Pages 168-181 
|  Pages 204-220
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| Pages 168-181
| Pages 204-220
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| AT A General Assembly, BEGUN AND HELD AT |
Wm. Gooch, esq. governor. | ||
| |||
 CHAP. I. | |||
| An Act for laying a Duty on Slaves imported; and for appointing a
Treasurer. CHAP. II. |
Enacted with a suspending clause and not assented to by the king. | ||
| An Act for erecting a Light-House on Cape Henry. CHAP. III. |
The same. | ||
| [From edit. 1733.] | ||
| I. WHEREAS it hath been found by experience, that the present method of proceedings in the several courts of justice within this colony, is the occasion of very great delay in the determining of suits commenced and prosecuted in the said courts; and the laws now in force for regulating and establishing the | Preamble. (See ch. 19. 1705.) |
| said courts, have been found very defective: for remedy whereof, | |
| 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 all original process, either by writ, summons, or any other manner or means, and all subsequent process thereupon, to bring any person or persons whatsoever, to answer in any action, real, personal, or mixt, suit, information, bill, or plaint, in the general court, and all attachments awarded by the general court, at common law, and all subpœnas to answer in chancery, which shall be sued out from and after the fifteenth day of April, which shall be in the year of our Lord one thousand seven hundred and twenty eight, shall be returnable on the first or seventeenth days of every general court, and on no other days or times whatsoever: And all such writs and process, as aforesaid, as thereafter shall be issued and made returnable, at any other days or times, then herein before directed for the return thereof, shall be null and void: And all such writs and process shall bear teste by the governor, or commander in chief, for the time being, and be signed by the clerk of the said court, and may be executed at any time before the day of the return thereof: And if any writ or process shall be executed so late, that the sheriff hath not reasonable time to return the same before the day of appearance herein-after mentioned, and thereupon an alias capias, pluries capias, attachment, or other process shall be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed; and thereupon the plaintiff shall declare and use the same proceedings as herein after directed, and as if such writ or process had been returned to the secretary's office, on or before the day of appearance, after the return thereof; any law, usage, or custom to the contrary thereof, in any wise, notwithstanding. | Process issued from general court to be returnable to the 1st or
17th days of every term. Writs to teste by governor, and signed by clerk. How executed and returned. |
| III. And be it further enacted, That from and after the said fifteenth day of April, when any writ shall issue, whereby the sheriff is commanded to take the body of any person or persons to answer unto any plaintiff or plaintiffs in the general court, in any personal action, and no debt or damage shall be mentioned in such writ, or if bail shall not be by law requirable, in | Bail, when engagement of an attorney may be taken instead of. |
| every or any such case, the sheriff of the county to whom any such writ is or shall be directed, may take the engagement of any known and reputable attorney, under his hand, indorsed upon the said writ, that he will appear, or cause an appearance to be entred, for the defendant or defendants within named, according to the return of the said writ: Which appearance shall be entred with the clerk of the court, in the secretary's office, on the fourth day after the return of the process, on which any defendant or defendants shall be arrested: Which said fourth day after the return of any process, shall be accounted, deemed and taken, and is hereby declared to be the day of appearance thereto. | Appearance, in such cases. |
| IV. And if any attorney, or other person practising as an attorney, engaging to appear, or cause an appearance to be entred, as aforesaid, shall fail to enter, or cause the same to be entred, on the fourth day after the return of the process, on which the defendant or defendants shall be arrested, if not on a Sunday, and then the day following; every attorney, or other person practising as an attorney, so failing to enter, or cause an appearance to be entred, as aforesaid, shall forfeit and pay to the plaintiff or plaintiffs, the sum of fifty shillings current money; for which, judgment shall be immediately entred, and the plaintiff may take execution thereupon, by capias ad satisfaciendum, or fieri facias. | Penalty on attorney failing to appear according to engagement. |
| V. And be it further enacted, That upon executing any process whereupon bail shall be requirable, the sheriff shall return therewith the names of the bail by him taken, as hath been heretofore accustomed to be done, to the secretary's office, before the day of appearance: And if the sheriff shall not return bail, or the bail so returned shall be adjudged insufficient by the court, or the defendant shall fail to give special bail, being ruled thereto by the court, the sheriff or bail so returned, shall be subject to the same judgment and recovery, and have the same relief and remedy against the defendant or defendants, as the law in that case provides, and hath been theretofore accustomed. | Sheriff to return name of bail. Liability for failing. |
| VI. And if any interlocutory or final judgment shall be obtained against any defendant or defendants and the sheriff, or against any defendant or defendants and the bail, by the said sheriff returned as aforesaid, before any general court next ensuing the return of the | Interlocutory judgments against sheriff and bail, how set aside. |
| writ upon which such defendant or defendants is or shall be arrested; every such judgment so entred or obtained as aforesaid, shall be set aside, if the defendant or defendants on the first day of the general court next ensuing the return of the writ upon which such defendant or defendants was or were arrested, shall be allowed to appear without bail, or shall put in good bail, and shall plead to issue immediately. | |
