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lashes.

Number of shall be sentenced to receive more than thirty-nine lashes, unless two respectable slave-holders to be summoned by the justice for the purpose of trying said slave, concur with him in the sentence; and any such justice of the peace shall summon and compel the attendance of all witnesses necessary to establish any fact for or against such slave, and shall duly examine such witnesses.

Justice to summon witnesses.

1824-(25) Sec. 1.

§ 59. All slaves which may be hereafter executed in pursuance Jury convict of law shall be paid for in the manner hereinafter provided.

ing slave to assess his value.

Ib. Sec. 2.

§ 60. Whenever, on the trial of any slave for a capital offence, the jury shall return a verdict of guilty, the presiding judge shall have the same jury sworn to assess the value of said slave, and the verdict of said jury, shall be entered on the records of the court; and the master or owner of such slave producing to the comptroller of public accounts, a transcript from the record of the court regularly certified by the clerk, and the certificate of the sheriff, that any slave has been executed in pursuance of the sentence of the court, shall be entitled One half of to receive a warrant on the treasurer for one-half of the amount assessed by the jury, to be paid out of the fund hereinafter provided for that purpose."

the amount

assessed to

be paid to owner.

[a But see §
64.]

Ib. Sec. 3.
Tax on ne-

groes to raise
a fund for

§ 61. To raise a fund for the purpose aforesaid, it shall be the duty of the assessors annually to assess a tax of one cent on all negroes under ten years, and two cents on all negroes over ten and under sixty; and it shall be the duty of the tax-collectors to collect and return the same this purpose. at the same time, and in the same manner, they are now compelled by law to collect and return the state tax; and it shall be the duty of the treasurer to keep said fund separate and distinct from the revenue of the state.

Ib. Sec. 4.
Owner to

employ coun

§ 62. If the owner of any slave charged with a capital offence, shall fail to employ good and sufficient counsel, on behalf of said sel, or court slave, it shall be the duty of the presiding judge, before whom such slave may be tried, to assign counsel learned in the law to defend said slave, who shall be entitled to receive from the owner the sum of twenty dollars for his services.

to assign.

Ib. Sec. 5.
Penalty for

secreting an
accused
slave.

Ib. Sec. 6. Jury shall determine

§ 63. If the owner, or any other person having charge or government of any slave, who shall be charged with any capital crime, shall conceal or carry away any such slave, so that he or she cannot be brought to condign punishment, every owner or other person so offending, shall forfeit the sum of five hundred dollars.

§ 64. After the jury have found the value of the negro as aforesaid, they shall also say what portion of the same the master shall have, what portion which in no case shall exceed one-half of the value so found; and the the owner prosecuting officer shall inquire as to all facts which would go to show shall have the portion of blame attached to the master, that the jury may rightly

of the value

Ib. Sec. 7.

assess the amount he shall have.

§ 65. This act shall not be so construed as to extend its benefits to This act not the payment of slaves, executed in cases of rebellion or insurrection, cases of re- or where neither the master or slave is settled in this state.

to extend to

bellion, &c.

1832-(4) Sec. 1. Judge of

County court

§ 66. The judge of the county court of each and every county in this state, together with two justices of the peace, to be associated with him, or in case there should be no judge of the county court, and two jus- then any three justices of the peace, shall constitute a court for the trial of all slaves and free persons of colour, charged with any crime or misdemeanor of a higher grade than petit larceny.

tices autho

rized to try

persons of
colour.

Ib. Sec. 2.
Mode of

bringing the
offender to
trial under

this act.

