Pages 467-488 
|  Pages 509-523
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| Pages 467-488
| Pages 509-523
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| CHAP. VII. | |
| An Act for establishing county courts, and for regulating and settling the proceedings therein. | [From edit. 1752.] |
| I. FOR the better and more expeditious determination of controversies, Be it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That in every county of this dominion, a monthly court shall be held, by the justices thereof, at the several respective places already assigned for that purpose, or at such place or places as shall be hereafter lawfully appointed, upon the days herein after limited for each county respectively, and at no other time or place: Which courts shall be callled county courts, and consist of eight or more justices of the peace, commissionated by the governor or commander in chief of this dominion, for the time being: Any four of them, one being of the quorum, shall be sufficient to hear and determine all causes depending in the said county courts. | County courts. Justices of peace. Four of them (one of the quorum) to be a court. |
| II. And be it further enacted, by the authority aforesaid, That every person so nominated and appointed a justice of the peace, before his entering upon and executing the said office shall publickly in the court-house of his county, and on a court day, take the oaths appointed, or which shall be appointed to be taken by act of parliament, take and subscribe the oath of abjuration, repeat and subscribe the test, and shall also take the following oaths, to wit, | Justices shall be sworn. |
| The Oath of a Justice of the Peace. | |
| YOU shall swear, that as a justice of the peace in the county of in all articles in the commission to you directed, you shall do equal right to the poor and to the rich, after your cunning, wit, and power, and according to law; and you shall not be of counsel of any quarrel hanging before you, and the issues, fines, and amerciaments, that shall happen to be made, and all forfeitures which shall fall before you, you shall cause to be entered, without any concealment or imbeziling; you shall not let, for gift or other causes, but well and truly you shall do your office of a justice of the peace, as well within your county court, as without; | Their oath. |
| and you will not take any fee, gift, or gratuity, for any thing to be done by virtue of your office; and you shall not direct, or cause to be directed, any warrant by you to be made, to the parties; but you shall direct them to the sheriff, or bailiffs of the said county, or other the king's officers or ministers, or other indifferent persons, to do execution thereof. | |
| So help you God. | |
| The Oath of a Justice of the county court in Chancery. | |
| YOU shall swear, that well and truly you will serve our sovereign lord the king, and his people, in the office of a justice in the county court of 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. | Oath of a justice in chancery. |
| So help you God. | |
| And if any person whatsoever shall presume to execute the office of a justice of peace, without first qualifying himself in the manner by this act before required, he shall, for every such offence, forfeit and pay three hundred pounds current money, one moiety to his majesty, his heirs and successors, towards the better support of this government, and the other moiety to the informer; to be recovered by action of debt in any court of record of this dominion. | Executing the office without being sworn, forfeit 300l. |
| III. And be it further enacted, by the authority aforesaid, That the said county courts shall be constantly held every month, upon the days hereafter specified, for every county respectively, that is to say, for the county of Accomack on the last Tuesday, Albemarle on the second Thursday, Amelia on the fourth Thursday, Augusta on the third Wednesday, Brunswick on the fourth Tuesday, Charles City on the first Wednesday, Caroline on the second Thursday, Elizabeth City on the first Tuesday, Essex on the third Tuesday, Fairfax on the third Tuesday, Frederick on the first Tuesday, Gloucester on the fourth Thursday, Goochland on the third Tuesday, Hanover on the first Thursday, Henrico on the first Monday, James City on the second Monday, Isle of Wight on the first Thursday, King & Queen on the second Tuesday, King William on the third Thursday, King George on the first Thursday, Lancaster on the third Friday, Louisa on the fourth Tuesday, | County court days. |
| Lunenburg on the first Tuesday, Middlesex on the first Tuesday, Nansemond on the second Monday, New-Kent on the second Thursday, Norfolk on the third Thursday, Northampton on the second Tuesday, Northumberland on the second Monday, Orange on the fourth Thursday, Princess Ann on the third Tuesday, Prince George on the second Tuesday, Prince William on the fourth Monday, Richmond on the first Monday, Spotsylvania on the first Tuesday, Stafford on the second Tuesday, Surry on the third Tuesday, Warwick on the first Thursday, Westmoreland on the last Tuesday, and York on the third Monday of every month: And every adjournment shall be to the next succeeding court in course, and not otherwise. | Adjournment to court in course. |
| IV. Provided nevertheless, That if the business of any of the said courts cannot be determined on the court day, the justices may adjourn from day to day, until all causes and controversies, then depending before them, shall be heard and determined, or otherwise continued in the manner herein after directed. | But may be adjourned from day to day, till all causes are determined or continued. |
