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 1832-(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. manding bail to give secu 1807-(9) Sec. 2. charged. § 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. § 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 returnable, and filing common bail. And in every action wherein bail Defendant is.not required, the process may be by capias ad respondendum, unlawfully 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 doucurities 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 cåse 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 ex 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. case 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) take bail amount en ken, and no sign bail Form of as 9. All bail bonds returned to any of the said courts, shall be b. Sec. 3. assigned by the sheriff, or other officer returning the same, by endorse- Sheriff to asment 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 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. day of Proceedings defendant in custody. 10. Where any sheriff shall return, that he hath taken the body b. Sec. 4. 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 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 (1) A bail-bond conditioned for the defendant's appearance, at a day differeht 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 Slewt. Rep. 158. charged. 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 Bail 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 § 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 said F. G. defendant. And in case the said F. G. should be cast in the action, he shall pay and satisfy the condemnation of the court, or surrender his body in custody; or that the 'said A. B. will do it for him. Given under my hand and seal the day and year above written. C. D." Which recognizance of special bail shall be filed in the clerk's office, among the papers in the suit, to which it has reference. But other papers. the plaintiff may object to the sufficiency of the bail at the succeeding May be ob court, of which objection the defendant shall have ten days notice, previous to the day on which such objection is intended to be made: Provided, the recognizance of bail be filed fifteen days before the court, at which such objection should be made. And if the court shall be of opinion, that the bail is not sufficient, the suit shall remain in the same situation as if no such recognizance had been filed. jected to. Ib. Sec. 7. under this bail ty. principal. § 13. All bail taken according to the directions of this act, shall be Bail taken 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 recognizance 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 to take the defendant's recognizance of special bail, with such other, may be 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 Proceedings cias, &c. turn, that principal is § 14. When any scire facias shall by the proper officer be returned b. Sec. 8. to have been made known to the bail; and they, in consequence against bail 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 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 cess, court 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, be- retained. fore 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. on other pro. tion, order Sec. 5. ment by mo person for whose ap they were bound for § 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, executors, 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. tice to be given. Common have judg § 16. In all cases where judgment shall be entered up in any of the 1921—(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 ment by mo 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. ment may have been entered up against such common bail: Provided always, That no judgment shall be obtained on motion as aforesaid, unless the party or parties, against whom the same is prayed, shall have Ten days no- at least ten days previous notice thereof: And provided also, That in all cases, no judgment shall be entered up, on motion as aforesaid, when the amount exceeds fifty dollars, unless by a lawful jury it shall be so awarded. tice to be given. Bail may de fend suit. detinue. § 17. In all actions where bail is required, and where any original process in such cases is returned, "executed," if the defendant shall fail to appear according to the commands thereof, the bail in such action may defend the suit, and shall be subject to the same judgment and recovery, as the defendant might or would have been subject to; and Judgment in in actions of detinue, the bail shall be subject to the restitution of the thing sued for, or the alternate value, according to the judgment of the court; and the bail-piece shall be so altered, in such cases, as to authorize the bail, in addition to the privileges already allowed him by law, to restore the thing sued for; and if the sheriff in such cases shall not take or return bail as required of him, or the bail returned shall be judged to be insufficient by the court, and the defendant shall fail to appear and give bail in such case, the sheriff, in addition to the priviby delin- leges already allowed him by law, shall have the like liberty of defendquency, may ing such action, and shall be subject to the same recovery as is proProceedings vided above for the bail; and if the sheriff depart this life before Sheriff, when special bail defend suit. in case of sheriff's death. Ib. Sec. 3. lege of bail to surrender principal. a See § 11 and 13. judgment be confirmed against him, in such case the judgment shall be confirmed against his executors or administrators; or in case there be no executors or