Pages 703-729
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| Pages 703-729
| Pages 764-796
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| CHAP. LXVII. An act establishing district courts, and for regulating the general court. [Passed the 22d of December, 1788.] | |
| I. WHEREAS the delays inseperable from the present constitution of the general court may be often equal to a denial of justice, the expences of the criminal prosecutions are unnecessarily burthensome to the citizens of this commonwealth, violations of the laws frequently pass with impunity from the difficulty with which witnesses attend from great distances, and the authority of those laws would be more diffusively promulgated by the establishment of district courts: Be it therefore enacted by the General Assembly, That this commonwealth, except the district of Kentucky, shall into districts, and a superior court holden in each, in the manner, and at the times and places hereinafter mentioned, that is to say: The counties of Henrico, Hanover, Chesterfield, Goochland, and Powhatan, shall compose one district and a court shall be holden for the same at the capitol, in the city of Richmond, on the first day of April, and the first day of September, in every year: The counties of James-City, Charles City, New-Kent, Surry, Gloucester, York, Warwick, and Elizabeth-City, shall compose another district, and a court shall be holden for the same at the city of Williamsburg, in the former capitol, on the twenty-ninth day of April, and the twenty-ninth day of September, in every year: The counties of Richmond, Westmorelaad, Lancaster, and Northumberland, shall compose another district, and a court shall be holden for the same at Northumberland courthouse, on the first day of April, and the first day of September, in every year: The counties of Essex, Middlesex, King and Queen, and King William, shall compose another district, and a court shall be holden for the same, at King and Queen courthouse, on the fifteenth day of April, and the fifteenth day of September, in every year: The counties of Spotsylvania, Caroline, King George, Stafford, Orange, and Culpeper, shall | District courts established. |
| compose another district, and a court shall be holden for the same at Fredericksburg, on the twenty-ninth day of April, and the twenty-ninth day of September, in every year: The counties of Frederick, Berkeley, Hampshire, Hardy, and Shenandoah, shall compose another district, and a court shall be holden for the same at Winchester, on the fifteenth day of April, and the first day of September, in every year: The counties of Rockbridge, Rockingham, and Pendleton, shall compose another district, and a court shall be holden for the same at Staunton, on the first day of April, and the first day of September, in every year: The counties of Albemarle, Louisa, Fluvanna, and Amherst, shall compose another district, and a court shall be holden for the same at Charlottesville, on the fifteenth day of April, and the fifteenth day of September, in every year: The counties of Fairfax, Fauquier, Loudoun, and Prince William, shall compose another district, and a court shall be holden for the same at Dumfries, on the twelfth day of May, and the twelfth day of October, in every year: The counties of Harrison, Monongalia, Ohio, and Randolph, shall compose another district, and a court shall be holden for the same at Monongalia courthouse, on the third day of May, and the twentieth day of September, in every year: The counties of Montgomery, Washington, and Russel, shall compose another district, and a court shall be holden for the same at Washington and Montgomery courthouses, alternately, on the second day of May, and the second day of October, in every year: The counties of Norfolk, Isle of Wight, Princess Ann, Nansemond, and Southampton, shall compose another district, and a court shall be holden for the same at Suffolk, on the twelfth day of May, and the twelfth day of October in every year: The counties of Prince George, Sussex, Dinwiddie, and Amelia, shall compose another district, and a court shall be holden for the same at Petersburg, on the fifteenth day of April, and the fifteenth day of September, in every year: The counties of Brunswick, Greensville, Lunenburg, and Mecklenburg, shall compose another district, and a court shall be holden for the same at Brunswick courthouse, on the twenty-ninth day of April, and the twenty-ninth day of September, in every year: The counties of Prince Edward, Buckingham, Charlotte, |
