To establish the Bank of the State Alabama.
Whereas it is deemed highly important to provide for the safe and profitable investment of such public funds as may now or hereafter be in the possession of the State, and to secure to the community the benefits, as far as may be, of an extended an unexpected and undepreciating currency:
Sec. 1. Be it therefore enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That a Bank shall be, and is hereby established in the name and for the benefit of the State, to be known under the name and style of the "Bank of the State of Alabama," and the faith and credit of the State are hereby pledged for the support of the said Bank, and to supply any deficiency in the funds hereinafter specifically pledged, and to give indemnity for all losses arising from such deficiency.
Sec. 2. And be it enacted by the authority aforesaid, the monies arising, or which may have arisen from the sale or rent of the lands given to this state by Congress of the United States for the support of a seminary of learning shall form, compose and constitute a part of the capital of said Bank; and that His Excellency the Governor, for the time being, together with the President and Directors of the said Bank, or a majority of them shall be authorized and required, for and in behalf of the State, and with a pledge of the public faith and credit to issue to the Trustees of the University of Alabama, state stock, or certificates of debt, bearing an interest of six per cent. per annum payable half yearly to the said Trustees, or kept subject to their order according to the laws of the State, to the amount of such sum or sums as may be from time to time paid over by the said Trustees to the President and Directors of the said Bank, the said interest to be forever applied to the use of the seminary: Provided, That the amount vested as aforesaid as part of the capital of said Bank shall not exceed one hundred thousand dollars.
Sec. 3. And be it further enacted by the authority aforesaid, That all the monies which may arise from three percent. granted to this State by the Congress of the United States, on the nett proceeds of lands which have or shall be sold by the United States, within this State, from and after the first day of September, 1819, shall constitute a part of the capital of said Bank and shall be so vested as the
same may be received by this State, and the nett proceeds or banking dividends of said capital shall be applied to the making of Roads and Canals, and improving the navigation of the rivers within this State, or be vested so as to augment the capital until such application shall be directed by law.
Sec. 4. And be it further enacted, That all the monies which may arise or have arisen, from the grant of the United States to this State of sixteen hundred and twenty acres, for the seat of government thereof, shall form a part of the capital of said Bank, and that the nett proceeds or banking dividends of said capital be applied to objects connected with the seat of government, or be vested so as to be vested so as to continually increase the capital until otherwise provided for by law.
Sec. 5. And be it further enacted, That all the monies which may arise from the lease of the Salt Springs granted to this State by the United States, shall form a part of the capital of said Bank, and that the proceeds shall be vested so as to continually increase the capital until otherwise provided for by law.
Sec. 6. And be it further enacted by the authority aforesaid, That all the monies which may arise from escheats in this State shall form a part of the capital of said Bank; and shall be so vested, whenever sums amounting to one hundred dollars shall have accumulated in the Treasury, but no investment shall be required to be made of a less sum than one hundred dollars, and the proceeds of the same shall be continually vested so as to augment the capital until otherwise directed by law.
Sec. 7. And be it further enacted by the authority aforesaid, That all other public funds, which the State may hereafter become possessed of, shall form a part of the capital of said Bank, should the investment thereof be authorized by law.
Sec. 8. And be it further enacted by the authority aforesaid, That his Excellency the Governor, and five commissioners, to be appointed by a joint vote of both Houses of the General Assembly, shall be authorized to issue State Stock redeemable after a term of years, not exceeding ten years, or at the pleasure of the State, to an amount not exceeding one hundred thousand dollars, bearing an interest not exceeding six percent. per annum, payable half yearly at the Treasury of this State, or at such place as his Excellency the Governor, and the said Commissioners may contract for in the issue of the said Stock: the said Stock, when so issued, to be in aid of the capital of the said Bank; and all the monies which may at any time be in the Treasury are hereby pledged for the regular payment of said interest, in time and manner as aforesaid, and the public funds of the State of every nature and kind whatsoever, the university fund and 3 per cent. fund excepted, are hereby pledged
to secure the principal of said stock, and also the good faith and credit of the State in any case of deficiency of the said public funds.
