shall be rendered, and who is hereby authorized to administer the said oath or affirmation; in default of which, such account shall not be deemed to be duly rendered, according to the condition of the bond of such auctioneer; and, to the end that such accounts may be accurately kept and rendered, it is hereby made the duty of every auctioneer, to enter from day to day, as often as any sale shall be made, in a book, Sales to be or on paper, to be kept by him for that purpose, the amount and par- book. ticulars of the respective sales by him made, which book or papers shall at all reasonable times, upon request made, be submitted for examination to the officer to whom the account is to be rendered and duties paid, on pain of forfeiting, for every refusal to comply with Forfeiture. such request, the sum of twenty dollars. entered in a 7. Every auctioneer, out of the proceeds of the duties which he Ib. Sec. 5. shall retain and pay as aforesaid, shall be allowed a commission of Commission. one per centum upon the amount thereof, for his trouble in and about the same. false oath or 8. If any auctioneer shall wilfully swear or affirm falsely, touch- Ib. Sec. 6. ing any matter, hereinbefore required to be verified by oath or affir- Penalty for mation, he shall suffer the pains and penalties which by law are pre- affirmation. scribed for wilful and corrupt perjury; and shall moreover forfeit his office, and be incapable of afterward holding any office under the Alabama territory. Collector to the treasury. § 9. It shall be the duty of the tax-collectors aforesaid, in their re- Ib. Sec. 7. spective counties, to collect the duties imposed by this act, and to prosecute prosecute for the recovery of the same, and for the recovery of any and pay into sum or sums which may be forfeited by virtue of this act, and pay the same into the territorial treasury; and all fines, penalties, and forfeitures, which shall be incurred by force of this act, shall be sued for and recovered in the name of the Alabama territory, or of the taxcollector within whose county any such fine, penalty, or forfeiture shall have been incurred, by bill, plaint, or information; one moiety thereof to the territory, and the other moiety thereof to the use of the person who, if a tax-collector, shall first discover, if other than a tax-collector, shall first inform of the cause, matter or thing, whereby any such fine, penalty, or forfeiture, shall have been incurred, before any court of law within the Alabama territory, having jurisdiction thereof. NOTE-For the duties chargeable on goods, &c. sold at auction, See "“Taxes,”—§ 7. BAIL, IN CIVIL CASES. Bail in Criminal Cases.-See "Criminal Law,"-§ 38, 39, 40.-"Prisons and Prisoners,"§ 26. Sec. 5. defendants 1. In all actions to be commenced in any court of record in this 1811-(11) territory, and founded on any specialty, bill or note in writing, signed How and in by the defendant, or on the judgment of any court, foreign or domes- what cases tic, and the nature of such action endorsed on the writ, attested by may be held the clerk, or attorney for the plaintiff, setting forth the dates of such specialties, bills, notes, or judgments, and the sum or sums which ap- Suits on pear thereby secured and unpaid, the defendant or defendants shall be judgments. held to bail of course, for the sum or sums so endorsed; and in all to bail. Actions of account, covenant broken, and verbal contracts. actions of account, covenant broken, and actions founded on verbal contracts and assumpsit in law, in which the plaintiff or other credible person can ascertain the sum or sums due, or damages sustained, and either of them make affidavit thereof, to the best of his or her knowledge and belief, the clerk of the court in which the writ issues, or the attorney for the plaintiff shall endorse on the writ 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; and it shall be the duty of the plaintiff or his attorney, or the clerk, to file such affidavit forthwith, in the clerk's office from which such writ may isProviso as to sue: Provided, That executors and administrators, when sued in &c. and pe- such capacity, and persons sued on such penal statutes as do not exnal statutes. pressly require bail, shall not be held to bail in such suits.1 executors, 1818-(2) Sec. 11. In actions clerk may ant to be § 2. In all actions sounding in damages, it shall be lawful for the clerk of the court in which such action is commenced, or any justice sounding in of the quorum of the county where such suit may be instituted, to damages, order the defendant or defendants to be held to bail in such sum as order defend- may seem proper, on the affidavit of the plaintiff, or other credible held to bail. person, setting forth satisfactory reasons for praying such order: Provided however, That it shall be the duty of the court to which such writ may be returned, on application at the first term thereof after the Court may commencement of such action, supported by satisfactory proof, to disreduce such charge the bail taken under such order, or reduce the amount for which bail may have been required. discharge or bail at re turn term. 1823-(6) Sec. 1. Suits found § 3. In no case where any action, or actions may be commenced in of the courts of record in this state, or before any justice of any ed on bill, the peace in and for any county in this state, and founded on any bond, note, or bill, bond, note, or account, shall the defendant or defendants be held account. 