| Halifax, and Cumberland, shall compose another district, and a court shall be holden for the same at Prince Edward courthouse, on the first day of April, and the first day of September, in every year: The counties of Bedford, Campbell, Franklin, Pittsylvania, and Henry, shall compose another district, and a court shall be holden for the same at New-London, in the late courthouse of Bedford county, now belonging to James and John Calloway, who have agreed to put the same in repair, at their own expence, for the use of the district court, so to be holden in New-London, on the fifteenth day of April, and the fifteenth day of September, in every year: The counties of Accomack and Northampton, shall compose another district, and a court shall be holden for the same at Accomack courthouse, on the twelfth day of May, and the twelfth day of October, in every year: −− The counties of Greenbrier, and Botetourt, shall compose another district, and a court shall be holden for the same at Lewisburg, in Greenbrier, and Botetourt courthouse, alternately, on the eighteenth day of May, and the eighteenth day of October, in every year, until the proprietor of the Sweet Springs shall erect a sufficient courthouse and prison for the purposes of this act, after which time the sweet Springs shall become the seat of the district court. And if any of the said several days happen to be Sunday, the courts shall in that case, respectively, begin on the succeeding day. Each court shall sit, if business require it, ten days successively, Sunday exclusive, and no longer, and shall be a court of record. | |
| II. And whereas there is not any courthouse in the town of Petersburg, wherein the district court can hold their sessions, and it is necessary some place should be fixed on for holding the said courts, as also for ascertaining the place whereon the courthouse and prison shall be built; Be it therefore enacted, that until the public buildings shall be erected, the said court shall hold their sessions in the house of Robert Armistead, in the said town, and that the courthouse and prison be built on the lands of Erasmus Gill, in the said town, if he be willing to erect the same at his own expence, and the situation on such land be as convenient and proper in the opinion of the county court of Dinwiddie, as any other place which may be offered | District court of Petersburg. |
| for that purpose; and that, after the same shall be completed, the court shall be holden in such courthouse: But in case the said Erasmus Gill shall refuse to erect the necessary public buildings, or the said county court shall deem the situation on his land inconvenient or improper, that then the said court are hereby empowered to fix on the lands of any other person within the said town whereon the said buildings shall be erected, who may be willing to erect the same at his or her own expence. | |
| III. The new counties which have been already made during the present session shall be annexed to districts as follows, that is to say: The county of Kanawha, to the district of Greenbrier and Botetourt; and the county of Nottoway, to the district of Prince George, Sussex, Dinwiddie, and Amelia; and those counties which shall hereafter be made, shall, if taken from one county, or from two or more counties lying in the same district, remain in the district to which they formerly belonged; and if taken from two or more counties lying in different districts, the counties so to be made shall be annexed, unless it be otherwise declared by the legislature, to such of the districts in which the old counties lie, as shall be approved by the executive, subject to the revision of the general assembly. | New counties. |
| IV. Three judges shall be elected by joint ballot of both houses of assembly, in addition to the present nine judges of the general court. And it shall be the duty of the judges of the general court to attend the district courts, allotting among themselves half yearly, the districts they shall respectively attend at the succeeding terms thereof: Two to each court, who shall be judges of the court to which they shall be allotted; which allotment shall be certified under the hands and seals of the judges making the same, and entered upon the records of the general court and district courts, at their next terms to be holden respectively: And the said judges shall constitute a court for such districts. −− In case of a temporary appointment of a judge made by the executive after the half yearly allotment of districts, as aforesaid, such judge shall take the place of him in whose stead he was appointed: Provided nevertheless, that if any one of the said judges shall not attend the court, to which he shall be so allotted, by sickness, | Additional judges, |
| or other disability, that in such case, the other judge shall constitute a court, under the following restrictions, to wit: In all criminal cases where the charge shall be of such a nature as in case of conviction, to subject the party to capital punishment or burning in the hand, two judges shall be necessary to proceed upon the trial of the issue, whether in law or fact: Provided always, that if only one judge shall attend the said court, and any prisoner shall notwithstanding petition to be brought to trial, in such case, one judge shall constitute a court for such purpose. When two judges shall attend, all questions arising in criminal cases, and submitted to the court, in case the court shall be divided, shall be considered as adjudged in favor of the criminal; and if the court shall be divided upon the final judgment or sentence, judgment shall be entered up in favor of the prisoner, and he forthwith discharged. | How many judges to constitute a court. |
