|Pages 368-389||Pages 420-443|
| CHAP. XV.
An act for establishing a High Court of Chancery.
|[Chan. Rev. p. 66.]|
|I. FOR establishing a court of general jurisdiction in Chancery, Be it enacted by the General Assembly, that at some certain place* to be appointed by act of general assembly, and at the times herein after directed, shall be held a principal court of judicature for this commonwealth, which shall be called the high court of chancery, and shall consist of three judges, to be chosen from time to time by the joint ballot of both houses of assembly, and commissioned by the governour, to hold their offices so long as they shall respectively demean themselves well therein, any two of whom may hold a court. Every person so commissioned, before he enters upon the duties of his office, shall in open court take and subscribe the oath of fidelity to this commonwealth, and take the following oath of office: "You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the high court of chancery, and that you do equal right to all manner of people, great and small, high and low, rich and poor, according to equity and good conscience, and the laws and usages of Virginia, without respect of persons. You shall not take by yourself, or by any other, any gift, fee, or reward, of gold, silver, or any other thing, directly or indirectly, of any person or persons, great or small, for any matter done or to be done by virtue of your office, except such fees or salary as shall be by law appointed. You shall not maintain by yourself, or by any other, privily or openly, any plea or quarrel depending|| High court of chancery established. |
Number of judges.
|* Williamsburg See post chap. XXVII.|
|in the courts of this commonwealth. You shall not delay any person of right for the letters or request of any person, nor for any other cause; and if any letter or request come to you contrary to law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly, and truly, according to the best of your skill and judgment do equal and impartial justice, without fraud, favour, affection, or partiality. So help you God."|
|II. And if any person shall presume to execute the said office without having taken the said oaths, he shall forfeit and pay the sums of five hundred pounds for his said offence. The said court shall have general jurisdiction over all persons and in all causes in chancery, whether brought before them by original process, appeal from any inferior court, certiorari, or other legal means; but no person shall commence an original suit in the said court in any matter of less value than ten pounds, except it be against the justice of any county or other inferiour court, or the vestry of any parish, on pain of having the same dismissed with costs. There shall be two sessions of the said court in every year, to wit, one to begin on the fifth day of April, or if that be Sunday, then on the next day; the other on the fifth day of September, or if that be Sunday, then on the next day; to continue each of them eighteen days, Sundays excluded, if they shall so long have business to require their attendance. If not, they may, when the business is dispatched, adjourn to the next court. The said court shall however be considered as always open, so as to grant injunctions, writs of ne exeat, or other process heretofore allowed by the laws to be issued in time of vacation by the clerk of the general court in chancery. The said court shall have power from time to time to appoint a clerk,* who shall hold his office during good behaviour, and be entitled to such fees or salary as shall be established by the legislature. All original process to bring any person to answer any bill, petition, or information in the said court, and all subsequent process thereupon, shall be issued and signed by the clerk in the name of the commonwealth, and bear teste by the first judge of the said court, shall be returnable to the first or seventeenth|| Penalty for acting without oath. |
Court always open for certain purposes.
Process, rules for issuing and returning.
|* Also a serjeant at arms. See post chap. XXVII.|
|days of the term, which shall be next after the suing out such process, and may be executed at any time before such process, and may be executed at any time before the return day thereof. And if any process shall be executed so late that the sheriff hath not reasonable time to return the same before the day of appearance, and thereupon any subsequent process shall be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, on which there shall be the same proceedings as if it had been returned in due time. And all appeals from decrees in chancery, obtained in any inferiour court, shall be made to the third day of the next term.|| Appeals to. |
|III. In all suits in the said court the following rules and methods shall be observed: The complainant shall file his bill within one kalendar month after the day of appearance, or may be ruled on the requisition of the defendant to file such bill, and if he fails so to do within one kalendar month after such rule, the suit shall be dismissed with costs;||Rules of practice.|
|IV. And upon the complainant's dismissing his bill, or the defendant's dismissing the same for want of prosecution, the complainant shall pay costs, to be taxed by the clerk of the court, for which costs and attachment, or other process of contempt, may issue, returnable on any return day.|
|V. The complainant may amend his bill before the defendant or his attorney hath taken out a copy thereof, or in a small matter afterwards, without paying costs; but if he amend in a material point after such copy obtained, he shall pay the defendant all costs occasioned thereby.|
|VI. If the defendant shall not appear on the day of appearance (which in all cases shall be the second day after the term to which the subpœna is returnable) an attachment shall be awarded and issued against him, returnable to the next term, which being returned executed, if the defendant doth not appear, or being brought into court upon any such process shall obstinately refuse to answer, the complainant's bill shall be taken as confessed, and the matter thereof decreed accordingly.||Appearance day.|
|VII. The defendant, within three kalendar months after his appearance and bill filed, shall put in his answer to be filed with the clerk in the office, at the expiration of which time, if no answer be filed, the clerk,|
|upon request, shall issue an attachment, returnable to the next court; and if no answer be filed upon the return of such attachment executed, the complainant's bill shall be taken as confessed, and the matter thereof decreed; and if the attachment be returned not executed, an attachment with proclamations, and such subsequent process of contempt may issue as was heretofore issuable out of the general court sitting in chancery in like cases.|
|VIII. No process of contempt shall issue unless the subpœna be returned served by a sworn officer, or affidavit be made of the service thereof.|
|IX. Every defendant may swear to his answer before any judge of this or the general court, or any justice of the peace.|
|X. When a cross bill shall be exhibited, the defendant or defendants to the first bill shall answer thereto before the defendant or defendants to the cross bill shall be compelled to answer such cross bill.|
|XI. The complainant shall reply, or file exceptions, within two kalendar months after the answer shall have been put in. If he fails so to do, the defendant may give a rule to reply with the clerk of the court, which being expired, and no replication or exceptions filed, the suit shall be dismissed with costs; but the court may order the same to be retained if they see cause, on payment of costs.|
|XII. If the complainant's attorney shall except against any answer as insufficient, he may file his exceptions, and give a rule with the clerk to make a better answer within two kalendar months, and if within that time the defendant shall put in a sufficient answer, the same shall be received without costs; but if any defendant insist on the sufficiency of his answer, or neglect or refuse to put in a sufficient answer, or shall put in another insufficient answer, the plaintiff may set down his exceptions to be argued the next term in court, and after the expiration of such rule, or any second insufficient answer put in, but no farther or other answer shall be received but upon payment of costs.|
|XIII. If upon argument the complainant's exceptions shall be over-ruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the defendant, or the defendant to the complainant, such costs as shall be allowed by the court.|
|XIV. Upon a second answer adjudged insufficient, costs shall be doubled.|
|XV. If a defendant shall put in a third insufficient answer, which shall be so adjudged, he or she may be examined upon interrogatories, and committed until he or she shall answer them, and pay costs.|
|XVI. If the defendant, after process of contempt, put in an insufficient answer, which shall be so adjudged, the complainant may go on with the subsequent process of contempt, as if no answer had been put in.|
|XVII. Rules to plead, answer, reply, rejoin, or other proceedings not before particularly mentioned, when necessary, shall be given from month to month with the clerk in his office, and shall be entered in a rule book for the information of all parties, attornies, or solicitors, concerned therein.|
