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ANNO REGNI
GEORGII II,
Regis, Angliæ, Scotiæ, Franciæ, et
Hiberniæ, vicessimo septimo.
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| At
| a General Assembly, begun and held at
the College in the City of Williamsburg,
on Thursday the twenty seventh day of
February, in the twenty fifth year of the
reign of our sovereign lord George II.
by the grace of God, of Great Britain,
France, and Ireland, king, defender of
the faith, &c. and in the year of our
Lord, 1752. And from thence continued
by several prorogations, to Thursday the
first day of November, in the 27th year
of his majesty's reign, and in the year of
our Lord 1753, and then held at the
Capitol in the City of Williamsburg;
being the second session of this Assembly.
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Robert Dinwiddie, esq. Governor.
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CHAP. I.
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| An
| Act for reducing the several laws made for establishing the
General Court, and for regulating and settling the proceedings therein, into one act of Assembly.
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| I. FOR the regular determination of suits and controversies, and for
erecting, constituting, and continuing
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Edit. 1769; p. 292.
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| such courts as shall be competent and necessary to hear and determine all such causes as
shall be brought before them;
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| II. BE it enacted, by the Lieutenant Governor, Council, and
Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the
same, That 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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| The Oath of a Judge of the General Court.
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
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Their oath as judges of common law.
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| right, for the letters of the king, his governors of this colony, or of any other
person, nor for 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 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.
So help you God.
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| The Oath of a Judge of the General 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 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.
So help you God.
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As judges in Chancery.
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| IV. 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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| V. And be it further enacted, by the authority aforesaid,
That the said general court shall take cognizance 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 person 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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| VI. Provided always, That no person shall take original
process, for the trial of any thing in the general court, of less value than ten pounds sterling,
or two thousand pounds of tobacco, on penalty of having such suit dismissed, and the plaintiff
being non-suited, and paying costs of suit.
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No original process nor suit on penal laws, for less than
10l. ster. or 2000l. tob.
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| VII. Provided also, That any action may be commenced and
maintained in the general court, by, or against the justices of any county court, or other
inferior court, or the vestry of any parish, although the sum sued for shall not exceed ten
pounds, or two thousand pounds of tobacco.
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Except against county courts or vestries.
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| VIII. 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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| IX. 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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| X. 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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| XI. Provided always, That if the business of the said court
should 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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| XII. 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,
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Rules of issuing and returns of process.
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| and all 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 bing, 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, 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 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 for the return thereof.
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| XIII. 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, Chesterfield,
Prince-George, Dinwiddie, Surry, Isle of Wight, Southampton, Nansemond, Norfolk, Princess-Ann,
Albemarle, Amelia, Brunswick, Goochland, Cumberland, Halifax, 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,
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Appeals.
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| Caroline, Augusta, Spotsylvania, and Orange, to the tenth day; Richmond, Westmoreland,
Northumberland, Stafford, Lancaster, Fairfax, Frederick, King-George, Culpeper, 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 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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| XIV. 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 non 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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| XV. And be it further enacted, by the authority aforesaid,
That when any writ shall issue whereby the
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| sheriff is commanded to take the body of any person or persons, to answer unto any
plaintiff or plaintiffs, in the general court, in any personal action, and no debt or damages
shall be mentioned in such writ, or if bail shall not be by low 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
preceeding; 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, eh 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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Appearance in personal actions, where no bail is required.
Attorney engaging to appear and failing
forfeits 50s.
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| 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 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
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Where bail shall be requirable.
In what case the
bail, or sheriff shall be liable.
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| against him, in such case it shall be lawful to confirm such 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 judgement 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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| XVII. 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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| XVIII. Provided also, That every interlocutory or final
judgment, against any defendant and the sheriff, or 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 and sheriff or bail, may be set
aside.
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| XIX. 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
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Remedy for sheriff or bail where judgment is confirmed against
them.
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| by the court be condemned, for satisfaction 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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| XX, 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 authorized 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 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, and 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 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 setting.
But may be excepted to.
Were special bail liable.
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| XXI. Provided always, That no special bail shall be
requirable in any suit brought upon a penal law, unless by such law bail shall expressly be
directed.
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No special bail in suits upon penal laws, except expressly by
the law required.
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| XXII. 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 and 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 is herein after directed upon failing to plead in any civil
action.
