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CHAP. VI.
An Act for establishing the General Court, and for regulating and settling the proceedings
therein.
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| I. FOR the regular determination of suits and controversies, and
for erecting, constituting, and continuing such courts, as shall be competent and necessary, to
hear and determine all such causes, as shall be brought before them, Be it enacted, by the
Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby
enacted, by the authority
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[From edit. 1752. This act was repealed by proclamation. See note to chap. 2.]
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| of the same, That at some one certain place, lawfully appointed, and at the
time and times herein after directed, there shall be held one principal court of judicature for
this colony and dominion, which court shall be, and is hereby established by the name of the
general court of Virginia, and shall consist of his majesty's governor or commander in chief, and
council, for the time being, any five of them to be a court; and they are hereby appointed and
declared judges or justices, to hear and determine all suits and controversies which shall be
depending in the said court.
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The general court of Virginia.
Who shall be judges
thereof.
Five of them to be a court.
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| II. And be it further enacted, by the authority aforesaid,
That every person who shall, from time to time, or at any time hereafter, accept the office
of a judge or justice of the said court, before his entering upon, and executing the same, shall
take the oaths appointed to be taken by act of parliament, and repeat and subscribe the test, and
shall also take the following oaths, to wit,
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The judges to be sworn.
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| The oath of a Judge of the General Court.
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| YOU shall swear, that you will well and truly serve our sovereign
lord the king, and his people, in the office of a judge or justice of the general court of
Virginia, and you shall not counsel, or assent, to any thing which may turn to the hurt or
disheriting of the king, by any way or colour, and you shall do equal law and execution of right
to all the king's subjects, rich and poor, without having regard to any person: You shall not
take by yourself, or by any other person, any gift or reward, of gold, silver, or any other
thing, for any matter by you done, or to be done, by virtue of your office: You shall not take
any fees, or other gratuity, of any person, great or small, except such salary as shall be by law
appointed, or such salary as his majesty, his heirs or successors, shall think fit to allow you
for your service: You shall not maintain by yourself, or any other, privily or openly, any plea
or quarrel, hanging in any of the king's courts: You shall not delay any person of common right,
for the letters of the king, his governors of this colony, or of any other person, nor from any
other cause; and in case any letter come to you, contrary to the law, you shall nothing do for
such letter, but you shall proceed to do
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Their oath, as judges of common law.
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| the law, the said letters notwithstanding; and finally, in all things belonging to your
said office, during your continuance therein, you shall faithfully, justly and truly, according
to the best of your skill and judgment, do equal and impartial justice without fraud.
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| So help you God.
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| The oath of a Judge of the General Court in Chancery.
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| YOU shall swear, that well and truly you will serve our sovereign
lord the king, and his people, in the office of a judge or justice of the general court of
Virginia 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.
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As judges in chancery.
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| So help you God.
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| III. And if any person whatsoever shall presume to sit or execute
the said office, without first qualifying himself as by this act required, he shall for every
such offence be fined five hundred pounds current money, one moiety thereof to our sovereign lord
the king, his heirs and successors, for and towards the better support of this government, and
the contingent charges thereof, and the other moiety to the informer.
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Penalty for executing this office, before sworn in.
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| IV. And be it further enacted, by the authority aforesaid,
That the said general court shall take cognisance of, and are hereby declared to have power
and jurisdiction to hear and determine, all causes, matters, and things whatsoever relating to or
concerning any person or persons, ecclesiastical or civil, or to any persons or things of what
nature soever the same shall be, whether brought before them by original process, appeal from any
inferior court, or by any other ways or means whatsoever.
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Jurisdiction of this court.
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| V. Provided always, That no person shall take original
process for the trial of any thing in the general court, of less value than twenty pounds current
money, or four thousand pounds of tobacco, under penalty of the plaintiff's being non-suit, and
paying costs; neither shall any person be prosecuted in the said court for breach of any penal
law, where the penalty shall be less than twenty pounds current money, or four thousand pounds of
tobacco.
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No original process nor suit on penal laws, for less than
20l. current money, or 4000l. of tobacco.
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| VI. Provided also, That any action may be commenced and
maintained in the general court, or other inferior court, or the vestry of any parish altho' the
sum sued for shall not exceed twenty pounds.
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Except against county courts or vestries.
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| VII. And be it further enacted, by the authority aforesaid,
That the said general court shall be held two times every year, to wit, one of the said
courts shall begin upon the tenth day of April, if not Sunday, and then on the Monday thereafter,
and shall continue to be held twenty four natural days, Sundays exclusive; and the other court
shall begin upon the tenth day of October, if not Sunday, and then on the Monday thereafter, and
shall also be held and continue twenty four natural days, Sundays exclusive.