§ 67. Whenever any slave or free person of color, shall be brought before any justice of the peace, charged with the commission of any crime or misdemeanor of a higher grade than petit larceny, if the justice, after examining the witnesses on the part of the prosecutor,

shall believe there exists any reasonable or probable grounds of the guilt or criminality of such slave or free person of color, he shall immediately commit him or her to jail, and shall, at the same time, issue a notice to the judge of the county court of his county, and also to some justice of the peace, which notice shall be served by the sheriff or some constable of the county, informing them of such commitment, and state the time and place of trial, which shall not be less than ten, nor more than fifteen days from the date of said notice; and the said justice who shall make the commitment, as aforesaid, and the judge of the county court, or if there be no judge of the county court, two justices of the peace, summoned as aforesaid, shall form a court to try and determine the said offence; and it shall be the duty of the magistrate to order the sheriff or coroner of his county to summon twenty-four jurors, to be and appear at the place and time appointed, for the trial of said offence, one-half of whom shall be slave-holders; and should the judge of the county court, or any justice summoned to attend said trial, fail to attend, any justice of the peace shall forthwith cause to be summoned two justices of the peace to be associated with him in forming said court, and may adjourn from day to day till the business before them is disposed of.

Jury, how

§ 68. Out of the number of jurors summoned by the sheriff, there Ib. Sec. 3. shall be drawn twelve, who shall compose and be a jury for the trial formed. of any one prosecuted under this act: Provided always, That the accused shall have the right of twelve peremptory challenges; and the state shall have the right of four peremptory challenges; and if the original panel should be exhausted by challenge or otherwise, so Challenges that a sufficient number be not left to compose a jury, the court shall ed and by the order the sheriff to summon a sufficient number of talesmen from the state. by-standers for that purpose.1

by the accus

Written

69. In all trials had under this act, it shall be sufficient for the Ib. Sec. 4. solicitor, or the counsel appointed by the court to prosecute, to write statement out a brief statement of the nature of the crime or misdemeanor by solicitor, charged against the defendant, and sign his name thereto; and no in- without indictment or presentment shall be necessary.

sufficient

dictment or presentment.

Court may

prosecute or

10 dolls.

$70. If at any court held under this act, the solicitor of the circuit b. Sec. 5. should not be present, the court shall appoint counsel to prosecute, appoint whose fee, amounting to the sum of ten dollars, shall be paid by the counsel to state. And if the owner of any slave prosecuted under this act, shall defend, who not employ counsel to defend such slave, it shall be the duty of said shall receive court to appoint counsel for that purpose, whose fee, amounting to the sum of ten dollars, shall be paid by the owner of said slave; and if any free person of color prosecuted under this act, shall be unable to employ counsel to defend him or her, it shall be the duty of the court to appoint counsel for this purpose, whose fee, amounting to ten dollars, shall be paid out of the county treasury.

sue, and

serve subpœ

§ 71. It shall be the duty of the clerk to issue all subpoenas or other . Sec. 6. legal process, as well for the defendant as the state, all of which shall Clerk to isbe executed by the sheriff; and the said clerk and sheriff shall receive sheriff to the same fees therefor, as now provided by law for similar services, a and none other. § 72. If any slave or free person of color shall be found guilty b. Sec. 7. under this act, it shall be the duty of the court to pronounce sentence in the manner now prescribed by law, which sentence shall be carried into execution by the sheriff: Provided always, That if any slave or free person of color shall be found guilty of any capital crime,

1 See "Slaves," &c.-§ 21. "Witnesses”—§ 9.

Sentence and execution.

there shall not be less than five nor more than ten days, between the day of passing sentence and the day of execution, except in cases of conspiracy, insurrection, or rebellion, when the sentence of the court may be executed forthwith.

1807-(32)

Depositions

dent and in

firm wit.

nesses.

DEPOSITIONS.

§ 1. WHEN a person who may be a witness in any cause in any Sec. 11. of the courts, shall reside out of this territory, or shall, by reason of non-resi of age or bodily infirmity, or any other cause, be incapable of attending, to give his or her testimony in court, oath thereof being made to any judge, justice, or clerk of the court wherein such suit is depending, such judge, justice, or clerk is hereby empowered to issue, or order the clerk of the court wherein such cause is depending, to issue a commission to one or more persons, to take and receive the deposition of such witness; which being duly taken and returned, as hereinafter directed, shall be received as legal testimony: Provided, That the party praying such commission shall give such notice to the adverse party of the time and place, when and where such commission is to be executed, as the court, judge, justice, or clerk shall think proper; and the adverse party shall have liberty to cross-examine any witness whose deposition shall be so taken.

Tb. Sec. 12.

about to

ritory.