|XVIII. No defendant shall be admitted to put in a rejoinder unless it be filed on or before the expiration of the rule to rejoin, but the complainant may proceed to set his cause down for hearing.|
|XIX. After an attachment with proclamation returned, no plea or demurrer shall be received unless by an order of court, upon motion.|
|XX. If the complainant conceives any plea or demurrer to be nought, either for the matter or manner of it, he may set it down with the clerk to be argued; or if he thinks the plea good, but not true, he may take issue upon it, and proceed to trial by jury, as hath been heretofore used in other causes in chancery where trial hath been by jury; and if thereupon the plea shall be found false, the complainant shall have the same advantages as if it had been so found by verdict at common law,|
|XXI. If a plea or demurrer be over-ruled, no other plea or demurrer shall be thereafter received, but the defendant shall answer the allegations of the bill.|
|XXII. If the complainant shall not proceed to reply to, or set for hearing, as before mentioned, any plea or demurrer before the second court after filing the same, the bill may be dismissed of course with costs.|
|XXIII. Upon a plea or demurrer argued and over-ruled, costs shall be paid as where an answer is judged insufficient, and the defendant shall answer within two kalendar months after; but if adjudged good, the defendant shall have his costs.|
|XXIV. If any defendant, after a demurrer shall have been over-ruled, shall refuse to answer, the bill shall be taken as confessed, and the matter thereof decreed.|
|XXV. After any bill filed, and before the defendant hath answered, upon oath made, that any of the complainant's witnesses are aged or infirm, or going out of the country, the clerk may issue a commission for taking the examination of such witnesses de bene esse, the party praying such commission giving reasonable notice to the adverse party of the time and place of taking the depositions.||Commissions, before answer.|
|XXVI. All matters of fact, material to the determination of the cause, which in the course of the proceedings shall be affirmed by the one party and denied by the other, shall be tried by a jury upon evidence given viva voce in the said court; and where witnesses are absent through sickness, or other unvoidable [unavoidable] cause, upon their depositions taken as the law directs, for which purpose an issue or issues shall be made up by declaration and plea, as hath been heretofore used in chancery, when issues have been specially directed to be made up and tried by jury; for trial of which issues, the sheriff of the county in which the court shall sit shall, every day of its session, summon a sufficient number of jurymen of the byestanders, or others found within half a mile of the courthouse, who shall be qualified as jurors attending the general court, and shall be subject to the same penalties for failing to attend; saving to the defendant the same benefit of evidence, by his own answer, as hath been heretofore allowed in trials before the court of chancery.||Facts, how triable.|
|XXVII. Provided, that where the parties shall waive the trial of any such issue by jury, and submit the whole to the judgment of the court, or shall agree that the depositions of witnesses shall be taken, and the cause tried thereon instead of their being examined viva voce in court, such waiver or agreement being sign- [signed] by the parties or their counsel, the clerk shall issue commissions for the examination of the witnesses, and ten days previous notice of the time and place of executing the same shall be given by the party taking out such commission, to the adverse party; and when the depositions shall be taken and returned, if the complainant shall not within one kalendar month thereafter||Cause set for hearing.|
|set down the cause for hearing with the clerk, the defendant may have the same set down as aforesaid.|
|XXVIII. The court in their sittings may regulate all proceedings in the office, and for good cause shewn may set aside any dismissions, and reinstate the suits on such terms as shall appear equitable.||Proceedings in office controuled by court.|
|XXIX. For prevention of errours in entering up the decrees and orders of the court, the proceedings of every day shall be drawn up at large by the clerk, and read in open court the next day, except those the last day of each term, which shall be drawn up, read or corrected, the same day, and any necessary corrections made therein, when they shall be signed by the presiding judge of the court, and preserved among the records.||Orders read and signed.|
|XXX. And for the more entire and better preservation of the records of the court, when any cause shall be finally determined, the clerk shall enter all the pleadings therein, and other matters relating thereto together, in a book to be kept for that purpose, so that an entire and perfect record may be made thereof, and those wherein the title to lands is determined shall be entered in separate books to be kept for that purpose only.||Making up records.|
|XXXI. The court in their sessions, or any two of the judges in vacation, may grant writs of certiorari for removing before them the proceedings in any suit in chancery depending in any county or other inferiour court, writs of ne exeat to prevent the departure of any defendant out of the county until security be given for performing the decree, and writs of injunction to stay execution of judgments obtained in any of the courts of common law, subject nevertheless to the rules following:||Certiorari, ne exeat, & injunction, how granted.|
|XXXII. No writ of certiorari shall be granted to remove any suit unless the matter in dispute be of value sufficient to entitle the high court of chancery to original jurisdiction therein, nor unless ten days notice of the motion be given in writing to the adverse party, nor in vacation but upon such petition and affidavit as are by law directed for writs of certiorari to be granted by the general court; and, in all cases, bond and security shall be given for performing the decree of the said high court of chancery, before the issuing of the certiorari.||Rules as to certiorari.|
|XXXIII. Writs of ne exeat shall not be granted but upon bill filed and affidavits made to the truth of its||Ne exeat, upon what granted.|
|allegations, which being produced to the court in term time, or to two judges in vacation, they may grant or refuse such writ as to them shall seem just, and if granted, they shall direct to be endorsed thereon in what penalty bond and security shall be required of the defendant.|
|XXXIV. If the defendant shall by answer satisfy the court that there is no reason for his restraint, or give sufficient security to perform the decree, the writ may be discharged.||How discharged.|
|XXXV. No injunction shall be granted to stay proceedings in any suit at law unless the matter in dispute be of value sufficient to admit of original jurisdiction in the said high court of chancery, nor unless the court in term time, or two judges thereof in vacation, shall be satisfied of the plaintiff's equity, either by affidavit, certified at the foot of the bill, that the allegations thereof are true, or by other means, and shall order the same, in which case the complainant shall enter into bond with sufficient security, to be approved of by the said court or judges, for paying all money and tobacco, and costs due, or to become due, to the plaintiff in the action at law, and also all such costs as shall be awarded against him or her in case the injunction shall be dissolved.||Rules, in granting injunctions.|
|XXXVI. The said high court of chancery shall take cognizance of and hear and determine all suits in chancery which were depending in the general court at its last adjournment, or have been commenced therein since such adjournment, in the same manner as if the said suits had been originally instituted, or appeals entered to the said high court of chancery. If any suit shall be depending, or hereafter commenced, against any defendant or defendants who are out of this country, and others within the same, having in their hands effects of, or otherwise indebted to, such absent defendant or defendants, and the appearances of such absentees be not entered, and security given to the satisfaction of the court for performing the decrees, upon affidavit that such defendant or defendants are out of the country, or that upon inquiry at his, her, or their usual places of abode, he, she, or they, could not be found, so as to be served with process, in such cases the said high court of chancery may make any order, and require surety if it shall appear necessary, to restrain the defendants in this country from paying|| Suits in old general court transferred to this. |
|conveying away or secreting the debts by them owing to, or the effects in their hands of such absent defendant or defendants, and for that purpose may order such debts to be paid and effects delivered to the said plaintiff or plaintiffs, upon their giving sufficient security for the return thereof to such persons, and in such manner as the court shall direct.|