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General Court to be held twice a year.
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| VIII. And that the first five days of every general court be
appointed for hearing and determining suits in chancery, appeals from decrees of the county
courts, or other inferior courts in chancery and writs of supersedeas to such decrees; and that
the other days be appointed for trying suits or prosecutions on behalf of his majesty, and all
other matters depending in the said court.
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Rules of court for docketing causes.
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| IX And that before every general court, the clerk 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, case agreed, or demurrer to be
argued, and all causes set down for hearing, or argument in chancery, in the same order as they
stand in course of proceedings; setting as near as may be, an equal number of such causes to each
day.
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| X. Provided always, That if the business of the said court
shall be ended in less time than the days herein before appointed, for the judges or justices to
sit, it shall be lawful for them to adjourn to the next succeeding general court.
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Court may adjourn.
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| XI. And for the more regular prosecution and determination of suits
or other processes in the said court, Be it further enacted, by the authority aforesaid,
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 mixed, suit, information, bill or plaint in the general court, and all
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Rules of issuing & returns of process.
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| attachments awarded by the said court, at the common law, and all subpœnas and
other process in chancery, shall be sued out and issued from the secretary's office, returnable
on the respective days herein after directed, and 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 all such writs and process shall be returnable
to the next succeeding general court, on the several days following, to wit, all writs and other
process at the common law, shall be returnable to the eighth or twenty third day of the next
general court, subpœnas and all other process in chancery, to the first or twenty third
day, process at the suit of his majesty, or [on] criminal prosecutions to the sixth day, process on
petitions for lapsed land to the seventh day and on no other days or times whatsoever; and all
such writs or process which shall be made returnable on any other days or times, shall be null
and void; and if any writ or process which shall be executed so late, that the sheriff hath not
reasonable time to return the same, before the day of appearance, herein after limited, and
thereupon an alias or 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 limited foe the return thereof.
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| XII. And that all appeals from decrees in chancery, obtained in any
county court, or other inferior court, shall be made to the third day of the next general court,
and all appeals from judgments of any of the said courts, in suits at common law, shall be to the
respective days following, to wit, from the county courts of Henrico, Prince George, Surry, isle
of Wight, Nansemond, Norfolk, Princess Ann, Albemarle, Amelia, Brunswick, Goochland, Cumberland,
and Lunenburg, to the eighth day; James City, Charles City, New-Kent, Warwick, Elizabeth City,
York, Hanover, and Louisa, to the ninth day; Gloucester, King William, King and Queen, Middlesex,
Essex, Caroline, Augusta, Spotsylvania, and Orange, to the tenth day; Richmond, Westmoreland,
Northumberland, Stafford, Lancaster,
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Appeals.
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| Fairfax, Frederick, King George, Culpepper, and Prince William to the eleventh day;
Accomack, and Northampton, to the twelfth day of the next succeeding general court; and no appeal
shall be admitted on any other day: Appeals from such judgments of any corporation court, shall
be to the same day as appeals from the county wherein such corporation is; and that all writs of
error, supersedeas, and certiorari, shall be returnable to the same days respectively, as appeals
from judgments at the court of that county to which such writ or writs shall be directed. And the
clerk of the court is hereby required to regulate the docket accordingly, proportioning the suits
and causes to such of the said days as will be most convenient.
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Writs of error, supersedeas, certiorari.
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| XIII. And be it further enacted, by the authority aforesaid,
That if any action, or other process, shall be commenced and prosecuted against any person,
being a member of his majesty's council of state, within this dominion, then instead of other
process which might be legally taken in like case against any other person, the clerk of the
general court shall issue a summons directed to the sheriff of the county where such councillor
usually resides, reciting the matter or cause charged against him, and summoning him to appear
and answer the same, upon such a certain day of the next general court, as shall be therein
mentioned; and if such councillor shall not appear at the day, according to such summons, it
shall be lawful for the court to award an attachment against the estate of such councillor, so
failing to appear, and thereafter the proceedings in such cases shall be in the same manner as
upon the sheriff's returning, on est inventus, upon any ordinary process; and in like
manner process against the sheriff of any county, shall be issued and directed to any coroner of
the county where such sheriff resides, and thereupon the like proceedings shall be had against
him, as are herein before directed concerning a councillor: And if any councillor, or sheriff,
shall fail to answer process in chancery, one or more distringas shall thereupon issue, to compel
such defendant to answer.
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Process against a councillor.
Or a sheriff.
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| XIV. And be it further enacted, by the authority aforesaid,
That 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
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Appearance in personal actions, where no bail is required.