| V. When two judges do not attend, all criminal cases depending in such court, and not tried upon the consent and petition of the prisoner, where the punishment shall be death or burning in the hand, shall stand continued over to the next court to be held for that district; and if two judges do not attend at such next court, every prisoner, whose cause has been so continued over, shall be bailed as of right, which bail shall be according to the degree of the offence and the ability of the prisoner. And if such prisoner shall appear on the first day of the next term and render himself pursuant to his recognizance, and there shall not be a sufficient court to try such prisoner on or before the third day of that court, such prisoner shall be forthwith discharged. | Criminal cases. |
| VI. Each judge of the general court, besides the oaths required by law to be taken by him as such, shall take another oath as judge of the district courts, in the same form as that prescribed by law for a judge of the general court, changing the words "general court," for "district courts," which last mentioned oath may be taken before any court of record, and a certificate thereof lodged in the district court in which such judge shall first sit, and shall enable him to act as a district judge in all duties of office, and as a general conservator of the peace throughout the commonwealth; and on taking the same additional judges to be elected may | Oath of judges. |
| act as judges of the district courts, until the next session of the general court, without having taken the oath as judges of that court. | |
| VII. Any judge who shall sit as a judge of a district court, without having taken the oaths herein required to be taken by him, shall forfeit the sum of five hundred pounds, to be recovered by action of debt, or information, in any court of record; one half to the use of the commonwealth, and the other half to the use of the informer. | Penalty for acting without. |
| VIII. If the judge shall not attend on the first day of any district court, such court shall stand adjourned -ed from day to day until a court shall be made, if that shall hoppen [happen] before four of the clock in the afternoon of the sixth day. | Adjournment. |
| IX. If a court shall not sit in any term, or shall not continue to sit the whole term, or before the end of the term shall not have heard and determined all matters ready for their decision, all such suits and things depending in court and undecided, shall stand continued to the next succeeding term. | Continuance. |
| X. If from any cause the court shall not sit on any day in a term, after it shall have been opened, there shall be no discontinuance. But so soon as the cause is removed, the court shall proceed to business, until the end of the term, if the business depending before them be not sooner dispatched. | No discontinuance. |
| XI. The jurisdiction of the said courts, respectively, shall be over all persons, and in all causes, matters, or things at common law now cognizable in the general court, and which shall amount to thirty pounds, or three thousand pounds of tobacco, whether brought before them by original process, by habeas corpus, appeal, writ of error, supersedeas, mandamus, certiorari, to remove proceedings on a forcible entry or detainer, or for any other purpose, or by any legal ways or means whatsoever; and also all suits now depending in the general court, except as hereinafter is excepted. they shall also have the same jurisdiction concerning mills, wills, roads, and letters of administration, orphans and guardians, public debtors, whether sheriffs or others, and the recording of deeds for lands and other property within the district, and caveats, as the general court now hath by law, and the said courts shall hear and determine all controversies touching | Jurisdiction. |
| -ing the same. Provided also, that writs of habeas corpus, appeal, error, supersedeas, mandamus, and certiorari, and controversies concerning mills, wills, roads, caveats, and letters of administration, shall not be heard or determined by any district court, unless such writ of error, supersedeas, mandamus, and certiorari, relate to some record or proceeding within the said district, or the person praying the habeas corpus, or the mills or roads, or lands, for which the caveats have been instituted, be within the same, or the wills or letters of administration be cognizable by the court of some county within the said district. | |
| XII. Those cases in whieh the court of admiralty hath jurisdiction by law, and which are not taken away by the constitution of the United States, are hereby transferred to the district courts, to be proceeded on as the law requires in the said court of admiralty. | Admiralty causes. |