| VII. And be it further enacted, That when any sheriff shall return, that he hath taken the body of any defendant, and committed him to prison for want of bail, the plaintiff may proceed, and the defendant shall be at liberty to make defence, as where an appearance shall be entred and accepted; nevertheless, such defendant shall not be discharged out of custody, unless the plaintiff shall be ruled to accept an appearance at the next succeeding general court, or by putting in good bail. | Defendant in custody may plead to issue. |
| VIII. And for the better ascertaining what process shall or may be sued out, where the sheriff shall return, that the defendant is not to be found within his bailiwic, | Proceedings on non est inventus. |
| IX. Be it further enacted, That where any sheriff shall make such return, as aforesaid, the plaintiff or plaintifs in any civil action, shall and may sue out an attachment against the estate of such defendant, returnable as herein before is directed, for the returns of original and other subsequent process thereupon, to force an appearance, or an alias or pluries capias, if the defendant cannot be arrested upon the alias capias; which pluries capias may be continued from time to time, till the defendant shall be arrested, at the election of the plaintiff or plaintiffs. And if the sheriff shall return any goods by him attached, the plaintiff shall file his declaration, and shall be entitled to a judgment for his whole debt; and the goods so attached, the plaintiff shall file his declaration, and shall be entitled to a judgment for his whole debt; and the goods so attached, shall remain in the custody of the sheriff, till such judgment obtained, and then be sold and disposed of in the same manner as goods taken in execution upon a writ of fieri facias: And if the judgment shall not be satisfied by the goods attached, the plaintiff may have an execution for the residue. | Attachment. Or alias or pluries capias. Proceedings on attachments. |
| X. Provided always, That the goods so attached, shall and may be replevied by appearance, or putting in bail, if the defendant shall be ruled to give special bail, by the court. | Attached effects, repleviable. |
| XI. And be it further enacted, That where any plaintiff will proceed to the outlawry of any defendant, in any civil action, he may upon the pluries capias, or capias ad satisfaciendum, returned non est inventus, sue out, and the clerk of the General Court is hereby impowered and required, upon request, to issue an exigent and proclamation, returnable upon either of the return days aforesaid; to the end, that such defendant may be outlawed thereupon. | Outlawry, process on. Exigent. |
| XII. And for a more speedy determination of all causes depending in the General Court, that can possibly be obtained by the rules heretofore established, and now in practice, Be it enacted, by the authority aforesaid, That from and after the said fifteenth day of April, these following rules and methods shall be observed: (To wit.) | Rules of practice, at common law. |
| That in all personal actions, the plaintiff shall file his declaration within four days after the defendant shall have entred his appearance with the clerk, in the Secretary's Office; and if the plaintiff shall fail or neglect do to do, he shall be non-suit. | Declaration. |
| And when the defendant has entred his appearance, and the plaintiff files his declaration, he may give a rule to plead, with the clerk of the general court, in the Secretary's Office, which shall be out in one calander month after the end of the court to which the process whereto such appearance shall be entred, was returnable: And if the plaintiff shall file his declaration, but give no rule to plead, the defendant may, upon the day on which the rule would have been out, if regularly given, file his plea and give a rule to reply. | Rule to plead and reply. |
| That all rules to plead, reply, rejoin, or, for further or other proceedings, shall be given regularly from month to month, after the first rule for pleading is expired and shall not be given to be out in less time than herein before mentioned, for rules to plead: Nor shall any rule be given between month and month; but such rules shall be given, as herein before is directed; to the intent, that all attorneys and other persons, by inspecting the rule book, to be kept by the clerk of the general court, in the Secretary's Office, for that purpose, may be the more certainly and readily informed what proceedings have been or are to be, in the several causes there depending. | Rules to plead, reply, and rejoin, when to be given. |
| That no nonsuit, judgment by Nihil dicit, or interlocutory or final judgment, shall be entred upon the expiration of any rule given, as aforesaid, unless the attorney entring such nonsuit, interlocutory or final judgment, shall have called upon the attorney on the other side (if any attorney be entred) two days at least before the entring such nonsuit or judgment, and given him notice of the expiration of the rule, if the attorney on the other side, at the time of the expiration of any rule, shall live or reside in the city of Williamsburg. | Notice of expiration of rule to be given. |
| That upon the expiration of any rule, and notice be given as aforesaid, (where the same is required,) judgment by default, or a nonsuit shall be signed by the clerk in the office, as of the preceeding court: Which judgment shall be final in actions of debt, where the debt is certain; and in other actions, a writ of enquiry shall be executed the next court after judgment shall be signed in the office; the plaintiff's attorney giving the defendant, or his attorney, six days notice of the execution thereof, if the defendant lives within twenty miles of the city of Williamsburg, and if more than that distance, twelve days notice. | Office judgments, when final; when writ of enquiry necessary. |
| That no issue shall be tried the next succeeding general court after it is joined, unless ten days notice be given by the plaintiff's attorney, to the defendant, or his attorney, before the day of trial, if the defendant lives within twenty miles of the city of Williamsburg; but if he lives at a greater distance, then twenty days notice shall be given. | Issues, notice of trial of. |
| If an issue be not tried, or a writ of enquiry executed, the next court after it is joined, or judgment by Nihil dicit, or interlocutory judgment entred, no notice of trial, or executing such writ, need to be given; but such causes shall be called in the same order as they stand on the clerk's docket. | When notice dispensed with. |