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| the general court, in any personal action, and no debt or damages shall be mentioned in
such writ, or if bail shall not be by law requirable; in every or any such case, the sheriff to
whom such writ shall be directed, may take the engagement of any attorney, practising in the
general court, under his hand, endorsed upon such writ, that he will appear, or cause an
appearance to be entered for the defendant, or defendants, within named, according to the return
of the said writ: And such appearance shall be accordingly entered with the clerk of the court,
in the secretary's office, on the second day after the end of the general court, to which such
process shall be returnable: Which said second day after the end of every general court, shall be
accounted, deemed, and taken, and is hereby declared to be the day of appearance, to all process
at the common law, or in chancery, returnable to any day of the court next preceding; and if any
attorney, or other person practising as an attorney, so engaging to enter, or cause an appearance
to be entered shall fail so to do, he shall forfeit and pay to the plaintiff or plaintiffs, fifty
shillings current money, for which judgment shall be immediately entered, and the plaintiff may
take execution thereupon, by capias ad satisfaciendum, or fieri facias.
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Attorney engaging to appear, and failing forfeits 50 s.
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| XV. And be it further enacted, by the authority aforesaid,
That upon executing any process, whereupon bail shall be requirable, the sheriff shall return
therewith the names of the bail by him taken, and a copy of the bail bond, to the secretary's
office, before the day of appearance; and if the defendant shall fail to appear accordingly, or
shall not give special bail, being ruled thereto by the court, the bail so returned shall be
subject to the same judgment, and recovery, and have the same liberty of defence, as the defendant
might have, or be subject to, if he had appeared, and given special bail; and if the sheriff shall
not return bail, and a copy of the bail-bond, or the bail so returned shall be judged insufficient
by the court, or the defendant shall fail to give special bail, being ruled thereto by the court,
then judgment shall be given against the sheriff, in the same manner, and with the same condition,
as against the bail: And if the sheriff depart this life, before judgment be confirmed against
him, in such case it shall be lawful to confirm such
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Where bail shall be requirable.
In what case
the bail, or sheriff shall be liable.
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| judgment against the executors, or administrators, of such sheriff; and if there shall
not be any probat or administration granted, then it shall be lawful to confirm the judgment
against the estate of such deceased sheriff, and a writ of fieri facias shall and may
issue, to seise and levy so much of his goods and chattels, as will satisfy the judgment, and
every part thereof.
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| XVI. Provided always, That the plaintiff shall object to
the sufficiency of the bail, during the sitting of the General Court, to which the writ is
returnable, and at no time after; and no judgment shall be entered against the sheriff, where bail
is returned, unless such bail shall be adjudged insufficient by the judges of the General Court,
at the time aforesaid; and where the bail shall be adjudged insufficient, and judgment shall be
given against the defendant and sheriff, the sheriff shall have the same remedy against the estate
of such bail, as he may have against the defendant's estate.
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Sheriff's remedy where the bail is judged insufficient.
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| XVII. Provided also, That every interlocutory or final
judgment, against any defendant and the bail, returned by the sheriff, entered or obtained before
any General Court, next ensuing the return of the writ upon which such defendant was arrested,
shall be set aside, if the defendant upon the eighth day of the court next ensuing the return, as
aforesaid, shall be allowed to appear without bail, or shall put in good bail, and plead to issue
immediately.
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Where judgment against defendant & sheriff, or bail, may be set
aside.
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| XVIII. And be it further enacted, by the authority aforesaid,
That in every case, where judgment shall be confirmed against any defendant or defendants,
and the bail, or against any defendant or defendants, and the sheriff, or against his executors or
administrators, or against his estate, as aforesaid, it shall and may be lawful for the court,
where such judgment shall be confirmed, upon motion of such bail or sheriff, or his executors or
administrators, or of any other person on his or their behalf, to order an attachment against the
estate of such defendant or defendants, or so much thereof as shall be sufficient to satisfy such
judgment and costs, and all other costs and charges concerning the same; which attachment shall be
returnable to the next succeeding court, and thereupon such estate shall by the court be
condemned, for satisfaction
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Remedy for sheriff, or bail, where judgment is confirmed against
them.
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| of the judgment, costs, and charges aforesaid, and shall be sold as goods taken in
execution, by fieri facias; and out of the money arising by such sale, so much as shall
be sufficient shall be paid to the bail, or sheriff, or his executors or administrators, to his
and their own proper use, and the remainder, if any after charges deducted, to the person from
whom the same was attached, or his, her, or their attorney, or agent, when required.
