Pages 349-371 
|  Pages 395-419
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| Pages 349-371
| Pages 395-419
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| CHAP. XXXIII. | ||
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| I. FOR the more equal distribution of the estates of persons dying intestate, | ||
| II. Be it enacted, by the governor, council, and burgesses, of this present general assembly, and it is hereby enacted, by the authority of the same, That after debts, funerals, and just expences of every sort, first paid and allowed, the surplusage of all and singular the goods, chattels, and personal estate of every person dying intestate, shall be distributed amongst the wife and children or childrens children, if any such be, or otherwise, to the next of kin to the dead person, in equal degree, or legally representing their stocks, pro suo cuique jure, according to the laws in such cases, and the rules and limitations herein after set down; that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue, by equal portions, to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate, in his life time, by | Intestates' estates, how distributed. Dower of wife, where there are children. Advancements to children, how accounted for. |
| portion or portions, equal to the share which shall, by such distribution, be allotted to the other children, to whom such distribution is to be made: And in case any child (other than the heir at law) shall have any estate by settlement from the intestate, or shall be advanced by the said intestate in his life time, by portion, not equal to the share, which will be due to the other children, by such distribution as aforesaid, then so much of the surplusage of the estate of such intestate, to be distributed to such child or children, as shall have any lands by settlement from the intestate, or were advanced in the life time of the intestate, as shall make the estate of all the said children to be equal, as near as can be estimated: But the heir at law, notwithstanding any land he shall have by descent, or otherwise, from the intestate, as shall make the estate of all the said children to be equal, as near as can be estimated: But the heir at law, notwithstanding any land he shall have by descent, or otherwise, from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent, or otherwise, from the intestate. And if, after the death of a father, any of his children shall die intestate, without wife or children, in the life time of the mother, every brother and sister, and the representatives of them, shall have an equal share with her: And if all the children shall die intestate, without wife or children, in the life time of the mother, then the portion of the child so dying last, shall be equally divided, one moiety to the mother, and the other moiety to the next of the kindred by the father: And if there be no such kindred by the father, then the whole shall be to the mother; any law, usage, or custom to the contrary, notwithstanding. | Heir at law, not to account for land by descent. Portions of children dying how distributed. |
| And in case there be no children, or any legal representatives of them, then one moiety of the said surplusage to be allotted to the wife of the intestate, and the other moiety to be distributed, equally to every of the next of kindred to the intestate, who are in equal degree, and those who legally represent them; and if there be no such kindred, then all the said surplusage to be to the wife. | Dower of wife, where no children. |
| III. Provided, That there be no representations admitted amongst collaterals, after brothers and sisters children. And in case there be no wife, then all the said surplusage to be distributed equally to and amongst the children. And in case there be no child, then to the next of kindred, in equal degree of or unto the intestate, | Collaterals, how far estimated, Where no wife. |
| and their legal representatives, as aforesaid; and in no other manner whatsoever. | |
| IV. Provided also, That when any person dies testate, if he leaves one or two children, and no mere, he shall not have power to dispose of more than two third parts of his estate, by will, to any person or persons than his wife; and one third part thereof at the least shall be given to her. And if such person shall leave more than two children, he shall not leave his wife less than a child's part, according to the number of children: but if such person leaves no child, then the wife shall have at least one equal moiety of his estate. And if any person shall leave a will, wherein a lesser part of his estate shall be given to his wife than is herein directed, such will, as to so much thereof as relates to the wife, upon her petition to the court where the same shall be proved, shall be declared null and void: And thereupon, she shall and may be impowered to sue for and recover, such part of her deceased husband's estate as is herein before directed to be given her. | Where only 2 children, what part must be bequeathed to the
wife; Where more than two children. Wills otherwise made, void as to wife. |
| V. Provided always, That if such wife die, before distribution of her deceased husband's estate shall be made, according to this act, then in such case, her executors and administrators shall be impowered to sue for and recover, so much of the estate, as shall be given to her by will, and no more; any thing herein before, to the contrary, notwithstanding. | Rights of executors of wife dying before distribution. |
| VI. Provided also, That if the widow of any person dying intestate, shall depart this life, before the estate of her deceased husband shall be appraised, then the right of such widow, to her said husband's estate, or any part thereof, shall be determined: Neither shall her executors or administrators have power to commence or prosecute any suit, for recovery thereof. | Where widow of intestate dies, before appraisement. |
| VII. Provided also, and be it enacted, by the authority aforesaid, to the end that a due regard be had to creditors, That no such distribution, as aforesaid, of the goods of any person dying intestate, be made, till after nine months be fully expired, after the intestate's death: And that such, and every one to whom any distribution and share shall be allotted, shall give bond, with sufficient sureties, in the court where such distribution shall be made, That if any debt or debts, truly owing by the intestate, shall be afterwards sued for, | When to be distributed. Bond to indemnify. |
| and recovered, or otherwise duly made to appear, that then, and in every such case, he or she shall respectively refund and pay back to the administrator, his or her ratable part of that debt or debts, and of the costs of suit, and charges of the administrator by reason of such debt, out of the part and share so as aforesaid allotted to him or her, thereby to enable the said administrator to pay and satisfy the said debt or debts, so discovered after the distribution made, as aforesaid. | |
