as aforesaid, against any person or persons indebted to this state as aforesaid, it shall be the duty of the court to grant judgment at the return term on motion; unless the defendant shall in open court, the attorney-general being present, make oath or affirmation, that he is equitably entitled to credits which have not been allowed him, specifying each particular credit in the affidavit, and that he cannot then come safely to trial; oath or affirmation to this effect being made, subscribed and filed, if the court be thereupon satisfied, a continuance until the next succeeding term may be Trial of issue granted, but not otherwise: Provided, That in all cases where the defendant shall appear and contest the claim of the state, and demand the benefit of a trial by jury, the court shall instanter empannel a jury, if at a special session, of by-standers, to try the issue, and give judgment accordingly. by jury. Ib. Sec. 5. State to have preference in case of insolvency. § 21. In all cases of insolvency, or when any estate in the hands of the executors, administrators, or assignees, shall be insufficient to pay all the debts due from the deceased to the state, the debt or debts due to the state shall be first satisfied; and any executor, administrator, or assignee, or other person, who shall pay any debt due by the person or estate, from whom, or for which they are acting, previous to the debt or debts due to the state from such person or estate, being first duly satisfied and paid, shall become answerable in their own person and estate, for the debt or debts so due to the state, or so much thereof as may remain due and unpaid; and actions or suits at law may be commenced against them for the recovery of said debt or debts, or so much thereof as may remain due and unpaid, in the proper court Sureties pay having cognizance thereof: Provided, that if the principal in any ing debt, to bond which shall be hereafter given to this state, shall become insolpreference. vent, or if such principal being deceased, his or her estate and effects, have like which shall come to the hands of his or her executors, administrators, or assignees, shall be insufficient for the payment of his or her debts, and if in either of said cases, any surety on the said bond or bonds, or the executors, administrators, or assignees of such surety, shall pay to the state the money due upon such bond or bonds, such surety, his or her executors, administrators, or assignees, shall have and enjoy the like advantage, priority, or preference, for the recovery and receipt of the said moneys out of the estate of such insolvent or deceas ed principal, as are reserved and secured to the state, and may bring and maintain a suit or suits upon the said bond or bonds, in law or equity, in his, her, or their own name or names, for the recovery of all Includes pro- moneys paid thereon. And the cases of insolvency mentioned in this perty assign section, shall be deemed to extend to cases in which a debtor, not having sufficient property to pay all his or her debts, shall have made a voluntary assignment thereof, and to cases in which the estate and effects of an absconding, concealed, or absent debtor, shall have been attached by process of law. ed or attached. Ib. Sec. 6. may be proved. § 22. If any bond, contract, or other paper, relating to, or connectlost bond, &c. ed with any account between this state and any individual, has been, or hereafter shall be, lost or mislaid, so that the same cannot be produced in court, it shall be lawful for the court to receive evidence of the fact, and of the contents of such bond, contract, or other paper; and such evidence shall be entitled to the same degree of credit, which would be due to the original papers if produced and authentieated in open court. No remedies § 23. Nothing in this act shall be construed to repeal, take away, Ib. Sec. 7. or impair any legal remedy or remedies for the recovery of debts now taken away due, or hereafter to be due to this state, in law or equity, from any by this act. person or persons whatever, or to defeat any suit or suits now pending in behalf of the state against any person or persons whatever, which remedy or remedies might be used if this act was not in force. NOTE. For the mode of proceeding against tax-collectors, failing to make returns-See "Taxes." FINES, FORFEITURES, AND PENALTIES. Jury to as 1. In all prosecutions for offences less than capital, no person 1807-(6) shall, on conviction, be fined in a greater sum than shall be assessed Sec. 53. by the verdict of a jury; and in all cases, where the defendant or de- sess fines. fendants to any indictment whatsoever, shall plead guilty, the court