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| XIX. And be it further enacted, by the
authority aforesaid, That it shall and may be lawful to and for any judge or justice of the
General Court, and every such judge or justice is hereby authorised and impowered, when the said
court is not sitting, to take a recognizance of bail in any action in the said court depending,
which shall be taken de bene esse; and if the plaintiff or his attorney shall accept [except] to the sufficiency of the bail so taken, notice of such exception shall be
given to the defendant, or his attorney, at least ten days before the next succeeding General
Court, and if the bail so taken shall be judged insufficient by the court, the recognizance
thereof shall be discharged, an such proceedings shall or may be had against the defendant or
defendants, as if no such bail had been taken; but if such bail shall be judged sufficient, or shall not be accepted [excepted] to within the time aforesaid, then the same shall stand and be chargeable
to all intents and purposes, as if the recognizance had been taken in court: And every person
becoming special bail for any defendant, or defendants, shall be liable to the judgment given
against him, her, or them, unless he render the defendant's body in execution, in discharge of his
bail.
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Any judge of the general court may take recognizance of bail,
when the court is not sitting.
But may be excepted to.
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| XX. Provided always, That no special bail shall be
requirable in any suit brought upon a penal law, unless by such law bail shall be expressly
directed.
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No special bail in suits upon penal laws, except expressly by the
law required.
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| XXI. And be it further enacted, by the authority aforesaid,
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 have
liberty to make defence, as where an appearance shall be entered and accepted; nevertheless such
defendant shall not be discharged out of custody, unless the plaintiff be ruled to accept an
appearance, at the next succeeding general
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Rules in returns of writs, & appearance in custody.
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| court, or by putting in good bail. And that where any defendant, after appearance
entered, shall be in custody of the public prison for debtors, the plaintiff may file his
declaration, and give a rule to plead, but shall deliver a copy of such declaration and rule to
the defendant, or his attorney, one month at least before expiration of the rule; and if
thereupon, and oath of the delivery of such copy, made before one of the judges of the general
court, such defendant shall fail to enter his plea, before the rule be out, the plaintiff may have
judgment, in the same manner as hereinafter directed upon failing to plead in any civil action.
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| XXII. And for the better ascertaining what process shall or may be
sued out, where the sheriff returns, that the defendant is not to be found in his bailiwick,
It is hereby further enacted, That where any sheriff shall make such return, the plaintiff or
plaintiffs, in any civil action, shall and may sue out an attachment against the estate of such
defendant, returnable as herein is before 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, or a testatum capias
where the defendant shall be removed into another county, 'til such 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 be intituled to a judgment for his
whole debt, and the goods so attached shall remain in custody of the sheriff, 'til 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: Provided always, That all goods so
attached shall and may be replevied by appearance and putting in good bail, if the defendant
shall be ruled by the court to give special bail. And that where the 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
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Where the
fendant is
not found.
Outlawry in civil actions.
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| either of the return days aforesaid, to the end that such defendant may be outlawed
thereupon.
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| XXIII. And for the more speedy determination of all causes depending
in the said court, Be it further enacted, by the authority aforesaid, That these
following rules and methods shall be observed, to wit; that in all personal actions the plaintiff
shall file his declaration within one month after the defendant shall have entered his appearance,
with the clerk in the secretary's office, and if the plaintiff shall fail or neglect so to do, or
if any plaintiff or demandant fails to appear, and prosecute his suit, he shall be non-suit.
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Rules in personal actions, at the common law.
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| That where any non suit shall be awarded, there shall be paid for
the same, to every defendant or tenant, one hundred and fifty pounds of tobacco, and costs, where
the defendant's or tenant's place of abode is at the distance of twenty miles, or less, from the
place of holding the general court; and where it is more, five pounds of tobacco for every mile
above twenty.
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Non-suit.
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| When the defendant has entered his appearance, and the plaintiff
files his declaration, he may give a rule to plead with the clerk of the court in the secretary's
office, which shall be out in one calender month after such rule given.
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Pleadings.
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| 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 out in less time than one calender month, nor shall any rule be given
between month and month to the intent that all attornies and others, by inspecting the rule book
to be kept by the clerk of the court, may be more certainly and readily informed what proceedings
have been, or are to be, in the several causes there depending.
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| That upon the expiration of any rule, judgment by default, or a non
suit, shall be signed by the clerk in the office, as of the preceding court, which judgment shall
be final in actions of debt, where the debt is certain, and in other actions a writ of inquiry
shall be executed, the next court after judgment signed in the office, the plaintiffs attorney
giving the defendant or his attorney six days notice of the execution thereof, if the defendant
lives within twenty miles of the
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Judgment b default, or non-suit.
Writ of inquiry.
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| place where the general court shall be held, and if more than that distance, twelve days
notice.