| That when any final judgment shall be obtained out of court, the clerk shall allow a lawyer's fee in the bill of costs, if the plaintiff emploied one; which said fee is hereby declared, in all cases in the general court, to be fifty shillings current money, or five hundred pounds of tobacco, at the election of the party adjudged to pay the same. | Lawyer's fee, amount, &c. when taxed. |
| That the clerk, before every general court, shall enter in a particular docket for that purpose, all such causes: and those only in which any issue is to be tried, |
| writ of enquiry to be executed, special verdict or demurrer to be argued; and all causes set down for hearing or argument in chancery, in the same order as they stood in course of proceedings; setting, as near as may be, an equal number of such causes to each day. | |
| That where a special verdict shall be found, time shall be allowed, upon the motion of either party, to the same day in the next general court to which it stood that court in which the verdict shall be found, to argue it. And if any causes shall, at the end of the general court, remain undetermined, they shall be continued of course, by the clerk, to the same day in the succeeding court to which they were set down at that court, without calling the same in court. | Special verdict, when to be argued. Causes not called continued. |
| That for the more entire and better preservation of the records of the court, when any cause shall be finally determined, the clerk shall enter all the pleadings therein, and other matters relating thereto together, in a book to be kept for that purpose; so that an entire and perfect record may be made thereof. | Making up records. |
| That all witnesses attending the general court shall not ask or claim any allowance for their attendance, in the court, but shall require an allowance thereof by the clerk, in the office, unless the said clerk shall refuse to allow such claim; and then any witness shall be at liberty to apply to the court for an allowance thereof. | |
| XIII. And forasmuch as appeals have been heretofore too frequently allowed, and supersedeases granted, under pretence of correcting the errors of inferior courts, where the matter in dispute hath been of small and inconsiderable value, to the great trouble and vexation of his majesty's subjects: For remedy whereof for the future, | Witnesses' attendance, |
| XIV. Be it enacted by the authority aforesaid, That no appeal shall be allowed, or supersedeas granted, for reversing any judgment or decree given in any inferior court of record, or court of chancery, within this dominion, in any action or suit whatsoever, where the debt or damage, or other matter recovered in such action or suit, exclusive of the costs, shall not exceed five pounds current money, or one thousand pounds of tobacco, or the value thereof; unless, in such suit, the title or bounds of lands shall be drawn in question. | Appeals and supersedeas, when grantable, |
| XV. And for settling the method of, and expediting proceedings in the general court, in chancery, |
| XVI. Be it also enacted, That in all suits in the general court, in chancery, which shall be commenced from and after the said fifteenth day of April, the following rules and methods shall be put in practice, and observed: (To wit.) | Rules in practice in chancery. |
| That the complainant shall file his bill within four days after the return day of the subpœna to answer. | Bill, when to be filed. |
| That upon the complainant's dismissing his bill, or the defendant dismissing the same for want of prosecution, the complainant shall pay costs, to be taxed by the clerk of the court, with the lawyer's fee; for which costs a subpœna, or other process of contempt may issue, returnable on any return day; Provided there be a month's time between the suing out such process, and the day of the return thereof. | Costs, on dismission. |
| The complainant may amend his bill before the defendant appears, or in a small matter afterwards, without paying costs: but if he amend after appearance, and in a material point, whereby the defendant shall be put to any extraordinary costs, such costs shall be paid, before the complainant shall be at liberty to amend his bill. | Amendments. |
| If any defendant shall stand out all processes of contempt, or, being brought into court upon any such process, shall obstinately refuse to answer the complainant's bill, the complainant's bill shall be taken pro confesso, and the matter thereof decreed accordingly. | Contempt. |
| The defendant shall put in his answer, to be filed with the clerk in the office, within two months after his appearance; at the expiration of which time, if no answer shall be put in, the clerk, upon request, shall issue an attachment, returnable to the next court: And if no answer shall be put in upon the return of the attachment, such further process of contempt may issue, as is issuable out of the high court of chancery in England, in like cases. | Answer, when to be filed. |
| No process of contempt shall issue without oath made of the service of the subpœna, unless the same shall be returned served, by a sworn officer. | Process of contempt. |
| When any defendant shall be in contempt for want of an answer, after the first attachment, his answer shall not be received, but upon paiment of costs; and until he shall put in his answer, and pay costs, the complainant shall be at liberty to proceed against him for contempt. | Costs, after contempt. |
| If any defendant shall stand out further process of contempt than an attachment, before he puts in his answer, on every process subsequent thereto, the costs shall be doubled. | Double costs. |
| That the day of appearance, upon any subpœna, to answer any suit in the general court, in chancery, shall be on the fourth day after the return day therein mentioned, in like manner as is herein before provided, for entring appearances on process to enforce an appearance at common law. | Appearance on subpoena. |
| Every defendant shall be at liberty to swear his answer before any judge or justice of the general court, or before any justice of the peace. | Answer, how sworn to. |
| When any cross bill shall be preferred, the defendant or defendants in the first bill, shall answer thereto, before the defendant or defendants in the second bill shall be compellable to put in his or their answers to such cross bill. | Cross bills, practice on. |