Sec. 9. And be it further enacted by the authority aforesaid, That the following powers, rules, conditions, limitations, and restrictions shall be fundamental laws of the said Bank, viz: 1st. The president and directors for the time being shall have power to elect and remove the cashier; and they shall also have power to appoint such officers, clerks, and servants under them as shall be necessary for executing the business of the said corporations, and allow them such compensation for their services as may be reasonable. 2d. They shall receive money on deposite, and pay away the same to order, free of expense, deal in bills of exchange, and discount notes made payable and negotiable at said Bank, with two or more good names thereon, or secured by a deposit of bank or other public stock, at not more than two thirds of its value, at a rate of interest not exceeding 6 per cent. per annum. No individual partnership or body corporate (the Trustees of the University of Alabama in their official capacity excepted) shall be indebted either directly or indirectly by discount as aforesaid, to the Bank in a greater amount than two thousand dollars.
3d. The total amount of debts which said corporation shall at any time owe, whether by bond, note bill or contract, shall not exceed twice the amount of its capital over and above the monies then actually deposited in bank for safe keeping, unless the contracting of any greater debt shall have been previously authorized by a law of this State. 4th. In case of excess, the directors under whose administration it shall happen, shall be liable for the same in their private capacities, and an action of debt may be in such case be brought against them, or any of them, their or any of their heirs, executors or administrators, in any court of this State having jurisdiction, by any creditor or creditors of the said corporation, and may be prosecuted to judgement and execution, any condition, covenant, and agreement to the contrary notwithstanding. But this shall not be construed to exempt said Bank, or the lands, tenements, goods or chattels of the same: and on their insufficiency, the State of Alabama from being also liable for, and being chargeable with the said excess. Such of the said directors who may have been absent when said excess was contracted or created, or who may have dissented from the resolution or act, by which the same was contracted or created, may respectively exonerate themselves from being individually liable, by entering if present their dissent on the books of the Bank, at the time the debt may be so contracted, and forthwith give notice of the same to the Comptroller of the State.
4th. In case of excess, the directors under whose administration it shall happen, shall be liable for the same in their private capacities, and an action of debt may in such case be brought against them, their or any of their heirs, executors or administrators, in any court of this State having jurisdiction, by any creditor or creditors of the said corporation, and may be prosecuted to judgment and execution, any condition, covenant, and agreement to the contrary notwithstanding. But this shall not be constured to exempt said Bank, or the lands, tenements, goods or chattels of the same: and on their insufficiency, the State of Alabama from being also liable for, and being chargeable with the said excess. Such of the said directors who may have been absent when said excess contracted or created, or who may have dissented from the resolution or act, by which the same was contracted or created, may respectively exonerate themselves from being individually liable, by entering if present their dissent on the books of the Bank, at the time the debt may be so contracted, and forthwith give notice of the same to the Comptroller of the State.
5th. Immediately after passing of this act, the legislature shall proceed to elect, by joint vote, a president and twelve directors to manage and conduct the business of the said Bank, whose offices shall continue for one year, and until their successors shall be duly qualified, and all future elections of the president and directors shall be by joint vote of the General Assembly.
6th. In case of vacancy occasioned by the death, resignation, or removal out of the State of any director, a majority of the directors shall fill up such vacancy, and the director so appointed shall hold his office during the unexpired term of service of the said director so dying, resigning or removing out of the State.
7th. In case of death, resignation, or removal out of the State, of the president (unless such removal be temporary, and by permission if the board of directors) the directors shall appoint one of their own body a president, who shall serve until the next session of the Legislature, when such vacancy shall be filled by joint vote of both Houses of the General Assembly.
8th. No person who is not a citizen of this State, or who eligible as is a director of any Bank, or co-partner of any such director, shall be eligible as president or director of this Bank; nor shall any person who is a member of the General Assembly of this State eligible, to any office in said Bank, or any branch thereof, during the time for which he is elected.
9th. Not less than five directors shall constitute a board for the transaction of business, of whom the president shall always be one, except in case of sickness or necessary absence, in which case his place may be supplied by any other director whom he by writing under his hand shall nominate for the purpose, and in default of such nomination by the president, or in the case of the sickness or necessary absence of the person so appointed, in either event the board of directors may appoint a temporary president.