| VIII. And be it further enacted, That the widow of any person dying intestate, shall be endowed of one full and equal third part of all her deceased husband's lands, tenements, and other real estate, in manner as is directed and prescribed by the laws and constitutions of the kingdom of England: And till such dower shall be assigned, it shall be lawful for her to remain and continue in the Mansion house, and the messuage or plantation thereto belonging, without being chargeable to pay the heir any rent for the same: Any law, usage, or custom, to the contrary, in any wise, notwithstanding. | Dower of widows. Quarantine. |
| IX. Provided always, That if any widow shall have such a jointure settled on her, in the life-time of her husband, as by law doth barr her of her dower, she shall not hold possession of any houses or messuages of her said deceased husband, other than what shall be so settled on her. | Jointure, when a bar to dower. |
| X. And if it shall so happen, that any person dies, leaving an estate of so small value, that no one will take administration thereupon, | |
| XI. Be it enacted, That in such case, it shall be lawful for the court, at the expiration of three months next after such person's decease, to impower and direct the sheriff of the county, to take the said estate into his possession, and make sale thereof, by way of outcry: And the buyers of such estate, shall give obligations, with security, for the paiment of what shall be due from them to the said estate; which obligations shall be made paiable to the sheriff and shall by him be assigned to such creditors of the deceased, or to such other persons as the court shall direct; always regarding the dignity of the debts: And for his trouble herein sustained, the sheriff shall be paid out of such estate, | When estate may be committed to the sheriff. |
| after the rate of five pounds per cent. of the value for which it shall be sold. | |
| XII. And for the better securing the estates of all persons deceased, and of all orphans estates, | |
| XIII. Be it enacted and declared, That when any person shall be chargeable, as executor or administrator, or otherwise, with the estate of any person deceased, or with any orphan's estate, and shall die so chargeable, the estate of such person so dying, shall be liable to pay and satisfy such other deceased person's, or orphan's estate, before any other debt whatsoever, any law, custom, or usage to the contrary hereof, in any-wise, notwithstanding. | Debts due as executor or administrator, or to orphans, of first dignity. |
| XIV. And be it further enacted, That every county court shall take good security of all guardians, for the estates of the orphans committed to their charge, and that they shall yearly inquire into such securities; and if any of them become defective or insufficient, shall cause new security to be given: And if it shall appear that the said estates are likely to be imbezzelled, or that the orphans are not taken care of, and educated, according to their estates; then the said court shall have power to remove the said orphans (not being of age to choose their guardians) and their estates, and to place them under the care of such other persons, as to them shall seem most proper; always taking good security for the said orphans estates, that when the same shall become paiable to the said orphans, they shall be paid without making any abatement or allowance (other than of the profits of the said estates) for diet, cloathing, or any other matter whatsoever: And if the estate of any orphan be of so small a value, that no person will maintain him for the profits thereof, then such orphan shall, by direction of the court, be bound apprentice to some handicraft trade, or mariner, until he shall attain to the age of one and twenty years. And the master of every such orphan shall be obliged to teach him to read and write: And, at the expiration of his servitude, to pay and allow him in like manner as is appointed for servants, by indenture or custom. And if it shall appear, that any such apprentice be ill used by his master, or that he fails to teach him his trade, the court shall have power to remove him, | Guardians to give good security; which is to be annually examined. Courts may remove orphans. When to be bound apprentices. Duty of their masters. Power of courts in hearing their complaints. |
| and to bind him to such other person as to them shall seem most proper. | |
| XV. And be it further enacted, and declared, That if any county court shall grant an administration, upon the estate of any person deceased, or shall commit an orphan's estate to the charge of any person, and shall fail to take good security for the same, in such manner as the law directs; in every such case, the justices that shall grant such administration, or commit such orphan's estate, as aforesaid, and every of them, shall be chargeable for all such loss and damage as shall accrue by reason of such failure: To be recoverable by action at the common law, at the suit of the party grieved. | Justices, when liable, for insufficient security. |
| XVI. Provided always, and be it further enacted, That when any party, being security in any court, for any decedent's estate, or for the estate of any orphan, shall think himself in danger of suffering, by reason of being such security, and shall petition the said court for relief, either by counter security, or otherwise, then it shall and may be lawful for the said court to summon the party with whom such security was given, and to make such order and decree therein, as to them shall seem consistent with equity and good conscience, for the relief and indemnifying such party so petitioning, as aforesaid. | Security, how relieved. |
| XVII. And be it further enacted, That the county court shall have power, by their discretion, to regulate the funeral expences of any person deceased, and to make allowance for the same, according to his estate. | Funeral expences, regulated. |
| XVIII. And be it further enacted, That all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof as relates to any matter or thing whatsoever, within the purview of this act, is, and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. |
| CHAP. XXXIV. | |||
| Edi. 1733 and 1752. Repealed by proclamation, April 15th, 1730. | ||