| The complainant shall reply, or file exceptions within two months after the defendant's putting in his answer: And if the complainant, at the expiration of that time, shall neither reply, or file exceptions, the defendent may give the complainant a rule to reply, with the clerk of the court, in the secretary's office; which being expired, and no replication or exceptions filed, the suit shall be dismissed, with costs, and a lawyer's fee. | Replication, or Exceptions. |
| If any bill shall be dismissed for want of a replication, or other proceedings, the court, if they see cause, may order the same to be retained, upon a motion and paiment of costs. | |
| If the complainant's attorney shall give notice to the defendant's attorney, that he doth except against the answer of any defendant or defendants, as insufficient, and give a rule with the clerk in the office, to make a better answer within two months; if, before the expiration of such rule, the defendant shall put in a sufficient answer, the same shall be received, without costs: But if the attorney of such defendant or defendants insists on the sufficiency of the answer so put in, and shall neglect or refuse to put in a sufficient answer, ro shall put in another insufficient answer, the plaintiff may file his exceptions within a month thereafter, to any such insufficient answer; and may also set down such exceptions to be argued to be argued the next succeeding general court, | Insufficient answer, proceedings on. |
| giving the defendant, or his attorney, ten days notice before the day of argument: And after exceptions filed, or any second insufficient answer put in, no further or other answer shall be received, but upon paiment of costs. | |
| And if, upon argument, the complainant's exceptions shall be overruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the defendant, or the defendant to the complainant, as the case shall be, such costs as shall be allowed by the court. | Costs of overruling. |
| That upon every second or third answer adjudged insufficient, costs shall be doubled. | 2d or 3d insufficient answer. |
| If any defendant shall put in a fourth insufficient answer, which shall be so adjudged, such defendant shall be examined upon interrogatories, and committed till he shall perfectly answer those interrogatories, and pay costs. | 4th insufficient answer. |
| Upon adjudging any answer insufficient, the complainant may have one subpœna for costs, and another to make a better answer; or one subpœna for costs, and to make a better answer, at his election. | Process, after insufficient answer. |
| If the defendant, after process of contempt, put in an insufficient answer, which shall be so adjudged, the complainant shall not be obliged to take out a new subpœna, but may go on to the attachment, with proclamation and other process of contempt, as if no answer had been put in. | Insufficient answer after process of contempt. |
| That rules to plead, reply, rejoin, and for further Proceedings, when necessary, shall be given from month to month, as is herein before directed for rules to be given in proceedings at common law. | Rules to plead, reply, &c. |
| Where the complainant conceives sufficient matter to be confessed, by the defendant's answer, he may set down the cause for, and proceed to a hearing, giving the defendant, or his attorney, such notice as is required for trial of issues at common law. | Hearing, on bill and answer. |
| No defendant shall be admitted to put in a rejoinder, unless it be filled [filed] within four days after the expiration of the rule to rejoin; but the complainant may procede to the examination of witnesses. | Rejoinder. |
| No rule to rejoin shall be given, before a replication shall be filed. | Replication. |
| After an attachment, with proclamation, returned, no plea or demurrer shall be received, unless by order of court, upon a motion. | Plea or demurrer. |
| If the complainant conceives any plea or demurrer to be naught, either for the matter or manner of it, he may set it down, with the clerk, to be argued; or if he thinks the plea good, but not true, he may take issue upon it, and procede to proofs, giving such notice of hearing as aforesaid; and if such plea shall be adjudged false, the complainant shall have the same advantage, as if the same plea were found false by verdict at common law. | Plea, or demurrer act down for argument. |
| If a plea be pleaded, or demurrer put in, and overruled, no other plea or demurrer shall thereafter be received; but the defendant shall answer the allegations of the bill. | Plea or demurrer overruled. |
| The complainant, a month after a plea or demurrer put in, may cause the same to be set down, to be argued: But if the complainant shall not procede to have the same set down to be argued, before the second court after such plea or demurrer put in, the bill may be dismissed of course, with costs and a lawyer's fee. | When to be set down for argument. |
| The same notice shall be given, of arguing a plea or demurrer, as of hearing, in other cases. | Notice. |
| Upon a plea or demurrer, argued and over-ruled, costs shall be paid, as where an answer shall be adjudged insufficient; and the defendant shall answer within two months after; but if adjudged good, the defendant to have his costs. | Costs, on plea or demurrer. |
| If any defendant shall obstinately insist on a demurrer, and refuseth to answer, where the court shall be of opinion that sufficient matter is alledged in the bill to oblige him to answer, and for the court to procede upon the bill shall be taken pro confesso, and the matter thereof decreed. | Refusal to answer. |
| Commissions to examine the witnesses, may be issued of course, by the clerk of the court, at any time. | Commissions. |
| After any bill filed, and before the defendant puts in his answer, upon oath made, that any of the complainant's witnesses are aged and inform, or going beyond sea, whereby the complainant thinks he is in danger of losing the benefit of their testimony, the clerk may issue a dedimus, to take the examinations of such witnesses, de bene esse, giving notice so as to be valid, if the complainant has not an opportunity to take their examinations in the ordinary course of proceedings. | Witnesses aged and infirm or going beyond the seas. |
