==========

AN ACT

To authorize Fathers to devise the Custody and Tuition of their Infant Children.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That any father, even if he be not twenty-one years of age, may by last will and testament executed in the presence of two credible witnesses, devise the custody and tuition of his child, (which had never been married,) although it be not born, during any part of the infancy of such child, to whomsoever he will; and such devise hereafter to be made, shall give the devisee the same power over the person of the child as a guardian in common soccage hath, and authorize him by actions of ravishment of ward, or trespass, to recover the child with damages for the wrongful taking or detaining of him or her for his or her use, and for the same use to undertake the care and management, and receive the profits of the wards’ estate, real and personal, and prosecute and maintain any such actions and suits concerning the same, as a guardian in common soccage may do.

Sec. 2. And be it further enacted, That any guardian so appointed by the last will and testament of any person shall appear openly in the County Court, in which last wills and testaments are required by the existing law to be proved and recorded, before the exercise of any authority over the minor or his estate, and declare his acceptance of the guardianship, which shall be recorded; and shall give such bond and security, and in like manner, as is now required by law from guardians appointed by the County Courts; and shall deliver an inventory, on oath of all the estate real and personal, which he shall have received or taken possession of, within the same time after his acceptance of such office, and to the office of the same court to which other guardians are required by law to deliver inventories of the estates of their wards: Provided, that no child, the custody and tuition of which shall be devised as aforesaid, shall be taken from the mother of such child, before it attains the age of fifteen years; unless in the opinion of the court to which such guardian may be accountable, it would be improper for the mother to retain the possession of any such child.

Sec. 3. And be it further enacted, That the said guardians appointed as aforesaid, shall account as often, and, under the same regulations, that other guardians are by law


13

directed to account, and shall for failure to deliver an inventory as aforesaid or to account agreeably to law, be liable to be proceeded against, and to removal from office as other guardians.

Sec. 4. And be it further enacted, That if any guardian shall fail or neglect to appear in the County Court where such last will and testament shall be proved and recorded, within the space of six months thereafter, he may be summoned and compelled to declare his acceptance or renunciation of such trust; and if every such guardian appointed by any such last will and testament, shall renounce the same which renunciation shall be recorded; the said court may and shall proceed to appoint and qualify some other person or persons to the guardianship as if no such appointment of a guardian, or guardians had ever been made.

Sec. 5. And be it further enacted, That this act shall take effect from and after the first day of January next.

[Approved, Dec. 28, 1822]

===========

AN ACT

Concerning Inquiry of Damages.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That whenever the demurrer to the declaration in an action of covenant, trespass, or trespass on the case, shall be over ruled, and an inquiry of damages directed by the court, it shall be lawful for the inquiry thereof to be had at the same term at which such demurrer shall be overruled, any law to the contrary notwithstanding: Provided, that nothing herein contained, shall be so construed as to authorize the said inquiry of damages to be made at the term to which the writ in said actions may be made returnable.

Sec. 2 And be it further enacted, That in all actions of covenant, case, trespass, and assumpsit, when the declaration is filed in due time, and the defendant has failed to plead, a judgment by default may be taken either in vacation, or at the next succeeding term, and a writ of inquiry executed at said term.

[Approved, Dec. 19, 1822]

===========

AN ACT

To authorize a change of Venue in Chancery Causes in certain Cases.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That it shall be lawful from and after the passage of this act for any plaintiff or defendant in any suit in Chancery, in any of the Circuit Courts in this state, to change the venue of such suit in Chancery, where it shall appear to the court that the Judge of the circuit in which such suit in Chancery is pending has at any time previous to his appointment


14

as Judge of said circuit, been employed in the suit so pending by either plaintiff or defendant, as counsel in the said suit; or where it shall appear to the court, that the Judge of the circuit is connected to the parties, interested in such suit by affinity or consanguinity.

