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where any person shall be taken in execution to satisfy any fine, forseiture, or amercement, unless such sheriff or coroner shall have received the money, or suffered a wilful or negligent escape; but whenever the proper tribunal shall have discharged any person who was committed or taken in execution as aforesaid, or such person shall have escaped without any connivance or neglect of the sheriff or coroner, (as the case may be,) upon proof thereof made to the superior court of law and equity, of the county where such person has been in custody, such court shall certify the same to the auditor of public accounts, who shall release such officer from the fine, and forfeiture, or amercement with which he may have been charged, on account of such person committed by the court, or taken in exeution as aforesaid.

$ 10. All fines and forfeitures shall hereafter be paid into the county 1815—(5) treasury, and not into the territorial treasury; and the clerks of the issue to courts shall return to the county treasury of their respective counties, be paid into

the county an account of fines and forfeitures, in the same manner, and at the tre same time, that they are now by law required to return the same to the auditor of public accounts, and to pay over the money when collected to said county treasurer, at the same time, and in the same manner, they are now by law required to pay the same into the territorial treasury; and the county treasurer is hereby required to County trea

surer to proproceed immediately against any officer who shall fail to comply

ceed against , with the provisions of this section.

11. The governor of this state, or person exercising that office, 1822–(4) is hereby anthorized and empowered, in all criminal and penal cases, Secs. 1.& 3. except those of treason and impeachment, to grant pardous and re- may grant prieves, and to remit all fines and forfeitures, or so much thereof as me he may deem expedient, which have accrued, or may hereafter accrue, and forfeit. to this state or to any county thereof: Provided, Said fine or forfeiture be not collected and paid into the state or county treasury. [See Const. Ala. Art. 4, Sec. 11.]

NOTE.- For the mode of recovering and appropriating penalties, when the particular act creating them points out none,-See “ Judicial proceedings at common law,”- 87, 88, 89.


pardons and remit fines



$1. It shall not be lawful for any person or persons to hunt with 1822–(5) fire in the night-time; and every person convicted thereof, shall for- keer hurt feit and pay for every such offence, the sum of fifty dollars ; one-half to go to the use of the informer, and the other hall to go to the use of the county : Provided, That this act shall be construed only to embrace persons hunting deer with a gun and fire at night.

52. If any person hunting with fire in the night-time shall kill any 1803–(1) horse, mare, colt, neat-cattle, hog, sheep, or other domestic animal, Dora

ages for catnot being his own, the person or persons so offending, shall be liable tle killed. to an action at law, for double damages to the person aggrieved, in addition to the above penalty. $ 3. If any slave or slaves shall be discovered fire-hunting in the Slaves hunt

ing to be manner aforesaid, such slave or slaves, on conviction thereof, in man- whipped. ner aforesaid, before any one justice of the peace,' for the county

1 The penalty imposed by the act of 1803 for fire-hunting, was a fine of twenty dollars, or on failure of the person convicted to pay the fine, impri

pel witnesses

wherein the offence may be committed, shall, by order of said justice, receive thirty-nine lashes well laid on, on his bare back; and the master or owner of said slave, or person in whose care he shall be, shall for. feit and pay the sum of ten dollars for each slave so convicted, to be levied by a warrant, immediately to be issued by such justice for the

purpose. Persons send. $ 4. If any person shall be convicted, before two justices of the ing slaves to peace, in manner aforesaid, of sending or having sert his or her slave,

or any slave in his charge or care, to fire-hunt, in manner before mentioned, the person or persons so offending, shall be subject to the same pains as are provided by this act to be inflicted on fire-hunters, but the

slave so sent shall receive no punishment. How to com- $ 5. If any person summoned to give evidence against any person to testify.

es accused under this act, shall refuse or neglect to give such evidence,

the person so refusing or neglecting, shall be committed to the jail of the county where the offence shall be committed, until he or they

shall give testimony against the said offender. Not to repeal $ 6. Nothing contained in this act shall be construed to affect any

provisions contained in the act entitled “An act for the punishment of crimes therein mentioned," passed the thirteenth of January,