| When any cause shall be at issue, and the examination of witnesses returned, if the complainant shall not | Cause set down for hearing. |
| within a month thereafter, set down the cause for hearing, with the clerk, in the secretary's office, the defendant may have the cause set down at his request, and bring on the cause to hearing, giving the complainant, or his attorney, such notice as is herein before directed; any former or other law, rule, or custom, to the contrary hereof, in any wise, notwithstanding. | |
| XVII. And whereas, some doubt hath heretofore been, whether any, and what allowance was settled by law, for witnesses attending the county court, and inhabiting within the same county? For settling the same for the future, | |
| XVIII. Be it further enacted, by the authority aforesaid, That every person summoned to appear as a witness at any county court, and being an inhabitant of the same county, shall be paid by the person or persons, at whose suit the summons issued, thirty pounds of tobacco per day, for every day's attendance upon such summons. | Allowance to witnesses attending county courts. |
| XIX. And be it further enacted, by the authority aforesaid, That the clerk of every county court shall and may, and is hereby authorized and impowered, to issue one or more summons or summonses, for any person or persons, to attend as witnesses upon any survey of land, which shall be ordered to be made by the county court. And if any witness or witnesses shall be an inhabitant of another county, the clerk of the same court is hereby authorized and impowered, to issue one or more summons or summonses, into any other county ro counties where such witness or witnesses is or are an inhabitant or inhabitants, or most usually resident: Which summons or summonses so to be issued, may be directed to the sheriff or coroner of that county whereof or wherein such witness or witnesses is or are an inhabitant or inhabitants, or most usually resident. | Summons for witnesses, when & how to issue. |
| XX. And if any person summoned to attend as a witness at any county court, shall fail to attend accordingly; every person so failing, shall forfeit and pay, to the person or persons, at whose suit the summons issued, three hundred and fifty pounds of tobacco; and shall be further liable to an action on the case, for what damages such person shall sustain for want of such witness's testimony. | Witness failing to attend, penalty on. Further damages. |
| XXI. Provided always, That if sufficient cause be shewn by the person so summoned and failing to appear, of his or her incapacity to attend at the time he or she ought to have appeared, then no forfeiture or penalty shall be incurred by such failure; but if sufficient cause be not shewn at the next succeeding court after such failure, it shall and may be lawful for the said court, upon the motion of the party for whom such witness was summoned, to grant judgment for the forfeiture afore-mentioned, against the person or persons so summoned and failing to appear, as aforesaid. | When they may be excused. |
| XXII. And be it also enacted and declared, That when any justice shall have given judgment in any matter cognizable before him, he shall and may, and is hereby declared to have full power and authority, to issue an execution upon such judgment; which may be directed to the sheriff or constable. And upon complaint that any person, indebted to the complainant, in any less sum than twenty shillings sterling, or two hundred pounds of tobacco, is removing himself out of the county privately, or hath absconded, and conceals himself, so that a warrant cannot be served upon him, it shall and may be lawful, to and for any justice of the peace, taking bond and security as is directed by the act of assembly, for establishing county courts, and for regulating and settling the proceedings therein, 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 before himself, or any other justice of the peace of the county, who shall and may procede thereupon, as upon an attachment returnable to the county court. | Executions may be issued by justices; and attachments for sums
under 20 shillings. (Ch. 11, 1710.) |
| XXIII. And if any attachment, returnable to the county court, or before a justice of the peace, shall be returned executed and the goods attached shall not be replevied, as the law directs, the plaintiff shall have judgment for his whole debt, and may take execution thereupon: And all goods taken upon an attachment awarded by the county court, or by any justice of the peace, and not replevied, as herein before is mentioned, shall be sold and disposed of, for and towards satisfaction of the plaintif's judgment, in the same manner as goods taken in execution, upon a writ of fieri facias. | Attachments not replevied judgment for whole debt. Ch. 3, 1726. Goods how sold. |
| XXIV. And for the further prevention of delay, trouble, and vexation, by arresting and reversing judgments given in the several courts of justice within this colony, | |
| XXV. Be it further enacted, That the several acts of parliament heretofore made, and commonly called Statutes of Jeofails, and now in force and use in England, shall be and are hereby declared to be, for so much of the said statutes as relates to any mispleading, jeofail, and amendment, in full force in this dominion also. | Jeofails, statute of. |
| XXVI. And for the more speedy recovery of small debts, in the several county courts of this dominion. | |
| XXVII. Be it further enacted, That from and after the said fifteenth day of April, it shall & may be lawful, to and for the justices of any county court, to hear and determine all suits thereafter to be brought, for any debt or demand, due by judgment, obligation, or account, for any sum or sums of money or tobacco, of the value of twenty shillings sterling, or two hundred pounds of tobacco, and not exceeding the sum of five pounds current money, or one thousand pounds of tobacco, by petition. And the said justices are hereby authorized and required, and shall have full power and authority so to do, and to award execution thereupon; and that, upon filing any such petition in the clerks office, a summons of course shall be issued, under the hand of the clerk, returnable to the next court; which, together with the copy of the petition, shall be delivered to the defendant, and the same being so delivered, or left at the usual place of his abode or residence, ten days before the next succeeding court, and oath made of the due service thereof, if the defendant do not, or shall not then appear, it shall and may be lawful to and for the said justices to hear and examine into the truth of the matter complained of, and to determine the cause upon the evidence produced, or to dismiss the petition, as to them shall seem just. And if the defendant shall appear upon any such summons, he shall put in such answer or plea thereto, as will bring the matter of the complaint in issue: And thereupon, or if he shall fail to plead, the said justices shall instantly procede to hear and determine the cause, in a summary way, upon such evidence as shall be given, and shall give judgment according as the very right of the cause | Warrants for sums under 20 shillings. Petition and summons, for sums between 20 shillings, and 5 pounds. |
