Pages 482-499 
|  Pages 517-540
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| Pages 482-499
| Pages 517-540
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| ACT IX. | |||
| [From MS.] | ||
| WHEREAS by one Act of Assembly, made at a General Assembly, begun at the Capitol, the twenty-third day of October, in the fourth year of the Reign of our Sovereign Lady Anne, of Great Brittain, France and Ireland, Queen, Defender of the Faith, &c. intituled, An act prescribing the method of appointing Sheriffs, and for limiting the time of their continuance in their Office, and directing their duty therein, a method is laid down how Sheriffs shall be appointed, which is found to be defective and to want amendment, in regard, no provision is made by the said Act what shall or may be done, when persons appointed to the directions of the said Act, or when a person happens to dye in the time of his Sheriffalty, and that by such contingences justice hath not only been obstructed, but sundry other mischiefs have accrued. | Preamble. | ||
| Therefore be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this General Assembly, and it is hereby enacted, by authority of the same, That | Penalty for refusing the office of Sheriff. |
| every person hereafter commissionated to be a Sheriff of any County within this Colony and Dominion upon a recommendation from the County Court, in pursuance of the said Act, and thereupon refusing to accept the office of Sheriff, and to perform the duty thereof, pursuant to his Commission, shall forfeit and pay five thousand pounds of Tobacco, of the produce and grown of the said County. | |
| And be it further enacted, by the authority aforesaid, That if any County Court shall hereafter neglect or refuse to recommend three persons to be Sheriffs, according to the directions of the said Act, it shall and may be lawfull, in such case, for the Governor or Commander in Chief of this Colony and Dominion, for the time being, and he is hereby desired to appoint and constitute by his commission, any one person nominated a Justice in the Commission of the Peace for the said County, to be Sheriff of the County, as he shall think proper, although such person be not then sworn a Justice. And if such person shall thereupon refuse to accept the Sheriff's office and to perform the duty thereof, pursuant to his Commission, he shall forfeit and pay five thousand pounds of Tobacco, of the produce and growth of the said County. | Court failing to nominate, the Governor may commission a Sheriff. |
| And be it further enacted, by the authority aforesaid, That if any person, being one of the three persons recommended by the County Court and appointed Sheriff in pursuance of the said Act, shall happen to depart this life in the time of his Sheriffalty, it shall and may be lawfull, in such case, for the Governor or Commander in Chief of this Colony and Dominion, for the time being, and he is hereby desired to appoint and constitute one of the survivors recommended, as aforesaid, to be Sheriff, in his room. And when any Sheriff appointed, upon a neglect or refusal of the County Court to recommend three persons according to directions of the said Act, shall happen to depart this life in the time of his Sheriffalty, it shall and may be lawfull for the Governor or Commander in Chief of this Colony and Dominion, for the time being, and he is hereby desired to appoint and constitute by his Commission, any one person nominated a Justice in the Commission of the Peace for the said County, to be Sheriff of the County, in the room of the said deceased person; although such new appointed person be not then a Justice. | Sheriff dying, how a successor appointed. |
| And whatsoever person appointed and constituted Sheriff, upon the death of another Sheriff, as aforesaid, shall refuse to accept the office of Sheriff and to perform the duty thereof, pursuant to his Commission, such person shall forfeit and pay five thousand pounds of Tobacco, of the produce and growth of the said County. | Penalty for refusing to accept. |
| And be it further enacted, That whatsoever person shall hereafter, by virtue of this Act, be appointed Sheriff of any County by the Governor or Commander in Chief, for the time being, upon the neglect or refusal of an County Court to recommend three persons, according to the directions of the said recited Act, or upon the death of any Sheriff, in the time of his Sheriffalty, such person so appointed by the Governor or Commander in Chief, for the time being, shall not, or may not, by any thing in this Act contained, be compelled, or have power to continue in the said office of Sheriff, or to execute the same, for any other time than by the said recited Act is directed. | Persons thus appointed, how long to continue. |