1802.· This act to 67. The captains of the several companies of militia in this territhe militia. tory, shall cause this act to be read at the head of their respective

companies twice in every year, after the publication thereof, under the penalty of forfeiting to the use of the county, for every such neglect, five dollars, recoverable by warrant of any justice of the peace, on the oath of two reputable witnesses.

former act.

be read to


1805—(3) § 1. No person shall enter upon any lands, tenements, or other Entries to be possessions, and detain or hold the same, but where entry is given by peaceable.

law; and then only in a peaceable manner.

sonment, without bail, not less than one, nor more than three months ; this punishment was provided only in case of fire-hunting "within four miles of any settlement,” and might be inflicted, by “any two justices of the peace, of the county wherein the offence was committed, by oath of one or more credi ble witnesses.” Sec. 1.

1 See 1807—(6), title “Crimes and Misdemeanors,” originally passed in June, 1802, but re-enacted with amendments in 1807.

(1) The following points have been decided under this statute : 1. A' tenant at will may maintain a writ of forcible detainer. McDonald e.

Gayle, Min. Rep. 98. 2. The record must show that the plaintiff has had actual possession, Childress

v. McGehee, ib. 131. 3. To establish possession, the plaintiff may prove a tenancy under him, and

possession by his tenant, Lecatt v. Stewart, 2 Stewt. Rep. 474. 4. In a complaint of unlawful detainer, the possessory title of the plaintiff was

good, but defectively described :-held good after verdict. Payne f.

Martin, 1 Stewt. Rep. 407. 5. The county court has no jurisdiction by certiorari or appeal, in cases of for

cible entry and detainer. Dunham v. Carter and Carroll, 2 Stadt, Rep.

496. 6. It is discretional with the judge to require bond and security on granting &

certiorari; and the court may order a new bond to be taken. Childress 6.

McGehee, Min. Rep. 131. 7. When removed, the cause is not triable de novo, but on the justices' record,

without a jury. McDonald v. Gayle, Min. Rep. 98. Dunham v. Carter and Carroll, 2 Stewt. Rep. 496.


2. If any person shall enter upon, or into any lands, tenements, What or other possessions, and detain and hold the same, with force or amounts to a

"forcible entry strong hand, or with weapons ; or by breaking open the doors, win- and detainer. dows, or other part of a house, whether any person be in it or not; or by any kind of violence whatsoever; or by threatening to maim, kill, or beat the party in possession; or by such words, circumstances, or actions as have a natural tendency to excite fear or apprehension of danger; or by putting out of doors, or carrying away the goods of the party in possession; or by entering peaceably, and then turning by force the party out of possession; or by frightening by threats, or other circumstances of terror; in such case, every person so offending shall be guilty of a forcible entry and detainer, within the meaning of this act.

93. No person who shall lawfully or peaceably enter upon or into forcible deany lands, tenements, or other possessions, shall hold or keep the tainer. same unlawfully, and with force, or strong hand, or weapons, or violence, or menaces, or terrifying words, circumstances, or actions aforesaid; and it is hereby declared, that whatever words or circumstances, conduct or actions, will make an entry forcible under this act, shall also make a detainer forcible.

4. The three preceding sections of this act shall extend to and All estates comprehend terms for years, and all estates, whether freehold, or less incl than freehold.

5. If any tenant or tenants, for term of life or lives, year or years, Tenants or other person or persons, who are or shall be in possession of any poiling over: lands, tenements, or hereditaments, by, from, or under, or by collusion lawfulde.

tainer. with such tenant or tenants, shall wilfully and without force, hold over any lands, tenements, or hereditaments, after demand and notice in writing given for the delivery of the possession thereof, by his, her, or their landlord or landlords, lessor or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements, or hereditaments shall belong, his, her, or their agent or attorney thereunto lawfully authorized, then such person or persons so holding over, shall be guilty of an unlawful detainer.