|XXXVII. The court shall also appoint some day in the succeeding term for the absent defendant or defendants to enter his or their appearance to the suit and give security for performing the decree, a copy of which order shall be forthwith published in the Virginia Gazette, and continued for two months successively, and shall also be published on some Sunday immediately after divine service in such parish church or churches as the court shall direct, and another copy shall be posted at the front door of the said court. If such absent defendant or defendants shall not appear and give such security within the time limited, or such farther time as the court may allow them for good cause shewn, the court may allow them for good cause shewn, the court may proceed to take such proof as the complainant shall offer; and if they shall thereupon be satisfied of the justice of the demand, they may order the bill to be taken as confessed, and make such order and decree therein as shall appear just, and may enforce due performance and execution thereof by such ways and means as hath heretofore been used for enforcing other decrees, requiring the plaintiff or plaintiffs to give security as the court shall approve for abiding such future order as may be made for restoreing the estate or effects to the absent defendant or defendants, upon his or their appearance and answering the bill; and if the plaintiff or plaintiffs shall refuse to give or not be able to procure such security, the effects shall remain, under the direction of the court, in the hands of a receiver, or otherwise for so long time, and shall then be finally disposed of in such manner, as to the courts shall seem just.||Foreign attachments continued.|
|XXXVIII. If any defendant or defendants shall be in custody upon any process of contempt, and be brought into court by virtue of a writ of habeas corpus or other process, and shall refuse or neglect to enter his or her appearance according toe rules of the court, or appoint an attorney of the court to do the same for him, the court in such case may direct an attorney to enter an appearance for the defendant or defendants,||Procceedings against defendant in custody.|
|and thereupon such proceedings may be had as if he or they had actually entered an appearance; but if such defendant or defendants shall be in custody at the time a decree shall be made upon refusal or neglect to enter an appearance or to appoint an attorney as aforesaid, or shall be forthcoming so as to be served with a copy of the decree, then such defendant or defendants shall be served with such copy before any process shall be taken out to compel the performance thereof, and if such defendant or defendants shall die in custody before such service, then his heir, if any real estate be sequestered or affected by such decree, or if only personal estate, his executor or administrator shall be served with a copy in a reasonable time after such death shall be known to the plaintiff, and who is such heir, executor, or administrator.|
|XXXIX. If any person or persons, who shall be out of the commonwealth at the time any decree is pronounced as aforesaid, shall within seven years from the passing such decree return and appear openly, or, in case of his or her death, if his or her heir, executor, or administrator, shall within the said seven years be and appear openly within this commonwealth, the plaintiff or plaintiffs, their executors or administrators, shall serve such person or persons so returning or appearing with a copy of the decree within a reasonable time after such return or appearance shall be known to the plaintiff or plaintiffs, and thereupon such defendants or their representatives may within twelve months after such service, or those defendants not served with a copy, or their representatives, may within seven years after the decree pronounces, appear in court and petition to have the cause re-heard, and upon their paying down or giving security for payment of such costs as the court shall think reasonable they shall be admitted to answer the bill, and issue may be joined and witnesses on both sides examined, and such other proceedings, decree, and execution had, as if there had been no former decree in the cause; but if the several defendants or, their representatives, upon whom the decree shall be so served, shall not within twelve months after such service, and the other defendants, or their representatives, upon whom no such service is made, shall not within seven years from the time of the decree pronounced, appear and petition to have the cause re-heard as aforesaid, and pay, or secure to be paid, such costs as||Opening decrees for absentees.|
|the court may think reasonable, all and every decree to be made in pursuance of this act, against any defendant or defendants so failing, shall stand absolutely confirmed against him, her, or them, his, her, or their heirs, executors, or administrators, and all persons claiming under him, her, or them, by virtue of any act or conveyance done or made subsequent to the commencement to the suit, and at the end of such term the court may make such farther order for quieting the plaintiff or plaintiffs in any such suits, in their possession of and title to the estate and effects so sequestered or made liable, as to them shall seem reasonable.|
|And be it farther enacted, That each of the said judges shall receive an annual salary of five hundred pounds, to be paid by the treasurer out of any publick money in his hands; and that instead of the tax formerly imposed upon chancery process issued from the general court, which shall henceforth cease, a tax or duty of five shillings shall be paid for every original subpœna writ of certiorari, ne exeat, or injuntion sued out of the said high court of chancery, by the party suing out the same, before the writ shall be issued to the clerk of the said court, and by him accounted for upon oath and paid to the treasurer of this commonwealth half yearly, in the month sof March and September, or on his neglect may be recovered by the said treasurer, upon a motion in the general court, and ten days previous notice of such motion; provided, that no more than one tax shall be paid for process in any suit.|| Salary of judges. |
Tax on process.
|WHEREAS in the late revision of the tobacco law the inspection of tobacco formerly established at Sleepy Hold and Wilkinson's, in the county of Nansemond, and Hobb's Hole, in the county of Essex, were discontinued, and it is now expedient, and will be very advantageous to the publick, that the inspections should be revived in the said counties:||Warehouses at South Quay and Hobb's Hole established.|
|Be it therefore enacted by the General Assembly, That for the receipt and inspection of tobacco a warehouse be established at South Quay, in the said county of Nansemond, on the land of Benjamin Baker, and at Hobb's Hole, in the county of Essex, which inspection shall be subject to the same limitation, regulation, and restriction, and entitled to the same privileges, as other warehouses established by a late act of assembly, intituled "An act for reviving several publick warehouses for the reception of tobacco, and other purposes;" and each of the inspectors attending the warehouses at Hobb's Hole shall receive a salary of thirty pounds, and the inspectors at South Quay twenty five pounds.|
| CHAP. XVII.
An act for establishing a General Court.
|[Chan. Rev. p. 77.]|
|I. For establishing a court of common law of general jurisdiction, for the more easy and speedy administration of justice in this commonwealth, and for regulating the proceedings therein.|
|II. Be it enacted, That at some certain place* to be appointed by act of general assembly, and at the times herein after directed, there shall be held one principal court of judicature for this commonwealth, which shall be styled the general court of Virginia, and shall consist of five judges, to be chosen by joint ballot of both houses of the general assembly, and commissioned by the governour for the time being, to hold their offices so long as they shall respectively demean themselves well therein, any three of them to be a court; and the said judges shall have precedence in court; and the said judges shall have precedence in court as they may stand in nomination on the ballot, and the person first named shall be called chief justice of such court. Every person so commissioned, before he enters upon the duties of his office, shall in open court take and subscribe the oath of fidelity to the commonwealth, and take the following oath of office, to wit: "You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the general court, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, according to law, without respect of persons. You shall not take by yourself, or by any other, privily or openly, any gift, fee, or reward, of gold, silver, or any other thing, directly or indirectly, of any persons or persons, great or small, for any matter done or to be done by virtue of your office, except such fees or salary as shall be by law appointed. You shall not maintain by yourself, or any other, privily or openly, any plea or quarrel depending in the courts of this commonwealth. You shall not deny or delay any person of common right for the letters or request of any person, nor for any other cause; and if any letter or request come to you contrary|| General court established. |
Number of judges.