| And be it further enacted, by the authority aforesaid, That all the fines and forfeitures mentioned in this Act, shall be to our Sovereign Lady the Queen, her heirs and successors, for and towards the support of this Government, and the contingent charges thereof, and shall and may be recovered, with costs, by action of debt, bill, plaint or information, in any of the County Courts, or in the Generall Court of this Colony and Dominion, wherein no essoin, protection, priviledge, or wager of law, shall be allowed. | Fines, how appropriated. |
| Provided alwayes, That when any person refusing to execute the office of Sheriff, as aforesaid, shall have paid the said forfeiture of five thousand pounds of Tobacco, such person shall not afterwards be appointed Sheriff of the same County, for which he refuses to execute the office of Sheriff, till such time as every Justice named, or to be named, in the Commission of the Peace for such County, shall have served once in the office of Sheriff for such County, or shall have paid the said forfeiture of five thousand pounds of Tobacco, for not accepting the said office. | Where the fines have been once paid. |
| Provided also, That if any person, hereafter appointed to execute the office of Sheriff in any County of this Colony and Dominion, shall be willing to execute the | When the party cannot get security. |
| same, but cannot get sufficient security for the performance of his duty therein, as by the said act is required, shall make oath in the Court of the County for which he shall be appointed Sheriff, or if there be no Court in the said County, then before the next County Court, that he hath used his best endeavour, truely and bona fide, without any covin or collusion, to gett security for his performance thereof, and that he cannot obtain such security; which oath, the said County Courts are hereby impowered and required to administer; that then by such person making oath, as aforesaid, shall not incurr or be lyable to the forfeiture of five thousand pounds of Tobacco, in this Act mentioned, nor shall any person, whatsoever, which hath actually served as Sheriff in any County of this Colony and Dominion, be lyable to any of the forfeitures mentioned in this Act, for any refusal to take upon him the office of Sheriff in the same County, if he be thereto again appointed, unless every person named in the Commission of the Peace for the said County, hath actually, after him, served in the office of Sheriff for the said County, or paid the forfeiture given by this Act for refusal, any thing in this, or any other Act, contained, to the contrary thereof, in any wise, notwithstanding. | |
| And be it further enacted, That this act continue in force three years, from and after the publication thereof, and from thence to the end of the next Session of Assembly, and no longer. | Limitation of act. (Revived, ch. 4, 1720.) |
| CHAP. X. An Act for settling and ascertaining the current Rates of Foreign Coins in this Dominion. |
[From MS.] Repealed, ch. 9, 1727, sec. 9. |
| WHEREAS her Majestie, by her Royall Proclamation, bearing date the 18th day of June, in the third year of her Reign, has been pleased to direct, that Foreign Coins shall not pass in her Plantations in America, above a certain value, therein mentioned, and forasmuch as the said Coins have not hitherto been ascertained in this her Majesties Colony and Dominion of Virginia. | Preamble. |
| Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this present Generall Assembly, and it is hereby enacted, by the authority of the same, That | Rates of Foreign Coins. |
| the several Species of Coin, hereafter mentioned and sett down, shall be current within this her Majesties Colony and Dominion, in all payments for the discharge of any contracts, bargains or debts, to be made or contracted after the publication of this Act, and shall pass, be accounted, and received, at the following rates, to wit: −− Pieces of Eight of Mexico, Sevil and Pillar Duccatoons of Flanders, Eccus of France, or Silver Lewis and Crusados of Portugal, and all halves, quarters, and lesser pieces, of the same, shall pass at three pence three farthings the pennyweight; and all Peru pieces, Cross Dollars and old Rix Dollars of the Empire, and lesser pieces of the same, shall pass at three pence half penny the pennyweight. | |
| And be it further enacted, by the authority aforesaid, and it is hereby enacted, That if any person or persons, whatsoever, deny or refuse to take & receive the aforesaid Coins or Moneys, or any of them, when offered or tendered in payment of a money debt, contracted after this Act, he, she, or they, so refusing, shall lose and forfeit to the party who offers or tenders the same, such sum or sums of money as he, she, or they so refuse and deny to take, to be recovered by action of debt, in any Court of Record within this Dominion, wherein no essoign, protection, or wager of law, shall be allowed; and in case the forfeiture be less than twenty shillings, to be recovered upon a complaint before any Justice of the Peace in the County where the refusal happens to be made. | Penalty for refusing to receive them. |
| And for the conveniency of change and small payments, | |