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| XXIII. 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 before is directed for the returns of original and other
subsequent process thereupon, to force an appearance, or an alias, or pluries capias, if the
defendant cannot be arrested upon the alias capias, 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 entitled 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 judgment shall not be satisfied by the goods attached, the plaintiff may have an
execution for the residue: Provided always, That all gods 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 either of the return
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Where the defendant is not found.
Outlawry, in civil actions.
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| days aforesaid, to the end that such defendant may be outlawed thereupon.
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| XXIV. 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
nonsuit.
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Rules in personal actions at the common law.
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| That where any nonsuit 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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Nonsuit.
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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 calendar 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 preceeding 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 plaintiff's
attorney giving the defendant or his attorney six days notice of the execution thereof, if the
defendant lives within twenty miles of the place where the general court shall be held, and if
more than that distance, twelve days notice.
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Judgment by default, or non-suit.
Writ of inquiry.
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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 plaintiff's attorney to the defendant, or
his attorney, before the day of the 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 if 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 and 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 contiued 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 abasement.
Non est factum.
Replevin.
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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 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 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 the 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 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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Examinations of such as cannot attend the court.
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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
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Refusal to give evidence.
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| 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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| That popish recusants convict, shall be incapable to be witnesses in
any cause whatsoever.
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Recusant convict disabled to be 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.
|
Persons summoned fail to attend.
|
| 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.
|
Witness's privilege.
|
| That every witness attending upon summons shall be paid by the party
at whose suit the summons issued, one pound of tobacco and an 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.
|
Their allowance.
|
| That all witnesses attending the general court, shall claim their
allowance by the clerk in the office, and not in court, unless refused by the clerk, and then the
witness may apply to the court for allowance thereof.
|
| That in any bill of costs there shall not be allowed the charge of
more than three witnesses to the proof of any particular matter of fact.
|
| XXV. And to the intent that erroneous proceedings and judgments of
the inferior courts of record of
|
| | |
|---|
| this dominion may be corrected and amended, And 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 damages, 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 where 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.
|
Rules in appeals.
|
| And where 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.
|
| 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 soever, the appellant may assign any errors of
form or substance.
|
| 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 as relates to any imspleading, [mispleading,] jeofail, and amendment, in full
force in this dominion also.
|
Statutes of jeofails, declared in force.
|
| | |
|---|
| 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.
|
Damages upon appeals.
|
| 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.
|
| 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.
|
| And that no appeal shall be valid, nor any writ of 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 other inferior court.
|
No appeal, or supersedeas to be granted in any cause under
10l. current money, or 2000l tobacco, exclusive of costs. Except where the title or
bounds of land is questioned.
|
| XXVI. And to the end that all writs of 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 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.
|
Nor before a final judgment or decree.
Method of suing
forth writs of error, and supersedeas.
|
| And if upon trial of any appeal, writ of error, or supersedeas, the
judgment or decree of any county
|
Judgment.
|
| | |
|---|
| 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.
|
| XXVII. Provided always, That no writ of error to a
judgment, obtained in any county or other inferior court in this colony, shall be granted or sued
out of the secretary's office but with leave of the general court on a motion for that purpose,
and on giving bond and security in the same manner as is herein directed, on suing out a writ of
supersedeas.
|
| XXVIII. Provided also, That then days notice be given to
the adverse party of such motion.
|
| XXIX. 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.
|
Certiorari, how to be sued forth.
|
| And 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.
|
Punishment of the party taking a false oath.
|
| | |
|---|
| 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 procendendo, 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.
|
This writ shall not be granted in any matter not originally
cognizable in the general court: causes remanded, shall not be removed before judgment.
|
| And to prevent the obtaining any writ of certiorari, by surprize,
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.
|
Notice to the adverse party.
|
| XXX. 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.
|
Habeas Corpus.
|
| XXXI. And for relief of insolvent debtors, who shall be taken or
committed in execution on judgments obtained in the general court, Be it further enacted, by
the authority aforesaid, That when any person or persons now is, are, or hereafter shall be
committed to the public prison, for debtors in execution, in any suit commenced or prosecuted in
the general court of this colony, and shall have remained in prison by the space of twenty days,
it shall be lawful for any judge or judges of the said court, by a warrant under his or their
hands and seals, to command the goaler or keeper of the said prison to bring before the judged of
the said court, if sitting, or if not, before any two judges of the said court, at a certain time
and place therein to be appointed, the body or bodies of such person or persons so in prison as
aforesaid, together with a list of the several executions with which he, she, or they,
|
Insolvent debtors how they may be discharged.