| V. And be it further enacted, by the authority aforesaid, That the justices of every county court, or any four of them, as aforesaid, shall and may take cognizance of, and are hereby declared to have power, authority, and jurisdiction, to hear and determine all causes whatsoever, at the common law or in chancery, within their respective counties, except such criminal causes where the judgment upon conviction, shall be for the loss of life or member, and except the prosecution of causes to outlawry against any person or persons, and except also, all causes of less value than twenty five shillings current money or two hundred pounds of tobacco, which said causes, under twenty five shillings, or two hundred pounds of tobacco, are hereby declared to be cognizable, and finally derminable [determinable] by any one justice of the peace, who may give judgment, and thereupon award execution against the goods and chattels of the debtor, or party against whom such judgment shall be given, which shall be executed and returned, by the sheriff or constable to whom directed, in the same manner as other writs of fieri facias are to be executed and returned; but no execution shall be by him granted against the body of the defendant. | Jurisdiction of the court. Criminal causes touching life or member, and process of outlawry excepted. Causes ununder 25s. or 200l. of tobacco, determinable before one justice. But he may not issue execution against the body. |
| VI. And be it further enacted, by the authority aforesaid, That it shall be lawful for any justice of peace, upon complaint to him made by any person, that his debtor is removing out of the county privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him, to grant an attachment against the estate of such debtor, or so much thereof as shall be of value sufficient to satisfy the debt and costs of such complainant; which attachment where the debt or demand shall be of the value of twenty five shillings current money, or two hundred pounds of tobacco, or upwards, shall be returnable to the next county court, and directed to, and served by the sheriff, or his under sheriff, unless in cases where the sheriff is a party interested, and then the same shall be directed to and served by a coroner; and it shall be lawful for such sheriff or officer to serve and levy the same, upon the slaves, goods and chattels of the party absconding, wherever the same shall be found, or in the hands of any person or persons indebted to, or having any effects of the party absconding, and to summon such garnishee or garnishees, to appear at the next court to be held for the said county, there to answer upon oath, what he or she is indebted unto such party, and what effects of such party, he or she hath in his or her hands, or had at the time of serving such attachment, which being returned executed, the court may thereupon compel such garnishee to appear, and answer as aforesaid. | Attachment. How to be directed, executed, and returned. |
| VII. Provided always, That every justice of peace, before granting such attachment, shall take bond and security of the party for whom the same shall be issued, in double the sum to be attached, payable to the defendant for satisfying and paying all costs which shall be awarded to the said defendant, in case the plaintiff, suing out the attachment therein mentioned, shall be cast in his suit, and also all damages which shall be recovered against the said plaintiff, for his suing out such attachment; which bond shall be by the same justice returned to the court to which the attachment is returnable, and the party intituled to such costs or damages, may thereupon bring suit and recover; and every attachment issued without such bond taken, or where no bond shall be returned, is hereby declared illegal and void, and shall be dismissed. | But bond & security shall be first taken by the justice, and returned to court, otherwise the attachment void. |
| VIII. Provided also, That all attachments shall be repleviable by appearance, and putting in good bail, if by the court ruled so to do, or by giving bond with good security, to the sheriff or other officer serving the same, which bond the sheriff or other officer is hereby impowered and required to take, to appear at the court to which such attachment shall be returnable, and to abide by, and perform the order and judgment of such court. | Attachments repleviable by appearance & bail, or security for appearance. |
| IX. And be it further enacted, by the authority aforesaid, That upon the defendant or defendants replevying any attached effects, by giving bond and security to the sheriff, or other officer, as aforesaid, the sheriff shall return the name of the security by him so taken, and if such security shall be adjudged insufficient by the court, and if the defendant shall fail to appear and give special bail, if thereunto ruled by the court, such sheriff and security, shall be subject to the same judgment and recover, and have the same liberty of defence and relief, as if such security had been taken upon the execution of mesne process. | Rules, where security is taken for appearance. |