| Be it further enacted, That if her Majestie, her heirs or successors, shall think fitt, at any time hereafter, to permit copper money to be brought in and pass in this Colony, the same shall pass and be current in this Colony, at the like rates it doth pass in Great Brittain. | Copper coins. |
| Provided, That no person shall be obliged to take above two shillings and six pence of the said copper mony in any one payment, whatsoever, above twenty shillings, or to take above one shilling of the said copper money in any one payment under twenty shillings. | In what proportion. |
| And be it further enacted, by the authority aforesaid, That if any person or persons shall hereafter presume to coin, counterfeit, falsifye, or debase any of the Coins | Penalty for counterfeiting. |
| above mentioned, or shall be aiding, consenting or councilling therein, he, she, or they so offending, upon being thereof lawfully convicted, shall be deemed and adjudged as offenders in treason, and shall suffer such pains, penalties and forfeitures, as are mentioned in the Act of Parliament, made in the eighteenth year of the Reign of Queen Elizabeth. | ||
| Provided nevertheless, and it is hereby meant and intended, That nothing contained in this Act shall extend, or be construed to extend, to any money payment already due, or to her Majesties revenues arising within this Colony, or to the several Sallarys payable out of the same, or to any protested Bills of Exchange, or any other Specialty expressly limited to be sterling money, or any debt contracted in Great Brittain. | To what payments not to extend. | |
| Provided also, and it is hereby declared, That nothing in this Act mentioned shall extend, or be construed to restrain her Majestie from regulating and setling the several rates of the said Species of Foreign Coins within this her Majesties Colony and Dominion, in such other manner, and according to such other rates and proportions, as her Majesty, by her royal instructions to her Governor or Commander in Chief of this Colony, for the time being, shall, from time to time, judge proper and necessary. | Proviso. | |
 CHAP. XI. | ||
| ||
| I. FOR the better and more expeditious determination of all controversies that shall or may arise, Be it enacted by the Lieutenant Governor, Council and Burgesses of this present General Assembly, and it is hereby enacted by the authority of the same, That in every County within this dominion, respectively, there shall be held a monthly court, according to the antient custom and usage heretofore in that behalf practised; which courts shall be called county courts, and shall be held in the several respective places already assigned for that purpose, or at such other place or places as shall be lawfully appointed for that use, and shall consist of eight or more justices for every court respectively, who shall be called justices of the peace, and shall | County Courts. |
| be commissionated by the governor, or commander in chief of this dominion, for the time being, by commission, under the seal of the colony, and not otherwise; any four of which said justices (whereof one to be of the quorum) shall be sufficient to hear and determine all causes which shall be depending in the said county courts respectively. | |
| II. And be it enacted, by the authority aforesaid, That every person which shall, from time to time, or at any time hereafter, be commissionated to execute the office of a justice of the peace, at and before his entring into and upon the said office, shall take the oaths appointed by act of parliament to be taken, instead of the oaths of allegiance and supremacy, and the oath mentioned in an act intituled, (a) An act, to declare the alteration in the oath appointed to be taken by the act intituled, (b) An act for the further security of his Majesty's person, and the succession of the Crown in the Protestant line; and for extinguishing the hopes of the pretended Prince of Wales, and all other pretenders, and their open and secret abettors, and for declaring the association to be determined; and shall make and subscribe the declaration appointed by one act of parliament, made in the twenty-fifth year of the reign of the late King Charles the Second, intituled, An act preventing dangers which may happen from Popish Recusants. And if any person whatsoever shall presume to take upon him the office of a justice of the peace in any county in this dominion, before he shall have taken the said oaths, and every of them, and made and subscribed the said declaration as is afore-directed, every person so presuming to take upon him the execution of the said office, before he shall have taken the oaths, and made & subscribed the declaration afore-mentioned, and every of them, shall, for every such offence, forfeit and pay three hundred pounds sterling; one moiety thereof to her Majesty, her heirs and successors; and the other moiety thereof, to him, her, or them that shall inform or sue for the same: to be recovered by action of debt, in any court of record within this dominion, wherein | Oaths, to be taken by Justices. |