| BE it enacted, by the Governor, Council, and Burgesses of this present general assembly, and it is hereby enacted, by the authority of the same, That no action of debt upon the case, or other action shall be commenced or prosecuted against any person or persons whatsoever, their heirs, executors, or administrators, for or in order to any recovery or obtaining of judgment for any debt due by judgment upon record, bond, bill obligatory, or other note, or upon account, unless the same action or suit be commenced and prosecuted within the several limitations and time hereinafter mentioned and expressed, that is to say, for every debt due by judgment upon record, the suit shall be commenced and prosecuted as aforesaid, within the space of seven years next after such judgment shall have been first obtained, or after the same shall have been renewed by scire facias; for every debt due by bond or bill obligatory wherein no certain day of payment is expressed, the suit shall be commenced and prosecuted as aforesaid, within five years next after the date of such bond or bill obligatory; and if any certain day or days of payment be expressed, then the suit shall be commenced and prosecuted within five years after the last day of payment so expressed; and upon any bond for performance of covenants the suit shall be commenced and prosecuted as aforesaid within five years next after the breach of covenants assigned shall happen; and for any debt due by note drawn on any person within this colony the suit shall be commenced and prosecuted as aforesaid (either on behalf of the person to whom the same shall be made payable, or of the person that shall accept and pay the same) against the drawer within three years after the date of such note; and if such note shall be accepted by the person on whom it shall be drawn the suit shall be commenced and prosecuted against such acceptor within three years | [From MS.] Limitation of action on judgment; On bonds or bills, where no day of payment is expressed; where a day of payment is expressed; on bonds for performance of covenants on notes drawn and accepted by payee, or drawer. |
| after such acceptance: And for debts due by account for goods or wares delivered or for clerks, sheriffs or other officers fees, chiurgeons accounts or any other accounts whatsoever, the suit shall be commenced and prosecuted as aforesaid within three years after the same shall grow due if the person or persons to whom the same shall be due be resident within this colony and within five years after the same shall grow due if the person or persons to whom the same shall be due be not resident within this colony. | On accounts, against residents, and non-residents. |
| Provided always, That if any person or persons in any wise chargeable by any judgment, bond, bill obligatory or other note or by any account shall abscond or privily remove him, her or themselves out of the country wherein he, she or they became so chargeable, and shall not leave sufficient visible estate within the same county to sattisfy and pay all such judgments, bonds, bills, notes or accounts, such person or persons shall not have or receive any benefit or advantage by the severall limitations herein before set down, ro any of them, any thing herein contained to the contrary notwithstanding. | Limitation not to extend to debtors removing out of the country, not leaving visible estate. |
| And be it further enacted, by the authority aforesaid, That when any suit shall be commenced and prosecuted in any court within this colony for any debt due by judgment, bond, bill or otherwise, the defendant shall have liberty upon tryall thereof to make all the discount he can against such debt, and upon proof thereof the same shall be allowed in court. | Discounts may be proved on trial. |
| And be it further enacted, That it shall be and may be lawfull to and for any person or persons to assign or transfer any bond or bill for debt over to any other person or persons whatsoever, and that the assignee or assignees, his or their executors and administrators by virtue of such assignment shall and may have lawfull power to commence and prosecute any suit at law in his or their own name or names, for the recovery of any debt due by such bond or bill as the first obligor, his executors and administrators, might or could lawfully do. | Assignments on bonds, &c. permitted; and assignee may sue in his own name, |
| Provided always, That in any suit commenced upon such bond or bill so assigned, the plaintiff shall be obliged to allow all discounts as aforesaid that the defendant can prove either against himself or against the first obligee. | and must allow all discounts, against himself, or first obligee. |
| And be it further enacted, That when any suit shall be commenced for the recovery of any debt due by account (other than for secretarys, county court clerks sheriffs or other officers fees, public, county or parish levys, or physitians or chirurgeons accounts, and the accounts of merchants living out of this country) if the plaintiff shall not prove his account by the oaths of two witnesses or by his own and the oath of one other witness, it shall be lawfull for the defendant in open court upon his corporal oath to deny the receipt of the perticulars or the performance of the services wherewith he is charged, or any part thereof, and such oath so made shall be held sufficient to discharge him of so much as shall be so denyed, and if the defendant shall not make any such oath, the plaintiffs oath to the truth and justness of the account shall be held and taken to be good proof thereof, and judgement shall accordingly be granted thereupon. And if the plaintiff be an executor or administrator who cannot be capable of making oath to the account of his testator or intestate if he can bring one evidence to prove the account of the testator or intestate, and shall himself make oath that he found the account so stated in the testators or intestates books or papers, such proof shall be accounted sufficient, but if he cannot bring such evidence besides his own oath, in such case the defendant shall be admitted to deny the same upon oath, and if the defendant shall refuse to deny the same upon oath, then the plaintiffs making oath that he found the account so stated in the testators or intestates books or papers, shall be held and taken to be good proof thereof, and judgment shall accordingly be granted thereupon, and in case of non est inventus returned, if the defendant do not appear the oath of the plaintiff as aforesaid shall be taken to be good and sufficient proof that the account is justly due, and judgment shall accordingly be granted thereupon. | Proof of accounts. When defendant may deny, on oath. Proof of accounts, by executors or administrators. Where the defendant does not appear. |
| Provided always, That when any suit shall be commenced upon a physitians or chirurgeons account it shall be lawfull for the court to put such a reasonable valuation upon the medicines administred, and the visits, attendance and other services performed, as to them shall seem meet and just, any thing herein before contained, to the contrary notwithstanding. | Courts may reduce physicians' accounts. |
| And be it further enacted, That when any suit shall be prosecuted against the executor or administrator of any person deceased upon any judgment, bond or bill, the plaintiff not being an executor or administrator, and shall declare upon oath that he hath not received any part of sattisfaction of such judgement, bond or bill, or what part he hath received. | In suits against ex'r. & adm'rs. the plaintiff not being one, must make oath. |
| Provided always, and be it enacted, That in all cases where the plaintiff or creditor is obliged by this act to make oath to the truth or justness of any debt or account, it shall be lawfull for such plaintiff or creditor to appear and make such oath in the court of that county where he shall reside, and if he be out of the country before the governor or mayor of the place where he is, and to take a certificate thereof from the clerk of the same court, or the governor or mayor as the case is, and such oath so made and a certificate thereof so obtained, shall be as sufficient and available as fi the same oath had been made in the court where any suit (requiring such oath to be made) shall be depending. | Where plaintiff may make oath. |