| X. And be it further enacted, by the authority aforesaid, That it shall be lawful, for any creditor, where his debt doth not exceed five pounds current money, or one thousand pounds of tobacco, to go before any justice of peace of the county where his debtor resides, and make oath, how much is justly due to him, and that he has grounds to suspect, and verily believes, that such debtor intends to remove his effects; and thereupon such justice shall issue an attachment against the estate of such debtor, returnable to his next county court, directed to all sheriffs and constables within the colony of Virginia; and by virtue thereof, it shall be lawful, as well for the sheriff, or any constable of the county where such attachment shall be obtained, as for the sheriff or any constable of other counties, to pursue and seize such effects, and to make return of such attachment to the court where the same shall be returnable, and thereupon such proceedings shall be had, without a petition, as in other cases of attachment. | Method of prosecuting attachments for 5l. or 1000l. of tobacco, or under. |
| XI. And upon complaint made to a justice of peace, that any person indebted to the complainant, in any less sum than twenty five shillings current money, or two hundred pounds of tobacco, is removing out of the | Where under 25s. or 200l. of tobacco. |
| county privately, or so absconds or conceals himself that a warrant cannot be served upon him, it shall be lawful for such justice, taking bond and security, as in this act is before directed, to grant an attachment against the estate of such debtor, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the party praying such attachment, directed to the sheriff or any constable of his county, and returnable before himself, or any other justice thereof, who shall and may proceed thereupon, as upon an attachment returnable to the county court. | |
| XII. And if any attachment, returnable to the county court, or before a justice of peace, shall be returned executed, and the goods or effects attached shall not be replevied as this act directs, the plaintiff shall be entitled to a judgment for his whole debt, and may take execution thereupon; and all goods and effects attached, and not replevied as aforesaid, shall be sold and disposed of for and towards satisfaction of the plaintiff's judgment, in the same manner as goods taken in execution upon a writ of fieri facias: And where an attachment shall be returned, served in the hands of any garnishee, it shall be lawful, upon his or her appearance and examination, in the manner by this act before directed, to enter up judgment, and award execution against every such garnishee, and garnishees, for all sums of money or tobacco, due from him, her, or them, to the person absconding, or in his, her, or their custody or possession, for the use of such person, or so much thereof as shall be of value sufficient to satisfy the debt and costs of the complainant: And all good and effects whatsoever, in the hands of any garnishee or garnishees, belonging to such absconding person, shall be liable to satisfy such judgment. | Where the attachment is not replevied, the
plaintiff shall have judgment. Judgment against garnishee. |
| XIII. And be it further enacted, by the authority aforesaid, That all original process, by writ, summons, petition, or any other manner or means, and all subsequent process thereupon, to bring any person or persons to answer, in any action, real, personal, or mixed, suit, information, bill, or plaint, in any county court, and all attachments awarded by the said courts, at the common law, and all subpœnas, attachments, and other process in chancery, shall be issued and bear teste, by the clerk of every county court respectively, | Method of issuing, executing, and returning process. |
| returnable to the next succeeding court, and shall be executed three days at least, before the day therein mentioned for the return thereof; and if any process shall be delivered to the sheriff or officer, so late that he cannot execute the same three days before the return day, such process shall not be executed, but the officer shall return the truth of the case; and if any original process be taken out within three days, and not otherwise; and all process issued or returnable in other manner, than is herein before directed, shall be null and void. | |
| XIV. Provided nevertheless, That any justice or justices of the peace, by his or their warrant, may cause any traitor, felon, pirate, rioter, breaker of the peace, or other criminal offender to be apprehended and bronght before the same, or some other justice or justices, or before the next county court, altho' there be not three days between the execution of such warrant, and the return thereof. | Criminal cases excepted. |
| XV. And be it further enacted, by the authority aforesaid, That process against any member of his majesty's council, or the sheriff of any county, within this colony; and the proceedings thereupon, shall be after the same manner in the county court as in the general court. | Process against a councillor or sheriff, as in general court. |
| XVI. 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 if he shall not return bail, or the bail returned shall be judged insufficient by the court, or the defendant shall fail to appear, or to give special bail, when ruled thereto by the court, such sheriff or bail shall be subject to the same judgment and recovery, and shall have the same liberty of defence, relief and remedy, as in like cases is by law provided in suits depending in the general court. | Bail. |
| XVII. And that upon appearance of the defendant in any personal action, where the plaintiff shall move, that the defendant may be held to special bail, the court may, if they see cause, rule him to give bail accordingly, or commit him in custody of the sheriff till such bail be given; and the person and persons, becoming | Special bail. |