Oath of judges.
|* Williamsburg. See post chap. XXVII.|
|to the law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request notwithstanding. And finally, in all things belonging to your said office, during your continuance therein, you shall faithfully, justly, and truly, according to the best of your skill and judgment, do equal and impartial justice, without fraud, favour, affection, or partiality. So help you God." Which oath shall be administered by the governour, or other presiding chief magistrate, in presence of the council of state; and if any person shall presume to sit in court, or execute the said office without having taken the said oaths, he shall for such offence forfeit the sum of five hundred pounds. The jurisdiction of the said court shall be general over all persons, and in all causes, matters, or things at common law, whether brought before them by original process, by appeal from any inferiour court, habeas corpus, certiorari, writ of errour, supersedeas, mandamus, or by any other legal ways or means.|| Penalty for acting without oath. |
|III. Provided always, That no person shall sue out original process for the trial of any matter or thing in the general court of less value than ten pounds, or two thousand pounds of tobacco, except it be against the justices of a county, or other inferiour court, or the vestry of a parish, on penalty of being nonsuited, and having his suit dismissed with costs.||Jurisdiction limited.|
|IV. The said court shall take cognizance of, and hear and determine, all actions and suits at common law, whether real, personal, or mixed, petitions for lapsed lands, and all appeals at common law which were depending in the general court at its last adjournment, or which have been since commenced therein, in the same manner as if the said suits had been originally instituted, or appeals entered in the said court.||Suits transferred from old general court.|
|V. There shall be two sessions of the said court in every year, to wit, one to begin on the first day of March, if not Sunday, and then on the Monday thereafter, and the other to begin on the tenth day of October, if not Sunday, and then on the Monday following, to continue each of them twenty four natural days, Sundays exclusive, unless the business depending before them shall be finished in less time, in which case the judges may adjourn to the next succeeding court; and if it should so happen that a sufficient number of judges should not attend on the day appointed, any one||Terms.|
|of the said judges may adjourn the court from day to day for six days successively, and if a sufficient number should not be able to attend at the end of such adjournment, all suits depending in such court shall stand continued over to the next succeeding court.||Adjournment.|
|VI. The said court shall have power from time to time to appoint a clerk, one or more assistant clerks, a crier and tipstaff, who shall hold their offices respectively during good behaviour, and be entitled to such fees or salaries as shall be established by law; and the sheriff, or so many of the under sheriffs as shall be thought necessary, of the county where such court may be held, shall attend the said court during their sessions.|| Clerk, crier & tipstaff. |
Sheriff to attend.
|VII. All original process to bring any person or persons to answer in any action or suit, information, bill, or plaint, in the said court, and all subsequent process thereon, all attachments, or other writs of what nature soever, awarded by the said court, shall be issued and signed by the clerk of the said court in the name of the commonwealth, shall bear teste by the chief justice of the court, and be returnable on the respective days of the next succeeding court, as followeth, that is to say: All process for the commonwealth on criminal prosecutions to the sixth day, all appeals, writs of errour, supersedeas, certiorari, mandamus, prohibition, and all other writs and process, except subpœnas for witnesses, to the eighth or twenty third day of the said court; and all such process may be executed at any time before the return day, except in such cases wherein it is otherwise directed by law.||Process how issued, tested, executed, & returned.|
|VIII. And if any writ or process shall be executed so late that the Sheriff or other officer hath not reasonable time to return the same before the day of appearance thereto, and an alias pluries, attachment or other process, be awarded thereupon, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, on which there shall be the same proceedings as if it had been returned in due time.|
|IX. In all actions or suits which may be commenced against the governour of this commonwealth, any member of the privy council, or the sheriff of any county during his continuance in office, instead of the ordinary process, a summons shall issue to the sheriff, or other proper officer, reciting the cause of action,||Process against governor, council, & sheriff.|
|and summoning such defendant to appear and answer the same on the proper return day in the next general court; and if such defendant, being summoned, or a copy left at his house ten days before the return day, shall not appear to answer the same, an attachment shall be awarded against his estate, and thereafter the proceedings in the suit shall be in like manner as is directed in case of an attachment awarded upon the sheriffs returning non est inventus on ordinary process.|
|X. In all actions to recover the penalty for breach of any penal law, not particularly directing special bail to be given, in actions of slander, trespass, assault and battery, actions on the case for trover or other wrongs, and all other personal actions, except such as shall be herein after particularly mentioned, the plaintiff or his attorney, shall, on pain of having his suit dismissed with costs, endorse on the original writ or subsequent process the true species of action, that the sheriff to whom the same is directed may be thereby informed whether bail is to be demanded on the execution thereof; and in the cases before mentioned, the sheriff may take the engagement of an attorney practising in the general court, endorsed upon the writ, that he will appear for the defendant or defendants, and such appearance shall be entered with the clerk in the office on the second day after the end of the court to which such process is returnable which is hereby declared to be the appearance day in all process returnable to any day of the court next preceding.|| Action endorsed on writ. |
|XI. And every attorney failing to enter an appearance according to such engagement shall forfeit to the plaintiff fifty shillings, for which judgment shall be immediately entered, and execution may issue thereupon.||Attorney engaging and failing to appear.|
|XII. Provided always, that any judge of the said court, in actions of trespass, assault and battery trover and conversion, and in actions on the case, whereupon proper affidavit or affirmation, as the case may be, it shall appear to him proper that the defendant or defendants should give appearance bail, may, and he is hereby authorised to direct such bail to be taken, by endorsement on the original writ or subsequent process; and every sheriff shall govern himself accordingly.||When judge may direct bail.|
|XIII. In all actions of debt founded on any writing obligatory, bill, or note in writing for the payment of money or tobacco, all actions of covenant or detinue,||In what actions bail required.|
|in which cases the true species of action shall be endorsed on the writ as before directed, appearance bail is to be required, the sheriff shall return on the writ the name of the bail by him taken, and a copy of the bail bond to the clerk's office before the day of appearance; and if the defendant shall fail to appear accordingly, or shall not give special bail, being ruled thereto by the court, the bail for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subject to if he had appeared and given special bail.||Bail may defend.|
|XIV. And if the sheriff shall not return bail, and a copy of the bail bond, or the bail returned, shall be judged insufficient by the court, and the defendant shall fail to appear or give special bail, if ruled thereto, in such case the sheriff may have the like liberty of defence, and shall be subject to the same recovery, as is provided in the case of appearance bail. And if the sheriff depart this life before judgment be confirmed against him, in such case the judgment may be cnfirmed against his executors or administrators; or if there shall not be a certificate of probat or administration granted, then it may be confirmed against his estate, and a writ of fiers facias may in either case be issued, but the plaintiff shasll object to the sufficiency of the bail during the sitting of the court to which the writ is returnable, or in the court to which the writ is returnable, or in the office at the first or second rule day after that court, and at no time thereafter.|| Remedy against sheriff, as to bail. |
Bail, when excepted to.
