ACTS OF THE FOURTH SESSION.

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AN ACT

To continue in force, and amend an Act, entitled An Act to repeal in part, and amend an Act entitled an Act to regulate the proceedings in the Courts of Law and Equity in this state, and for other purposes therein mentioned.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That so much of the act passed at the called session of the General Assembly of this state, in June, eighteen hundred and twenty-one, entitled an act to repeal in part, and amend an act to regulate the proceedings in the Courts of Law and Equity in this state, as is now in force, be, and the same is hereby declared to be of force, after the fourth day of January next.

Sec. 2. And be it further enacted, That the act passed at the third annual session of the General Assembly of this state, entitled an act to repeal in part, and amend an act, entitled an act to repeal in part, and amend an act entitled an act to regulate the proceedings of the Courts of Law and Equity in this state, be, and the same is hereby continued in full force.

Sec. 3. And be it further enacted, That the first, second third, fourth and fifth sections of the act passed at the third annual session of the General Assembly of this state, entitled an act to repeal in part, and amend an act entitled an act to constitute a court of Oyer and Terminer, for the trial of slaves, and for other purposes, be, and the same is hereby continued in force.

Sec. 4. And be it further enacted, That the Judges of the County Courts, shall, in addition to the jurisdiction heretofore given to them, have concurrent jurisdiction with the Circuit courts, in all actions of case, covenant, and trespass, assault and battery.

Sec. 5. And be it further enacted, That appeals shall lie from Justices of the Peace to the respective Circuit or County courts, under the same regulations as heretofore prescribed by law, for taking appeals to the Circuit courts.

Sec. 6. And be it further enacted, That in all appeals taken by virtue of this act, from a Justice of the Peace, when it shall be made to appear to the court, that the appeal was taken merely for delay, the court shall award fifteen per cent damages.


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Sec. 7. And be it further enacted, That the Judges of the County courts, within their respective counties, shall have full power concurrent with the power of the Judges of the Circuit Courts, to grant writs of Certiorari and Supersedeas, returnable to the County Courts, under the same regulations now in force, relative to granting the aforesaid writs by Judges of the Circuit Courts: Provided, that nothing herein contained, shall be so construed, as to take away from the Circuit Courts, jurisdiction of the aforesaid writs, granted by the Judges of the Circuit Courts, respectively.

Sec. 8. And be it further enacted, That in all cases of appeals from Justices of the Peace, where the plaintiff or person appealing, shall not recover judgment for a greater sum than was by the Justice trying the same, adjudged then and in that case, the plaintiff or person appealing, shall pay all costs, consequent on such appeal: Provided, however, that this section is intended only to apply to appeals taken up by the successful party.

Sec. 9. And be it further enacted, That the Judges of the County Courts of such Counties as have been created since the 14th day of June, 1821, shall have the same jurisdiction with the Judges of such Courts as were then in existence.

Sec.10. And be it further enacted, That the Commissioners of Revenue and Roads, elected at the last General Election shall continue in office until the next General Election; and that no Commissioner of Revenue and Roads shall be eligible to the appointment of assessor or Tax Collector, or shall discharge the duties thereof either as principal or agent in any manner whatever during his continuance in office.

Sec. 11. And be it further enacted, That in all prosecutions of slaves and free people of colour for offences punishable capitally, the Circuit Courts, and not the County Courts shall have jurisdiction; and that the trial shall be conducted in the same manner and under the same rules except as to evidence, as the trial of free white citizens.

Sec. 12. And be it further enacted, That the present Legislature shall by joint vote of the two houses, elect County Judges for the respective counties in the state, who shall be commissioned by the Governor, and whose duties and authority shall commence from and after the 4th day of January next.

Sec. 13. And be it further enacted, That if any persons shall be appointed Judge of any of the County Courts in this state who was employed as counsel in any case depending in said Court the said cause shall be removed to the Circuit Court of said County.


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Sec. 14. And be it further enacted, That the County Courts of the following Counties shall set at the following times. For the county of Conecuh, on the third Mondays of January and June: For the county of Henry, on the first Mondays in March and September: For the county of Pike, on the first Mondays in January and July: For the county of Covington, on the first Mondays in August and February. In the county of Butler, on the second Mondays of February and August. And in the county of Decatur, on the first Mondays in March and September.