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| That no issue shall be tried the next succeeding general court after
it is joined, unless ten days notice be given by the plaintiffs attorney to the defendant, or his
attorney, before the day of trial, if the defendant lives within twenty miles as aforesaid, but if
he lives at a greater distance, then twenty days notice shall be given.
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Trial.
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| If an issue be not tried, or writ of inquiry executed the next court
after it is joined, or judgment by default, or interlocutory judgment entered, 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 docket.
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| That when any final judgment shall be obtained out of court, the
clerk shall allow a lawyers fee in the bill of costs, if the plaintiff employed one; which 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, but no such fees
shall be taxed against executors or administrators.
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Final judgment & lawyer's fee.
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| That where a special verdict shall be found, or case agreed, time
shall be allowed, upon the motion of either party, to the next general court to argue it, and if
any causes shall at the end of the court remain undetermined, they shall be continued of course by
the clerk to the next succeeding court, without calling the same in court.
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Special verdict, or case agreed.
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| That where a plea in abatement shall be pleaded, in any action, and
upon argument the same shall be judged insufficient, the plaintiff or plaintiffs, in such action
shall recover against the defendant or defendants, full costs to the time of over-ruling such
plea, including the costs of that court in which such plea shall be over-ruled, (a lawyer's fee
only excepted;) and that no plea in abatement, or of non est factum, shall be admitted or
received, unless the party offering the same, shall, by affidavit, prove the truth thereof; and
that the plaintiff in replevin, or the defendant in any other action, may plead as many several
matters as he shall think necessary for his defence, so as they be not admitted to plead and
demure to the whole.
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Pleas in abatement.
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| That in all cases where a fine is laid on the justices of any county
court, or the vestry of any parish, one action may be brought against them all jointly.
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Fines on county courts or vestries.
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| 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; and where the title of any estate in land
is determined, the pleadings shall be all in writing, and shall be entered at large, with the
judgment thereupon, in particular books for that purpose.
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Records of causes.
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| That for the prevention of errors in entering up the judgments of
the court, the proceedings of every day shall be drawn at large, by the clerk, against the next
sitting of the court, when the same shall be read in open court, and such corrections as are
necessary made therein, and then the same shall be signed by the secretary of this dominion, for
the time being, or his deputy, and carefully preserved among the records.
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| That in all cases where witnesses are to appear before the general
court, a summons shall be issued by the clerk, expressly mentioning the day and place, when and
where the witness shall appear, the names of the parties to the suit, wherein they are to give
evidence, and on whose behalf they are summoned.
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Rules for witnesses.
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| That where any witness shall be departing this colony, or by age,
sickness, or other legal disability, is rendered incapable of attending the court, the party
requiring such witness's testimony, may obtain certificate of such departure or disability, under
the hand of one or more justice or justices of peace, of the county where such witness lives,
which being produced to any two of the judges of the general court, they may, at any time, upon
request of either party, order such witness's deposition to be taken, at such time and place, and
before such persons, as they shall think proper; or where the court shall be satisfied, of the
disability of any witness to attend, they may grant such order if they think fit, and thereupon
commissions to examine such witnesses, shall be issued by the clerk; but the party obtaining the
same, shall give reasonable
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Examination of such as cannot attend the court.
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| notice, of the time and place of executing such commission, to the other party, otherwise
the depositions taken shall be void.
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| That if any person whatsoever, summoned as a witness, upon his or
her appearance before the court, or persons commissionated as aforesaid, to examine and take his
or her deposition, shall refuse to give evidence, upon oath, or being one of the people called
Quakers, solemnly to affirm and declare, to the best of his or her knowledge, every person so
refusing, shall be committed to the common goal, there to remain without bail or mainprize, until
he or she shall give such evidence.
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Refusal to give evidence.
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| That popish recusants convict thall be incapable to be witnesses, in
any cause whatsoever.
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Recusant convict disabled to be a witness.
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| That if any person summoned to attend the general court, as a
witness, shall fail to attend accordingly, he or she so failing, shall be fined by the said court,
one thousand pounds of tobacco, to be paid to the party for whom such witness was summoned, and
shall be further liable to the action of such party, at the common law, for his or her damages:
But if at the time such witness ought to have appeared, or at the next succeeding court,
sufficient cause of his or her inability to attend be shewn to the court, then no fine or
forfeiture shall be incurred by such failure.
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Persons summon'd failing to attend.
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| That during the attendance of any witness at the general court, and
coming to, and returning from thence, allowing one natural day for every twenty miles such
witnesses place of abode shall be distant from the same, no person or persons whatsoever shall
serve or execute, or cause to be served or executed upon any witness, coming to, attending, or
returning from the said court, any writ or process whatsoever; and if any such be served or
executed, the same shall be void, to all intents and purposes.