| special bail, shall be liable to the judgment and recovery against such defendant, unless he render his body in execution in discharge of his bail. | |
| 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. | No bail in prosecutions upon penal laws. |
| XVIII. And for the better ascertaining what process may be sued out where the sheriff returns, that the defendant is not to be found in his bailiwick, It is hereby further enacted by the authority aforesaid, 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 before is directed for the returns of original and other subsequent process, thereupon to force an appearance, or an alias, or pluries capias, 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. | Process where the defendant is not found. |
| Provided always, That all goods so attached shall and may be replevied by the defendants giving bond and security, to the sheriff or other officer, attaching the same, in like manner as by law is directed on the execution of mesne process, or by law is directed on the execution of mesne process, or by the defendants appearance, and putting in good bail, if ruled by the court to give special bail. | |
| XIX. And for the regular prosecution and determination of suits, entering up the judgments, and preservation of the records, It is hereby further enacted, That the following rules and methods shall be observed, to wit, that the plaintiff or demandant in any suit shall file his declaration before or at the first calling of the cause in court, and that no incipitur shall be filed or received in lieu of a declaration. | Rules in proceedngs at the common law. |
| That if the plaintiff or demandant fails to file his declaration, or to appear and prosecute his suit, he shall be non-suit. | Non-suit. |
| That upon every non-suit five shillings shall be paid, besides costs of suit. | 5s. & Costs. |
| That every defendant or tenant shall file his plea in writing, and if he fails so to do, judgment shall be given against him for want of a plea; but no plea in abatement, or of non est factum, shall be received or admitted in any cause depending in any county court, unless the party offering the same shall by affidavit, prove the truth thereof, and 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. | |
| That in every cause unless brought by petition, if the plaintiff recovers, or is non-suit or where his suit shall be dismissed, or judgment passed for the defendant, the court shall allow in the bill of costs, fifteen shillings; or one hundred and fifty pounds of tobacco, for an attorney's fee, if the party employed one, except against executors or administrators, or where the plaintiff may not recover more costs than damages. | Lawyer's fee. Exception. |
| That in all cases where a fine is laid upon the members of any vestry, one action may be brought against them all jointly. | Suits against vestries. |
| That the clerk of the court do carefully preserve the declarations, pleas, evidences, and all other papers relating to any cause in court, and that they be all filed together in the office. | Rules of court. |
| That in all cases where the title or bounds 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 kept for that purpose only. | |
| And that for preventing errors in entering the judgments of the court, the justices, before every adjournment, shall cause the minutes of their proceedings to be publickly read, by the clerk, and corrected where necessary, and then the same shall be signed by the first justice in commission then sitting, which minutes so signed shall be taken in a book, and carefully preserved among the records, and no proceedings or judgments of any court shall be of force, or valid, until the same be so read and signed. |
| XX. And for prevention of delay and vexation, by dilatory pleas, It is hereby further enacted, That in all personal actions, where the declaration shall plainly set forth sufficient matter of substance for the court to proceed upon the merits of the cause, the suit shall not abate for want of form: And that where a plea in abatement shall be pleaded, in any action, and upon argument the same shall be adjudged 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, iucluding the costs of that court, a lawyer's fee only excepted. | Suits shall not abate for want of form. Costs upon plea in abatement over-ruled. |
| XXI. And be it further enacted, by the authority aforesaid, That for the more speedy recovery of small debts, it shall be lawful for the justices of any county court to hear and determine all suits 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 five shillings current money, or two hundred pounds of tobacco, and not exceeding five pounds of like money, or one thousand pounds of tobacco, by petition, without the solemnity of a jury; and the said justices are hereby authorised and required, and shall have full power and authority so to do, and to award execution thereupon: And where the demand shall not exceed the said last mentioned sums, the plaintiff shall proceed by petition, in the manner by this act directed, and not otherwise: And if any plaintiff shall demand a greater sum, on purpose to evade this act, he shall be non-suit, and pay costs: And that the said method of proceeding shall be in a summary way, to wit, | Method of recovering debts of 25s. to 5l. by
petition. Plaintiff proceeding otherwise, shall be non-suit. |