| and matter in law shall appear unto them, without regard to form, or want of form, in the process, petition, or course of proceedings; so as sufficient matter be set forth, whereupon the court may give judgment according to the very right of the cause: In which proceedings, the defendant shall have the benefit of all matters in his defence, that he might have had, if he had been sued in the ordinary forms of law. | |
| XXVIII. And be it further enacted, That the clerk of every county court shall and may issue summonses for witnesses to attend the trial of any such petition; who shall be paid for attendance, and be subject to the same forfeiture, on failure to appear and attend the trial, as herein before is mentioned and expressed. | Witnesses, may be summoned. |
| XXIX. And be it further enacted, That from and after the commencement of this act, when any process shall be sued forth, or any suit either in law or equity shall be commenced and prosecuted in any court, or before any judge or magistrate within this colony, by virtue of any letter or warrant of attorney, or letter or warrant of substitution, or by virtue of any other deputation of power, from any person or persons residing in other parts than within this colony, against any person or persons inhabiting within this colony; such person so suing forth such process; or commencing or prosecuting any suit, at his or their first appearance, or at any time thereafter, when thereunto required, shall give good and sufficient security with the clerk of the general court, or in the court of the county, or other court, where such process shall be sued out, or suit depending, to satisfy 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 shall fail to give such security, being thereunto required, the suit shall thereupon abate, and the party prosecuted, shall be thence dismissed, without day. And that one act of a general assembly of this colony, intituled, An act for attorney prosecuting suits on behalf of persons out of the country, to give security for paiment of such costs and damages as shall be awarded against them, is and shall be from henceforth hereby repealed and made void, to all intents and purposes, as if the same had never been made. | Security for costs, when demandable. Suit dismissed for want of. Repeal of ch. 36, 1705. |
| XXX. And be it further enacted, by the authority aforesaid, That this act shall be in force from the said fifteenth day of April, one thousand seven hundred and twenty eight, for and during the space of four years then next ensuing, and from thence to the end of the next session of assembly. | Limitation of this act. |
| CHAP. IV. An Act for the better and more effectual improving the Staple of Tobacco. |
Repealed, ch. 1, 1730. |
| CHAP. V. An Act for making more effectual provision against Invasions and Insurrections. | |
| I. WHEREAS the frontiers of this dominion, being of great extent, are exposed to the invasions of foreign enemies, by sea, and incursions if Indians at land, and great dangers may likewise happen by the insurrections of negros, and others; for all which, the militia, now settled by law, is the most ready defence. And forasmuch, as the militia of those counties, where any of the dangers aforesaid shall arise, must necessarily be first emploied, and may, by the divine assistance, be able to suppress and repel such insurrections and invasions, without obliging that of the other counties to be raised: And it being reasonable, that such services as shall be performed by any part of the said militia, be rewarded at the public charge, | Preamble. [9 Geo. 1. c. 2.] |
| 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 upon any invasion of an enemy by sea or land, or upon any insurrection, the governor, or commander in chief of this dominion, for the time being, have full power and authority to levy, raise, arm, and muster, such a number of forces, out of the militia of this colony, as shall be thought needful for repelling the invasion, or suppressing the insurrection, or other danger, and the same to lead, conduct, march, transport and employ, or by his lieutenants, commanders, or other officers, by | Invasions and insurrections, militia how raised and disbanded. |
| him to be commissionated, to cause to be led, conducted, marched, transported, and emploied, as well within the several counties and places to which they belong, as into any other the counties and places within this dominion, for the suppressing of all such insurrections, and repelling of all such invasions by sea or land; and such forces again to discharge and disband, as the cause of danger ceases, for which they were so raised. | |
| III. And be it further enacted, by the authority aforesaid, That every officer of the militia, to whom notice shall be given of any insurrection or invasion, shall have full power and authority, by virtue of this act, and is hereby required, forthwith to raise the militia under his command, and to send immediate intelligence to the county-lieutenant, and in his absence, to the chief commanding officer residing in the county, and to the next militia officer in the same county, informing them at the same time in what manner he intends to procede; and shall, in the mean time keep the militia, under his command, under arms, until he receives orders from his superior officer. And every county lieutenant, or chief commanding officer in any county, to whom such intelligence shall be given of any insurrection or invasion, shall forthwith dispatch an express to the governor, or commander in chief of this dominion for the time being, notifying the danger; and shall therewith signify, in the best manner he can, the strength and motions of the enemy. And for that purpose such county-lieutenant, or other commanding officer hath hereby full power to impress boats and hands, men and horses, as the service may require, for the dispatch of such intelligence. And until orders shall arrive from the governor, shall draw together the militia of his county, in such place or places, as he shall judge most convenient for opposing the enemy. | Power and duty of officers. Impressments of boats, &c. |