Sec. 2. And be it further enacted, That when a change of venue under the provisions of this act shall be allowed for the reasons above set forth, the Judge of the circuit, where such suit is pending shall on application, change the venue thereof to an adjoining circuit free from the like exceptions; and the clerk of the Circuit Court where such suit was instituted shall transmit, without delay, to the clerk of the Circuit Court to which such suit may be changed, a full transcript of all orders, motions and records entered on his books in relation to the suit so pending, with all the original papers and proceedings in the case, and all bonds and recognizances, and all other matters in relation to the cause in controversy, shall be as valid to all intents and purposes as they would have been had such change of venue not have been made; and the suit so changed shall be placed in the same situation in the court to which it shall be changed, as if the same had been instituted in said court.

Sec. 3. And be it further enacted, That the decrees, orders and other proceedings in the case shall be as binding on the parties concerned in such suit, as if the same had been determined in the court where the suit originated; in every respect whatever.

[Approved, Dec. 31, 1822]

==========

AN ACT

To repeal in part the Statute of limitations in Criminal cases.

Sect. 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 statute of limitations as prevents prosecutions for polygamy, perjury and subornation of perjury, unless commenced within a year after the time of the alleged offence, be, and the same is hereby, repealed.

Sec. 2. And be it further enacted, That the prosecutions for the aforesaid offences, shall be commenced within five years, and not thereafter, after the commission of the alleged offence.

[Approved, Dec. 24, 1822]

============

AN ACT

To authorize the Judges of the County Courts and Commissioners of Roads and Revenue within the State, to make an allowance therein named.

Sect. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That the Judges of the County Courts and Commissioners of Roads and Revenue are hereby authorized to make an allowance to the clerks of the County and Circuit Courts, for books and stationary purchased by said clerks for the use of their offices respectively.

[Approved, Dec. 30, 1822]


15

AN ACT

Concerning the printing, binding and the disposal of the Digest of the statute laws of the state of Alabama.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That an appropriation of fifteen hundred dollars be, and the same is hereby, made for Harry Toulmin, for having compiled a correct Digest of the Statute Laws of this state, in conformity to an act of the General Assembly, passed twenty-eighth day of Nov. eighteen hundred and twenty one: And the Comptroller of this state is hereby authorized and required, to issue his warrant on the Treasury, for the same, which shall be paid out of any monies in the Treasury not otherwise appropriated; Provided, that nothing in this act shall be so construed as to prevent the next Legislature from making any additional compensation that they may deem just and proper.

Sec. 2. And be it further enacted, That the said Harry Toulmin, be, and he is hereby, appointed and required, to make a complete Index to the said Digest, and that he received therefore, such compensation as may be allowed him by the next General Assembly of this state; and in case of his death of inability to complete the same, the Governor of this state in that event, is hereby directed and required, to appoint some suitable person to undertake and complete the same.

Sec. 3. And be it further enacted, That the Governor of this state is hereby required to receive proposals until the first day of March next, and at that time to appoint some suitable person or persons to print the said Digest upon the most advantageous terms he can obtain; to contract for stationary, and all such articles as may be necessary for printing and binding the said work; and to contract with some suitable persons to bind the same, which binding shall be executed in a plain, strong and neat manner; and for all such contracts the Comptroller of public accounts upon application to him by the Governor, is authorized and required to issue a warrant on the Treasury, which shall be paid out of any monies in the Treasury not otherwise appropriated; Provided, that the Governor shall in no case make any advance of money on account of any of the above contracts, without first obtaining the bonds of the parties, payable to the Governor of the state, and his successors in office, with good and sufficient security, conditioned that the person or persons receiving the same in advance, shall well, truly and faithfully execute and perform the contract which he or they may have undertaken. And the Governor is hereby required to enter into no contract or contracts as aforesaid, without first taking bonds, with security, that the


16

same shall be punctually and faithfully executed and performed by times certain, and to be named in said bond or bonds.

Sec. 4. And be it further enacted, That Harry Toulmin be, and he is hereby appointed to superintend the printing of the said Digest, to examine the proof sheets, and see that the work be correctly printed according to the arrangment and original plan laid down by the Digester; and that he receive therefore as a compensation, such sum of money as the next General Assembly of this state may allow. And in case of the death of the said Harry Toulmin, or his inability to act, the Governor of this state is hereby required the duties above required.