$ 6. The aforesaid forcible entries and detainers, and unlawful de- Cognizable tainers, are hereby made cognizable before any justice of the peace of of the county in which they are committed. $ 7. When complaint to any justice of the peace of the proper On com..

plaint made, county shall be made in writing, and signed by the party aggrieved, justice to ishis agent, or at:orney, specifying the lands, tenements, or other pos- sue a venire. sessions, so forcibly entered upon and detained, or forcibly or unlaw. fully detained, by whom and when done, and the estate therein, it shall be the duty of the said justice to issue a precept under his hand and seal, directed to the sheriff 1 of the said county, commanding him

of the peace.

8. The justice is not required to state all the evidence given, but only such as

is objected to, and the proper proof to support the verdict will be presumed to have been made, unless the contrary appear. Payne v. Martin, 1 Stewt.

Rep. 407. Lecatt v. Stewart, 2 Stewt. Rep. 474. 9. Complaint for unlawful detainer : verdict guilty: the magistrate entered

judgment for a forcible and unlawful detainer. The word forcible held to be surplusage, and no error. Payne v. Martin, 1 Stewt. Rep 407. See

also Grice v. Ferguson, 1 Stewt. Rep. 36. * The act of Dec. 31, 1823, prohibits sheriffs and coroners from executing any process issued by a justice of the peace in civil cases, except attachments. The act of January 12, 1826, provides-Sec 1, “That so much of the beforerecited act as prohibits sheriffs from executing precepts, issued by justices of the peace, of forcible entry and detainer, be and the same is hereby repealed. Sec. 2. That it shall be the duty of sheriffs to execute all such precepts of



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to cause to come before the said justice, twelve good and lawful men
of the said county, qualified to serve as petit jurors, to inquire into
and try such forcible entry and detainer, or forcible or unlawful detain-
er; which precept shall be in the form, or to the effect following,
that is to say:
County of

, 88. (a Con. Ala. The State of Alabama, to the sheriff of the said county, greeting. 17. 11. 5, Sec. Whereas, Complaint is made to the undersigned justice of the peace

for the said county, of a certain forcible entry and detainer, (or of a certain unlawful detainer as the case may be made by E. F. into the messuage, or upon the lands of C. D. in the county aforesaid. Yog are therefore hereby commanded to cause to come before the undersigned justice aforesaid, at the hour of , in the noon of day of

, twelve good and lawful men, of your county, to inquire of and try the said forcible entry and detainer, or forcible or unlawful detainer. Given under the hand and seal of the said justice, this

day of

, in the year of our Lord one thousand, &c.

$ 8. The said justice shall issue a summons to the party complainSummons to ed against, in the words or to the following effect : the defend County of

88. bThe State of Alabama, to the sheriff of the said county, greeting. 17.]

You are hereby commanded to summon E. F. of the said county, to appear before the undersigned justice of the peace in and for the county asoresaid, at the hour of

in the

noon of the day of

, to answer to, and make defence against the complaint of C. D. of a forcible entry and detainer, (or forcible detainer as the case may be), made by the said E. F. into the messuage, or upon the lands of the said C. D. in the county aforesaid ; and have you then and there this precept, with a return of your proceedings therein. Given under the hand and seal of the said A. B. the

day of

, in the year of our Lord one thousand, &c.