| The petition shall express, whether the debt arises by judgment, obligation, or other specialty, or by account, and if by account, the same shall be filed together with the petition. | Rules in suits brought by petition. |
| Upon filing any such petition in the clerk's office, a summons of course shall be issued, under the hand of the clerk, returnable to the next court, a copy of which, together with a copy of the petition, and of the account, where the demand is upon an account, shall be delivered to the defendant or left at his or her usual place of abode, ten days at least before the next succeeding court, and the same being returned executed, |
| by a sworn officer, or oath made of the due service thereof, if the defendant do not then appear, it shall be lawful 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 do appear upon such summons, he shall forthwith put in such answer, or plea, thereto, as will bring the matter of compliant in issue, and thereupon, or if he fails to plead, the court shall instantly proceed 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 and matter in law shall appear unto them, without regard to form, or want of form, in the process, petition, or course of proceeding, 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 benefit of all matters in his defence that he might have had if he had been sued in the ordinary forms of law: And the court shall not admit of any delay, in the determination of any suit brought by petition, 'till another court, unless good cause be made appear for such delay: But where the penalty of any bond or obligation for debt shall exceed five pounds current money, or one thousand pounds of tobacco, and shall be put in suit, the same shall be brought and prosecuted by action at the common law, and not by petition altho' part of the principal be paid before suit brought: And when any such petition shall be filed within less than ten days before the court day next following the filing thereof, the summons thereupon shall be made returnable to the next court held after the expiration of ten days: And the same being return'd executed, or oath made of the due service thereof, as aforesaid, the proceedings thereupon at the return day, shall be in like manner as before directed: And that upon every judgment given upon any such petition, if the defendant resides in another county than where the debt was contracted, or if the creditor, or plaintiff, shall be unable to attend the court in person, or where the defendant is sued out of his county and recovers costs against the plaintiff, in any such case, if a lawyer shall be employed, the clerk shall tax, in the bill of costs, seven shillings and six pence, | The court shall not admit of delay. Bonds for more than 5l. penalty shall be prosecuted by action at common law. summons issued within 10 days before the next court day, shall be returnable to the court next after. Lawyer's fee. |
| for a lawyer's fee, and no more, except against executors or administrators. | |
| XXII. And for preventing expence and delay in prosecuting actions of detinue, or trover, for any thing under the value of five pounds, Be it further enacted by the authority aforesaid, That where any person intituled bo an action of detinue, or trover shall set forth the value of the thing demanded to be under that sum, in a petition to any county court, a summons shall issue, and the court shall hear and determine the same in the method by this act directed for the recover of small debts; and if in any such action the plaintiff shall declare for any thing of less value than five pounds, exclusive of damages, he shall be non-suit. | Detinue, and trover, under 5l. value, shall be brought by petition. |
| XXIII. And for the easier, speedier, and better advancement of justice, in obtaining judgments in any suit or action brought upon any of the penal laws of this colony, where the penalty sued for shall not exceed five pounds current money, or one thousand pounds of tobacco, Be it further enacted by the authority aforesaid, That where any demurrer shall be joined and entered in any such suit or action, in any court of record of this dominion, the judges shall proceed and give judgment according to the very right of the cause, and as the matter in law shall appear unto them, without regarding any imperfection, omission, or defect in any writ, return, pliant, declaration, information, or other pleading, process, or course of proceeding whatsoever, except those only which the party demurring shall specially and particularly set down and express, together with his demurrer, as causes of the same, notwithstanding such imperfection, omission, or defect might have heretofore been taken to be matter of substance, so as sufficient matter appear in the said pleadings, upon which the court may give judgment according to the very right of the cause: And that if any verdict shall be given in any such action, or suit in any court of record of this dominion, the judgment thereupon shall not be stayed, or reversed, for or by reason of any default in form, or want of form, in any writ original or judicial, or by reason of any imperfect or insufficient return of any sheriff, or other officer, nor for any insufficient pleading, or mis-joining the issue, nor for any matter of the like nature; nor shall any judgment given on any verdict in such suit, or action be reversed for | Rules in penal suits not exceeding 5l. or 1000l. tobacco. |
| any the defects or causes aforesaid, any law, statute, or usage to the contrary notwithstanding. | |