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Witness's privilege.
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| That every witness attending upon summons shall be paid by the party
at whose suit the summons issued, one pound of tobacco and a half, per mile, for coming to the
place where he or she was summoned to appear, and the same for returning, besides ferriages, and
sixty pounds of tobacco per day, for attendance until he or she shall be discharged.
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Their allowance.
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| That all witnesses attending the general court, shall claim their
allowance by the clerk in the office, and
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| not in court, unless refused by the clerk and then the witness may apply to the court for
allowance thereof.
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| That in any bill of costs there shall not be allowed the charge of
more than three witnesses to the proof of any one particular matter of fact.
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| XXIV. And to the intent that erroneous proceedings and judgments of
the inferior courts of record of this dominion may be corrected, and amended, Be it further
enacted, by the authority aforesaid, That where any person or persons, bodies politic or
corporate, shall at any time be aggrieved by the judgment, decree, or sentence, of any other court
of record of this colony, 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 exceed ten pounds current
money, or two thousand pounds of tobacco, or the value thereof, or whether the title or bounds of
lands shall be drawn in question, it shall be lawful for such party or parties to enter an appeal
from such judgment, decree, or sentence, to the general court, and to assign error in manner
following, and not otherwise: That is to say, upon an appeal in any personal action, or suit where
the judgment or decree shall not exceed twenty pounds current money, or four thousand pounds of
tobacco, the appellant shall assign error in matter of right only, and if upon a hearing in the
general court, such judgment or decree shall appear to be according to the right of the cause, the
same shall be affirmed, notwithstanding any mispleading, or error in matter of form.
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Rules in appeals.
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| And where the judgment or decree shall be for more than the sums
last mentioned, and not exceed fifty pounds current money, or ten thousand pounds of tobacco, the
appellant may assign error in matter of right, and such errors in the form or manner of the
proceedings, as were insisted upon in the court from whence such appeal shall be made; and if such
errors shall not appear sufficient to reverse the judgment or decree, the same shall be affirmed.
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| And in all personal actions, suits in chancery, informations, or
other controversies, of greater value than fifty pounds current money, or ten thousand pounds of
tobacco, and in all real actions, of what value so ever, the appellant may assign any errors of
form or substance.
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| And that for prevention of delay by arresting judgments, and
vexatious appeals, the several acts of parliament, commonly called the statutes of jeofails, now
in force and use in England, shall be and are hereby declared to be, for so much thereof as
relates to any mispleading, jeofail, and amendment, in full force in this dominion also.
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Statutes of jeofails declared in force.
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| That where the defendant in any personal or mixed action, or suit,
shall appeal, and upon trial the judgment or decree is affirmed, the damages shall be fifteen per
cent upon the principal sum, and costs, recovered in the county or inferior court.
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Damages upon appeals.
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| And in any real action the damage shall be two thousand pounds of
tobacco, over and above all costs, charges, and damages, awarded by the inferior court.
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| And where the plaintiff or demandant appeals, and the judgment or
decree shall be affirmed, such appellant shall pay to the appellee fifty shillings, or five
hundred pounds of tobacco, besides all costs accruing on such appeal.
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| And that no appeal shall be valid, nor any writ of error, or
supersedeas, granted or allowed for reversing any judgment or decree of any county court, or other
inferior court, in any action or suit whatsoever, where the debt, damage, or other matter
recovered, shall be of less value than the aforesaid sum of ten pounds current money, or two
thousand pounds of tobacco exclusive of costs, unless in such suit the title or bounds of lands
shall be in question: Nor shall any appeal, writ of error, or supersedeas, be granted or allowed
until a final judgment or decree shall be given in the county court, or inferior court.
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No appeal, writ of error, or supersedeas, to be granted in any
case under 10l. current money, or 2000l. tobacco, exclusive of costs.
Except
where the title or bounds of land is questioned.
Nor before a final judgment or decree.
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| XXV. And to the end that all writs of error, and supersedeas, may be
regularly obtained and issued, Be it further enacted, by the authority aforesaid, That
the party praying such writ or writs, shall petition the governor or commander in chief, for the
time being, and the rest of the judges of the general court, and assign error, and some attorney,
practising in the general court, shall certify under his hand, that in his opinion sufficient
matter of error is set forth or shewn, by the petitioner; and thereupon the governor or commander
in chief, and two other of the judges, may order such writ or writs to be issued, by the clerk of
the general court, or may reject the petition, as they
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Method of suing forth writs of error, and supersedeas.