§ 2. If any person, who may be a witness in any cause, depending Of witnesses in any of the said courts, shall be under the necessity of leaving this leave the ter- territory before such cause is to be tried, or even before it be at issue, upon oath thereof being made before any judge or justice of the court, wherein the cause is depending, such judge or justice is hereby empowered to take the deposition of such witness, provided it shall appear by the oath of an indifferent person, that sufficient notice of the time and place of such application has been given to the opposite party or such judge or justice may order the clerk of the court wherein such cause is depending to issue a commission to one or more persons to take the deposition of such witness; such notice being first given to the adverse party of the time and place, when and where such deposition is to be taken, as the judge or justice, awarding such commission, shall direct, which deposition, when returned, taken in manner aforesaid, shall be received as legal evidence. (1)

Ib. Sec. 13.

of absent witnesses may be taken by interroga. tories.

§ 3. In any case, depending as aforesaid, either party wishing to Testimony improve the testimony of witnesses absent from the territory, may take the same by interrogatories, the party making oath before any one of the judges, justices, or clerk of the court, where such cause is depending, of the absence of such witness, and that he believes his testimony material; such judge, justice, or clerk may, if the oath be taken before the clerk, issue, or if it be taken before a judge or justice, may order the clerk of the court, in which such cause is depending, to issue a commission as aforesaid, directing the commissioner or commissioners to call the witness or witnesses before him or them, at a time and place, by him or them to be appointed. But the party applying for such dedimus shall file his interrogataries in the clerk's office, and serve the opposite party with a copy thereof, with notice of

(1) Depositions may be valid, though in the hand-writing of the attorney of the party offering them. Wynn & Wife v. Williams, Min. Rep. 136. No. tice of taking depositions, left at the dwelling-house of the party, with his clerk, is not sufficient. M'Ewen v. Morgan, 1 Stewt. Rep. 190. See also, Braham v. Debrell, ib. 14.

the day on which such dedimus will issue, at least ten days before the same shall issue; in which time the opposite party may file his cross-interrogatories; and the interrogatories, and cross-interrogatories, if any there be, shall accompany such dedimus; and if any deposition taken by interrogatories shall contain any testimony but the answers to such interrogatories, such surplusage shall not be read in evidence.

Ib. Sec. 14.
De bene esse.

Justice may

another

state.

§ 4. All depositions shall be considered as taken de bene esse. 5. When a witness whose testimony may be material in any ac- 1818-(14) tion or suit pending before any of the justices of the peace of this ter- Sec. 9. ritory, resides at such a distance from the county wherein such suit issue commay originate, as to render the obtaining of his testimony doubtful, mission to according to the ordinary mode of procedure; or shall reside with- county, or out the limits of the Alabama territory; it shall be lawful for such beyond the justices of the peace, before whom such suit may be pending, on the affidavit of the party desirous of availing himself of the testimony of such absent witness, stating the materiality of the testimony, to grant and to issue a dedimus potestatem, to be directed to one or more persons resident in the county where such absent witness resides, requiring him or them to execute such dedimus; which dedimus shall be subject to the same regulations, and be governed by the same restrictions and provisions as are already provided by law, for cases originating in the superior courts of law of this territory, and to stay all proceedings pending before him or them, until a sufficient length of time to execute such dedimus shall have elapsed.

Sec. 1.

Depositions

6. It shall be lawful for any person who may wish to use the tes- 1833-(39) timony of the governor, treasurer, secretary of state, comptroller, or any one of the judges of the supreme court or circuit courts, or soli- of officers in the public citors, or clerks of the circuit and county courts of this state, presi- service, how dent or cashier of the Bank of the State of Alabama or either of its taken. branches, register or receiver of any of the land offices in said state, in any civil matter or suit pending in any of the courts of this state, after making oath of the materiality of the testimony or witness in said suit, and that he is in one of the vocations above specified, to proceed to take their or either of their depositions, in the same manner and under the same regulations and restrictions, as is now usual and lawful in taking depositions of non-resident citizens.