10th. The directors shall keep fair and regular entries of their proceedings in a well bound book to be provided for that purpose; and on any question, where two directors shall require it, the yeas and the nays of the directors shall be duly inserted on the minute, and those minutes shall be at all times on demand, produced to the Legislature, or any committee thereof, who may be legally authorized to require the same, and on all such questions every member present shall be required to vote.
11th. Every president and cashier, before he enters on the execution of his duty, shall give bond with two or more securities, to the satisfaction of the directors, in a sum not less than fifty thousand dollars, conditioned for his good behavior; and the tellers and clerk shall give security in a
sum not less than ten thousand, nor more than twenty thousand dollars.
12th. The president, directors, cashier, and all other officers and servants, shall take the following oath, on entering on the duties of their respective offices:-"I, A. B. do solemnly swear, that I will faithfully discharge the truth reposed in me as of the Bank of the State of Alabama. So help me God.
13th. This Bank is hereby incorporated, and made a corporation and body politic by the name and style of the President and Directors of the Bank of the State of Alabama, and so shall continue until the first day of January one thousand eight hundred and forty five, and by that name, shall be, and are hereby made able and capable in law, to have, purchase, receive, possess, enjoy and retain, to them and their successors, lands, rents, tenements, hereditaments, goods, chattels, and effects of what kind, nature or quality soever; and the same to sell, grant, demise, alien, or dispose of, to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended in courts of record, or any other place whatsoever; and also to make, have and use a common seal, and the same to break, alter and renew at their pleasure; and also, to ordain, establish, and put in execution, such by-laws, ordinances and regulations as shall seem necessary and convenient for the government of the said corporation, not being contrary to the laws, or to the constitution of this state, and generally to do and execute all and singular, such acts, matters and things, which to them it shall or may appertain to do; subject nevertheless, to the rules, regulations, restrictions, limitations and provisions prescribed in this act.
14th. The president and directors shall have power to issue notes, signed by the president, and counter-signed by the cashier, not under the denomination of one-dollar, on the behalf of said corporation, for such sums and with such devices as they may deem most expedient and safe.
15th. They shall also, be capable of exercising such other powers and authorities as may be necessary for the well governing and ordering the affairs of the said corporation, and of promoting its interests and its credit.
Sec. 10. And be it further enacted, That the bills obligatory and of credit, under the seal of said corporation, which shall be made to any person or persons, shall be assignable by endorsement thereupon, under the hand, or hands of such person or persons, and of his, her, or their assignee or assignees, and so as absolutely to transfer and vest the property thereof, in each and every assignee or assignees, successively; and to enable such assignee or assignees to bring and maintain an action thereupon, in his, her, or their own name, or names.
And bills or notes which may be assigned by order of the said corporation, signed by the president and countersigned by the cashier thereof, promising the payment of money, to any person or persons, his, her or their order, or to bearer, though not under the seal of the said corporation, shall be binding and obligatory upon the same in like manner, and with the like force and effect as upon any private person or persons, if issued by him, her or them, in his, her or their, private or natural capacity or capacities, and shall be assignable, and negotiable in like manner as if they were so issued by such private person or person, that is to say; those which are or shall be payable to any person or persons, his, her or their order, shall be assignable by endorsement, in like manner and with the like effect as foreign bills of exchange now are, and those which are or shall be payable to bearer shall be negotiable, and assignable by delivery only: Provided, that all bills or notes issued by said Bank, shall be payable on demand in specie at the principal Bank.
Sec. 11. And be it further enacted, That no director, officer, clerk, or servant of the said corporation, shall be concerned, either directly, or indirectly, in the practice of advancing or loaning out monies, at an illegal rate of interest, whether the same be done or effected under the form and colour of a purchase or exchange of notes, acceptances, due-bills, check on banks, acknowledgments, or in any other way or manner whatsoever; and all and every such director, officer, clerk, or servant, of this Bank, who shall be concerned as aforesaid in any such practices, shall, in addition to the usual penalties imposed by law, forfeit and pay for each offence, the sum of two thousand dollars, to be recovered by action of debt in any court of record in this State, one half to use of the informer, and the other half to the use of the State; and to be levied of the goods and chattels, and houses, lands, tenements, and other hereditaments and real estates of the person or persons so offending, if any he or they shall have.