| XXIV. And be it further enacted, by the authority aforesaid, That no process depending in any county court, shall be discontinued for or by reason of the justices failing to hold court, upon the day by law appointed; but in such case, all suits, process, matters, and things depending, shall stand continued, and all returns and appearances shall be made, to the next succeeding court in course, in the same manner as if such succeeding court had been the same court to which such process stood continued, or such returns or appearances should have been made: And all recognizances, bonds, and obligations, for appearance, and all returns, shall be of the same force and validity, for the appearance of any person or persons at such succeeding court, and all summonses for witnesses as effectual, as if the next succeeding court had been expressly mentioned therein: And all causes depending upon the docket, and undetermined at any adjournment to the court in course, shall stand continued in the same order to such court, without any fee to the clerk for the continuance of such as shall not then be called over. | Suits shall not be discontinued by the justices failing to hold court. |
| XXV. And be it further enacted, by the authority aforesaid, That in all suits in the county courts in chancery, the following rules and methods shall be put in practice and observed, to wit, | |
| The complainant shall file his bill on the return day of the subpœna or upon the first appearance of the defendant. | Rules in chancery. |
| That upon the complainant's dismissing his bill, or the defendant's dismissing the same for want of prosecution, the defendant shall recover his costs. | |
| 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. | |
| 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 |
| complainant's bill, such bill shall be taken pro confesso, and the matter thereof decreed accordingly. | |
| The defendant shall file his answer at the next court after his appearance, and bill filed, and if no answer be then put in, an attachment shall be awarded, returnable to the next court, and if no answer be put in upon return of the attachment executed, the complainant's bill shall be taken pro confesso, and the matter thereof decreed. | |
| And if the attachment be returned not executed, an attachment with proclamation shall be issued, and if upon the return thereof no answer shall be put in, the complainant's bill shall be taken pro confesso, and the matter decreed as aforesaid. | |
| No process of contempt shall issue without oath made of the service of the subpœna, unless the same be returned served, by a sworn officer. | |
| Every defendant shall be at liberty to swear to his answer before any justice of peace. | |
| 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. | |
| The complainant shall reply, or file exceptions, at the next court after the defendant's putting in his answer, and if the complainant shall not then reply, nor file exceptions, his bill shall be dismissed with costs. | |
| When the complaint [complainant] files exceptions against the answer of any defendant, or defendants, as insufficient, if the defendant puts in a sufficient answer at the next court, the same shall be received without costs: But if the defendant's attorney insists on the sufficiency of the answer put in, and neglects or refuses 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 court, and after exceptions so filed, or any second insufficient answer put in, no further or other answer shall be received, but upon payment of costs. | |
| 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. |
| Upon every second or third answer adjudged insufficient, costs shall be doubled. | |
| If any defendant shall put in a fourth insufficient answer, which shall be so adjudged, such defendant shall be examined upon interrogatories, and committed, 'til he shall perfectly answer those interrogatories and pay costs. | |
| 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, as if no answer had been put in. | |
| Where the complainant conceives sufficient matter to be confessed, by the defendant's answer, he may set down the cause for and proceed to hearing. | |
| No defendant shall be admitted to put in a rejoinder, unless it be filed at the next court after replication put in, but the complainant may proceed to the examination of witnesses. | |
| After an attachment with proclamation returned, no plea or demurrer shall be received, unless by order of court, upon motion. | |
| If the complainant conceives any plea or demurrer to be naught, either for the matter, or manner of it, he may set it down, to be argued; or if he thinks the plea good, but not true, he may take issue upon it, and proceed to proofs; 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 the common law. | |
| If a plea be pleaded, or demurrer put in, and over-ruled, no other plea or demurrer shall thereafter be received, but the defendant shall answer the allegations of the bill. | |
| The complainant, at the next court after a plea or demurrer put in, may have the same set down, to be argued, but if the complainant shall not proceed to have the same so set down, at the second court after plea or demurrer put in, the bill may be dismissed of course, with costs. | |
| 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 at the next court; but if adjudged good, the defendant shall have his costs. |
| 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 accordingly. | |
| Commissions to examine witnesses may be awarded by the court, after replication filed, the party taking out such commission giving the adverse party ten days notice of the time and place of executing the same. | Rules for witnesses. |