| (a) 1 Anne, Chap. 22. | |
| (b) 13 William 3, Sec. 1, Chap. 6. |
| no essoin, protection, privilege, wager of law, or any more than one imparlance shall be allowed. | |
| III. (a) Provided always, That if the said oaths, declaration, or any of them, shall be abrogated by the authority of the Parliament of Great-Britain, or shall become otherwise void, the same shall also be adjudged, deemed, and taken to be abrogated, and become void, in this colony and dominion. | |
| IV. And be it enacted, by the authority aforesaid, That the said county courts shall be holden upon the several days and times hereafter mentioned, that is to say: | Court Days. |
| For the county of Henrico, the court shall beheld upon the first
Monday in every month. For the county of Charles City, upon the first Wednesday in every month. For the county of Prince George, on the second Tuesday in every month. For the county of Surry, upon the third Wednesday in every month. For the county of Isle of Wight, upon the fourth Monday in every month. For the county of Nansemond, upon the fourth Wednesday in every month. For the county of Norfolk, upon the third Friday in every month. For the county of Princess Anne, upon the first Monday in every month. For the county of Elizabeth City, upon the third Wednesday in every month. For the county of Warwick, upon the first Thursday in every month. For the county of York, upon the third Monday in every month. For the county of James City, upon the second Monday in every month. For the county of New-Kent, upon the second Thursday in every month. For the county of King William, upon the third Thursday in every month. | |
| Notes to Edition 1733. | |
| (a) 4 Anne, Chap. 8, after the death of the Queen, an oath instead of the oath prescribed by 1 Anne, is appointed to be taken. And see the oaths appointed to be taken by the Statute 1 Geo. Chap. 13. |
| For the County of King and Queen, upon the fourth Monday in every
month. For the county of Gloucester, upon the fourth Thursday in every month. For the county of Middlesex, upon the first Tuesday in every month. For the county of Essex, upon the second Thursday in every month. For the County of Richmond, upon the first Wednesday in every month. For the county of Lancaster, upon the second Wednesday in every month. For the county of Northumberland, upon the third Wednesday in every month. For the county of Westmoreland, upon the last Wednesday in every month. For the county of Stafford, upon the second Wednesday in every month. For the county of Northampton, upon the third Tuesday in every month, And For the county of Accomack, upon the first Tuesday in every month. | |
| V. And that all persons may be the better ascertained when to attend any process or pleas, they shall have depending in the said county courts, or any of them, Be it enacted by the authority aforesaid, That the courts of the several counties shall be holden upon the respective days herein before appointed, and shall not be adjourned to any other time than the next succeeding court, which shall be in course, according to this act. | Courts to be held, as above. |
| VI. Provided always, if it should so happen, That all causes depending, or to be depending in any of the said county courts, cannot be heard and determined upon the day herein before appointed for holding the courts respectively; that then, and in such cases, it shall be lawful to and for the justices of such court to adjourn and hold the court de die in diem, until all causes and controversies then depending before them, shall be heard and determined, or otherwise continued, according to the due course of law. | Power of adjournment. |
| VII. And be it further enacted, by the authority aforesaid, That the justices of the said county court, or any four of them, as aforesaid, may & shall take cognizance of, and are hereby declared to have full power and lawful authority and jurisdiction to hear and determine all | Four Justices to constitute a Court. |
| causes whatsoever, cognizable at common law, or in chancery, within their respective counties, except such criminal causes, wherein the judgment, upon convection, shall be for the loss of life, or member, and except the prosecution of causes to outlawry against any person or persons, and also except all causes of less value than twenty shillings sterling, or two hundred pounds of tobacco; all which said causes of less value than twenty shillings sterling, or two hundred pounds of tobacco, are hereby declared to be cognizable, and finally determinable by any one justice of the peace. | Jurisdiction. |
| VIII. Provided always, That if any suit shall be commenced for twenty shillings sterling, or two hundred pounds of tobacco, or any greater sum, and upon settling & adjusting accounts, the ballance due, shall be less than those sums, or any one of them; yet judgment shall be granted for such lesser sum; any thing herein before contained to the contrary, notwithstanding. | Proviso, where the sum is reduced by discounts. |