And on failure of any property to answer the said penalty, by a return of nulla bona, the person or persons so offending shall and may be taken on execution upon a capias ad satisfaciendum, and being so taken, shall not be entitled to the benefit of any act made for the relief of insolvent debtors, until he or they shall have remained, and been confined in prison for the term of six months at least. And any such person being convicted by the verdict of a jury, of any practices aforesaid, whether he be a director or officer, servant of this Bank, shall on motion of any director, be dismissed from the service of said Bank.
Sec. 12. And be it further enacted, That it shall be the duty of the president and directors to furnish to the General
Assembly within the first week of every session, statements of the amount of capital stock of said corporation, and of the debts due to the same; of the monies deposited therein; of the notes in circulation, and of the cash on hand, together with all other property of said Bank, both real and personal. And the General Assembly shall have a right to inspect such general accounts in the books of the Bank, as shall relate to the said statement; and shall, whenever it may be deemed necessary, appoint a joint committee of both Houses of the General Assembly for that purpose, with full powers to send for the persons and papers. And it shall also be the duty of the comptroller, to inspect such general account in the books of the Bank as often as he may please; and it shall, and it is hereby declared to be his duty, faithfully to report all and every violation of the fundamental rules of this corporation to the legislature: Provided, however, That nothing in this clause shall imply a right of inspecting the account of any private individual or individuals, or any body politic or corporate with the Bank.
Sec. 13. Be it further enacted, That the bills or notes of the said corporation originally made payable, or which shall have become payable on demand, in gold or silver coin, shall be receivable at the Treasury of this State, and by all tax collectors and other public officers, in all payments for taxes or other monies due to this State.
Sec. 14. Be it further enacted, That the comptroller be, and he is hereby authorized and directed to transfer to the Bank on account of capital, all sums which may be received in the course of the preceding years, on the first day of January, eighteen hundred and twenty-five, remaining in the Treasury on the first day of March in each and every year.
Sec. 15. And be it further enacted, That a majority of the members present, at any regular meeting of the directors of the Bank of the State of Alabama, may suspend any director with a view to his expulsion; and any member may be expelled at a meeting of a board of directors specially convened by the president for that purpose, as soon after such suspension takes place as may be practicable, but such expulsion shall not be made by a majority of less than two thirds of the whole number of directors.
Sec. 16. and be it further enacted, That the Comptroller shall be furnished as often as he may require, not exceeding once a month, with statements of the amount of the capital stock of the Bank, and of the debts due to the same, of the monies deposited therein, of the notes in circulation, and of the cash on hand, and he shall, under the injunction of secrecy, have the right to inspect all the accounts and books of the Bank: Provided, That this act shall not be construed to imply a right of inspecting the accounts of any private individual or individuals with the Bank. And it
shall be the duty of the said Comptroller to make an annual report to the Legislature on the subject of the Bank; and if in his opinion the transaction of the Bank or any particular circumstance relating thereto shall require it, he shall apply to the to the House for a select committee of three members to be appointed, who shall under a like injunction of secrecy, take into consideration any matters relating to the said Bank, submitted to them by the Comptroller, and report thereon at their discretion to the legislature.
Sec. 17. And be it further enacted, That the Comptroller for the time being shall not be a director, nor hold any office of trust or profit in, or under any Bank whatever.
Sec. 18. And be it further enacted, That if any person or persons shall be indebted to said corporation as maker or endorser of any note, bill or bond, expressly made negotiable and payable at said Bank, and shall delay payment thereof, it shall be lawful for the president of the Bank, after having given thirty days notice thereof, to move the Circuit Court of the County where said Bank may be established, on producing to said Court before whom the motion is made, the certificate of the President of the Bank that the debt is really and bona fide the property of said Bank, for judgment, and all debts due by the said Bank, by bond, bill, note, or otherwise to any individual or body corporate, may be sued for and recovered in like manner.