|
| | |
|---|
| is or are charged in the said goal, which warrant such goaler is hereby required to
obey, and notice thereof shall be given to the party or parties, his or their executors,
administrators, or agents, at whose suits such prisoner or prisoners is, are, or shall be in
execution; and every such prisoner coming before the said court or judges, as the case shall be,
shall subscribe and deliver in a schedule of his whole estate, and take the same oath as is
prescribed by the act of General Assembly, made in the
twenty-second year of his present majesty's reign, intituled, An act declaring the law
concerning executions, and for relief of insolvent debtors; which schedule being so subscribed,
is to remain with the clerk of the general court, for the better information of the creditors of
such prisoner or prisoners:
|
| XXXII. And be it further enacted, by the authority aforesaid,
That all the estate contained in such schedule, for such use, interest, right, or title, as
such prisoner or prisoners hath or shall have in the same, and which he, she or they may lawfully
depart withal, shall be vested in the sheriff or sheriffs of the county or counties wherein such
estate shall lie or be found, to whom the clerk of the general court shall transmit a copy or
copies of such schedule; and such sheriff or sheriffs respectively is, and are hereby required,
to sell and convey the same estate to any person or persons, for the best price that can be got
for the same; and to return accounts of such sales to the clerk of the general court, and pay the
money arising thereby to the said clerk, to be by him paid to the creditor or creditors in
proportion to the amount of their debts, at whose suit such prisoner or prisoners is, or shall be
imprisoned: saving to every such prisoner or prisoners his, her, or their necessary apparel and
utensils of trade; and after delivering in such schedule, and taking such oath, such prisoner or
prisoners shall be discharged, by warrant from the said court or judges, and the goaler
indemnified, in the same manner as by the said herein before mentioned act of Assembly is
directed, in case of insolvent debtors discharged by a county court.
|
How their effects to be disposed of.
|
| XXXIII. And be it further enacted by the authority aforesaid,
That when any person or persons shall be taken in execution, on process issuing out of the
general court, and shall be committed to the goal of any county in this colony, the same method
shall be pursued
|
Persons in execution issued out of the general court, may be
discharged,
|
| | |
|---|
| for the discharge of such prisoner or prisoners, as if he, she, or they had been
committed on an execution issued out of the county court, except that the sheriff of such county
after selling the estate of such prisoner or prisoners, shall return an account of sales, and the
money arising thereby, to the clerk of the general court, to be disposed of as is herein before
mentioned; and the clerk of the county court shall certify, and transmit, to the clerk of the
general court, within one month after such discharge, a true copy of all the proceedings in the
court, which shall remain in the secretary's office, with the other papers in the said suit.
|
pursuing the same method as in the county court.
|
| XXXIV. Provided always, That notwithstanding such
discharge, it shall be lawful for any creditor or creditors, at whose suit such insolvent
prisoner was imprisoned at any time afterwards, to sue out a writ of scire facias, to have
execution against any lands or tenements, goods or chattels, which such insolvent person shall
thereafter acquire, or be possessed of.
|
| XXXV. And be it further enacted, by the authority aforesaid,
That if any sheriff, or other officer shall fail or neglect to return any writ of execution
delivered to such sheriff or officer to execute, to the office from whence the same shall issue,
at or before the day of the return thereof, such sheriff or officer shall be fined by the next
succeeding general court, or county court, if such execution shall be issued upon a judgment
obtained therein, at the discretion of such court, not exceeding ten pounds current money; which
fine shall be to the use of the creditor or creditors at whose suit such execution shall have
issued: Provided the sheriff or officer have ten days previous notice of the motion for judgment
for such fine: And such sheriff or officer shall, moreover, be liable to the action given, and
the penalty inflicted, for the not returning such writ, by an act of Assembly, made in the twenty second year of his present majesty's reign,
intituled, An act prescribing the method of appointing sheriffs, and for limiting the time of
their continuance in office, and directing their duty therein.
|
Penalty on officers for neglect of duty.
|
| XXXVI. And be it further enacted, by the authority aforesaid,
That if any sheriff or other officer shall make return, upon any writ of fieri facias, or
venditioni exponas, that he hath levied the debt, damages, and costs, as in such writ is
required, or any part
|
Penalty on officer for not paying money levied on execution.