| IV. And be it further enacted, That upon raising or continuance of forces, as aforesaid, it shall and may be lawful, by warrant under the hand and seal of any county-lieutenant, colonel, lieutenant colonel, or major, commanding any part of the same, to impress and take up necessary provisions, of and from any person or persons, and to impress and take up sloops and boats necessary for the transportation of forces over rivers and creeks, or the main bay of Chesapeak, together with the rigging, tackle, furniture, and apparel belonging thereunto; | Of provisions waggons, &c. sailors, artificers, &c. |
| and also all manner of carts, waggons, draught horses or oxen, or other conveniencies, for the land carriage of provisions, great guns, arms and ammunition, from place to place; and likewise to impress and take up any manner of utensils, tools, or instruments, which shall or may be wanting for digging or intrenching, or towards the mounting the great guns, and making them useful: And further, that it shall and may be lawful, by warrants as aforesaid, to impress able and fit men to go in sloops and boats; and also to impress any smith, wheelwright, carpenter, or other artificer whatsoever, which shall be thought useful for the fixing of arms, and making of carriages for great guns, or for dong any other work whatsoever, where need shall be of such artificer. | |
| V. Provided always, and be it enacted by the authority aforesaid, That it shall not be lawful to make use of any provisions, utensils, tools, or instruments, impressed and taken up, as aforesaid, until appraisement hath been made thereof, in tobacco, by two good and lawful men, upon oath; nor of any boat or sloop, cart, waggon, horses, or oxen, until appraisement hath been made of the same, as aforesaid, with the several appurtenances belonging thereunto: And also an estimate made by the same men, of a suitable allowance in tobacco, by the day, for the use of the said boat or sloop, cart or waggon, with the draught horses or oxen thereunto belonging. And every person impressing or taking up any of the particulars aforesaid, is hereby required to take care that an appraisement and estimate be made, as aforesaid; and to give a receipt to the owner, of every particular by him impressed and taken up; with an account therein, how the same was appraised, and how estimated, and for what use and service impressed and taken up, upon pain of being liable to the action of the party grieved, for an unlawful seizure. | Appraisement of impressed articles. |
| VI. And for the better discovery of the approach of enemies by sea. | |
| VII. Be it enacted, That in each of the counties of Elizabeth City, Princess Anne, and Northampton, at such times and places as the governor, or commander in chief of this dominion, shall think fit to direct, one man be appointed by the chief officer of the militia, residing in each of the said counties, respectively: Which men shall keep a constant look-out to seaward, by night and | Look-outs appointed. Their duty. |
| by day, and diligently observe the courses and motions of all such ships or vessels, as they, or either of them, shall discover upon the coast: And if, upon such observation, such person shall suspect the said ships or vessels to belong to an enemy, he shall immediately give notice thereof, to the next field officer in his county; who is thereupon to transmit an account thereof to the governor, or commander in chief of this dominion, for the time being, and the county lieutenant, or to the chief commanding officer of the militia in the said county. | ||||||
| VIII. And be it further enacted, That there shall be raised, and paid by the public, to the officers and soldiers which shall be drawn out into actual service by virtue of this act, and to the look-outs which shall be appointed in the manner aforesaid, after the rates following, viz: | Pay of officers and soldiers. | |||||
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| IX. Provided always, and it is the true intent and meaning of this act, That for the pay and allowance given by this act, as aforesaid, every horseman shall find and provide himself with a horse and horse-furniture, arms, and ammunition; and every foot soldier | Horses, arms, &c. to be provided by militia. | |||||
| shall find and provide himself with a foot soldier's arms, and ammunition. | |
| X. Provided also, That whensoever any part of the militia, raised by virtue of this act, shall be discharged again, within two days, no pay or allowance shall be given for the same, but every man shall bear his own charge: And that when any part of the militia raised, as aforesaid, shall be kept in service above two days, the same shall be paid and allowed for the whole time of service, according to the rates directed by this act; any thing in this act before contained to the contrary thereof, in any wise, notwithstanding. | When no pay allowed. |
| XI. And be it further enacted, That every smith, wheelwright, carpenter, or other artificer, impressed by virtue of this act, and emploied about fixing of arms, making of carriages for great guns, or other work requiring an artificer, shall be paid and allowed by the public, after the rates following, viz: every smith, fifty pounds of tobacco per day; and every carpenter, wheelwright, or other artificer, impressed as aforesaid, forty pounds of tobacco per day; and that every man impressed as aforesaid, to go in a sloop or boat, shall be paid and allowed by the public, fifteen pounds of tobacco per day. | Pay of artificers and sailors. |
| XII. Provided always, and it is the true intent and meaning of this act, That for any message sent, according to the directions of this act, either by land or water, allowance shall be made for carrying the same, as the law directs for other expresses, and not otherwise; any thing in this act to the contrary, notwithstanding. | Messengers. [4 Ann, c. 54.] [Actually, 4 Anne, c. 53, sect. 12-14.] |