| Provided also, That if the plaintiff or creditor obliged by this act to make oath as aforesaid, be not able to travail to the court of the county where he resides, it shall be lawfull for such plaintiff or creditor to make such oath before two justices of the peace whereof one shall be of the quorum in the said county, and to take a certificate from them thereof, and such oath so made and certificate thereof so obtained, shall be as sufficient and available as if the same oath had been made according to the directions of this act before mentioned and exprest. And to the end persons out of the country may have a suitable time to produce a certificate of oath made according to this act, | Where the plaintiff is unable to travel to court. |
| Be it enacted, by the authority aforesaid, That if a suit be brought against the executor or administrator of a person deceased upon a judgment, bond or bill, and the plaintiff or creditor bringing such suit be out of the country, the executor or administrator shall take care to retain assets in his hands sufficient to sattisfy the said judgment, bond or bill, for the space of two years, and shall not suffer the same to be recovered out of his hands in that time by any creditor upon a debt of less | How long executors and administrators must retain for absent creditors. |
| dignity than what the creditor out of the county sues upon. | |
| And to prevent any controversys that may arise thereupon, It is hereby enacted and declared, That all goods, wares and merchandises imported into this colony by any person whether as factor or otherwise, shall be held, deemed and taken to be the proper estate of the possessor, and accordingly shall be chargeable for all debts by him contracted. | Goods imported by factors, to be deemed the goods of the possessors. |
| And be it further enacted, That if any bill of exchange drawn by any person or persons in this colony to be paid in the kingdom of England, Ireland, Wales or the town of Berwick upon Tweed, shall be returned protested, in such case there shall be paid to the person or persons on whose behalf such protest shall be made, and to such other person or persons as have right to sue for the same, his, her or their executors and administrators, for his, her and their damage in that behalf sustained, after the rate of fifteen per cent for the sum expressed in the bill, and for the costs and charges of protest and no more. | Damages on protested bills of exchange. |
| And be it further enacted, That all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof as related to the declaring how long judgments, bonds, obligations and accounts shall be in force, or the assignment of bonds and obligations, or directing what proof shall be sufficient in such cases, or ascertaining the damage upon protested bills of exchange, is, and are hereby repealed and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. |
 CHAP. XXXV. An act for limitation of actions, and avoiding of suits. | |
| I. FOR avoiding of law suits, Be it enacted, by the governor, council and burgesses of this present general assembly, and it is hereby enacted, by the authority of the same, That all actions of trespass, quare clausum fregit, all actions of trespass, detinue, action sur trover, and replevin, for taking away of goods and cattle, all actions of account, and upon the case, other than such accounts as concern the trade of merchandize between | Limitation of actions on the case, accounts, trespass, debt, detinue, replevin. |
| merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract, without specialty, all actions of debt for arrearages of rent, all actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued, or brought, at any time after the end of this present session of assembly, shall be commenced and sued within the time and limitation hereafter expressed, and not after; (that is to say,) The said actions upon the case, (other than for slander;) and the said actions for account; and the said actions for trespass, debt detinue, and replevin, for goods and cattle; and the said actions for trespass, quare clausum fregit, within two years next after the end of this present session of assembly, or within five years next after the cause of such actions or suits, and not after; and the said actions of trespass, of assault, battery, wounding, imprisonment or any of them, within one year next after the end of this present session of assembly, or within three years next after the cause of such actions or suits, and not after; and the said actions upon the case for words, within one year after the end of this present session of assembly, or within one year next after the words spoken, and not after. | Assault, battery, wounding and imprisonment. Slander. |
| II. Provided nevertheless, and be it enacted, That if in any of the said actions or suits, judgment be given for the plaintiff, and the same be afterwards reversed by error; or a verdict pass for the plaintiff, and upon matter alledged in arrest of judgment, the judgment be given against the plaintiff, that he take nothing by his plaint, writ, or bill; or if any of the said actions shall be brought by original, and the defendant therein, be outlawed, and shall after reverse the outlawry, that in all such cases, the party plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit, from time to time, within one year after such judgment reversed, or such judgment given against the plaintiff or outlawry reversed, and not after. | Further time allowed after revival of judgment. |
| III. And be it further enacted, That in all actions of trespass, quare clausum fregit, hereafter to be brought, wherein the defendant or defendants shall disclaim, in his or their plea, to make any title or claim to the land, in which the trespass is, by the declaration, supposed | Disclaimer and tender of amends. |
| to be done, and the trespass be by negligence, or involuntary, the defendant or defendants shall be admitted to plead a disclaimer; and that the trespass was by negligence, or involuntary, and a tender or offer of sufficient amends for such trespass, before the action brought, whereupon, or upon some of them, the plaintiff or plaintiffs shall be enforced to join issue: And if the said issue be found for the defendant or defendants, or the plaintiff or plaintiffs shall be nonsuited, the plaintiff or plaintiffs shall be clearly barred from the said action or actions, and other suit concerning the same. | |