Sec. 5. And be it further enacted, That there shall be printed and bound, two thousand copies of the Digest of the Laws of this state, which, when completed, shall be disposed of and distributed in the manner following: There shall be given to the Governor of this state one copy; to the Comptroller of this state, one copy; to the Treasurer of this state, one copy: to the Secretary of this state, one copy; to each of the Judges of the Circuit Courts, one copy; to each of the Judges of the County Courts, one copy; to each Clerks of the Circuit and County Courts, one copy; which are to be kept by them for the use of their respective Courts in their respective counties; which said clerks, upon the receipt of the same, shall give their obligation to deliver the same to their successors in office; to the Attorney General, and to each of the solicitors of this state, one copy; and to each Justice of the Peace of this state one copy; and every Justice of the Peace who is entitled to a copy of the said Digest, shall receive the same, upon application to the Judge of the County Court of the county in which he resided, and shall at the time of receiving the same, execute and deposite with the Judge aforesaid his receipt, that at the expiration of the term of his service, or at the time he shall cease to exercise the duties of his office (if he should cease to do so before the expiration of his term of office) he will return the same to the Judge of the County Court of the county in which he resides; which said receipt shall be filed in the clerk's office of the county in which he resides, as aforesaid. The balance of the said copies shall be sold at the price of five dollars per copy, in the manner following: There shall be appointed by the Governor in each county in this state suitable agents, whose duty it shall be to sell such number of copies as the Governor may deem necessary to deposit with them; and each agent shall give bond payable to the Governor of this state and his successors in office, with good security; which bond shall be de-


17

posited in the Secretary of State’s Office, conditioned for the faithful discharge of the duties that may be required of them, and to account to the state for all monies which they may receive from the sale of said books, and pay the same into the Treasury of this state.

Sec. 6. And be it further enacted, That the said Harry Toulmin shall digest all the acts of this present session of the Legislature, and shall include the same in the said Digest, which shall be executed in the same manner as he has digested all the previous acts of the Legislature. The compensation for which is included in the appropriation made for him by the first section of this act.

Sec. 7. And be it further enacted, That An Act to enable the people of the Alabama Territory to form a Constitution and State Government, and for the admission of such state into the Union on an equal footing with the original states; the Constitution of the United States; and the Declaration of American Independence, be also printed and embodied in said Digest.

[Approved, Jan. 1, 1823]

============

AN ACT

To compel Clerks of Circuit and County Courts to give bond and security within the time therein prescribed.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That all Clerks of the Circuit and County Courts hereafter elected, shall enter into bond and security for the faithful performance of their several duties as are by law now prescribed, before the person now authorized to take and approve the same, on or before the first day of the term next, succeeding their elections, otherwise the said office shall be considered vacant, and the said vacancy shall be filled as heretofore prescribed in other cases of vacancy in the said office.

Sec. 2. And be it further enacted, That all acts or parts of acts repugnant to this act, be and the same are hereby, repealed.

Sec. 3. And be it further enacted, That if at any time it shall be made known to the Judge of the Circuit or County Court, that any person who has been or may be appointed or elected Clerk of said County or Circuit Court, has failed to give bond with sufficient security for the faithful performance of his duty; it shall be the duty of said Judge of the said County or Circuit Court, as the case, may be to require said Clerk to give such security within one month or that said office shall be then vacated, and it shall be the duty of such Judge to fill such vacancy, as in other cases.

Sec. 4. And be it further enacted, That all sheriffs now

3


18

elected, or hereafter to be elected or appointed, under the constitution of this state, shall, before entering upon the duties of their office, give bond, with such number of good and sufficient securities as may be approved of by the County Courts respectively, in such sum or sums, in addition to the sums already required by law, as they may deem necessary and proper, made payable to the Governor for the time being and his successors in office, which bond shall be taken by said Court and deposited in the clerk’s office: Provided also, that it shall be the duty of the sheriff to renew his bond annually, if required by the County Court.