| IX. And be it further enacted, by the authority aforesaid, That the said justices of the peace, and every of them, from time to time, and at all times, during their continuance in that office, as well out of court, as within, shall have power to maintain and keep the peace within their respective counties, in which, and in the hearing and determining all causes in court, according to the authority and power herein before mentioned to be granted to and vested in them by this or any other act, they and every of them shall proceed to do justice to all persons whatsoever, according to law: and to that intent, the said justices of the peace, and every one of them, at his or their entring into and upon the execution of the said office of a justice of the peace, are hereby required and enjoined, under the like penalties and forfeitures as is before mentioned, for not taking the oaths appointed by act of parliament to be taken, instead of the oaths of allegiance and supremacy, (to be recovered and divided int he same manner,) to take the following oaths, and every of them, for the due execution of his and their said office and offices respectively. | Authority and jurisdiction of Justices of the Peace. |
| THE OATH OF A JUSTICE OF THE PEACE. | |
| YOU shall swear, That as a Justice of the Peace in the County of A, in all articles in the Commissions to you directed, you shall do equal right to the Poor | Oath of a Justice of the Peace. |
| and to the Rich, after your cunning, wit, and power, and according to Law; and you shall not be of council of any quarrel hanging before you; and the issues, fines, and amerciaments that shall happen to be made, and all forfeitures which shall fall before your, you shall cause to be entered, without any concealment or imbezzelling; you shall not let for gift, or other causes, but well and truly you shall do your office of Justice of the Peace, as well within your County Court as without; and you shall not take any fee, gift, or gratuity, for any thing to be done by virtue of your office; and you shall not direct, or cause to be directed, any warrant (by you to be made) to the parties, but you shall direct them to the Sheriff or Bailifs of the said County, or other the Queen's Officers or Ministers, or other indifferent persons, to do execution thereof. So help you God. | |
| THE OATH OF A JUSTICE OF THE COUNTY COURT IN CHANCERY. | In Chancery. |
| YOU shall swear, That well and truly you will serve our Sovereign Lady the Queen, and her People, in the Office of a Justice of the County Court of A, in Chancery; and that you will 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 this colony and dominion of Virginia, without favour, affection, or partiality. So help you God. | |
| X. And be it enacted, That it shall and may be lawful for any Justice of the Peace, upon complaint made to him by any person, that his Debtor is removing himself out of the County privately, or hath absconded & concealed himself, so as the ordinary Process at Law cannot be served against him, to grant an Attachment against the estate of such Debtor, or so much thereof, as shall be of value sufficient to satisfy the Debt of the Party praying such Attachment, returnable to the next County Court; which Estate being so attached, shall be repleviable by security given, and appearance at the said next Court. | Attachments against absconding debtors. May be replevied. |
| XI. Provided, That before granting such Attachment, the said Justice shall take Bond and Security of the Person praying the same, to pay all damages that | Bonds, on granting attachments. |
| shall be awarded to the Defendant, in case the Plaintiff, or Person, desiring such Attachment, shall be cast in the Suit. | |
| XII. And for the more easy and regular prosecution and determination of all Suits and Actions in the County Courts, Be it enacted by the authority aforesaid, That all original Process, either by Writ, Summons, or any other manner or means, to bring any person or persons whatsoever, to answer any action, suit, information, bill, or plaint, in any of the County Courts, and all Executions and Attachments awarded by any of the said Courts, at the Common Law, and all Subpœnas, Attachments, and other Process in Chancery, and all other Process regularly and legally belonging and appertaining to any Cause or Matter depending, or to be depending, in any of the said County Courts, shall be issued by the Clerk of the said County Courts, respectively, and shall also be again returned to he same Office whence they were issued. | Rules, for issuing and returning process. |
| XIII. And be it further enacted, That all Process whatsoever, returnable to any County Court, shall be executed at least three days before the Court Day therein mentioned, for the return thereof; and if any Process shall be delivered to any Sheriff, or other Officer, so late that he cannot execute the same three days before the return, then it shall not be lawful for such Sheriff, or other Officer, to execute the same three days before the return thereupon, according to the truth of the case: And if any person take out any original Process within three days before a county Court Day, such Process shall be made returnable to the next Court, after the Court Day coming, within three days, as aforesaid, and not otherwise; and all such Process issued and made returnable, otherwise than is herein directed, shall be, to all intents and purposes, null and void. | Must be executed 3 days before return. |