Governor to

missioners in

7. The governor of the state shall have power to nominate, ap- 1833—(20) point, and commission one or more persons in each of the other states Sec. 1. of the United States, and in the District of Columbia, who shall be appoint comauthorized to receive and reduce to writing, the testimony or deposi- other states. tion of any witness or witnesses, person or persons, who may come before him and depose, concerning any matter or thing, suit or controversy, within the state of Alabama.

taken may

§8. The testimony or deposition thus received and reduced to Ib. Sec. 2. writing, when duly sworn to and subscribed by the witness deposing, Testimony and certified by the said commissioner under his hand and seal, may be read, &c. be used in any of the courts of law or equity in this state, and shall have the same validity as the depositions of witnesses taken under and by virtue of the laws, as they have heretofore existed: Provided, Proviso. That nothing in this act contained, shall be so construed as to prevent the taking of testimony by deposition, in the same manner and under the same rules and regulations, as heretofore prescribed by law.

Commission.

§ 9. The commissioners aforesaid, shall have full power and au- Ib. Sec. 3. thority to receive the acknowledgment of all deeds and conveyances ers so ap of real and personal property, lying and being within this state, which pointed to are executed without this state, and also may receive the proof of all knowledg

take ac

ments of deeds and

wills.

dence.

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wills and testaments, bequeathing any property within this state, which shall be executed without this state, in the same manner and under the same regulations, as officers appointed for that purpose, by the law of the state or district, for which said commissioners may have Which may been appointed and commissioned; which deeds and conveyances be recorded. shall be admitted to record in the county where said real or personal property may lie or be, when the acknowledgment of the same shall have been duly certified before the commissioner receiving the same Copies there- under his hand and seal; and copies of such will and testaments shall of to be evi- be admitted to probate in the county where the property bequeathed shall lie or be, when proof of the same shall have been duly certified by the commissioner before whom the same was made under his hand and seal: Provided, That such copies shall be liable to be contested and controverted in the same manner as the original might have been. § 10. Each of the said commissioners so appointed and commissioned, shall, (if he intends to accept his said appointment,) as soon as fidavit, &c. convenient, file in the office of the secretary of state of this state, an affidavit, subscribed and sworn to before some officer competent to administer oaths, by which he shall swear that he will correctly and faithfully discharge his said office of commissioner, according to the best of his skill and judgment, which affidavit shall be certified by the Tenure of of officer before whom the same shall have been made; and further, the said commissioners shall hold their offices during the pleasure of the governor.

Proviso.

Ib. Sec. 4. Commissioners to file af

fice.

Ib. Sec. 5.

Secretary of

state to register commissioners'

§ 11. The secretary of state shall inscribe in some book, kept for that purpose, the names of all commissioners aforesaid, who have signified their acceptance of their said offices, by filing the affidavit names and aforesaid, together with the places where they may reside, and for residences. which they have been appointed; and shall forward to each of the clerks of the county courts of this state, a certificate or certificates of the appointment of such commissioners, and the place where each re'sides, within a convenient time after the acceptance of the said commissioners shall have been so signified, which certificate or certificates shall be kept in the offices of the said clerks, and may be referred to by any person or persons desirous thereof.

NOTE. For the manner of taking depositions in contested elections of members of the general assembly, See "Elections-Mode of contesting."

Con. Ala.
Art. 1.

DESCENTS.

§ 1. THE estates of suicides shall descend or vest as in cases of natural death if any person shall be killed by casualty, there shall No forfeiture be no forfeiture by reason thereof.

Sec. 21.

from suicide.

Lands of in

1806-(1) § 2. When any person shall die seized of any estate or inheritance Sec. 16. in lands, tenements, or hereditaments not devised, the same shall detestate, how scend to his or her children, and their descendants, in equal parts; to descend. the descendants of the deceased child or grand-child to take the share of their deceased parent, in equal parts among them; and when there shall be no children of the intestate, nor descendants of such children, then to the brothers and sisters of the intestate, and their descendants, in equal parts; the descendants of a brother or sister of the intestate to have in equal parts among them, their deceased parent's share; and where there shall be no children or descendants of them or any of them, and no brothers or sisters, or descendants of them, or any of

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