Sec. 19. And be it further enacted, That if any president, director, cashier, or other officer of the State Bank or any of its branched, shall embezzle or fraudulently convert to his or their own use, any sum of money, bank note, bill of exchange, check, bond or other security placed under his care or management, by virtue of his office, or place aforesaid, the person so offending, his aiders, abettors and counselors, upon conviction thereof, shall be judged guilty of felony, and be sentenced to imprisonment in the public goal of the County in which the offence has been committed, for a term not less than twelve months, and there remain until he or they shall make good all damages which the bank may have sustained by his or their misconduct, and be fined at the discretion of the jury trying the said offence; and shall forever thereafter be disqualified from holding any office of profit or trust in this State, and shall moreover be liable for the sum so embezzled.
Sec. 20. And be it further enacted, That it shall be the duty of his Excellency, the Governor, whenever it is acertained that one hundred thousand dollars can be had, to convene the president and directors by advertisement in the Cahawba Press, giving twenty days notice thereof, at the Place the Bank may be located for the purpose of carrying this act into effect.
Sec. 21. And be it further enacted by the authority aforesaid, That the sums discounted on notes with two or more
sufficient securities, as provided for by this act, shall be apportioned among the several counties in this State in proportion to their representation in the General Assembly; and the president or cashier of the Bank shall give notice in some public paper printed in the town in which the Bank may be located, stating the amount that each County may be entitled to borrow, within ten days after the right to borrow in manner aforesaid may arise. And should the sum to which any County may be thus entitled, be not applied for within sixty days by the inhabitants thereof, then it may be discounted as aforesaid to any of the inhabitants of the state who may apply for the same: Provided, That the sums so apportioned to any County for which the inhabitants thereof may fail to apply within the time aforesaid, shall be so loaned as to be paid into the Bank on the first day of January thereafter, and remain in Bank for fifteen days, subject to the application of the citizens of such County, or Counties as have not yet received their proportion of discounts in the Bank; and this rule of reserving and apportioning discounts to each County shall be observed by the president and directors of the Bank in each and every year hereafter: Provided, That until after the year eighteen hundred and twenty-five a greater sum than eight hundred dollars shall not be apportioned in the erection of buildings for the purpose of carrying this act into effect.
Sec. 22. And be it further enacted by the authority aforesaid, That the said Bank shall not deal in articles of goods, wares, or merchandize in any manner whatever, unless it be to secure a debt due said Bank, incurred by the regular transactions of the same, as it provided for in this act.
Sec. 23. And be it further enacted by the authority aforesaid, That the principal Bank established by this act, shall be located by joint vote of both Houses of the General Assembly; and it shall require a majority of the whole number of votes given to make such location.
Sec. 24. And be it further enacted, That it shall not be lawful for the president, directors, cashier, or other officers of said Bank, to become endorsers at said Bank for each other, or any other person, or persons.
Supplemental to "An act to establish the Bank of the State of Alabama."
Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That the powers granted to his Excellency the Governor, and five commissioners, by the eighth section of above recited act, be, and they are hereby authorized and directed to be performed by a majority of them; and the Governor and three of the above named Commissioners shall constitute a quorum to transact any business contemplated by said act.
Respecting bail in civil cases.
Section 1. Be it ordained by the Senate and House of Representatives of the State of Alabama, General Assembly convened, That from and after the passage of this act, that in no case where any action or actions, may be commenced in any of the courts of record in this state, or before any justice of the peace in and for any county, in this state, and founded on any bill, bond, note, or account, shall the defendant or defendants, be held to bail unless the plaintiff his attorney or agent, shall first make oath, in writing before some judge, justice of peace, or the clerk who may issue the process, that the defendant or defendants, is indebted to the said plaintiff or plaintiffs, in the sum of by bill, bond, note or account, and that he, she or they, do not require bail for the purpose of vexing or harassing the defendant or defendants; which said affidavit shall be filed in the office from whence the process issued, And the clerk of the court, in which the writ issued, or the attorney for the plaintiff, or the justice of the peace who may issue the summons, shall endorse on writ or the summons, the sum so sworn to: and the defendant or defendants, shall be held to bail for the sum or sums so endorsed by the clerk, or attorney for the plaintiff, or attested by the justice of the Peace, taking such affidavit.