Sec. 15. And be it further enacted, That so much of the aforesaid act as makes it the duty of the Judges of the County Courts in this state to commit administration to the Sheriff or Coroner in certain cases therein designated, shall be taken and strictly construed so as to attach the said administration to the offices of Sheriff or Coroner and not to the person. Sec. 16. And be it further enacted, That this act shall take effect, from and after the fourth day of January next.

[Approved, Dec. 24, 1822.]

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AN ACT

Providing for the election of Sheriff in certain cases, and for other purposes.

Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That when the officer whose duty it is to hold an election for Sheriff, in any county in this state shall fail to do the same at the time prescribed by law, it shall be the duty of the Governor, or the person exercising the duties of his office, to issue his writ of election, directed to any person residing in the county, whom he may appoint, directing the person to hold an election for the purpose of electing a sheriff for the county, at the place or places prescribed by law for holding elections for representatives for the county, at any time he may appoint; requiring at least thirty days notice to be given, by advertisement posted up at four of the most public places in the county, of the time of holding said election.

Sec. 2. And be it further enacted, That at the election hereby authorized to be held, the polls shall be opened and kept open, agreeably to the law now regulating elections in the county, in which it shall be held.

Sec. 3. And be it further enacted, That the clerks and judges, who shall superintend the election hereby authorized, shall be appointed by the person to whom the commission shall be directed, who shall be authorized to administer the oaths to said clerks and judges, as are required to be administered to clerks and judges at the general elections.

Sec. 4. And be it further enacted, That the person who


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shall be returned duly elected by the person to whom the writ of election is directed, shall be commissioned by the Governor or the person exercising the duties of his office, sheriff.

[Approved, Dec. 28, 1822.]

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AN ACT

Concerning the Judges of the County Court.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That hereafter it shall be the duty of the Judges of the County Court, in their respective counties, to give the notice now required by law to be given by executors, administrators, or guardians, of the term of the said court at which any executor, administrator, or guardian may be required by said Judge to present for allowance his settlement, or account current, made as prescribed by law, in vacation.

Sec. 2. And be it further enacted, That the said Judge be, and he is hereby, authorized to render judgment against any executor, administrator, or guardian, for whom he is required by this act to give notice, in favor of the printer for any sum which said Judge may think reasonable for publication.

[Approved, Dec. 12, 1822.]

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AN ACT

The better to secure Debts upon Writs of Error.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That if any clerk of the circuit court upon issuing any writ of error, shall take security, which shall be insufficient at the time of taking the same, he shall be liable to an action of trespass on the case, in favor of the party aggrieved: Provided, that nothing in this act contained, shall be so construed as to subject any clerk of the court aforesaid to a recovery in the action aforesaid, for taking as security for any writ of error, any person who was generally reputed sufficient for the sum for which he became bound as security at the time he was taken as security.

[Approved, Dec. 12, 1822.]

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AN ACT

Concerning Intestates’ Estates.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That when any of the children of a person dying intestate, shall have received from such intestate in his or her lifetime, any real or personal estate by way of advancement, and shall choose to come into the partition of the estate with the other parceners, such advancement, both of real and personal estate, or the value thereof, shall be brought


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into hotchpotch with the whole estate real and persona descended; and such party bringing into hotchpotch such advancement as aforesaid, shall thereupon be entitled to his, her, or their portion of the whole estate so descended, both real and personal.

Sec. 2. And be it further enacted, That this act shall take effect, from and after the first day of January next ;and that all laws and parts of law, contravening the provision of this act, be and the same are hereby, repealed.

[Approved, Dec. 14, 1822.]

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AN ACT

To prevent frivolous and vexatious Law suits.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That in all suits, which may be hereafter brought in this state, to recover damages for slander or trespass, assault and battery, the plaintiff shall not recover more costs than damages, if the damages do not exceed five dollars; unless the judge before whom the suit was tried shall certify that more damages ought to have been awarded by the jury.

Sec. 2. And be it further enacted, That this act shall commence and be in force from and after the first day of January next.

[Approved, Dec. 23, 1822]

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AN ACT

To prescribe the mode of certifying Executions from Justices of the Peace from one County to another.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That from and after the passage of this act, where any judgment is rendered by a justice of the peace, and the person against whom such judgment may be rendered, removes to another county in this state, it shall and may be lawful for such justice to issue execution to any county in this state against the property of the person against whom judgement is rendered; which execution shall be certified by the clerk of the county court: And it shall be the duty of any legal officer of the county to which such execution may issue, to execute and make return of such execution according to the mandate thereof, to the justice of the county from which execution issued.