| XIV. Provided always, That notwithstanding any thing herein contained, it shall and may be lawful for any Justice or Justices of the Peace, by Warrant under their hand, to cause any Traitor, Felon, Pirate, Rioter, Breaker of the Peace, or other criminal offenders, to be apprehended and brought before the same, or some other Justice or Justices, or before the next County Court, although there shall not be three days | Proviso, as to criminals. |
| between the execution of such Warrant and the day of the return thereof. | |
| XV. And be it further enacted, by the authority aforesaid, That the issuing of Process against any Member of Her Majesty's Council, or against the Sheriff of the County, and the proceedings of the Court thereupon shall be after the same manner in the County Court, as is directed for the General Court; and that upon the Sheriff's attaching the body of any person or persons, and upon such person or persons failing to appear thereupon, the method of process against the Sheriff, his Executors or Administrators, or against his Estate; and also an Attachment for the Bail or Sheriff, or his Executors ro Administrators, against the Estate of the person failing to appear, shall be had and pursued after the same manner, as is directed for the General Court. | Process against a Member of the Council, or Sheriff. |
| XVI. And for the better and more regular prosecution and determination of all Causes in the said County Courts, and for the more exact entring of the Judgments of the said County Courts, and for the preservation of the Records thereof, Be it enacted, by the authority aforesaid, That these following Rules and Methods shall be observed, to wit: | |
| That every Plaintiff or Demandant shall file his Declaration one day before the Court; and any person that desires the Clerk to draw his Declaration, shall give directions for the same in writing to each Clerk, at least two days before the Court. | Rules of practice. |
| That if the Plaintiff or Demandant fails to file his Declaration, or to appear and prosecute his Suit, he shall be Nonsuit. | |
| That where any Nonsuit is awarded by the Court, there shall five shillings be paid for the same, besides costs of Suit. | |
| That the Defendant or Tenant shall prepare his Plea in writing, to the Declaration of the Plaintiff or Demandant. | |
| That the Clerk of the Court do carefully preserve the Declarations, Pleas, and all Evidences, and other Papers relating to any Cause, and that they be all filed together in the Office. | Clerk to preserve papers. |
| That in all Cases where the Title or Bounds of any Estate in Land is determined, the Pleadings shall be | Land Causes. |
| all in writing, and shall be entred at large, with the Judgment thereupon, in particular Books set apart for that purpose only. | |
| That all Proceedings and Judgments in Pleas of the Crown, for Fines and Forfeitures, and in other matters relating to Her Majesty's Revenues, be recorded in particular Books set apart for that purpose. | Criminal cases. |
| That in all Cases, were any fine is laid upon the Members of the Vestry of any Parish, one Action may be brought against them all jointly. | Vestries, how sued. |
| And for prevention of errors in entring the Judgments of the County Courts, the Justices, before they adjourn the Court, shall cause the Minutes of their Proceedings to be publicly read by the Clerk, and corrected as occasion shall require; and then the same shall be signed by the First Justice in Commission, present at such Reading and Correction; which Minutes so signed, shall be taken in a Book, and carefully preserved amongst the Records; and no Proceedings or Judgments of any Court shall be of force or valid, until they be so read and signed, as aforesaid. | Minutes, to be read and signed. |
| XVII. And be it further enacted, That the person who shall become Special Bail in any Personal Action, shall be liable for satisfying the Judgment that shall be given against the Defendant, unless he shall render his body in execution in discharge of his bail; and if in any personal action, the Plaintiff shall move, that the Defendant may be obliged to give special bail for satisfying the Judgment, it shall and may be lawful for the Court where such action shall be depending, if they see cause, to commit the Defendant to the Custody of the Sheriff, until he shall give sufficient bail accordingly. | Special bail, when liable. Court may rule to bail. |
| XVIII. Provided, That no person shall be obliged to give Special Bail in any Suit that shall be depending for the breach of a Penal Law. | No special bail for breach of penal laws. |