before whom the prosecution is depending shall forthwith empannel a jury to assess the fine, which shall be inflicted on such defendant or defendants. collected. § 2. All fines and forfeitures which may be recovered by virtue of b. Sec. 56. this act, shall be collected by the sheriff of the county where the Where to be offender is tried, or of that in which he may reside, and accounted [a Sec. 44 of this act.] for in the same manner that public taxes are or may be accounted for; and whenever the court, before whom any offender or offenders may Imprisonbe tried and fined by the verdict of a jury, shall be of opinion that ment for such offender or offenders, is or are unable to pay the fine so inflicted, and that his, her, or their imprisonment will operate to increase the public expenditure, the said court are hereby authorized and required to discharge him, her, or them, from custody. fines. Clerks to is County §3. The clerks of the several courts within this territory shall, im- 1808-(1) mediately after the rising of the respective courts, issue execution in Sec. 1. all cases in which executions are issued by law, for the fines, for- sue execu feitures, and amercements, that may have accrued to the territory, and tion for fines, unpaid previous to the rising of such court, (and shall make out and [b 1812-(20) certify to the auditor of public accounts, and county treasurer respec- Sec. 6.J and certify tively, a fair abstract of all fines, amercements, and penalties, which abstract to shall be assessed, had, or recovered in his court, immediately after the auditor and end of every term, specifying therein the names of the persons, the treasurer. amount of the judgment, and offence for which the recovery is had, and shall, within one month after the rising of such court, cause the same to be transmitted to the auditor and county treasurer respectively,) together with the name of the sheriff or other officers that shall have become liable to pay the same by law, to enable said auditor to call them to account. And every clerk failing to perform the afore- Penalty for said duty, shall forfeit and pay the sum of two hundred dollars, to be neglect of recovered by the auditor of public accounts, on motion to the supreme Court, and applied to the use of the territory: Provided, that ten days' notice in writing be given of every such motion.3 duty. 4. If any sheriff or other officer shall make return upon any writ b. Sec. 2. of fieri facias, or venditioni exponas, that he hath levied the fine, Sheriffs, &c. forfeiture, or amercement, as in such writ is required, or any part ment on mo liable to judg tion, for not accounting 1 See the several sections of the act of 1807-(6). Title, "Crimes and Mis- for fines redemeanors." * Or superior court of law and equity.—See § 8. ceived by them. Ib. Sec. 4. to auditor ally, the amount received for taxes on suits. thereof, or shall return upon any writ of capias ad satisfaciendum, that he hath taken the body or bodies of the defendant or defendants, or hath the same ready to satisfy the fine, forfeiture, or amercement, in such writ mentioned, or have suffered him, her, or them to escape; or if any person shall be committed to the custody of such officer, by any of the courts of this territory, until the fine, forfeiture, or amercement, for which he, she, or they were committed, shall be paid, and shall suffer him, her, or them to escape, or shall actually have received the same, and shall not in every such case immediately, or as soon as may be, account to the auditor, and pay the same into the territorial treasury, then, and in each of said cases, it shall be lawful for the auditor of public accounts, upon motion in the supreme court, to demand judgment against such sheriff or other officer, or their securities, for the fine, forfeitures, or amercements, mentioned in such writ, or for so much as shall be returned levied, or for the amount for which the defendant or defendants shall have been committed, and such court is hereby authorized and required to give judgment accordingly, and award execution thereon: Provided, Such sheriff or other officer have ten days previous notice of such motion.1 § 5. It shall be the duty of the clerks of the several courts within Clerks to pay this territory, on or before the first day of May and November, in semi-annu- every year, respectively, to account on oath to the auditor of public accounts, and pay into the territorial treasury the amount of all taxes that shall become due from them by law, on law process and suits; and if any clerk shall neglect or refuse so to account, and pay as Penalty for aforesaid, then, and in such case, it shall be lawful for the auditor of neglect. public accounts, on motion made in the supreme court, to demand judgment against such clerks or their security, for double the amount of taxes that may be due and owing from said clerk by law, which he shall ascertain from the truest information he can get of the same, and such court is hereby authorized and required to give judgment accordingly, and award execution thereon: Provided, Such clerk have ten days previous notice of such motion. Ib. Sec. 5. 