Sec. 2. And be it further enacted, That all laws, and parts of laws contravening the provisions of this act, be, and the Same is hereby repealed.
To alter the times of holding courts in the first, second, third and sixth judicial circuits.
Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama, in General Assembly convened, That the circuit courts of the first judicial circuit shall commence and be holden in the several counties thereof, at the several times following, that is to say: In the county of Monroe, on the first Monday of March, and second Monday of October: In the county of Clarke, on the third Monday of March, and fourth Monday of October: In the county of Marengo, on the fourth Monday of March, and first Monday after the fourth Monday of October: In the County of Washington, on the first Monday after the fourth Monday of March, and second Monday after the fourth Monday of October: In the county of Mobile, on the second Monday after the fourth Monday of March, and the third Monday after the fourth Monday of October: In the county of Baldwin, on the fourth Monday after the fourth Monday of March, and the fifth Monday after the fourth Monday of October: And that in the counties of Monroe and Mobile, the said circuit courts may remain in session for twelve
judicial days, and not longer; and in the counties of Clarke, Marengo, Washington and Baldwin, for six judicial days, and not longer.
Sec. 2. And be it further enacted, That the circuit courts for a second judicial circuit, shall commence in each and every year, in the county of Dallas, on the first Monday in April, and the third Monday in October, and may continue in session, twelve judicial days, at each term; in the county of Wilcox, on the third Monday in April, and the first Monday after the fourth Monday in October: In the county of Perry, on the fourth Monday in April, and the second Monday after the fourth Monday in October: In the county of Bibb, on the first Monday after the fourth Monday in April, and the third Monday after the fourth Monday in October: In the county of Autauga, on the second Monday after the fourth Monday in April, on the fourth Monday after the fourth Monday in October.
Sec. 3. And be it further enacted, That the circuit courts of the sixth judicial circuit shall commence in each and every year, in the county of Montgomery, on the first Monday in March and September, and may continue in session two weeks; In the county of Butler, on the third Monday in March and September; In the county of Conecuh, on the fourth Monday in March and September; In the county of Covington, on the first Monday after the fourth Monday in March and September; In the county of Henry, on the second Monday after the fourth Monday in March and September; In the county of Pike, on the third Monday after the fourth Monday in March and September.
Sec. 4. And be it further enacted, That the circuit courts of the counties of Green and Tuskaloosa for the ensuing year, shall be holden at the times following, to wit: In the county of Greene, on the last Mondays of February and August, to hold one week,; And in the county of Tuskaloosa, on the first Mondays of March and September, and hold three weeks.
Sec. 5. And be it further enacted, That, by the proper authority, twenty -four additional jurors shall be drawn and summoned to serve the last week of the respective terms provided for by this act, in the county of Tuskaloosa; and the judge presiding is hereby authorized to discharge the jurors in service the two first weeks of the terms respectively.
Sec. 6. And be it further enacted, That all process and precepts of whatsoever nature, which may have been issued returnable to any of the terms of said circuit courts as heretofore established, shall be returned to the respective terms of said courts respectively, as are established by this act.
Sec. 7. And be it further enacted, That all acts or acts of acts contravening the provisions of this act, be, and the same are hereby repealed.
To establish regular Justices' Courts in this State.
Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That the Justice or Justices of the Peace in every Captains company beat in this State, shall hold his or their court, once in every month, at or near the centre of the company beat; nor shall any Justice or Justices of the Peace hold any court, or pass any judgement, in any civil case, (except by consent of parties,) on any other or more than one day in each month, except in case of failure to get through the business in one day; the Justice or Justices shall adjourn from day to day until the business be completed, and at the place herein set: which time and place, together with the cause and amount of the action, shall be set fourth in the summons or warrant, and shall be served by a legal officer on the person of the defendant, at least ten days before the sitting of the court.