|XV. And all questions concerning the sufficiency of bail, so objected to in the office, shall be determined by the court on the eighth day of the succeeding court; and in all causes where the bail shall be adjudged insufficient, and judgment entered against the sheriff, he shall have the same remedy against the estate of the bail as against the estate of the defendant.|| Questions as to sufficiency, when determined. |
|XVI. Also, that every judgment entered in the office against a defendant or bail, or against a defendant and sheriff, shall be set aside if the defendant, upon the eighth day of the succeeding court, shall be allowed to appear without bail, put in good bail, being ruled so to do, or surrender himself in custody, and shall plead to issue immediately, on which eighth day the court shall also regulate all other proceedings in the office during the preceding vacation, and rectify any mistakes or errours which may have happened therein.|| Office judgments, when set aside. |
Rules in office, controuled by court.
|XVII. In every case where judgment shall be confirmed against any defendant or defendants and his bail, or the sheriff, his executors administrators, or estate, as aforesaid, the court, upon a motion of such bail, or of such sheriff, his executors or administrators, or any other person on behalf of his estate, may order an attachment against the estate of such defendant or defendants, returnable to the next succeeding court; and upon the execution and return of such attachment the court shall order the estate seized, or so much thereof as will be sufficient to satisfy the judgment and costs, and all costs accruing on the attachment, to be sold as goods taken in execution upon a fieri facias, and out of the money, such judgment, and all costs, shall be satisfied, and the surplus, if any, restored to the defendant or defendants when required.||Remedy of bail and sheriff against defendant.|
|XVIII. Any judge of the said court, when the court is not sitting, or any justice of the peace authorised for that purpose by the said court may take recognizance of special bail in any action therein depending, which shall be taken de bene esse, and shall be transmitted by the person taking the same, before the next succeeding general court, to the clerk of the said court, to be filed with the papers in such action; and if the plaintiff or his attorney shall except to the sufficiency of bail so taken, notice of such exception shall be given to the defendant or his attorney, at least ten days previous to the day on which such exception shall be taken. And if such bail shall be judged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall be had as if no such bail had been taken.|| Special bail, how taken. |
How excepted to.
|XIX. Every special bail may surrender the principal, before the court where the suit hath been or shall be depending, at any time either before or after judgment shall be given, and thereupon the bail shall be discharged, and the defendant or defendants shall be committed to the custody of the sheriff or jailer attending such court, if the plaintiff or his attorney shall desire the same; or such special bail may discharge himself or herself by surrendering the principal or principals to the sheriff of the county where the original writ was served, and such sheriff shall receive such defendant or defendants, and commit him, her, or them, to the jail of his county, and shall give a receipt for the||How special bail may surrender principal.|
|body or bodies of such defendant or defendants, which shall be by the bail forthwith transmitted to the clerk of the court where the suit is or was depending.|
|XX. When such render, after judgment, shall be to the sheriff, he shall keep such manner, and subject to the like rules, as are provided for debtors committed in execution during the space of twenty days, unless the creditor, his attorney or agent, shall sooner consent to his, her, or their discharge. The bail shall give immediate notice of such render to the creditor, his attorney or agent, and if, within the said twenty days, such creditor, his attorney or agent, shall not in writing charge the debtor or debtors in execution, he, she, or they, shall be forthwith discharged out of custody; but the plaintiff or plaintiffs may, nevertheless, afterwards sue out any legal execution against such debtor or debtors.||Principal surrendered after judgment, how kept.|
|XXI. When the sheriff, or other proper officer, shall return on any original or mesne process, that he hath taken the body of any defendant, and committed him to prison for want of appearance bail, the plaintiff may proceed, and the defendant make his defence, in like manner as if his appearance had been entered and accepted; but such defendant shall not be discharged out of custody until he shall put in good bail, or the plaintiff shall be ruled by the court to accept an appearance without bail; and where any defendant, after appearance entered, shall be confined in prison, the plaintiff may file his declaration, give a rule to plead, and deliver copies of such declaration and rule to the defendant or his attorney, and if the defendant shall fail to enter his plea within two months after receiving such declaration and notice, the plaintiff may have judgment by default, as in other cases.||Proceedings against defendant in custody.|
|XXII. Where any sheriff, or other proper officer, shall return on any writ of capias to anser in any civil action, that the defendant is not found within his bailiwick, the plaintiff may either sue out an alias, or a pluries capias, until the defendant shall be arrested, or a testatum capias, where he shall be removed into another county, or may, at his election, sue out an attachment against the estate of the defendant to force an appearance; and if the sheriff, or other officer, shall return that he hath attached any goods, and the defendant shall not appear and replevy the same, by entering his appearance|| Capias returned 'not found,' what further process.
Proceedings on attachment returned 'executed.'