1 § 6. If any clerk of any of the courts of this territory, shall receive be paid over any fine, forfeiture, or amercement which shall come into his hands in like man- by law, he shall account for and pay the same in like manner, and be subject to the same remedy and proceedings against him for default, as is directed by this act, in case of taxes on law process. ner. Ib. Sec. 6. Justices subject to the § 7. All fines imposed by law, and collected by any justice of the peace in behalf of this territory, shall be accounted for by such jus same respon- tice, and paid in like manner, and subject to the same remedy and proceedings against him for default as is directed by this act, in case of fines received by clerks. sibilities as clerks. 1812-(21) Sec. 1. Circuit court § 8. The superior court of law and equity, in each county within this territory, shall have power to give judgment and award execution empowered against any clerk of a court for a failure to comply with the requito give judg sitions of the first section of the act to which this is an amendment," ment against clerks, &c. in the same manner that the supreme court formerly could have done. a See § 3. Ib. Sec. 2. § 9. No sheriff or coroner, as the case may be, shall be liable to Sheriff not liable for the pay the fine, forfeiture, or amercement which may have been imposcasual escape ed by any court of this territory, against any person who shall have of a prisoner. been committed to his custody, by the court imposing the same, or 1The third section of this act requiring fines, &c. to be paid in gold, sil ver, or territorial warrants, was repealed by sec. 1 of act of Dec. 17, 1821, and by sec. 13 of act of Dec. 20, 1823.-See "Banks,"-§ 1, and "Bank of the State of Alabama,”—§ 13. 818 where any person shall be taken in execution to satisfy any fine, forfeiture, or amercement, unless such sheriff or coroner shall have received the money, or suffered a wilful or negligent escape; but whenever the proper tribunal shall have discharged any person who was committed or taken in execution as aforesaid, or such person shall have escaped without any connivance or neglect of the sheriff or coroner, (as the case may be,) upon proof thereof made to the superior court of law and equity, of the county where such person has been in custody, such court shall certify the same to the auditor of public accounts, who shall release such officer from the fine, and forfeiture, or amercement with which he may have been charged, on account of such person committed by the court, or taken in exeution as aforesaid. Fines, &c. to the county § 10. All fines and forfeitures shall hereafter be paid into the county 1815 (5) treasury, and not into the territorial treasury; and the clerks of the Sec. 3. courts shall return to the county treasury of their respective counties, be paid into an account of fines and forfeitures, in the same manner, and at the treasury. same time, that they are now by law required to return the same to the auditor of public accounts, and to pay over the money when collected to said county treasurer, at the same time, and in the same manner, they are now by law required to pay the same into the territorial treasury; and the county treasurer is hereby required to County treaproceed immediately against any officer who shall fail to comply with the provisions of this section. surer to pro delinquents. Secs. 1 & 3. pardons and 11. The governor of this state, or person exercising that office, 1822-(4) is hereby authorized and empowered, in all criminal and penal cases, Governor except those of treason and impeachment, to grant pardous and re-inay grant prieves, and to remit all fines and forfeitures, or so much thereof as remit fines he may deem expedient, which have accrued, or may hereafter accrue, and forfeitto this state or to any county thereof: Provided, Said fine or forfeiture be not collected and paid into the state or county treasury. [See Const. Ala. Art. 4, Sec. 11.] NOTE-For the mode of recovering and appropriating penalties, when the particular act creating them points out none,-See "Judicial proceedings at common law,"-§ 87, 88, 89. ures. FIRE-HUNTING. fire-hunting. §1. Ir shall not be lawful for any person or