Sec. 2. And be it further enacted, That the Justice or Justices shall pass judgement and issue execution in all cases of a civil nature, when the sum for which judgement is rendered does not exceed fifty dollars: Provided, That the party against whom judgements, is rendered, may stay the levy of execution on all judgements, under fifteen dollars, thirty days; and above fifteen dollars and not exceeding thirty dollars, sixty days; and on all judgements above thirty dollars, ninety days; or be allowed an appeal, as is hereinafter directed, on giving good security within seven days after judgement, for the payment of the eventual condemnation money, or the surrender and delivery of his body in discharge thereof: but no stay of execution shall be allowed after an appeal trail for a longer term than thirty days in every case: the security on appeal shall be liable for the debt and costs: and on the trail of all such appeals, if the jury find that the appeal was taken for delay only, they shall find against the defendant not exceeding ten per centum on the amount of their verdict, together with all costs.
Sec. 3. And be it further enacted, That all such appeals shall be tried before any one or more Justices of the Peace, by not less than five, nor more than seven jurors, to be drawn, empannelled, and sworn, as herein expressively set forth. The Justices residing in each Captains beat, shall once in each and every year, form a list of all persons therein, subject to serve as jurors, in either the County or Circuit Courts, and shall write each name on a separate piece of paper, which shall be deposited in an apartment of a box To be provided by such Justices, marked No. 1; and shall in open court draw such number of jurors therefrom, as shall become necessary to try appeals before them; which names drawn, shall be entered in a book by the Justices presiding at the drawing thereof; and shall be put into an
apartment of such box No. 2; and after the names are drawn from No. 1, they shall commence drawing from No. 2, and so on alternately. Any person so drawn and being summoned by a lawful constable or other legal officer, five days before the sitting of the court, neglecting to appear thereat, may be fined by the justice presiding, in any sum not exceeding three dollars, unless he shall shew sufficient cause on oath for such failure, at the succeeding term for said district: and in case of any original juror failing to attend, the Justice shall direct the Constable or other legal officer, to complete the pannel from the by-standers, provided, there shall not be less than three of the original pannel on such jury: And provided also, That either party may have one peremptory challenge, and such jury shall for every verdict by them given, receive fifty cents from the party against whom the verdict may be found, to be taxed in the bill of costs; and the presiding Justice in open court shall administer to all such jurors, the following oath: "You do solemnly swear, or affirm, that you will well and truly try the cause now depending between ____ appellant and _____ respondent, and a true verdict give, according to law and the opinion you entertain of the evidence produced to you, to the best of your skill and judgement, without favor or affection to either party, provided the case is not withdraws. So help me God.
Sec. 4. And be it further enacted, That in all cases pending in any Justices Court, the best evidence the nature of the case will admit of shall be required, nor shall any person be admitted to prove his own account, by his own oath before such court, without making oath that he hath no other evidence whereby the same can be established: Provided, That neither party be permitted to prove by his own oath any claim exceeding twenty dollars; and in all cases of mutual debts and sets-off, the said Justices shall enter up judgement for the defendant where it shall satisfactorily appear that there is a balance due him, and in every instance where a set-off is claimed, it shall only be admissable when the debts is clearly owing to the defendant at the time of issuing of the process; and on motion, and good cause shewn on oath by either party, the court shall postpone the trail of any cause pending, not exceeding in all two months.
Sec. 5. And be it further enacted, That in every case, where any dispute may arise, touching the right of property levied on by any constable or other legal officer, the person having such claim, shall make oath thereof, before any Justice of the Peace, and deliver the same to the levying office: who thereupon, shall stay further proceedings, and report the same to the next court: at which time it shall be the duty of the Justice presiding to empannel and swear the jury drawn at the preceding court in the manner prescrib-
ed in the third section of this act, changing the words appellant and respondent, to claimant and plaintiff, in execution; which jury shall hear and determine all such cases according
To the principles of their oath, under the rules and regulations heretofore prescribed by law: Provided always, That if the jury shall find such claim to have been made for delay only, or for corrupt motives, the jury shall find in the verdict against such claimant any sum not exceeding twenty-five per centum on the amount of the judgement, together with all costs for which the justice shall issue execution, instanter, and the constable or other legal officer, make the money forthwith.
Sec. 6. And be it further enacted, That no person in this state shall be permitted to deny his bond, note or bill for money or other thing, unless such person make affidavit in writing before some justice, or in open court, of the truth of such denial; and in case of all notes or contracts, verbal or in writing, specific articles, the Justice or jury shall ascertain the value thereof, according to the value of such article in the neighborhood; and at the time when and where such article was due and payable, and shall allow interest thereon as on notes of hand.