| IV. And be it further enacted, by the authority aforesaid, That in all actions upon the case, for slanderous words, to be sued or prosecuted by any person or persons in the general court of this dominion, or in any court whatsoever, that hath power to hold plea of the same, after the end of this present session of assembly, if the jury, upon the trial of the issue in such action, or the jury that shall inquire of the damages, do find or assess the damages under forty shillings, then the plaintiff or plaintiffs in such action shall have and recover only so much costs as the damages so given or assessed amount unto, without any further increase of the same; any law, statue, custom, or usage to the contrary, in any-wise, notwithstanding. | In case for slander, then no more costs than damages. |
| V. Provided nevertheless, and be it further enacted, That if any person or persons, that is or shall be entituled to any such action of trespass, detinue, action sur-trover, replevin, actions of account, actions of debt, actions of trespass for assault, menace, battery, wounding, or imprisonment, be, or shall be, at the time of any such cause of action given or accrued, fallen or come, within the age of twenty-one years, feme-covert, non compos mentis, imprisoned, beyond the sea, or out of the country; that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are before limited, after their coming to or being of full age, discovert, of sane memory, at large, and returned from beyond the seas, or from without this country, as by persons, having no such impediment, should be done. | Further time allowed for infants, femes covert, &c. |
| VI. Provided also, and be it further enacted, That if any person or persons, defendant or defendants to any |
| of the aforesaid actions, shall abscond or conceal themselves, or by removal out of the country, or the county where he or they do or shall reside, when such cause or action accrued; or by any other indirect ways or means, defeat or obstruct any person or persons, who have title thereto, from bringing and maintaining all or any of the aforesaid actions within the respective time limited by this act; that then, and in such cases, such defendant or defendants are not to be admitted to plead this act in bar, to any of the aforesaid actions; any thing in this law, in any-wise to the contrary, notwithstanding. | Person removing or concealing himself. | ||
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| CHAP. XXXVI. | Edi. 1733 and 1752. | ||
| See chap. 3, 1727, sect. 29. | ||
| BE it enacted, by the Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That if any person or persons by virtue of any letter or warrant of attorney or letter or warrant of substitution or by virtue of any other deputation or power from any person or persons residing in other parts than within this colony shall at any time hereafter sue forth any process or commence or prosecute any suit either in law or equity against any person or persons inhabiting within this colony, such person so suing forth any process or commencing or prosecuting any suit at his or their first appearance in any court or before any judge or magistrate to prosecute, shall enter into bond with good and sufficient surety to sattisfy and pay to the party prosecuted, all such damages, costs and charges, as upon the same suit shall be awarded to him, her, or them, by the court, judge or magistrate before whom the suit shall be heard and determined, and if such person or persons so appearing to prosecute shall fail to give such bond, then the suit shall thereupon abate, and the party prosecuted shall be thence dismist without day. | [From MS.] In suits, for non-residents, security for costs to be given. |
| CHAP. XXXVII. | |||
| Edi. 1733 and 1752. See chap. 3, 1726. | ||
| BE it enacted, by the Governor, Council, and Burgesses of this present General Assembly, and it is hereby enacted, by the authority of the same, That when a writt of fieri facias shall at any time hereafter be delivered to the sheriff or other officer lawfully impowered to make execution thereof, such sheriff or other officer (having by virtue thereof levyed the debt, damages and costs therein mentioned, or any part thereof, upon the goods and chattles therein commanded to be levyed) shall thereupon proceed in manner following; that is to say, that the goods and chattles so levyed shall remain in the possession of the sheriff or other officer levying the same by the space of twenty-four hours, at the expiration of which time they shall be appraised, unless the party from whose custody and possession they were taken, shall give bond with good and sufficient surety, that they shall be produced for appraisement at the end of three days after such surety given, and then the appraisement shall be made (as hereafter is directed) and thereupon the property of the goods and chattles so appraised shall be vested in the sheriff or other officer levying the same, to an for the use of the person or persons at whose suit the writt shall have issued, and accordingly such sheriff or other officer shall give notice thereof to the said person or persons, that he or they may receive the said goods and chattles into his or their own possession. And for the more equal appraisment of goods and chattles so levyed as aforesaid, the sheriff or other officer levying the same shall give immediate notice thereof to the person or persons from whom they shall be taken, and also to the person or persons at whose suit the writt shall have issued, to the end that each party may nominate and elect two such appraisers as they shall think fitt to appraise and value the goods and chattles so levyed upon their corporall oath, which oath the sheriff or other officer as aforesaid, is hereby impowered and required to administer, and in case either of the partys shall refuse or neglect to nominate two appraisers as aforesaid, then the said | [From MS.] Writs of fieri facias, how executed. Goods, how appraised. |
| sheriff or other officer shall nominate two discreet, honest, freeholders of the vicinage, for the party so neglecting to appraise and value the said goods and chattles as aforesaid, and if it shall so happen that the said appraisers are equally divided in their judgments as to the value of any goods and chattles which shall be produced for appraisement, then they shall choose a fifth man, who, upon his corporall oath, to be administred as aforesaid, shall declare his opinion which of the said appraisers have made the truest valuation of the said goods and chattles, which opinion of the said fifth man shall in that case be taken as the true value. | |
| Provided always, That if the goods and chattles so appraised as aforesaid, shall amount to a greater value than will sattisfy the debt, damages and costs to be levyed, then the said sheriff or other officer shall immediately return the overplus to the party from whom it was taken, if it can be divided, if not, the value thereof. | |
| And be it further enacted, by the authority aforesaid, That when any writt of levari facias shall be at any time hereafter delivered to any sheriff or other officer as aforesaid, to levy any debt, damages, costs or other dues, upon the goods or chattles of any person or persons, the proceedings thereupon as to the said goods and chattles, shall be in like manner as is herein before directed, upon a writt of fieri facias, and after execution so done as aforesaid, upon either of the said writts, the sheriff or other officer so having made execution thereof, shall also make return thereof to such office or place from whence the same shall have issued, which return shall be entered in the records of such office. | Levari facias. Returns. |