|and giving special bail, in case he shall be ruled so to do, the plaintiff shall file his declaration, and be entitled to a judgment for his debt, or damages and costs, which judgment shall be final in all actions of debt founded on any specialty, bill, or note in writing ascertaining the demand; and in other cases, the damages shall be settled by a jury sworn to inquire thereof. The goods attached shall remain in the hands of the officer till such final judgment be entered, and then be sold in the same manner as goods taken upon a fieri facias; and if the judgment shall not be thereby satisfied, the plaintiff may sue out execution for the residue, and in case more goods be attached than will satisfy the judgment, the surplus shall be returned to the defendant.|
|XXIII. On the return of the pluries, that the defendant is not to be found, the court, instead of the process to outlawry formerly used, may order a proclamation to be issued, warning the defendant to appear at a certain day therein to be named, or that judgment will be rendered against him, which proclamation shall be published on three successive courts day at the door of the courthouse of the county to which the last process was directed, and also three times in the Virginia Gazette; and if the defendant fails to appear pursuant to such proclamation, the same proceedings shall be had, and the same judgment given, as in other cases of default.||Proclamation, after pluries.|
|XXIV. In the prosecution of all suits in the general court, the following rules shall be observed: The plaintiff shall file his declaration in the clerk's office at the succeeding rule day after the defendant shall have entered his appearance, or the defendant may then enter a rule for the plaintiff to declare, and if he shall fail or neglect so to do at the succeeding rule day, or shall at any time fail to prosecute his suit, he shall be nonsuited, and pay to the defendant or tenant, besides his costs, one hundred and fifty pounds of tobacco, where his place of abode is at the distance of twenty miles or under from the place of holding the general court, and where it is more, five pounds of tobacco for every mile above twenty. One month after the plaintiff hath filed his declaration, he may give a rule to plead with the clerk; and if the defendant shall not plead accordingly at the expiration of such rule, the plaintiff may enter||Rules of practice.|
|judgment by default for his debt, or damages and costs.|
|XXV. All rules to declare, plead, reply, rejoin, or for other proceedings, shall be given regularly from month to month, shall be entered in a book to be kept by the clerk for that purpose, and shall be out on the succeeding rule day.|
|XXVI. All judgments by default for want of an appearance, special bail, or pleas as aforesaid, and nonsuits or dismissions obtained in the office, and not set aside on the eighth day of the succeeding general court, shall be entered by the clerk as of that day, which judgment shall be final in actions of debt founded on any specialty, bill, or note in writing ascertaining the demand; and in all other cases, the damages shall be ascertained by a jury to be empannelled and sworn to inquire thereof, as is herein after directed.|
|XXVII. In all such cases, and other judgments for plaintiff or defendant, the clerk shall allow a lawyer's fee in the bill of costs, if the party employed one; which fee, in real, personal or mixed actions, where the title or bounds of land shall or may come in question, shall be five pounds, or one thousand pounds of tobacco, and in all other cases fifty shillings, or five hundred pounds of tobacco, at the election of the party paying.|
|XXVIII. No plea in abatement, or of non est factum, shall be admitted or received unless the party offering the same shall prove the truth thereof by affidavit or affirmation, as the case may be; and where a plea in abatement shall upon argument be judged insufficient, the plaintiff shall recover full costs to the time of over-ruling such plea, a lawyer's fee only excepted.|
|XXIX. The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence.|
|XXX. In all cases where a fine is laid on the justices of any county court, or the vestry of a parish, one action may be brought against all the members jointly.||Justices, &c. may be sued jointly.|
|XXXI. Before every general court the clerk shall enter in a particular docket all such causes, and those only in which an issue is to be tried or inquiry of damages to be made, or a special verdict, case agreed,||Rules for docketing causes.|
|demurrer, appeal, or other matter of law to be argued, in the same order as they stand in the course of proceeding, setting, as near as may be, an equal number of causes to each cay.|
|XXXII. When any cause shall be finally determined, the clerk of the general court shall enter all the pleadings and papers filed as evidence therein, and the judgment thereupon, so as to make a complete record thereof; and those wherein the title to lands is determined, shall be entered in separate books to be kept for that purpose.||Making up records.|
|XXXIII. For prevention of errours in entering up the judgments of the said court, the proceedings of every day shall be drawn at large by the clerk against the next sitting of the court, when the same shall be read in open court, and such corrections as are necessary being made therein, they shall be signed by the presiding judge, and carefully preserved among the records.||Orders, read and signed.|
|XXXIV. In all cases where witnesses are required to attend the general court, a summons shall be issued by the clerk, expressing the day and place where they are to appear, the names of the party to the suit, and in whose behalf summoned.||Witnesses, how summoned.|
|XXXV. When any witness shall be about to depart the country, or by age, sickness, or otherwise, shall be unable to attend the court, upon affidavit thereof, or on a certificate from any justice of the peace, the court, when they are sitting, or any judge thereof in vacation, may, on request of either party, award a commission for taking the deposition of such witness de bene esse, to be read as evidence at the trial, in case the witness shall then be unable to attend; but the party obtaining such commission shall give reasonable notice to the other party of the time and place of taking the deposition, otherwise the same shall be void.|
Depositions, de bene esse.
|XXXVI. If any party in a suit at common law shall make oath that he verily believes his claim, or defence, as the case may be, or a material point thereof, depends on a single witness, the court, or any judge thereof, may award a commission to take the deposition of such witness de bene esse, although he or she be not about to depart the country, nor under any disability, the party in such case giving reasonable notice of the time and place of taking such deposition to the adverse party.||Single witness.|
|XXXVII. If any person summoned as a witness, and attending the court, or the commissioners appointed to take his or her deposition as aforesaid, shall refuse to give evidence upon oath or affirmation, as the case may be, to the best of his or her knowledge, every person so refusing shall be committed to prison, either by the court or commissioners, there to remain, without bail or mainprise, until he or she shall give such evidence.||Witness refusing to testify.|
|XXXVIII. No person convicted of perjury shall be capable of being a witness in any case, nor shall any negro, mulatto, or Indian, be admitted to give evidence but against or between negroes, mulattoes, or Indians.||Who may not be a witness.|
|XXXIX. If any person summoned as a witness to attend the general court shall fail to attend accordingly, they shall fine such person five pounds, or one thousand pounds of tobacco, at the option of the payer, to the use of the party for whom such witness was summoned, and the witness so failing shall farther be liable to the action of the party for all damages sustained by the non-attendance of such witness; but if sufficient cause of his or her inability to attend be shewn to the court at that time he or she ought to have appeared, or at the next succeeding court, then no fine or action shall be incurred by such failure.||Witnesses failing to attend.|
|XL. Witnesses shall be privileged from arrests in civil cases during their attendance at the general court, coming to and returning from thence, allowing one day for every twenty miles from their places of abode; and all such arrests shall be void. Every witness summoned, and attending the general court, shall be paid, by the party at whose suit the summon issues, two pounds of tobacco, or fourpence per mile for travelling to the place of attendance, and the same for returning, besides ferriages, and sixty pounds of tobacco, or ten shillings per day for his attendance, which allowance shall be entered by the clerk of course, except where disputes arise concerning the same, and then such disputes shall be determined by the general court. And the said court shall have power to try all issues, and inquire of damages by a jury in all causes before them, and to determine all questions concerning the legality of evidence, and other matters of law which may arise for which trials the court shall cause the sheriff attending them to empannel and return jurors of the byestanders, qualified as the law directs, to be sworn well and|| Witnesses privileged from arrests. |
Issues, how tried.
|truly to try the issue joined, or to inquire of damages, as the case may be, according to evidence.|
|XLI. There shall not be allowed in the bill of costs the charge of more than three witnesses for the proof of any one particular fact.||Three witnesses to one fact, taxed.|
|XLII. Where any person or persons, body politick or corporate, shall think themselves aggrieved by the judgment or sentence of any county court or court of Hustings, in any action, suit, or contest whatever, where the debt or damages, or other thing recovered or claimed in such suit, exclusive of the costs, shall be of the value of ten pounds, or two thousand pounds of tobacco, or where the title or bounds of land shall be drawn in question, or the contest shall be concerning mills, roads, the probat of wills, or certificates for obtaining administration, such person or persons, body politick or corporate, may enter an appeal to the general court from such judgment or sentence.||Appeals to general court.|
|XLIII. Where the defendant in any personal action appeals, if the judgment be affirmed, the damages, besides costs, shall be ten per centum per annum upon the principal sum, and costs recovered in the inferiour court, in satisfaction of all damages or interest.||Damages, in personal actions.|
|XLIV. In real or mixed actions, the damages shall be ten pounds, or two thousand pounds of tobacco, besides costs; and where the plaintiff appeals in any action, if the judgment be affirmed, and in all controversies about mills, roads, probat of wills, or certificates for administration, if the sentence of the inferiour court be affirmed, the party appealing shall pay to the other five pounds, or one thousand pounds of tobacco, besides all costs.|| |
In real or mixed.