1827-(12) Sec. 1. Defendant suit brought. to bail, unless the plaintiff, his attorney or agent, shall first make § 4. When suit shall be commenced in any of the courts of this state, or before any justice of the peace, and the defendant or defendmay be held ants shall not be held to bail, and the plaintiff or plaintiffs shall aftertobot wards deem it necessary for the security of his, her, or their claim or demand, the clerk of the court or justice of the peace, where such suit shall be pending, shall, on the plaintiff, his, her, or their attorney or agent making the affidavit required by the existing laws, at any time previous to final judgment, issue a writ of capias ad respondendum, to the sheriff, coroner, or constable, requiring him to arrest and detain the body of the defendant or defendants in his custody, until he or they shall put in bail for his or their appearance, or be otherwise discharged by due course of law: Provided, That the said plaintiff's ex- plaintiff so applying, shall pay the expense of issuing said writ of capias ad respondendum, and the execution thereof, unless the plain Second ca. pias to be at pense, unless, &c. 1 This section, so far as it relates to suits founded on any "bill, bond, note, or account," is expressly repealed by the act of December 9, 1823, (See § 3.)— In other respects, it appears to be still in force. tiff making application for a new writ requiring bail, make affidavit that the defendant is about to abscond from the county. by petition § 5. In all suits where the process is by petition and summons, (as Ib. Sec. 2. now allowed by law,) the defendant or defendants may be held to bail Bail in suits by an affidavit for that purpose, in like manner, and under the same and sumrules and regulations; and such bail shall be liable in the same way as if such suit had been commenced by writ of capias ad respondendum. mons. Sec. 2. 6. In all qui tam actions, the defendant or defendants may be 1932–(13) held to bail in the same manner as bail is now required by law in ac- In qui tam tions of debt and assumpsit. actions. Sec. 1. § 7. In all cases, when any plaintiff or plaintiffs may wish to hold 1827-(20) any defendant or defendants to bail, in civil cases, such plaintiff or Plaintiff deplaintiffs shall give security for the costs of suit. manding bail to give secu Sec. 2. unlawfully charged. take bail § 8. Every person unlawfully held to bail, may be discharged rity for costs. therefrom, on motion to the court, into which the writ is made re1807-(9) turnable, and filing common bail. And in every action wherein bail Defendant is not required, the process may be by capias ad respondendum, and held to bail, it shall be endorsed thereon by the clerk or plaintiff's attorney that how dis "no bail is required," to which an appearance may be effected by filing common bail. And when any writ shall issue from any of the said courts, or any warrant from a justice of the peace, whereupon bail is required, the sheriff or other officer, to whomsoever the same Sheriff to may be directed, shall take a bail-bond with sufficient security or se- bond in dou curities in the penalty of double the sum for which bail is required ble the by the endorsement on such writ or warrant; which said bond, the dorsed. sheriff or other officer shall return with such writ. (1) And in case the sheriff or other officer shall neglect to take such bond, or the bail Or failing, to stand special returned shall be held insufficient, on exception taken and entered, the baile same term to which such writ shall be made returnable, the sheriff or ception ta other officer having due notice of the taking exception, shall in either tice. ease be deemed and stand as special bail; and the plaintiff may proceed to judgment against such sheriff or other officer, as in other cases against special bail. (2) amount en ken, and no Sheriff to as Form of as 9. All bail bonds returned to any of the said courts, shall be Ib. Sec. 3. assigned by the sheriff, or other officer returning the same, by endorse- sign bail ment thereon, in the following form, to wit. "I, A. B. sheriff (or bond. coroner as the case may be) of the county of do hereby signment. assign the within obligation and condition to C. D., his executors and administrators, to be sued for according to the statute in such cases made and provided. In witness whereof, I have hereunto set my hand and seal, this day of in the year of our Lord, And any sheriff or other officer, failing to make or to stand such assignment, shall be deemed and held as special bail, in the same special bail. manner as if no bail had been taken. defendant in 10. Where any sheriff shall return, that he hath taken the body Ib. Sec. 4. Proceedings of the defendant, and committed him to the prison of the county in on return of which the arrest was made, (which is hereby declared to be the proper custody. prison for confinement,) the plaintiff may enter the defendant's appearance; and he shall be at liberty to plead, as if such appearance had been entered by himself; and the plaintiff may proceed to judgment How disas in other cases. Nevertheless the defendant shall not be discharged charged. (1) A bail-bond conditioned for the defendant's appearance, at a day different from that prescribed by law for holding the court, is void: Allen v. White, Min. Rep. 289. (2) Sheriff failing to take bail, is not liable as special bail, unless duly notified of exception taken. Neal v. Gaines, 1 Stewt. Rep. 158. Ib. Sec. 5. may arrest of himself. out of custody, but by putting in bail, or by rule of court, or special order of one of the territorial judges. § 11. The bail shall have liberty at any time before final judgment obtained against him, to surrender to the court, from which the process and surren issued, or to the sheriff returning such process, during the sitting of der principal in discharge such court, or to the sheriff in the recess of such court, the principal, in discharge of himself; and such bail shall, at any time before such judgment, have full power and authority to arrest the body of his principal, and secure him, until he shall have an opportunity to surrender him to the sheriff who made the arrest, or his successor in office, or to Sheriff to re- the court to which the process was returnable. And such sheriff is hereby required to receive such surrender, and hold the body of the defendant in custody as if bail had never been given.1 ceive, &c. Ib. Sec. 6. zance of spe- Form. Recogni. zance to be filed with other papers. May be ob jected to. Ib. Sec. 7. under this bail. ty. principal. § 12. It shall be lawful for the defendant in any action where special bail is required, to go before any one of the territorial