| And be it further enacted, by the authority aforesaid, That when any person shall be taken and imprisoned by virtue of a capias ad satisfaciendum, for the payment of any debt, damage and costs, due in money, tobacco or other comoditys whatsoever, if such person shall, upon his corporal oath declare, before some justice of the peace of that county where he shall be imprisoned (which oath any such justice is hereby impowered and required to administer) that he hath none of that specie which is due from him, whether it be money, tobacco, or other comoditys as aforesaid, then it shall be lawfull for such person to make tender to his creditor or other person to whom the same shall be due, | Capias ad satisfaciendum. How the body may be discharged, on tendering property. |
| of so much of his estate as shall be of treble the value of the sum to be paid out, of which the said creditor or other person shall make choice of so much as upon a reasonable valuation of four or five men to be nominated and elected as aforesaid, shall be sufficient to make him sattisfaction as well for what is due to himself as for all costs concerning the same matter, and after such appraisement the person so imprisoned shall be discharged from imprisonment, and the estate so appraised shall be delivered to such creditor or other person as aforesaid, and if it shall so happen that the whole personal estate of the person imprisoned shall not amount to treble the value of the sum due, then after oath made as aforesaid, he shall exhibit upon oath to the best of his knowledge a true inventory of all his personall estate and make tender thereof to the creditor or other person as aforesaid, out of which shall be chosen and appraised as aforesaid, so much as will be sufficient to make sattisfaction as aforesaid, whereupon the person imprisoned shall be discharged, and the estate so appraised shall be delivered to the creditor or other person as aforesaid, and if it shall so happen that upon tender made as aforesaid, the creditor or other person as aforesaid, to whom such tender shall be made shall not make his choice as aforesaid within the space of three days after such tender made, then it shall be lawfull for some one justice of the peace of the county to make the choice and choose the appraisers, and thereupon proceedings shall be had in like manner as is before directed, and the person imprisoned shall also thereupon be discharged and in these cases it shall be lawfull to and for the sheriff or other officer as aforesaid, to make return of such capias ad satisfaciendum according to the truth of the case into such office from whence the same shall have issued there to be entered upon record, and if any person so imprisoned as aforesaid, shall make such tender as is afore directed, to the sheriff or other officer in whose custody he or she shall be, such sheriff or other officer shall within twenty-four hours thereafter give notice thereof to the creditor or other person as aforesaid, if he be to be found within his county, and if he be not within his county nor any known attorney for him, then notice thereof shall be given to some justice of the peace of the county, who at the end of three | Return, according to the truth of the case. Notice to creditor. |
| days after such notice given, shall make choice as aforesaid, and if any sheriff or other officer shall neglect to do his duty therein, he shall be liable to an action at the common law for false imprisonment at the suit of the party grieved. | |
| Provided always, That nothing shall be accounted a tender of any estate within the meaning of this act, unless it shall be made in such manner that immediately upon the making choice thereof as aforesaid, the estate may and can be delivered to the sheriff or other officer as aforesaid, for the use of the creditor or other person to whom the same shall be due. | What deemed a tender. |
| And be it further enacted, That if any person taken and imprisoned as aforesaid, and having delivered up to the sheriff or other officer in whose custody he shall be all his whole estate for and towards the payment and sattisfaction of the debt or other dues for which he was imprisoned, after having layen three months in prison, shall upon his corporall oath before two justices of the peace of the same county, declare that he hath no estate left either real or personal, save only one suit of clothes, not exceeding the value of fifty shillings (which oath the said justices are hereby impowered and required to administer) then the said justices shall make certificate thereof to the sheriff or other officer as aforesaid, and thereupon such person having such certificate shall be discharged. | Debtor delivering up his whole estate, and lying three months in prison, to be discharged. |
| Provided always, That no prisoner under execution as aforesaid for any debt heretofore contracted, shall be allowed to discharge himself from the same by virtue of this act, and that no prisoner whatsoever shall be discharged or receive any benefit by his making oath as aforesaid in case the debt for which he is kept in prison exceed the sum of ten pounds current money or two thousand pounds of tobacco. | This act not to extend to debts previously contracted; nor if the sum exceed 10l. |
| Provided always, and be it further enacted, by the authority aforesaid, That notwithstanding the discharge of the person of such prisoner as aforesaid, upon taking the oaths aforesaid, all and every judgment and judgments had and taken against him or her alone, or with any other person or persons, shall stand and be good and effectuall in the law to all intents and purposes, against the lands, tenements, hereditaments, goods and chattles only of the said prisoner so discharged as aforesaid, | Estate real & personal of debtor discharged, forever liable. |
| and that it shall and may be lawfull to and for such creditor or creditors of such prisoner or prisoners so discharged as aforesaid, his, her, or their executors, administrators or assigns, to take out any new execution against the lands, tenements, hereditaments, goods and chattles of such prisoner or prisoners (his or her wearing apparel, beding for his or her family and tools necessary for his or her trade or occupation only excepted) for the sattisfaction of his, her, or their said debt in such sort, manner and form as he, she or they might have done, if the person or persons of such prisoner or prisoners had never been taken in execution, and that no act of limitation shall be pleadable against such judgment or judgments, any act, statute, law or custom, to the contrary in any wise notwithstanding. | ||