[Approved, Dec. 28, 1822.]

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AN ACT

To enforce the payment of Monies collected by Officers of Courts.

Sec. 1. Be it enacted by the Senate and Hose of Representatives of the State of Alabama, in General Assembly convened, That whenever a motion shall be made against any officer of any of the courts of this state for not paying over any money received by him in his official capacity


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and the receipt of the same shall not appear by the record or any paper filed in the clerk’s office, it shall be the duty of the court to cause an issue to be made up and tried by the jury attending the court; and in case it shall be found by the jury that the same has been received by the officer, against whom the motion shall be made, judgment shall be rendered by the court against the said officer, for the principal, interest, and such damages as are now in such cases directed by law.

Sec. 2. And be it further enacted, That in case any clerk of any of the courts of this state shall fail to enter on the execution docket any return of any execution, which shall be made by the proper officer of the court, within three days after the said return shall be made, it shall be the duty of the court on motion of the plaintiff, or plaintiffs in execution, or his or her attorney, to render judgment against the said clerk and his securities, or either or any of them for the amount of the execution, together with interest and costs : Provided, that those against whom the judgment shall be rendered, shall have had one day’s notice of the motion, and that any fact which shall be contested by the said clerk and securities or any or either of them shall be tried by a jury.

Sec. 3. And be it further enacted, That it shall be the duty of the clerks of the several courts in this state to keep in the court house on the clerk’s table, the execution docket during the whole term of the session of the court; and that if any clerk shall fail to do so, he shall be guilty of a contempt of court, and be punished accordingly; and shall also be liable to any person aggrieved in an action of trespass on the case.

[Approved, Dec. 28, 1822]

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AN ACT

Giving Execution for costs in the Supreme Court.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That in causes wherein the judgments have been affirmed or reversed by the Supreme Court, and in which the costs incurred in that court have not been collected, the clerk of the said supreme court may issue the proper writs of execution in the names of the successful parties, against the parties respectively subjected to the payment of such costs, returnable to the succeeding term thereof.

Sec. 2. Be it further enacted, That when the judgment of inferior court in any cause shall be affirmed or reversed by the supreme court, the said supreme court may give judgment, and award execution against the unsuccessful party for the costs of such cause incurred in the said


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supreme court: And it shall be the duty of the sheriff or other officer, to whom such writ of execution shall be directed, to levy or execute, and make return thereof to the said supreme court, on or before the first day of the return term therein named and render to the said clerk the monies collected by him, according to the exigency of such writ.

Sec. 3. And be it further enacted, That if such sheriff or officer fail so to return such writ of execution, or to pay the monies by him made as aforesaid, the clerk of the said supreme court may in the name of the successful party in the cause, upon giving to such sheriff or officer, or to such sheriff and his securities ten days previous notice; and upon proof of such notice, move for at the next term of the circuit court of the county in which such sheriff or officer resides, and obtain judgment and execution against such sheriff or officer, or such sheriff and his securities so notified, for the amount of the writ of execution not returned as aforesaid, or the deficit of the monies made and not rendered.

Sec. 4. And be it further enacted, That if any sheriff or coroner in this state shall fail or refuse to return any execution issuing from the Supreme Court as aforesaid, and placed in his hands, to the return term of said court named in said execution, it shall be lawful for the party at whose instance said execution issued from the Supreme Court to obtain judgment against said sheriff or coroner for the amount of money named in said execution, and costs of the motion: Provided always, That the certificate of the post master living at the seat of justice of the county of which he is sheriff or coroner or the nearest one thereto, that said sheriff or coroner, has placed in his office, sealed up in his presence, and directed to the clerk of the Supreme Court any execution, and the amount of money collected thereon which has been placed in his hands, shall be sufficient evidence on the part of said sheriff or coroner, to prevent judgment from being obtained against him and his securities as aforesaid.

[Approved, Dec. 26, 1822]

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AN ACT

To regulate proceedings in Chancery Suits.

Sect. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That the mode of commencing suits in equity or chancery shall be by filing a bill with the clerk of the Circuit Court of the county in which the suit is instituted, wherein the Clerk shall issue a subpoena ad respondendum, with a copy of the bill, which shall be served by the Sheriff of the county

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where the defendant resides, or may be found, and returned to the first day of the next term.