|
| | |
|---|
| thereof, and shall not immediately pay the same to the party to whom the same is
payable, or his attorney, or shall return, upon any writ of capias ad satisfaciendum, or
attachment for not performing a decree in chancery, for payment of any sum of money, or tobacco:
that he hath taken the body or bodies of the defendant, or defendants, and hath the same ready to
satisfy the money and tobacco in such writ mentioned, and shall have actually received such money
or tobacco, of the defendant or defendants, or have suffered him, her or them, to escape, with
the consent of such sheriff, or officer, and shall not immediately pay such money, or tobacco, to
the party to whom the same is payable, or his attorney; that then, or in either of the said
cases, it shall and may be lawful for the creditor, at whose suit such writ of fieri facias,
venditioni exponas, capias ad satisfaciendum, or attachment, shall issue, upon a motion made in
the next succeeding general court, or court of the county from whence such writ shall issue, to
demand judgment against such sheriff or officer, for the money or tobacco mentioned in such writ,
or so much as shall be returned, levied on such writs of fieri facias, or venditioni exponas, and
such court is hereby authorized and required to give judgment accordingly, and to award execution
thereupon: provided such sheriff, or officer, have ten days previous notice of such motion.
|
| XXXVII. And be it further enacted, by the authority aforesaid,
That where any sheriff shall have taken the body of any debtor in execution, and shall
wilfully or negligently suffer such debtor to escape, and such sheriff or the person suing out
such execution shall die before a recover can be had against such sheriff for such escape, the
person suing out such execution, his executors, or administrators, shall and may have and
maintain an action of debt against such sheriff, his executors, or administrators, for the
recovery of all such sums of money, and tobacco, as are mentioned in the said execution, and
damages for detaining the same: any law, custom, or usage, to the contrary notwithstanding.
|
Sheriff, his executors, &c. liable for an escape, &c.
|
| XXXVIII. 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
|
Rules in chancery.
|
| | |
|---|
| 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.
|
| 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 shall be taken pro confesso, and the matter thereof decreed accordingly.
|
| 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 complainant's 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.
|
| 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.
|
| 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.
|
| 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, 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.
|
| 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, the same 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.
|
| 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.
|
| And if upon argument the complainant's exceptions shall be
overruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the
defendant, or the defendant to the complainant, as the case shall be, such costs as shall be
allowed by the court.
|
| Upon a second answer adjudged insufficient, costs shall be doubled.
|
| If any defendant shall put in a third 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.
|
| Upon adjudging any answer insufficient, the complainant may have one
subpœna for costs, and another to make a better answer, or one subpœna for costs, and
to make a better answer, at his election.
|
| 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.
|
| | |
|---|
| 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.
|
| 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.
|
| No rule to rejoin shall be given before a replication shall be
filed.
|
| After an attachment with proclamation returned, no plea or demurrer
shall be received, unless by order of court, upon a 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 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 process, 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.
|
| If a plea be pleaded, or demurrer put in and over ruled, no other
plea or demurrer shall hereafter be received, but the defendant shall answer the allegations of
the said bill.
|
| 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
set down, before the second court after such 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 judged insufficient, and the defendant shall answer within two months
after; 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.
|
| Upon any bill files, and before the defendant puts in his answer,
upon oath made, that any of the complainant's 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.
|
| 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
notice to the adverse party, of the time and place of executing the same.
|
| 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
is herein before directed in cases of trial at common law.
|
| 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.
|
No injunction to be granted for less value than an appeal.
|
| XXXIX. Provided always, That nothing in this act contained,
shall extend to any suits or controversies now depending in, or returnahle 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.
|
Proviso.
For suits depending before this act.
|
| XL. 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.
|
Where the sheriff and officers attending the court may summon
jurors and witnesses and execute the courts commands.
|
| | |
|---|
| XLI. 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.
|
CHAP. II.
|
| An
| Act for continuing an act, intituled, An Act for making
provision against invasions and insurrections.
|
|
| I. WHEREAS the act of Assembly made
in the twenty second year of the reign of his present majesty, intituled, An act for making
provision against invasions and insurrections, will expire on the twenty seventh day of October,
which shall be in the year of our lord one thousand seven hundred and fifty five, and it is
necessary the same should be continued for a longer term.
|
Preamble.
|
| II. BE it therefore 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 the said recited act of Assembly, intituled, An act for making
provision against invasions and insurrections, shall continue and be in force from and after the
said twenty seventh day of October, which shall be in the year of our lord, one thousand seven
hundred and fifty five, for and during the term of seven years, from thence next following, and
no longer.
|
Continuance.
|
Pages 351-374