|XLV. No appeal, writ of errour, or supersedeas, shall be granted in any cause until a final judgment shall be given in the county or other inferiour court.||No appeal, &c. before final judgment.|
|XLVI. The party paying* a writ of supersedeas shall petition the judges of the general court for the same, pointing out the errour he means to assign in the proceedings, and procure some attorney practising in the general court to certify that in his opinion there is sufficient matter of errour for reversing the judgment, whereupon the court in their session, or any two judges in vacation, may order such writ to be issued, or reject the petition, as to them shall seem just; but no supersedeas|| |
Supersedeas how obtained.
|* So in original; but it should be praying.|
|shall be issued in any case, except such as, in respect to its value or nature, would have admitted of an appeal.|
|XLVII. Writs of errour shall not be sued out of the general court, to judgments of inferiour courts, but with leave of the court, upon the motion of the party desiring the same, and ten days previous notice thereof given in writing to the adverse party.||Writs of errour, how sued out.|
|XLVIII. Before granting any appeal, or issuing a writ of errour or supersedeas, the party praying the same shall enter into bond with sufficient security, in a reasonable penalty, with condition to satisfy and pay the amount of the recovery in the county or other inferiour court, and all costs and damages awarded by the general court, in case the judgment or sentence be affirmed.||Bond and security.|
|XLIX. If upon hearing any appeal, writ of errour, or supersedeas, the judgment of the inferiour court shall be reversed, the general court shall enter such judgment thereupon as ought to have been entered in the inferiour court.||Judgment on reversal.|
|L. If any person or persons shall desire to remove any suit depending in any inferiour court into the general court, provided the same be originally cognizable therein, a certiorari for such removal may be granted by the general court for good cause shewn, upon motion, and ten days notice thereof given in writing to the adverse party; or in vacation, the party desiring such writ shall, by petition to the judges of the general court, set forth his or her reasons, and make oath before a magistrate to the truth of the allegations of such petition, whereupon any two judges of the said court may, under their hands, order the certiorari to issue, and direct the penalty of the bond to be taken previous thereto, or may reject such petition, as to them shall seem just, provided that ten days previous notice of the time and place of applying for such writ be given in writing to the adverse party, upon which order of the judges the clerk shall issue the certiorari,||Certiorari, how obtained.|
|LI. Provided, that the party shall enter into bond with sufficient security, in the penalty so directed, with condition for satisfying all money or tobacco, and costs, which shall be recovered against the party in such suit; but if any suit so removed by writ of certiorari shall be remanded to the inferiour court by writ of procedendo or otherwise, such cause shall not afterwards|| Bond and security. |
Procedendo, effect of.
|be removed to the general court before judgment shall be given therein in the inferiour court.|
|LII. The clerk of the general court shall carefully preserve all such petitions for writs of certiorari, with the affidavits thereto, in the office; and if any person in such affidavit shall take a false oath, and be thereof convicted, upon a prosecution commenced within twelve months after the offence committed, such offender shall suffer the pains and penalties directed for wilful and corrupt perjury.||Punishment of false swearers.|
|LIII. Where any person shall be committed, in any civil action, to the jail of any county or corporation, for a cause or matter cognizable in the general court, it shall be lawful for the clerk of the general court, and he is hereby required, upon the application of such person, and a certificate of his or her being actually in jail, to issue a writ of habeas corpus cum causa to remove the body of such prisoner into the publick prison for debtors, and the cause of his commitment into the general court, returnable on the first day of the succeeding general court; if issued in vacation on the last day of the term, if sued out whilst the court are sitting.||Habeas corpus cum cause how obtained.|
|LIV. If any person committed for treason or felony, specially expressed in the warrant of commitment, shall apply to the general court the first week of the term and desire to be brought to trial, and shall not be indicted and tried some time in that term or session, the judges shall set such prisoner at liberty, upon bail for his appearance to answer the offence at the next succeeding term or session, unless it appears by affidavit that the witnesses for the commonwealth could not be produced at such term or session; and if any such prisoner shall not be indicted and tried the second term or session after commitment, he shall be discharged from his imprisonment, in manner aforesaid.||Prisoner, not tried, when bailable.|
|LV. Provided, that this shall not extend to discharge any person in custody of the sheriff for any other cause.||Proviso.|
|LVI. The general court to be held as aforesaid shall have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanors which shall be brought before them.||Criminal jurisdiction of the court.|
|LVII. When any person, not being a slave, shall be charged before a justice of the peace with any criminal offence, which in the opinion of such justice ought||Examining court, how summoned.|
|to be examined into by the county court, the said justice shall take the recognizance of all material witnesses to appear before such court, and immediately by his warrant commit the person so charged to the county jail, and moreover shall issue his warrant to the sheriff of the county requiring him to summon the justices of the county to meet at their courthouse on a certain day, not less than five or more than ten days after the date thereof; to hold a court for examination of the fact, which court shall consider whether, as the case may appear to them, the prisoner may be discharged from farther prosecution, may be tried in the county, or must be tried in the general court, and if they shall be of the opinion that the fact may be tried in the county, the prisoner shall be bound over to the next grand jury to be held for that county for trial, or upon refusing to give sufficient bail shall be remanded to the county jail, there to remain until such court, or until he or she shall be bailed; but if they shall be of opinion that the prisoner ought to be tried in the general court, they shall take the depositions of the witnesses, and bind such as they shall think proper by recognizances to appear and give evidence against such criminal at his trial, and having remanded the prisoner to jail, any two of the justices, one being of the quorum, by warrant under their hands and seals, shall direct the sheriff or his deputy to remove the prisoner and commit him to the publick jail, there to be safely kept until he or she be discharged by due course of law, by virtue of which warrant, the sheriff, as soon as may be, shall remove the prisoner, and deliver him or her with the warrant to the keeper of the publick jail, who shall receive and safely keep him or her accordingly. And for enabling the sheriff safely to convey and deliver such prisoner, the said two justices, by their warrant, shall empower him, as well within his county as without, to impress such and so many men, horses, and boats, as shall be necessary, for the guard and safe conveyance of the prisoner, proceeding therein as the law may direct in cases of impressing on other occasions; and all persons are to pay due obedience to such warrant.|| |
|LVIII. Provided, that if such persons shall in the opinion of the court, be bailable by law, he or she shall not be removed within twenty days after the examining court, but shall and may be admitted to bail before any justice of the same county within that time or||Bail, after examining court.|
|at any time afterwards, before any judge of the general court.|
|LIX. When any person shall be so removed to be tried for treason or felony, the clerk of the county from whence the prisoner is removed shall, immediately after the court held for his or her examination, issue a writ of venire facias to the sheriff of the county, commanding him to summon twelve good and lawful men, being freeholders of the county residing as near as may be to the place where the fact is alledged to have been committed, to come before the general court on the sixth day of its next session and return a pannel of their names, which freeholders, or so many of them as shall appear, not being challenged, together with so many other good and lawful freeholders of the byestanders as will make up the number twelve, shall be a lawful jury for the trial of such prisoner.|| |
Venire facias how summoned.