| Provided also, and be it enacted, That when nay person in prison shall offer to tender his estate as aforesaid upon oath, or shall desire to be admitted to make oath before two justices as aforesaid, in such cases it shall be lawfull for the sheriff or other officer as aforesaid, to carry such person out of prison before such justice or justices as the case shall require, in order to the taking such oath without being lyable to any prosecution for or on pretence of an escape or on any other pretence whatsoever. | Sheriff may carry debtor out of prison, in order to take the oaths. | |
| Provided nevertheless, That if such person carried out of prison as aforesaid, be not discharged upon taking his oath, the sheriff or other officer shall carry him back to prison or be lyable to prosecution for an escape. | Proviso. | |
| And be it enacted, That all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof, heretofore made, for so much thereof as relates to any matter or thing whatsoever, within the purview of this act, is and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. | |
CHAP. XXXVIII. | ||
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| I. BE it enacted, by the Governor, Council, or Burgesses of this present general assembly, and it is hereby |
| enacted, by the authority of the same, That when any person shall, at any time hereafter, by precept from any justice of the peace within this dominion, be committed to the goal of the county, for any such criminal offence, as shall appear to such justice to be triable in the general court only; in such case, it shall be lawful for the same justice to issue his warrant to the sheriff of the county, requireing him to summon the justices of the same county, to meet at a certain time to be appointed in the said warrant, not less than five days, nor above ten days after the date thereof, and hold a court for examining the prisoner, and all witnesses and circumstances relating to the matter whereof he or she shall be accused; and to consider whether, as the case shall be accused; and to consider whether, as the case shall appear to them, he or she may be tried in the county, or must be removed from thence, to be tried at the general court: Which warrant the said sheriff is hereby required to obey and execute; and by virtue thereof, the said justices may lawfully meet and hold court for the intents herein mentioned: And if, upon examination before the said court, they are of opinion, that the prisoner ought to be tried for the fact whereof he or she is accused, before the general court, they shall signify the same, by entring such their opinion upon record in the said court, and shall remand the said prisoner to the county gaol; and thereupon, it shall be lawful for any two justices of the said court, (whereof one shall be of the quorum) by precept under their hands and seals, signifying the true cause of commitment, directed to the keeper of the public gaol at the city of Williamsburg, to remove the said prisoner, and to commit him or her to the said public goal, there to remain until he or she shall be thence delivered by due course of law: By virtue whereof, the sheriff of the said county shall, as soon as he can conveniently, remove the prisoner to the said public goal, and shall deliver him or her, together with the said precept, to the keeper thereof; who is hereby required to give due obedience thereunto, and to receive, and in his custody safely to keep such prisoner so delivered unto him, by virtue thereof. And for the better enabling the said sheriff to perform his duty herein, it shall be lawful for the said two justices as aforesaid, by warrant under their hands and seals, to impower the said sheriff as | Examining courts, how constituted. Prisoners, how removed to Williamsburg. |
| well within his own county, as in all other counties through which he shall have occasion to pass with the said prisoner, to impress such and so many men, horses, sloops, or boats, as shall be necessary, for the safe conveying the said prisoner to the public gaol aforesaid; which warrant, the said sheriff is hereby authorised and impowered to put in execution: And all other persons are required to give due obedience thereunto, so as the said sheriff shall proceed therein, in manner as is directed by law upon such impressing in other cases. | |
| II. Provided nevertheless, That when any prisoner shall, by the court, be remanded to the county goal, as aforesaid, if the offence be of such a nature, as the prisoner may be admitted to bail; then, and in such case, he or she shall not be removed out of the county, to the said public goal, in less than twenty days after such remanding: To the end, that in that time, bail may be procured and given in the county. | In bailable offences, when to be removed. |
| III. Provided always, That nothing herein contained, shall be construed so as to exclude or hinder any person from being admitted to bail, after his or her removal into the said public goal, in such case as by law he or she may be bailable. | Bail after removal. |
| IV. And be it further enacted, That if, upon the first commitment of any prisoner to the county goal, he or she shall desire any witnesses on his or her behalf to be examined at the said county court, then the sheriff, upon his or her request, is hereby required to summons such witnesses to appear at the said court accordingly. And if, after being remanded to goal as aforesaid, the prisoner shall desire any witnesses to appear at the trial, in the general court, then the clerk of the said general court, at his or her request, or at the request of any other person, in his or her behalf, shall issue subpœnas, for the summoning such witnesses to appear accordingly. | Witnesses for prisoner, how summoned. |
| V. And be it further enacted, That in the time of the general court, it shall be lawful for the keeper of the public goal, being thereto impowered by order of the said court, to impress such and so many persons as shall be necessary for the guarding and safe keeping of all such prisoners as shall be and remain committed to his custody. | Guards may be impressed by jailor. |
| VI. And be it further enacted, That the fees due to the sheriff, for such removal of any prisoner, as aforesaid, from the county goal to the public goal, shall be after the rate of one hundred pounds of tobacco, for every twenty miles distance. And the fees to the said sheriff and keeper of the public goal, for keeping and dieting any prisoner in their goal, shall be five pounds of tobacco for each day, and no more. | Fees of sheriffs, for removal. For diet. | |
| VII. And be it further enacted, That all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof as relates to any matter or thing whatsoever, within the purview of this act, is, and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. | |
CHAP. XXXIX. | ||
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| I. FOR the more convenient travelling and carriage, by land, of tobaccos, merchandises, or other things within this dominion, | ||