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| think fit; and upon granting [any] such writ or writs, and before issuing thereof by the clerk, such petitioner
shall give bond and security in the secretary's office: Which bonds shall be under the like
penalties and conditions, and the parties subject to payment of the like damages and costs, as in
cases of appeal.
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| And if upon trial of any appeal, writ of error, or supersedeas, the
judgment or decree of any county court, or other inferior court, shall be reversed, the general
court shall enter such judgment, or make such decree thereupon, as should have been entered or
made in the inferior court.
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Judgment.
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| XXVI. And for settling a method of obtaining writs of certiorari, to
remove civil causes from the county courts, or other inferior courts, into the general court,
Be it further enacted, by the authority aforesaid, That the party desiring such writ or
writs, when the general court is not sitting, shall by petition to the governor or commander in
chief for the time being, and the rest of the judges of the general court, set forth the reasons
of his desiring such writ or writs, and shall make oath before a magistrate to the truth of the
allegations of his petition, and then the governor and any other two of the judges may, under
their hands, order and award such writ or writs to the party praying the same, or may refuse such
writ or writs, according as the matter shall appear to them just and necessary, or not; and the
clerk of the secretary's office shall carefully file such petition and affidavit in the office;
and shall also take bond from the petitioner, in such penalty as shall be directed by the governor
and judges ordering and awarding such writ or writs, and with one or more sufficient security or
securities, for satisfying and paying all such sum and sums of money, or tobacco, and costs, as
shall be adjudged to the adverse party, in the cause or causes so to be removed, and thereupon the
clerk shall and may issue such writ or writs, but not otherwise.
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Certorari how to be sued forth.
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| And that if any person making oath to the truth of the allegations
of his petition, as aforesaid, shall take a false oath, and be thereof convicted, he shall be
adjudged guilty of perjury, and suffer as a person convicted of wilful and corrupt perjury:
Provided always, That the prosecution of such offence be commenced within twelve months after
the offence committed.
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Punishment of the party taking a false oath.
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| And that no writ or writs of certiorari whatsoever shall be granted,
where the matter in dispute shall not be originally cognizable in the general court: And if any
cause or causes be removed, or stayed by any such writ or writs, and afterwards the same cause or
causes shall be remanded, or sent back again, by any writ of procedendo, or other writ whatsoever,
such cause or causes shall never afterwards be removed, or stayed before judgment, by any writ or
writs whatsoever, to be sued forth from the general court, or secretary's office.
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This writ shall not be granted in any matter not originally
cognizable in the general court.
Causes remanded shall not be removed before judgment.
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| And that to prevent the obtaining any writ of certiorari by
surprise, the party praying such writ in any civil cause, shall give notice to the adverse party,
of the time of his moving or petitioning for such writ at least ten days before such motion or
petition, and no such writ shall at any time be granted, without producing an affidavit of such
notice.
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Notice to the adverse party.
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| XXVII. And be it further enacted, by the authority aforesaid,
That where any person shall be committed in any civil action, to the goal of any county, or
corporation for any cause or matter cognizable in the general court, it shall and may be lawful
for such person to sue out an habeas corpus, cum causa, to remove his or her body to the public
general court prison, and the cause of such commitment into the general court, and the clerk of
the secretary's office is hereby authorised and required, upon the application of any such
prisoner, to issue such writ accordingly.
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Habeas corpus.
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| XXVIII. And for settling the method of and expediting proceedings in
the general court in chancery, Be it further enacted, by the authority aforesaid, That
in all such suits the following rules and methods shall be put in practice and observed, to wit,
that the complainant shall file his bill within four days after the day of appearance. That upon
the complainant's dismissing his bill, or the defendant's dismissing the same for want of
prosecution, the complainant shall pay costs, to be taxed by the clerk of the court, for which
costs a subpœna, or other process of contempt may issue, returnable on any return day.
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Rules in chancery.
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| 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
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| put to any extraordinary costs, such costs shall be paid before the complainant shall be
at liberty to amend his bill.
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| If any defendant shall not appear upon attachment returned executed,
or being brought into court upon any such process, shall obstinately refuse to answer, the
complainants bill shall be taken pro confesso, and the matter thereof decreed accordingly.
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| The defendant shall put in his answer, to be filed with the clerk in
the office, within three months after his appearance, and bill filed; 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 such attachment executed,
the complainants bill shall be taken pro confesso, and the matter thereof decreed: And if the
attachment be returned, not executed, such further process of contempt may issue, as is issuable
out of the high court of chancery in England, in like cases.
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| 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.
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| Every defendant shall be at liberty to swear to his answer, before
any judge or justice of the general court, or before any justice of peace.