|LX. Every venire man summoned, and attending the general court, shall have the same allowance for travelling and attendance as is herein before provided for witnesses, to be paid by the publick.||Allowance to venire men.|
|LXI. If any person summoned as a venire man shall fail to attend accordingly, not having a reasonable excuse, to be made at the time he should have appeared, or at the next general court, they may fine every such person, not exceeding forty shillings, or four hundred pounds of tobacco, for the use of the commonwealth.||Their fine for non attendance.|
|LXII. If a prisoner shall desire any witnesses to be summoned for him or her to appear either at the examining court or on the trial at the general court, as the case may be, shall issue subpœnas such witnesses, who being summoned, and attending, shall have the like allowance for travelling and attendance, and be subject to the same penalty for failing to attend, as is provided for witnesses in civil causes.||Subpoenas for prisoners witnesses, their allowance &c.|
|LXIII. The keeper of the publick jail, by order of any two justices of his county, may impress guards for the safe keeping of all prisoners in his custody, to be paid by the publick.||Guards to the publick jail.|
|LXIV. The fee to the sheriff of the county, and to the publick jailor, for keeping and dieting any such prisoner, shall be one shilling per day, and no more.||Fees to sheriff, &c.|
|LXV. Where the criminal shall be convicted, and hath estate sufficient to pay the charges of prosecution,||Charges of prosecution.|
|the whole shall be paid out of such estate, and the publick only made chargeable where there is no such estate, or not sufficient to be found.|
|LXVI. The sheriff for the time being of the county in which the general court is held shall, before every meeting of the general court, summon twenty four freeholders of this commonwealth, qualified as the laws require, for grand jurors to appear at the succeeding general court on the sixth day thereof, which the said sheriff is hereby empowered to do, as well without his county as within the same; and the said twenty four men, or any sixteen of them, shall be a grand jury, and shall inquire of and present all treasons, murders, felonies, or other misdemeanors whatever, which shall have been committed or done within this commonwealth, and upon any indictment for a capital offence, being found by a grand jury to be true, against any person or persons, the judges shall cause such person or persons, to be immediately arraigned and tried by a petit jury summoned as herein before directed, and, he or they being found guilty, pass such judgment as the laws direct, and thereupon award execution, and if the prisoner shall be found not guilty, to acquit him or her of the charge.|| Grand juries. |
Prisoners, how arraigned and tried.
|LXVII. Provided, that in all trials the defendant shall on petition be allowed counsel, and that when sentence of death shall be passed npon any prisoner there shall be one kalendar month at least between the judgment and execution.|| Allowed counsel. |
Suspension of execution.
|LXVIII. No grand jury shall make any presentments of their own knowledge upon the information of fewer than two of their own body, nor where the penalty inflicted by law is less than twenty shillings, or two hundred pounds of tobacco.||Presentments on grand jury's knowledge.|
|LXIX. Every person summoned to appear on a grand jury, and failing to attend, not having a reasonable excuse, shall be fined by the court, not exceeding four hundred pounds of tobacco to the use of the commonwealth.||Fine on grand juror not attending.|
|LXX. Upon presentment made by the grand jury of an offence not capital, the court shall order the clerk to issue a summons, or other proper process, against the person or persons presented to appear and answer such presentment at the next court, and thereupon hear and determine the same according to law.||Process against persons presented for offences not capital.|
|LXXI. The clerk of the general court shall, in a book by him kept for that purpose, enter the names of all venire men and witnesses who attend for the trial of criminals at such court, the number of days each shall attend, the ferries they shall have crossed, and the distances they shall have travelled on that occasion, and shall, before every session of general assembly, deliver all such books to the clerk of the house of delegates, that the allowance may be made to such venire men and witnesses.||Attendance, &c. of veniremen, &c. to be entered.|
|LXXII. The keeper of the publick jail shall constantly attend the general court and execute the command of the court from time to time, and take or receive into his custody all persons by the court to him committed on original or mesne process, or in execution in any civil suit, or for any contempt of the court, and him or them safely kept until thence discharge [discharged] by due course of law, and may demand and receive of every such prisoner the legal fees for diet and care; but where such prisoner is so poor as not be able to subsist him or herself in prison, the jailor shall be allowed by the publick one shilling per day for the maintenance of every such poor prisoner, and no security shall be demanded of him or her, nor shall he or she be detained for such prison fees. And the said jailer, during his continuance in office, shall be exempted from serving in the militia and on juries, and shall have such allowance, over and above the fees, as by the general assembly shall be thought reasonable.||Keeper of public jail, his duty, allowance, & privilege.|
|LXXIII. Each judge of the general court, for performing the whole duty of his office, shall receive an annual salary of five hundred pounds, which shall be paid by the treasurer out of the publick money in his hands.||Salary of judges.|
|LXXIV. And be it farther enacted, that instead of the tax formerly imposed on process sued out of the general court, which shall henceforth cease, a duty or tax of five shillings for every original writ or process sued out of the general court, for every ejectment returnable thereto, and for every writ of errour, certiorari, and supersedeas, issued from the clerk's office of the said court, shall be paid by the party suing out such writ or process before the same shall be issued, and by the plaintiff in such ejectment before any proceeding shall be allowed thereon, and taxed in the bills of costs, if the party recovers costs; which taxes shall be accounted||Tax on process.|
|for half yearly, in the months of March and September, by the clerk of the general court, upon oath, and paid to the treasurer of this commonwealth, the clerk deducting five per centum for receiving and paying the same, and in case of failure may be recovered with costs upon motion of the treasurer in the general court, and ten days previous notice given of such notice|
|LXXV. All the penalties hereby inflicted, and not otherwise appropriated, shall be one moiety to the use of the commonwealth, and disposed of as the general assembly shall direct, and the other moiety to the informer, and be recovered by action of debt or information in any court of record where the same is cognizable; and where fines shall be laid by the general court on any person or persons for not attending as jurymen, the clerk shall annually, before the last day of January, transmit to the sheriff of each county a list of all such fines, and all others imposed to the use of the commonwealth by the general court on persons residing in the county; and such sheriff shall collect and levy the same in like manner as is provided for county levies, and account for and pay the money, deducting five per centum for commission, and also insolvents, to the treasurer of this commonwealth, on or before the first day of September; or the said treasurer may receive the same with costs by motion in the general court, on ten days previous notice given in writing of such motion; and the clerk of the general court shall deliver copies of all lists so sent to the sheriffs to the treasurer, to enable him to call such sheriffs to account.|| Penalties, appropriated. |
Duty of clerk to transmit lists of fines.
Duty of sheriffs to collect.
|LXXVI. This act shall commence and be in force from and after the first day of February next; and all other acts, so far as they relate to any matter or thing contained or within the purview of this act, are hereby repealed.|
|Pages 368-389||Pages 420-443|