A. B. [L. S.] Summons, 89. The said summons shall be served upon the party against whom how served. the said complaint is made, or a copy thereof left at his usual place of

abode, six entire days before the day of appearance therein mentioned; and such service of the said summons, in any part of this territory, as well out of the said county as in it, shall be good and effectual in law. And further, no jury shall, by virtue of this act, be sworn to inquire of and try any forcible entry and detainer, or forcible or unlawful detainer, where such previous notice shall not have been given

as aforesaid. Defendant $ 10. The party against whom such complaint is made, may at the may plead time of appearance, mentioned in the said summons, and before the not guilty, or three years" said jury is sworn, plead not guilty to the charge or complaint, or that possession. he hath been three years in quiet possession, and his estate therein not

ended or determined, agreeably to a subsequent clause in this act; and thereupon the parties shall be at issue; and the said justice shall proceed to swear the jury, so returned, to inquire of and try the same. And if the said party, against whom the complaint is made as aforesaid, does not appear at the time specified in the said summons, or appearing does not plead to the said complaint; then it shall be lawful for the said justice to proceed in the same manner, as if he had pleaded not guilty.

forcible entry and detainer, issued by justices of the peace, under the same rules and regulations that they were under, before the before-recited act was passed, all laws to the contrary notwithstanding."

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$11. To the said jurors, and each of them, who shall be returned Jurors' oath. to inquire of and try the said complaint, the justice shall administer the following oath or affirmation : “ You do swear (or affirm,) that you will well and truly try this issue, joined between C. D. and E.F. and a true verdict give according to the evidence.” $ 12. When the jury shall be sworn as aforesaid, the justice shall Complaint to

be read to the cause the said complaint to be read to them, and then call upon the iure complainant to support the same.

$13. If the jury find the party against whom such complaint is Proceedings exhibited, guilty, or find against his plea of possession, it shall be the forces main. duty of the said justice to record the said verdict, and to give judgment ant. thereon, with costs: and also to issue a writ of restitution, directed to the sheriff, to cause the complainant to be re-seized, or re-possessed; to which shall be added a clause commanding the sheriff to levy the said costs, of the goods and chattels of the offender; and for want thereof, to take the body of such offender, and safely keep him in close custody, in the common jail of the county, until he shall pay the same, or be thence delivered by due course of law. ý 14. If the jury find against the complainant, the said justice shall Judgment

ainst comrecord the verdict, and give judgment accordingly, with costs : and plainant shall issue execution, directed as aforesaid, for the said costs, against the goods and chattels ; and in want thereof, against the body of the complainant.

$ 15. The said justice may, at the request of either party, and on Justice may good reasons being assigned, postpone the trial to any time, not 'ex-prialone ceeding fifteen days; but such postponement shall be on the payment of costs.

$ 16. It shall be the duty of the said justice, to enter on his minutes Justice to or docket, true copies of the complaint, exhibited by virtue of this act, make

plete record of the summons and venire, and their respective returns, and the names of the pro

ceedings. of the jurors, their verdict, and his judgment thereon; and also the ce names of the witnesses, and the admission of evidence objected to, and the rejection of evidence offered, the reason of such admission or rejection, and all the proceedings had before him, touching the said complaint. ( 17. If the sheriff of any county shall neglect or refuse to execute, Sheriff's refu

sal to execute or return any precept, writ, or other process, directed and delivered to

process. him, by virtue of this act, he shall, for every such offence, forfeit and pay two hundred dollars to the party aggrieved ; to be recovered with costs by action of debt, in any court of this territory, having cognizance thereof.

$ 18. The proceedings had by virtue of this act, on such forcible Proceedings entry and detainer, or forcible or unlawful detainer, may be removed moved by before the circuit court of the county in which the same may have certiorari, af.

ter judgment. taken place ; and such removal shall be by writ of certiorari, and in no other way, and then only after judgment. 19. Neither the said judgment, nor anything in this act, shall bar Civil actions

not barred. or prevent the party injured, from bringing an action of trespass, or " other actions, against the aggressor, or party offending. 20. The estate or merits of the title, shall in no wise be inquired Merits of ti.

tle not to be into, on any complaint which shall be exhibited by virtue of this act: in

inquired in Provided always, That this act shall not extend to any person who to. hath had the uninterruped occupation, or been in quiet possession, of Exceptions. any lands or tenements, for the space of three whole years together, immediately preceding such complaint, so exhibited to the said justice, and whose estate therein is not ended or determined ; but every such

make com

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