persons to hunt with 1822-(5) fire in the night-time; and every person convicted thereof, shall for- Penalty for feit and pay for every such offence, the sum of fifty dollars; one-half to go to the use of the informer, and the other half to go to the use of the county: Provided, That this act shall be construed only to embrace persons hunting deer with a gun and fire at night. ages for cat 2. If any person hunting with fire in the night-time shall kill any 1803 (1) horse, mare, colt, neat-cattle, hog, sheep, or other domestic animal, Double damnot being his own, the person or persons so offending, shall be liable the killed. to an action at law, for double damages to the person aggrieved, in addition to the above penalty. ing to be § 3. If any slave or slaves shall be discovered fire-hunting in the Slaves huntmanner aforesaid, such slave or slaves, on conviction thereof, in man- whipped. ner aforesaid, before any one justice of the peace, for the county The penalty imposed by the act of 1803 for fire-hunting, was a fine of twenty dollars, or on failure of the person convicted to pay the fine, impri Persons send hunt, liable. wherein the offence may be committed, shall, by order of said justice, receive thirty-nine lashes well laid on, on his bare back; and the master or owner of said slave, or person in whose care he shall be, shall forfeit and pay the sum of ten dollars for each slave so convicted, to be levied by a warrant, immediately to be issued by such justice for the purpose. § 4. If any person shall be convicted, before two justices of the ing slaves to peace, in manner aforesaid, of sending or having sert his or her slave, or any slave in his charge or care, to fire-hunt, in manner before mentioned, the person or persons so offending, shall be subject to the same pains as are provided by this act to be inflicted on fire-hunters, but the slave so sent shall receive no punishment. pel witnesses to testify. How to com- § 5. If any person summoned to give evidence against any person accused under this act, shall refuse or neglect to give such evidence, the person so refusing or neglecting, shall be committed to the jail of the county where the offence shall be committed, until he or they shall give testimony against the said offender. Not to repeal § 6. Nothing contained in this act shall be construed to affect any former act. provisions contained in the act entitled "An act for the punishment of crimes therein mentioned," passed the thirteenth of January, 1802.1 This act to be read to § 7. The captains of the several companies of militia in this territhe militia. tory, shall cause this act to be read at the head of their respective companies twice in every year, after the publication thereof, under the penalty of forfeiting to the use of the county, for every such neglect, five dollars, recoverable by warrant of any justice of the peace, on the oath of two reputable witnesses. 1805-(3) FORCIBLE ENTRY AND DETAINER. (1) § 1. No person shall enter upon any lands, tenements, or other Entries to be possessions, and detain or hold the same, but where entry is given by peaceable. law; and then only in a peaceable manner. sonment, without bail, not less than one, nor more than three months; this punishment was provided only in case of fire-hunting "within four miles of any settlement," and might be inflicted, by "any two justices of the peace, of the county wherein the offence was committed, by oath of one or more credi ble witnesses." Sec. 1. 1 See 1807-(6), title "Crimes and Misdemeanors," originally passed in June, 1802, but re-enacted with amendments in 1807. (1) The following points have been decided under this statute: 1. A tenant at will may maintain a writ of forcible detainer. McDonald r. Gayle, Min. Rep. 98. 2. The record must show that the plaintiff has had actual possession. Childress v. McGehee, ib. 131. 3. To establish possession, the plaintiff may prove a tenancy under him, and possession by his tenant, Lecatt v. Stewart, 2 Stewt. Rep. 474. 4. In a complaint of unlawful detainer, the possessory title of the plaintiff was good, but defectively described:-held good after verdict. Payne f. Martin, 1 Stewt. Rep. 407. 5. The county court has no jurisdiction by certiorari or appeal, in cases of forcible entry and detainer. Dunham v. Carter and Carroll, 2 Stewt. Rep. 496. 6. It is discretional with the judge to require bond and security on granting a certiorari; and the court may order a new bond to be taken. Childress r. McGehee, Min. Rep. 131. 7. When removed, the cause is not triable de novo, but on the justices' record, without a jury. McDonald v. Gayle, Min. Rep. 98. Dunham v. Carter and Carroll, 2 Stewt. Rep. 496. |