judges, or a justice of the peace for the county wherein the suit was originated, and enter into a recognizance of special bail, in the following form, to wit: "Be it known, that on the day of in the year of our Lord, came A. B. before me C. D. a justice of the peace in and for the county of E. and undertook, in behalf of F. G. to be his special bail in an action of now depending in the court of the said county of E. wherein H. I. is plaintiff, and the § 13. All bail taken according to the directions of this act, shall be deemed, held, and taken as special bail, and as such, be liable to the act, special recovery of the plaintiff. But the plaintiff shall not proceed against Bail's liabili. Such bail until execution hath been returned, that the defendant is not to be found in his proper county, when the plaintiff may proceed against such bail, as is usual to proceed against special bail in other Privilege of cases. And the bail shall have liberty at any time before the return of bail to render the first scire facias against them, returned "scire feci," or of the second returned "nihil," to render the principal in discharge of his bail, on payment of costs however, in either case of such scire facias. And such render, if made in term time, shall be to the court from whence the process issued, and if in the recess of such court, to the officer who made the arrest; which officer is hereby required to receive such render, and execute to the bail a certificate thereof; and hold the body of the defendant in custody, as if no bail had been taken. And such render and commitment, duly certified to the clerk in vacation, or entry of render in open court in term time, and in either case, notice thereof given to the plaintiff, or his attorney, shall discharge the bail. And the bail shall have full power and authority 1 The surrender may be made any time before final judgment obtained against the bail on a scire facias.-See § 18. made before may be to arrest the body of the principal, and secure him, to enable them to render him as aforesaid: Provided however, that if such render be If render made before final judgment against the principal, the court or sheriff, final judg to whichsoever such surrender shall be made, are hereby authorized ment, new recognizance to take the defendant's recognizance of special bail, with such other sufficient bail as he may offer; and if taken by the sheriff, he shall taken. file the same in the court where the suit is depending, on the first day of the next term; and the bail therein shall be liable to exception, in the same manner as bail in the original bail-bond. And the bail shall have the same privileges, and be subjected to a recovery in the same manner.1 cias, &c. turn, that on other process, court tion, order retained. § 14. When any scire facias shall by the proper officer be returned 1b. Sec. 8. to have been made known to the bail; and they, in consequence against bail Proceedings thereof shall appear, they shall be obliged to plead, and the issue shall on scire fa be tried the same term to which the process shall be returned, unless sufficient cause be shown to the court to the contrary; but the bail shall not be admitted to plead non est factum, unless they first file an affidavit of the truth of their plea: Provided nevertheless, that if any sheriff shall return on any scire facias to him directed, that the If sheriff reprincipal is imprisoned by virtue of any process, civil or criminal, the principal is court to which such scire facias is returnable, shall, on motion of the imprisoned plaintiff or bail, order and direct that such principal be retained where he shall be a prisoner, until the plaintiff's judgment and cost be satis- may, on mofied, or he or she be otherwise discharged by due course of law: a him to be copy of which order being served on the keeper of such prison, before such prisoner's releasement, shall be sufficient authority for him to retain such prisoner, until such order be complied with, and shall be deemed a surrender of the principal, and a discharge of the bail. § 15. In all cases where judgment shall be entered up, in any of 1811—(1) the courts of record in this territory, against any person, as bail for Bail may obthe appearance of another, to defend any suit depending in such tain judg court, and the amount of such judgment, or any part thereof, hath tion against been paid, or discharged by such bail, his, her, or their heirs, execu- person for tors, or administrators, it shall be lawful for such bail, his, her, pearance or their executors, or administrators, to obtain judgment by motion against the person, or persons, for whose appearance they were amount paid. bound, his, her, or their heirs, executors, or administrators, for the full amount of what shall have been paid by the said bail, his, or her heirs, executors, or administrators, in any court where judgment may have been entered up against such bail: Provided always, That no Ten days nojudgment shall be obtained by motion aforesaid, unless the party or parties, against whom the same is prayed, shall have ten days previous notice thereof. Sec. 5. ment by mo. whose ap they were bound for tice to be given. Common ment by mo § 16. In all cases where judgment shall be entered up in any of the 1821–(26) courts of record, or by any justice of the peace, against any person, Sec. 4. as common bail for the appearance of another, to defend any suit, de- bail may pending in such court, and the amount of such judgment, or any part have judg thereof, hath been paid or discharged by such common bail, his, her, tion. or their heirs, executors, or administrators, it shall be lawful for such common bail, his, her, or their heirs, executors, or administrators, to obtain judgment by motion, against the person or persons for whose appearance they were bound, his, her, or their heirs, executors, or administrators, for the full amount of what shall have been paid, by the said common bail, his, her, or their heirs, executors, or administrators, in any court, or before any justice of the peace, where judg 1 See the last note. |