| XIX. And forasmuch, as by exceptions taken to Declarations by Delatory Pleas, Justice is often delaied, to the great vexation and unnecessary charge of Her Majesty's good Subjects, Be it therefore enacted, That in all personal actions where the Declaration shall plainly set forth all matters of substance required therein, to proceed upon the merits of the cause, the Suit shall not abate for want of form. | Dilator pleas. |
| XX. And be it further enacted, That no Process depending in any County Court shall be discontinued, for or by reason of the Justices failing to hold Court upon the day appointed for the same by this Act; but in case of such failure, all suits, process, matters, and things depending, shall be continued, and all returns and appearance shall be made to the next succeeding court, in the same manner as if such succeeding Court had been the same Court, whereto such suits, process, matters, and things were continued, or whereto such returns and appearances should otherwise have been made; and all recognizances, bonds, and other obligations for appearance, and all returns, shall be of the same force and validity to enjoin the appearance of any person or persons at such succeeding Court, as if the same had been expressly mentioned and set down therein: And if any one or more Justice or Justices of the Court shall be a party or parties concerned in any suit, process, matter or thing, depending in any County Court, and there shall not be Justices enow present to make a Court according to this Act, besides such Justice or Justices so concerned; then such suit, process, matter, or thing depending, shall stand continued to the next succeeding court, as aforesaid; any law, custom, or usage to the contrary hereof, in any wise, notwithstanding. | Discontinuances, not for court failing to set. |
| XXI. And for the better discovering the truth in matters of fact to be tried in the County Courts, Be it enacted, That the Rules and Orders hereafter set down, shall be observed, to wit: | |
| That in all cases where witnesses are to appear in the County Court, a Summons shall be issued for the same, by the Clerk of such County Court, for the time being, expressly mentioning the time and place where the witnesses are to appear, and the names of the parties to the Suit wherein they are to give evidence, and at whose request they are summoned. | Witnesses, how summoned. |
| That if any witness live in another County than where the Suit is depending, in which his evidence is required to be given, a Summons shall be issued by the Clerk, and signed by one Justice of the quorum in the County where the Suit is depending, directed to the Sheriff of the County where such witness resides; which Summons such Sheriff is hereby required to execute: and | Commissions to take depositions, de bene esse, when to issue. |
| if thereupon, the witness shall fail to appear, he shall be fined in like manner as is hereafter directed, for witnesses living within the County, And if such witness shall attend, according to the Summons, he shall be allowed for the same, in like manner as is directed for witnesses attending the General Court. And if any such witness shall, by sickness, age, or other disability, be incapable to attend, than it shall be lawful for the Justices of the Court where such witness should have attended, ro any two of them, (whereof one to be one of the quorum,) to issue one or more commission or commissions for taking the affidavit of such witnesses so incapable to attend in manner as is directed in the like case, for the General Court. | |
| That every person summoned as a witness to any County Court, and failing to appear accordingly, and attend the trial, for every such failure, shall forfeit and pay to the party grieved, three hundred and fifty pounds of Tobacco: to be recovered, with costs, by action of debt, in any Court of Record within this dominion; and shall be further liable to an action on the case, at the suit of the party grieved, for what damages he shall sustain for want of such person's testimony: Provided always, That if at the time such person so summoned ought to have appeared, sufficient cause be shewn of his or her incapacity to attend, then no forfeiture or penalty shall be incurred by such failure. | Penalty on witnesses, failing to appear. |
| XXII. And for the more regular granting of Appeals from the County Courts to the General Court, Be it enacted, That when any person or persons being Defendant or Tenant, in the County Court, shall pray an Appeal to the General Court, such person or persons (before such Appeal shall be granted) shall give Bond, with good and sufficient Security, for the prosecuting the same with effect, and to perform the Judgments of the General Court, and to pay damages, if the Judgments of the County Court shall be affirmed, in manner as is hereafter directed, to wit: | Appeals. Bond and security. |