Sec. 7. And be it further enacted, That in case any person after being summoned to answer any complaint for debt, before any Justice of the Peace shall, before sitting of the court, remove out the district, such Justice shall, nevertheless, give judgment against him on satisfactory evidence; and if any person after judgment of such court, shall remove out of the district or county, before satisfaction is made, such Justice in either case, shall issue execution against such person, which execution being backed by any Justice of the county where such person may be found, may be levied and the money made by any Constable or legal officer of the county.
Sec. 8. And be it further enacted, And all Justices of the Peace shall have power when the lawful constable is absent, disqualified or upon emergent occasions, to appoint a deputy, who shall give sufficient bond and security, and shall take the usual oath of office.
Sec. 9. And be it further enacted, That it shall be the duty of all constables to serve all process, and levy executions put in their hands, agreeably to the tenor thereof, and make due returns on the same to the court to which the same is made returnable; and if any constable shall fail to execute and make such returns, or to pay over all moneys received by him on executions to the person entitled thereto, within three days after application, the person so injured may make affidavit of such fact, before any justice of the peace, who shall issue his notice to such defaulting constable and his securities, or as many of them as can be served
with such notce, setting forth the charge, and shall moreover, cause a jury to be summoned to try the same; and if the charge be sustained, it shall be the duty of the said jury to award judgement against said constable, and as many of his securities as may be thus cited, for the amount of the money thus withheld. with ten per cent. damages; which shall be collected as in other cases. And in case any constable or other legal officer shall neglect or refuse to serve any warrant or other process to him directed, the justice on satisfactory proof of such neglect or refusal, may fine him in a sum not exceeding the debt due to by the defendant; and all constables shall moreover be subject to be prosecuted and tried for mal-practice in office, in like manner as hereinafter pointed out for justices of the peace, and liable to like pains and penalties: Provided always, That all constables shall be liable to the justices for all their fees, which they may collect; but no constable shall be bound to pay over any moneys officially collected by him on execution or otherwise for others, to any justice of the peace, unless such justice shall hold his receipt for the original evidence of the debt, on which the recovery was had.
Sec. 10. And be it further enacted, That when any person charged with any offence, and brought before a justice of the peace, shall be discharged for want of sufficient cause of holding to bail, or commitment, the justice or justices may in his or their discretion, discharge the party without costs, and direct the cost to be paid by the prosecutor.
Sec. 11. And be it further enacted, That any justice of the peace shall issue summonses for witnesses in any cause to be tried before him, which being served five days before the trial, such witness shall be subject to a fine of three dollars on default; Provided sufficient excuse shall not be made at or before the next court; which shall go to the county, and the witness shall moreover be liable to suit and recovery by the party who may have sustained damages in consequence of such default, in any court having jurisdiction: Provided, That every witness duly subpoenaed shall be allowed fifty cents per day for each days attendance on said court, to paid by the party, or against whom judgment shall be rendered.
Sec. 12. And be it further enacted, Tat no sales of property taken under execution from a justice of the peace, shall hereafter be made, except at the place of holding justices courts on a court day once in every month, between the hours of ten and three oclock in the day: and it shall be the duty of all officers to advertise all intended sales at three or more of the most public places in the company beat, and at one or more of the most public places in the county, at least ten days before any sale, and shall give a full and clear description of the property to be sold: Provi-
ded, That nothing herein contained shall extend to prevent sales of hogs, sheep and cattle, without their being present.
Sec. 13. And be it further enacted, That this act shall be in force from and after the first day of June next; and that all acts contrary to the provisions of this act, be, and the same are hereby repealed.
Sec. 14. And be it further enacted, That justices of the peace and constables, shall be allowed such fees as are now allowed by law to such officers, for trails of right of property, for each jury trail, had in pursuance of this act.
Sec. 15. And be it further enacted, That nothing in this act shall be so construed as to prevent either party from appealing from the court hereby established, to the county or circuit court, under the same rules and restrictions that govern appeals from justices of the peace to said courts.