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| 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 answer to such cross bill.
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| The complainant shall reply, or file exceptions, within two months
after the defendant shall have put in his answer: And if the complainant, at the expiration of
that time, shall neither reply, nor file exceptions, the defendant 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.
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| If the complainant's attorney do except against the answer of any
defendant, or defendants, as insufficient, he may file his exceptions, and give a rule with the
clerk in the office, to make a better answer, within two months, and if before the exception of
such rule the defendant shall put in a sufficient answer, the same
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| shall be received without Costs: But if the defendant or defendants insist on the
sufficiency of the answer, or neglect or refuse to put in a sufficient answer, or shall put in
another insufficient answer, the plaintiff may set down his exceptions, to be argued the next
succeeding General Court, and after the expiration of such rule, or any second insufficient answer
put in, no further or other answer shall be received, but upon payment of costs.
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| 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 motion and payment
of costs.
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| And if upon argument the complainant's exceptions shall be over
ruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the
defendant, or the defendant to the complainant, as the case shall be, such costs as shall be
allowed by the court.
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| Upon a second answer adjudged insufficient, costs shall be doubled.
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| If any defendant shall put in a third 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.
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| Upon adjudging any answer insufficient, the complainant may have one
subpœna for costs and to make a better answer, at his election.
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| 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.
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| 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 in
proceedings at the common law.
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| No defendant shall be admitted to put in a rejoinder, unless it be
filed within four days after the expiration of the rule to rejoin, but the complainant may proceed
to the examination of witnesses.
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| No rule to rejoin shall be given before a replication shall be
filed.
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| After an attachment with proclamation returned, no plea or demurrer,
shall be received, unless by order of court, upon a motion.
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| 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 proceed to proofs, giving 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 had been found false by verdict at common law.
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| 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.
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| 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 proceed to have the same
so set down, before the second court after such plea or demurrer put in, the bill may be dismissed
of course, with costs.
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| Upon a plea or demurrer argued, and over-ruled, costs shall be paid
as where an answer shall be judged insufficient, and the defendant shall answer within two months
after; but if adjudged good, the defendant shall have his costs.
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| 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 proceed upon, the bill shall be taken pro
confesso, and the matter thereof decreed.
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| Upon any bill filed, and before the defendant puts in his answer,
upon oath made, that any of the complainants witnesses are aged, and infirm, or going out of this
colony, whereby the complainant thinks he is in danger of losing the benefit of their testimony,
the clerk may issue a dedimus to take the examination of such witnesses, de bene esse, the party
taking such dedimus giving reasonable notice to the adverse party of the time and place of taking
such examination.
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| Commissions to examine witnesses may be issued by the clerk of the
court at any time after replication filed, the party taking such commission giving ten days
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| notice to the adverse party of the time and place of executing the same.
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| When any cause shall be at issue, and the examination of witnesses
returned, if the complainant shall not 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 the same to hearing, giving the complainant or his attorney such notice as is
herein before directed in cases of trial at common law.
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| And that no injunction shall be granted from the general court, to
stay the proceedings in any suit commenced in the county court, or other inferior court unless the
matter in dispute be of value sufficient to admit of an appeal to the general court.
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No injunction to be granted for less value than an appeal.
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| XXIX. Provided always, That nothing in this act contained
shall extend to any suits or controversies now depending in, or returnable to the general court:
But that all writs and other process at the common law, or in chancery, and all suits, appeals,
and proceedings whatsoever, issued, granted, or prosecuted at any time before passing this act,
and now returnable, or depending in the general court, shall and may be returned, prosecuted,
heard, and determined, in the same manner as if this act had never been made.
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Proviso.
For suits depending before this act.
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| XXX. And be it further enacted, by the authority aforesaid,
That the sheriff and his officers attending the general court, shall be, and are hereby
impowered, during the sitting of the said court, from time to time to summon grand and petit
juries, and witnesses, and to execute the commands of the said court, within the city of
Williamsburg, or other place where the general court shall be held, and half a mile round the
same, and to make return thereof, and such return shall be sufficient for the court to proceed
thereon.
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Where the sheriff and officers attending the court may summon
jurors and witnesses and execute the courts commands.
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| XXXI. And be it further enacted, by the authority aforesaid,
That all and every other act and acts, clause and clauses, heretofore made, for or concerning
any matter or thing, within the purview of this act, shall be, and are hereby repealed.
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Repealing clause.
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| XXXII. And be it further enacted, That this act shall
commence and be in force from and immediately after the tenth day of June, which shall be in the
year of our lord one thousand seven hundred and fifty one.
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Commencement of this act.
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Pages 489-508