| XIII. And be it further enacted, That the owner or owners of any provisions, utensils, tools or instruments, impressed and taken up, by virtue of this act, shall be paid and satisfied for the same by the public, according to the respective values thereof, by the appraisement made, in pursuance of this act. | Provisions, tools, &c. how paid for. |
| XIV. And be it further enacted, That the owner or owners of any boat or sloop, cart or waggon, with horses or oxen, impressed, take up, and emploied, by virtue and according to the directions of this act, shall be allowed and paid by the public, for the use of the same, according to the estimate made, in pursuance of this act: And in case, such sloop or boat be cast away or lost, or any cart, waggon draught horse, or ox, destroied | Boats, waggons, &c. If lost. |
| or killed in the service, then the owner or owners thereof, shall be paid for the same, according to the appraisement made, in pursuance of this act, and half the pay for the use. | |
| XV. And be it further enacted, That if any boat or sloop, cart, or wagon, impressed, taken up, or emploied, by virtue and according to the directions of this act, be damnified, or any horse or ox hurt or disabled in the service, then satisfaction shall be made to the owner or owners thereof, according to the damage received, besides the pay for the use. | If damages. |
| XVI. Provided always, and it is hereby meant and intended, That all such damage shall be inquired and found, by two indifferent persons, upon oath, to be chosen and appointed by any justice of the peace within the said county where the said sloop or boat, cart or wagon, so damnified, or horse or ox hurt or disabled, shall happen to be. | Damage, how ascertained. |
| XVII. And whereas, great danger may happen to the inhabitants of this dominion, from the unlawful concourse of negros, during the Christmas, Easter, and Whitsuntide holidays, wherein they are usually exempted from labour. | Patrols, when and how ordered. |
| XVIII. Be it enacted, by the authority aforesaid, That it shall and may be lawful, to and for the county-lieutenant, or other commanding officer of the militia, in any county within this dominion, and he or they are hereby impowered, from time to time, as there shall be occasion, to appoint and direct such and so many of the militia of their respective counties, to be drawn out, and to patrole in such places as such commanding officer shall think fit to direct, and from time to time, to cause to be relieved by other parties, for dispersing all unusual concourse of negros, or other slaves, and for preventing any dangerous combinations which may be made amongst them at such meetings: Which said parties, so sent out to patrole, as aforesaid, shall have full power and authority to take up any slaves which they shall find convened together, contrary to the directions of an act made at a general assembly, held at the capitol, the ninth day of May, one thousand seven hundred and twenty three, intituled, An act directing the trial of slaves committing capital crimes; and for the more effectual punishing conspiracies and insurrections of them; and for the better government of negros, mulattos, | Their power and duty. [9 Geo. I, c. 4,] |
| and Indians, bond or free: And such slaves so taken up, to deliver to the next constable, in order to be dealt with as the said act directs. And if any parties of the militia be emploied in this service, for above the space of two days at any one time, such militia shall be paid for all that time they shall be so emploied, according to the rates herein before mentioned. | |
| XIX And, forasmuch as it is necessary, that a sufficient number of men be appointed, for guarding the batteries erected in the several rivers, within this dominion, and for assisting in that better managing the great guns there mounted, in times of danger, | |
| XX. Be it enacted, That it shall and may be lawful, to and for the governor or commander in chief of this dominion, for the time being, to appoint and assign such a number of the militia, residing next to the several batteries, respectively, as he shall think fit, to attend the said batteries, under the command of such officer or officers, and under such order and discipline, as the said governor or commander in chief shall appoint and direct: Which said militia, so assigned for the service aforesaid, shall from thenceforth be exempted from all private musters, except at the said battery only; any law, or custom to the contrary, in any wise, notwithstanding. | Batteries, how guarded. |
| XXI. And, whereas it may be needful, in time of danger, to arm part of the militia, not otherwise sufficiently provided, out of his majesty's magazine, and other stores, within this colony, | |
| XXII. Be it enacted, by the authority aforesaid, That if any person or persons, so to be armed out of his majesty's stores, as aforesaid, shall detain or imbezzle any arms, accoutrements, or ammunition, which shall be delivered to him for the services aforesaid, when he shall be thereunto required, it shall and may be lawful, to and for the respective county-lieutenants, or other chief commanding officer, residing in the said county, by warrant under his or their hands, respectively, to cause to be imprisoned such person or persons, till he or they have made satisfaction for the arms, accoutrements, or ammunition, so by him or them detained or imbezzled. | Embezzlement of arms. |
| XXIII. And be it further enacted, by the authority aforesaid, That this act shall commence and be in force, from and after the passing thereof, for and during the space of five years. And that one act of assembly, made in the fourth year of the reign of our late sovereign lady, queen Anne, intituled, An act for security and defence of the country, in times of danger; which, by another act, made at a general assembly, held at the capitol, the twelfth day of May, one thousand seven hundred and twenty six, intituled, An act for reviving and continuing two acts of assembly, therein mentioned, was continued, and made in force, until the twelfth day of May, in the year of our lord one thousand seven hundred and twenty eight; be from henceforth repealed, and made void, to all intents constructions, and purposes, as if the same had never been made. | Limitation of this act. |
| Pages 168-181
| Pages 204-220
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