administrators, or no certificate of probate, or administration granted, then judgment may be confirmed against his estate, and a writ of fieri facias may in either case be issued in the name of such deceased sheriff, as if he were living, and be levied on his estate. § 18. The true intent and meaning of the fifth and seventh sections of former act of an act entitled "An Act concerning bail in civil cases,' "a as to the on the privi, privilege of the bail in surrendering his or their principal, is, and shall be construed to be, that the bail shall have liberty at any time before final judgment obtained against him on a scire facias, to surrender to the court from which such process issued, or to the sheriff returning such process during the sitting of such court, or to the sheriff, in the recess of such court, the principal, in discharge of himself; and the bail in any action, shall have a right to plead in bar to any scire facias of principal against him, her, or them, the death of the principal at any time prein bar to scivious thereto and if on the trial of any such issue, it shall be found that the principal is not living, judgment shall be given in favor of the defendant to such scire facias. Bail may plead death fa. 1829-(2) Sec. 5. § 19. All bail-bonds, and delivery bonds, taken by constables, shall Bail and de- be taken payable to the plaintiff in the action, and returned with the livery bonds, other papers in the suit, and proceeded on for forfeiture, as now proconstables to vided by law. taken by be payable to plaintiff. cie-paying BANKS. 1821-(27) § 1. No bill or note of any bank whatsoever, shall be receivable at Notes of spe the treasury of this state in payment of taxes, nor be receivable in banks only payment of fines and forfeitures, which may accrue to the state or to payment of the counties respectively, unless at the time of making such payments, the bank whose bills or notes are so offered in payment, is in the receivable in taxes or fines. regular course of redeeming its notes and bills with specie, according to their nominal value. fused. render judg tion. Notice of mo tion, how prove. § 2. The bearer of any bill or note issued by any incorporated Notes, how presented. bank within this state, may, at any time, present such bill or note at such bank for payment; and in case of failure or refusal to make pay- Payment rement, according to the tenor and effect of said bill or note, it shall be lawful for such bearer, by himself, his agent, or attorney, to move the circuit or county court, of the county where such bank is situated, for judgment against said bank; whereupon the said court shall without Court may delay render judgment and award execution for the amount expressed ment against in said bill or bills, note or notes, with legal interest from the time of bank on mo.. the demand of payment, and until finally paid, or the amount of such judgment be made, by due course of law, and costs of suit: Provided, Proviso. That notice of such intended motion be served on the president, or cashier, or person acting as cashier of said bank, ten days previous to served. the hearing of such motion, which notice shall be served by the sheriff of the county, who shall make a regular return of the same: And pro- What holder vided, That the plaintiff prove such presentment of the bill or note, and of note must the failure or refusal of payment, or in lieu of such testimony, produce the protest of a notary public showing these facts: And provided also, That if the said bank may wish to make defence, and contest the Bank may plaintiff's motion, the court shall instantly empannel a jury to try the issue, and therein give judgment accordingly. All motions under this Motion to be act, shall be tried the first term, having preference of all other causes. term. § 3. If any incorporated bank within this state, shall not make When goverregular specie payments for any of the bills or notes it may have is- nor may di sued, the governor of the state shall give information of the fact to the to proceed on solicitor of the circuit in which the bank may be situated, directing him forthwith to proceed against the said bank on a writ of quo warranto, requiring it to show cause why its corporate powers, privileges, and immunities, should not be adjudged to be forfeited, and the said bank dissolved. And the court determining the case, shall Court may have power to adjudge and decree concerning the same, according to concerning law and usage, and to declare the charter of such bank forfeited; and effects, &c. of also to make such orders consequent thereupon, in relation to the es- bank. tate and effects, rights and credits of such bank, as shall secure the rights of all concerned. And the governor shall associate with the Additional solicitor such other counsel as he may deem proper. defend. tried first rect solicitor quo warran to. make order delinquent counsel. BANK OF THE STATE OF ALABAMA. Art 6. banks. 1. One state bank may be established, with such number of Con. Ala. branches as the general assembly may, from time to time, deem ex- Establishpedient: (1) Provided, That no branch bank shall be established, nor ment of bank charter renewed, under the authority of this state, without the concurrence of two-thirds of both houses of the general assembly; and provided, also, that not more than one bank nor branch bank shall be established, nor bank charter renewed, at any one session of the general assembly, nor shall any bank or branch bank be established, or bank charter renewed, but in conformity with the following rules. (1) Since the adoption of the constitution in this state, the right to exercise banking powers is a franchise: The State v. Stebbins et al., 1 Stewt. Rep. 299. |