Sec. 2. And be it further enacted, That the defendant shall file his answer or demurrer within thirty days after the service of the subpoena, unless within that period he shall obtain further time from the clerk of the said court, or from a circuit judge, on reasonable cause shown, which further time shall not extend beyond the first day of the next term, otherwise the bill shall be taken pro confesso and the complainant if he deems it necessary, may take an attachment to compel an answer.

Sec. 3. And be it further enacted, That no plea or special demurrer, shall be filed to any bill or answer but it shall be lawful for the defendant to embrace all the matter of his plea and demurrer, either general or special, in his answer, and shall have the same benefit thereof as if the same had been pleaded: Provided, that the defendant may demur generally to the bill, which if overruled he shall pay costs thereon, file a sufficient answer and go to trial forthwith if the complainant requires it, otherwise the bill shall be taken pro confesso and an attachment may issue to compel an answer.

Sec. 4. And be it further enacted, That at the time of filing his answer, the defendant shall also file his exceptions if he chooses to except to the bill, for scandalous or impertinent matter; and the complainant also, on or before the first day of the term next after the filing of the answer, shall file his exceptions thereto, if he chooses to except for scandal, impertinence or insufficiency: - All exceptions shall be heard and determined by the presiding judge, in open court, the first term after they are filed, and if filed on the first day of the term, they shall be heard and determined during that term: - If any of the exceptions are sustained, the party filing them shall be entitled to his cost thereon, and a continuance of the suit to the next term if he prays it, if all the exceptions are overruled the opposite party shall be entitled to his cost thereon, and a continuance if he prays it: Provided, that where exceptions filed, to the insufficiency of an answer are sustained, the defendant shall forthwith file a sufficient answer and come to trial immediately, if the complainant prays it, unless the court for good cause grant further time, otherwise the bill shall be taken pro confesso as to the insufficient matter, and an attachment may issue to compel a sufficient answer: And provided also, that at any time before the hearing of the cause, the court may grant either party leave to amend his bill or answer, whether exceptions are taken or not.

Sec. 5. And be it further enacted, That it shall not be re-


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quired to file a replication to an answer, and that in all cases where the answer is filed ten days before the sitting of the court, or the bill is taken pro confesso, for want of an answer the cause shall be heard and determined at that term if practicable, unless on good cause shown, either party continue the same.

Sec. 6. And be it further enacted, That before a decree is pronounced on a bill taken pro confesso, the Court shall be satisfied, by sufficient evidence of the justice of the complainant’s claim or demand; but in all cases, before the, hearing of the cause, the defendant shall have leave to set aside the order pro confesso, by filing a full and complete answer and that where an attachment may issue for want of an answer, or sufficient answer, or for not obeying the order or performing the decree of the court, or for disobedience to its process, the defendant shall be discharged therefrom, by a compliance at or before the next term.

Sec. 7. And be it further enacted, That the presiding judge shall render his decree in writing, on or before the adjournment of the court, unless in weighty and difficult cases, in which he may be indulged to the ensuing term.

Sec. 8. And be it further enacted, That all answers and bills for injunctions, and for writs of ne exeat, shall be sworn to before any clerk of a circuit court, judge or justice of the peace.

Sec. 9. And be it further enacted, That the complainant shall cause a copy of his bill for an injunction to be served on the defendant with notice of at least ten days, of the time and place when and where he intends to apply for an injunction: And that it shall be lawful to grant writs of ne exeat, not only in cases where a sum of money is due, but also where the complainant has an equitable claim or demand against the defendant: Provided, that all writs or injunction and ne exeat may be dissolved at the next term after they were granted, on good cause shown.

Sec. 10. And be it further enacted, That when it is necessary to the justice of the case, to have a reference of matters of account the court in its decree shall order the same to be referred to the clerk, to ascertain and report thereon at or before the next term; and from which either party may appeal to the court, having given the opposite party ten days notice thereof, with the grounds of appeal distinctly set forth, and if the party appealing does not prevail, he shall pay cost thereon; but if a decree cannot be given on the merits of the case, until matters of account between the parties are referred, then the same shall be referred and ascertained before the hearing under such rules as the court may prescribe. In ascertaining and adjusting


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accounts, sums and items, not exceeding ten dollars each, shall be allowed on the party’s oath, unless disproved by sufficient testimony; and that sums and items above ten dollars each, shall be proved by sufficient vouchers or evidence.

[Approved, Jan. 1, 1823]