| In all personal and mixt Actions, the damages shall be fifteen per cent. upon the principal sum, with all the costs and damages, ordered to be paid by the Judgment of the County Court. | Damages, in personal and mixt actions. |
| And in every real Action, the damage shall be two thousand pounds of Tobacco, over and above all costs, | In real actions. |
| and other charges and damages, ordered to be paid by the Judgment of the County Court. | |
| And if any person or persons, being Plaintiff or Demandant in the County Court, shall appeal to the General Court, then the same Bail which shall be given for the appearance of the Defendant or Tenant at the County Court, shall also stand bound for the like appearance at the General Court, to answer the Appeal; unless, upon good reason shewn, the County Court shall think fit to direct that Special Bail be given to answer such Appeal. | Bail bond, where plaintiff appeals. |
| And if any Plaintiff or Demandant shall appeal to the General Court, as aforesaid, he shall give Bond, with Security, in the sum of twenty pounds, current money, that he will prosecute the same with effect; and if he do not appear to prosecute the said Appeal, then the said Bond shall be forfeited to the Defendant or Appellee; and if the Appellant do appear, and upon trial, the County Court's Judgment shall be affirmed; in such case, the Appellant shall pay to the Appellee, fifty shillings, current money, or five hundred pounds of Tobacco, besides all costs accruing on such Appeal. | Penalty of bond, where plaintiff appeals. |
| XXIII. And be it further enacted, That when a Judgment shall be obtained against any person or persons, in the County Court, in any transitory action, and the person against whom the same is granted, shall remove himself out of that County, so as execution cannot thereupon be served on him, it shall and may be lawful for the Clerk of the Court where such Judgment was granted, to make out, and for any Justice of the Peace of the Quorum, in the said County, to sign an Execution against the Body of the said Defendant, and to direct the same to the Sheriff of any County within this Colony; and any Sheriff, to whom the said Executions hall be delivered, is hereby impowered and directed to serve the same upon the Body of the Defendant being within his County, in the same manner, as if the Execution had issued from the Court of the County where such Defendant shall be found. | Executions against a person removing out of his County. |
| XXIV. 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 | Repealing clause. |
| of this Act, is and are hereby repealed, and made void to all intents and purposes, as if the same had never been made. | |
CHAP. XII. | |
| An Act to prevent the destroying an murdering of Bastard Children. | From Stat. 21 Jac. chap. 27 |
| I. WHEREAS several leud women, that have been delivered of bastard children, to avoid their shame, and to escape punishment, do secretly bury or conceal the death of their children; and after, if the child be found dead, the said women do alledge, that the said child was born dead; whereas it falleth out sometimes, (although hardly it is to be proved) that the said child or children were murdered by the said women, their leud mothers, or by their assent or procurement: for preventing therefore of this great mischief, | Preamble. |
| II. Be it enacted by the Lieutenant-Governor, Council and Burgesses, of this present General Assembly, and it is hereby enacted by the authority of the same, That if any white or other woman, not being a slave, after one month next ensuing the end of this present Session of Assembly, be delivered of any issue of her body, male or female, which bing born alive, should by law be a bastard, & that she endeavour privately, either by drowning, or secret burying thereof, or any other way, either by herself, or the procuring of others, so to conceal the death thereof, as that it may not come to light, whether it were born alive, or not, but be concealed; in every such case, the mother so offending, shall suffer death, as in case of murder, except such mother can make proof, by one witness at the least, that the child (whose death was by her so intended to be concealed) was born dead. | Murder to conceal the death of a bastard child. |
| III. And to the end, this Act may be made public, Be it further enacted, by the authority aforesaid, That the same shall be read yearly, on some Sunday in May, in all Parish Churches and Chappels within this Colony, by the Minister or Reader of each Parish, immediately after Divine Service, under the penalty of five hundred pounds of Tobacco for every omission and neglect therein: to be recovered, with costs, by the informer, | This act to be yearly read in Churches. |
| in an action of case, wherein no essoin, protection, or wager of law, or more than one imparlance shall be allowed. and the Churchwardens of every Parish, are hereby required to provide a copy of this Act, at the charge of the Parish, under the penalty of five hundred pounds of Tobacco: to be recovered in manner aforesaid. |
| Pages 482-499
| Pages 517-540
|