Sec. 5. And be it further enacted, That any sheriff failing or neglecting to comply with the provisions of the preceding section, shall vacate his office and said office is hereby declared vacated; and such vacancies, should any such occur, shall be filled in a manner as is now prescribed by the constitution for supplying vacancies for sheriffs.

Sec. 6. And be it further enacted, That the fourteenth and fifteenth sections of an act to provide for the appointment of county officers, and for other purposes, passed at Huntsville, and approved the seventeenth day of December, eighteen hundred and nineteen, be, and the same is hereby repealed.

Sec. 7. And be it further enacted, That any Clerk of the Circuit Court, or Clerk of the County Court, who has been elected or appointed, or who may hereafter be elected or appointed, shall, whenever required by the Judge of the County Court, or Judge of the Circuit Court, give such additional security as may be required by the Judge of the County Court, or Judge of the Circuit Court, respectively within one month after notice of such requisition; and in case any Clerk shall fail to comply with the provisions herein contained, the office of said Clerk is declared vacated thereby, and the vacancy shall be filled as in other cases provided by law.

[Approved, Dec. 24, 1822.]

============

AN ACT

Concerning Writs of Error, Coram Vobis.

Sec.1 Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That no Writs of Error, Coram vobis, shall be granted unless the defendant shall pay the amount of principal and interest actually due before obtaining the same; unless otherwise ordered by the Judge granting the said writ: Provided, that no security shall be required of the defendant under this act.

Sec.2. And be it further enacted, That all laws and parts of laws contrary to the provisions of this act, be, and the same are hereby, repealed.

[Approved, Dec. 30, 1822.]


19

AN ACT

To provide for the Election of Justices of the Peace and Constables.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That there shall be elected by the qualified electors within the limits of each captain’s company in the several counties in this state, two Justices of the Peace and one Constable, who shall hold their offices for and during the term of three years from the dates of their respective commissions; which elections shall be holden by the commanding officer of each company, and two freeholders, or householders as he may appoint, on the first Monday of March next. And it shall be the duty of the persons superintending the elections as aforesaid, to make return of the persons elected, to the clerk of the County Court who shall certify the same to the Governor for commissions.

Sec. 2. And be it further enacted, That it shall be the duty of each commanding officer at the expiration of each and every term of three years from the first day of March next to hold an election for two Justices of the Peace and one Constable as prescribed in the first section of this act.

Sec. 3. And be it further enacted, That it shall be the duty of each commanding officer whenever any vacancy occurs in his company, by death, resignation, or removal of any Justice or Constable, immediately to notify his company of the same, and call them together by advertisement giving ten days notice, for the purpose of holding an election to fill such vacancy; which election shall be holden by the commanding officer aforesaid, and two freeholders, or householders as he may appoint, and the individual elected to fill such vacancy, shall hold said office three years from the date of his commission.

[Approved, Dec. 31, 1822.]

===========

AN ACT

To authorize the Governor of this state to remit all or part of any forfeiture which has or may accrue to this state.

Sec. 1. Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That the Governor of this state, or person exercising that office, be, and he is hereby authorized and empowered in all criminal and penal cases, except those of treason and impeachment, to grant pardons, reprieves, and to remit all fines and forfeitures which have accrued, or may hereafter accrue to this state: Provided, that the powers hereby granted, shall not extend to fines and forfeitures which have already been paid into the Treasury.

Sec. 2. And be it further enacted, That this act shall take effect from and after the passage thereof.

Sec. 3. And be it further enacted, That the Governor,


20

or person exercising the duties of that office, shall have full power to remit all fines and forfeitures, or so much thereof as he may deem expedient, which have accrued or may hereafter accrue to any county in this state: Provided, said fine or forfeiture be not collected and paid into the Treasury of any such county.

Sec. 4. And be it further enacted, That the act passed on the twenty-first day of December, eighteen hundred and twenty, authorizing the Governor, or person exercising that office, to remit any part of any fine, forfeiture, or sentence of imprisonment, be, and the same is hereby repealed.

[Approved, Dec. 12, 1822]