| After 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, giving the defendant reasonable notice, so as to be valid if the complainant has not an opportunity to take their examination in the ordinary course of proceedings. | |
| When any cause shall be at issue, and the examination of witnesses returned if the complainant shall not at the next court thereafter, set down the cause for hearing; the defendant may have it set down at his request. | |
| XXVI. And for better discovery of the truth in any matter whatsoever, depending before the county court, Be it further enacted, by the authority aforesaid, That the clerk of every county, shall and may, and is hereby authorised and impowered, upon request of either party, to issue one or more summons or summonses for any person or persons to attend as witnesses in any cause or matter depending before the county court, or upon any survey of land, which shall be by the court ordered to be made, expressing in every summons the time and place where the witnesses are to appear, the names of the parties to the suit or cause wherein they are to give evidence, and at whose request they are summoned; and if any witness shall be an inhabitant of another county, the clerk shall issue summons, of which may be directed to the sheriff, or any coroner of that county, where such witness or witnesses live, or usually reside which shall be by such officer executed and returned to the office whence the same issued. | Summons for witnesses. |
| And that every person summoned to appear at any county court, or upon any survey of land, as a witness, | Their allowance. |
| and being an inhabitant of the same county, shall be paid by the person or persons at whose suit the summons issued, twenty five pounds of tobacco for every day's attendance upon such summons; and ever person residing in, and summoned out of another county, shall have the said allowance of twenty five pounds of tobacco per day, for attendance, and be paid for travelling and ferriages, to and from the court, as witnesses in the general court, to be paid by the party summoning him or her, which said several allowances for attendance, shall be ordered by the court, upon motion and a copy thereof issued by the clerk at any time, upon request: And if any person, summoned as aforesaid, shall fail to attend accordingly, he or she, so failing, shall be fined by the court, to the party at whose suit such summons issued, three hundred and fifty pounds of tobacco, and shall also be liable to the action of such party, at the common law, for his or her damages; but if the person so failing, shall, at the court to which the summons shall be returnable, or at the next succeeding court, shew sufficient cause of his or her inability to attend at the time he or she ought to have appeared, then no fine or forfeiture shall be incurred by such failure. | Penalty, if they fail to attend. |
| And that every witness during the time of his or her coming to, attending, or returning from the court, shall be privileged and free from arrest or imprisonment, in the same manner as witnesses summoned to the general court. | Privilege from arrests, &c. |
| And where any witness shall be aged, infirm, or going ont of this colony, upon oath thereof made, the clerk upon request of either party, may issue a dedimus, to take the examination of such witnesses, in the same manner, and with such notice, as such commissions may be issued, executed and returned, in proceedings in the general court. | |
| XXVII. And for the more regular granting appeals from any county or inferior court, to the general court, Be it further enacted, by the authority aforesaid, That no appeal shall be allowed for reversing any judgment or decree, given in any county court, or inferior court of record, within this dominion, in any action or suit whatsoever, at common law, or in chancery, where the debt, or damage, or other matter recovered in such | Appeals. Not grantable where the debt or damage, does not exceed 10l. or 2000l. tobacco, |
| action or suit, exclusive of the costs, shall not exceed ten pounds current money, or two thousand pounds of tobacco, or the value thereof, unless in such suit, the title or bounds of lands shall be drawn in question. | exclusive of costs, except in titles or bounds of lands. |
| And that in all cases above the value last mentioned, or where the title or bounds of lands shall be affected, or controverted, any party or parties, conceiving him, her, or themselves aggrieved by the judgment or decree of any county court, or other inferior court, may pray an appeal to the general court, which shall be granted in manner following, and not otherwise, to wit, | |
| If the defendant, or tenant, prays an appeal, he shall give bond with good security, for prosecuting his appeal with effect, and to perform the judgment of the general court, and to pay damages to the appellee, if the judgment or decree of the county court, or other inferior court be affirmed. | Defendant, or tenant, being appellant shall give bond and security. |
| And if the plaintiff or demandant appeals, then the special bail, given by the defendant or tenant, in the county or inferior court, shall also stand bound to answer the judgment of the general court; and such appellant shall give bond with security, in the sum of twenty pounds current money, that he will prosecute his appeal with effect; and if he do not appear and prosecute the same, his bond shall be forfeited to the defendant or appellee. | Rules where the plaintiff appeals. |