| II. Be it enacted, by the governor, council, and burgesses, of this present general assembly, and it is hereby enacted, by the authority of the same, That where the same is not already done, public roads shall be laid out by the surveyors of the highways, in their several precincts, in such places as shall be most convenient for passing to and from the City of Williamsburg, the court house of every county, the parish churches, and such public mills and ferries as now are, or hereafter shall be erected, and from one county to another; and that the highways already laid out, together with such as shall hereafter be laid out, by virtue of this act, shall, at all times hereafter, be kept well cleared from woods and bushes, and the roots well grubbed up, at least thirty foot broad: And if any person shall, at any time hereafter, fall any tree or trees into such highway, and shall not cut the same away again, within the space of forty eight hours after such falling; or shall make any fence into the highway, the person so offending, shall forfeit and pay, for every such offence, the sum of | Public roads, how and where established. Penalty for obstructing. |
| ten shillings current money, to the informer: To be recovered, with costs, upon information made to a justice of the peace of the county where the offence is committed. | |
| III. Provided nevertheless, and it is the true intent and meaning of this act, That is shall be in the power of any county court, by their order, to direct the alteration of the public road, or the making of new roads, in such places as to them shall seem convenient. and for assistance to lay out and clear the highways, as aforesaid, | May be altered. |
| IV. Be it enacted, That all male labouring persons that are tithable, shall, when thereunto required by the surveyors of the highways, assist the said surveyors in laying out and clearing the highways: And if any male labouring free tithable person, being so required, shall fail to go and assist therein; or if the master or owner of any labouring tithable person or persons being required to send such tithable person or persons to assist as aforesaid, shall fail to send accordingly, such free person shall, for such failure, forfeit and pay five shillings current money: And such master or owner, for every such tithable person as he fails to send, shall forfeit and pay five shillings like money, to the informer: To be recovered, with costs, as aforesaid, | Who to work on. Penalty for refusal. |
| V. Provided nevertheless, and it is hereby enacted, That any justice of the peace, to whom any information shall be made, of any such failure, shall have liberty, upon hearing the cause of the failure, to give judgment for the defendant, in case such cause appear to him to be reasonable: Which judgment shall be sufficient to acquit him from the forfeiture aforesaid. | Proviso. |
| VI. And, if any surveyor of the highways, shall fail to perform his duty, as the same is or shall be directed in this act, such surveyor shall forfeit and pay fifteen shillings current money, to the informer: To be recovered, with costs, as aforesaid. | Penalty on surveyors of roads. |
| VII. And be it further enacted, That every surveyor of the highways, shall have power, and be obliged, with the assistance aforesaid, to make bridges in all necessary places, within their respective precincts, which shall be at least ten foot broad, and level and passable: and also shall, from time to time, keep the same in good repair. And if it shall so happen, that there be | Duty of surveyors. |
| occasion for a bridge over any place, where the surveyors, with the assistance aforesaid, cannot make it, then the county court shall have power, and be obliged, to covenant with some skilful workman for the making thereof: And also, they are hereby impowered to lay a county levy upon the poll, to pay for the same. And if such a bridge shall be wanting over any place, which lies between two or more counties, then the court of each county shall join in the agreement; and shall have power to lay a county levy, for the paiment thereof, proportionable to the number of tithables in each county: And every person having a plantation, is hereby directed and required to make a convenient passage for man and horse to go to his dwelling house, and from time to time to keep it in repair; upon pain of forfeiting and paying to the informer, for his neglect in making such passage, ten shillings current money; and also ten shillings for every six months such passage shall not be made, or being made, shall continue unrepaired: To be recovered, with costs, as aforesaid. | Bridges, how erected. Roads to houses. |
| VIII. And, for the greater conveniency of such persons as inhabit upon plantations far distant from rivers and creeks, | |
| IX. Be it enacted, That all such landing places, as have store-houses, commonly called rolling-houses, built at or near them, or have heretofore been commonly used for bringing tobaccos unto, and to which there are plain roads already made, shall be held and accounted public landings: And the roads to such landings, or any other public landings hereafter to be appointed by the county courts, shall be kept in repair, sufficient for carts to pass to and from the same. | Public landings, what deemed. |
| X. And be it further enacted, That at some court, between the last day of April, and first day of August, yearly, the court shall appoint surveyors of the highways; and also, such persons, as to them shall seem most proper, to clear the rivers and creeks, within their respective precincts, from all trees, roots, or other things, which may be dangerous to any boat, sloop, or other vessel, passing up or down the same. And if any court shall fail to perform their duty herein, such court shall forfeit and pay two thousand pounds of tobacco, to him or them that will inform, or sue for the same: To be recovered, with costs. And if any person, so | Surveyors of roads, when appointed. Penalties. |
| appointed to clear the rivers and creeks, shall fail to perform his duty herein, some time in the months of March and October, yearly, he shall forfeit and pay the sum of fifteen shillings current money, to the informer: To be recovered, with costs, before a justice of the peace. And if any person shall fall any tree, into any river or creek, and not immediately clear the same away again, he shall forfeit and pay, for the first offence, ten shillings current money; and for every such offence after the first, fifteen shillings, of like money, to the informer: To be recovered, with costs, before a justice of the peace. | Falling trees into rivers or creeks. |
| XI. And be it further enacted, That if any person shall set, or cause to be set, a weir, in any river or creek, such person shall cause the stakes thereof to be taken up again, as soon as the weir becomes useless: And if any person shall fail of performing his duty herein, he shall forfeit and pay fifteen shillings current money, to the informer: To be recovered with costs, before a justice of the peace. | Weirs, when to be removed. |
| XII. And be it further enacted, That all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof as relates to clearing, making, and repairing the highways, and for clearing the rivers and creeks, or any other matter or thing whatsoever, within the purview of this act, is and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. |
| Pages 349-371
| Pages 395-419
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