| XXVIII. And be it further enacted, by the authority aforesaid, That no writ or writs of certiorari shall be received or allowed, by the justices of any county court, or other inferior court, or to whom any such writ or writs shall be directed and delivered, after issue or demurrer joined, in the cause or causes depending in such court or courts, and intended to be removed by such writ or writs, but they shall and may proceed in such cause or causes, as tho' no such writ had been sued forth or delivered to them, or any of them: And if any cause be removed or stayed by such writ, and afterwards the same cause shall be remanded, or sent back again, by any writ of procedendo, or other writ whatsoever, such cause shall never afterwards be removed, or stayed defore [before] judgment, by any other writ or writs whatsoever, to be sued forth from the general court, or secretary's office. | Certiorari. |
| XXIX. And be it further enacted, by the authority aforesaid, That no justice of peace, sheriff, under sheriff, or clerk of any county court, shall appear or plead as attorney, for any person or persons whatsoever, in the court of the county whereof he is a member, officer, or clerk, except only as general attorney for any person or persons not residing or being within this colony, under penalty of being fined by such court, in the sum of ten pounds current money for every such offence, to the use of the same county, towards lessening the levy thereof. | No justice or officer, shall appear as attorney in the court
whereof he is a member, or officer, except for person not in this colony. Penalty 10l. |
| XXX. And be it further enacted, by the authority aforesaid, That from time to time, for ever hereafter, the court of every county of this dominion, shall cause to be erected, and kept in good repair, or where the same shall be already built, shall maintain and keep in good repair, within each respective county, and at the charge of such county, one good and convenient court-house, of stone, brick, or timber, and one common goal, and county prison, well secured with iron bars, bolts, and locks, and also, one pillory, whipping-post, and stocks; and where land shall not be already provided and appropriated for that purpose, such court may purchase two acres, whereon to erect the said public buildings, for the use of their county, and for no other use whatsoever: And to every court-house already erected and established, two acres of the land built upon and adjacent thereto, not having any house, orchard, or other immediate conveniences thereon, shall be and remain appropriated to such court-house, and the fee simple thereof is hereby declared to be in the court of the same county, and their successors, to the use of such county, as aforesaid; but where a court house is already built in any city, or town, the land now laid off for the same, and other the public buildings, shall be judged and held to be sufficient: And if the justices of any county court shall at any time hereafter fail to keep and maintain a good and sufficient prison, pillory, and stocks, every member of the court so failing shall forfeit and pay five hundred pounds of tobacco, one moiety to the king, his heirs and successors, for the better support of this government, and the contingent charges thereof, the other moiety to the informer, to be recovered with costs by action of debt or information, in any court of record of | Court houses and public buildings shall be erected & kept in
repair. Penalty on failure of keeping a sufficient prison, &c. |
| this dominion; and moreover, the court so failing shall be liable to the action of the sheriff, from time to time, for all damages recovered against him, upon any escape, for want of a sufficient prison, and such sheriff, or his executors or administrators, shall and may sue for the same by action of debt or information, brought in the general court against the justices so failing, or the survivors of them; and upon recovery in such suit, the judges of the said court are hereby impowered and required, to proportion how much every particular justice of the court so failing, who shall be then living, and the executors or administrators of such as shall be deceased, shall pay respectively, and to enter up judgment accordingly, whereupon one or more executions shall and may be issued. | |
| XXXI. And that the justices of every county shall be, and they are hereby impowered and required, to mark and lay out the bounds and rules of their respective county prisons, not exceeding ten acres of land, adjoining to such prison, which marks and bounds shall be recorded, and renewed from time to time, as occasion shall require: And every prisoner, not committed for treason, or felony, giving good security to keep within the said rules, shall have liberty to walk therein, out of prison, for the preservation of his or her health, and keeping continually within the said bounds shall be adjudged in law a true prisoner: And if the court of any county shall at any time think fit, they are hereby authorised and impowered, at the charge of their county, to cause a ducking-stool to be built in such convenient place as they shall direct. | Prison rules. Ducking-stool. |
| XXXII. 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. | Repealing clause. |
| XXXIII. And be it further enacted, by the authority aforesaid, 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. | Commencement of this act. |
| Pages 467-488
| Pages 509-523
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