| XIII. The court shall have power to try all issues, and enquire of damages by a jury in all causes before them, and to determine all questions concerning the legality of evidence, and other matters of law, which may arise, for which trial the court shall cause the sheriff attending them to impannel and return jurors, to be sworn well and truly to try the issue joined, or to enquire of damages (as the case may be) according to evidence. | Juries. |
| XIV. The court shall hear and determine motions against sheriffs or other officers, and attornies at law, for the directors of the James river and Potowmack companies, and for securities against heir principal, or against each other, for contribution in all cases, and according to the rules prescribed by law. | Motions. |
| XV. The district court to be held as aforesaid, shall have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanors, committed within their district, and which shall be brought before them under the regulations herein before prescribed. | Criminal causes. |
| XVI. The court, when a question new or difficult arises, may adjourn any matter of law to the general court, or any party thinking himself aggrieved by the judgment of the district court, may appeal thereupon as of right, or obtain a writ of error thereto from the | Questions adjourned. |
| court of appeals, not of right, but at the discretion of the court. | |
| XVII. On an adjournment of a question to the general court, or an appeal or writ of error to the court of appeals, the same proceedings shall be had as in cases heretofore going from the general court to the court of appeals, but no costs shall be incurred on any adjourned question. | No costs on. |
| XVIII. No judge shall twice successively attend the same district. | |
| XIX. The judges of the general court shall forthwith assemble at the capitol in the city of Richmond, on a day to be appointed and notified to each judge, by the governor, with advice of the council, and they, or such as shall meet, provided the number be five, shall proceed by a majority of votes to appoint a clerk for each district court, making a list of the several appointments to be returned to, and entered of record in the general court at their next succeeding session: They shall also give to each clerk elected, a certificate of his appointment, who having taken the oath for giving assurance of fidelity to the commonwealth, and the oath required to be taken by clerks of courts, adapting the same to the district court, shall thenceforth be enabled to execute the duties of his office; which oaths may be taken by the clerks respectively, either before the judges so assembled, or any court of record in the commonwealth, and a certificate thereof, as well as of the appointment of each, shall be entered of record in his district, wherein at the first session he shall moreover enter into bond, with sufficient security, in the penalty of three thousand pounds, payable to the governor or chief magistrate, and his successors, with condition for the faithful performance of his duty; which bond may be put in suit for the benefit, and at the costs of any person or persons aggrieved by the non-feazance or mis-feazance of the clerk, as often as there shall be occasion, until the whole penalty shall be recovered or levied. Each clerk shall hold his office during good behavior, shall be removable on conviction upon an indictment or information, for misuser or nonuser in office, and shall reside and keep his office at the district courthouse of which he is clerk, but when it is held alternately at different courthouses, then he shall keep his office either at the one or the other courthouse, as he may think best. | Allotment of judges. |
| XX. Whensoever there shall be a vacancy in the office of clerk of any district court, or if a number sufficient to appoint clerks shall not meet at the capitol, in the city of Richmond, on the day aforesaid, it shall be lawful for a majority of the judges of the general court to appoint by commission under their hands and seals. Provided, That when such vacancy shall happen during the session of a district court, or the judges of the general court shall neglect to supply any vacancy until the ensuing session of the district court, in which the vacancy shall be, it shall be lawful for the judges attending such district court to appoint a clerk by commission under their hands and seals, which shall be as valid and effectual as if granted by a majority of the judges of the general court. And where the clerk of any district court cannot attend, it may be lawful for the judges of such court to appoint a clerk pro tempore. | Clerks. |
| XXI. The clerks fees shall be the same with those of the county courts for similar services, and for all other services, the same as those of the clerk of the general court, and shall be collected and accounted for in the same manner, and under the same penalties, as those of the clerks of the county courts now are. | Fees of clerks. |
| XXII. The judges of the court of appeals shall direct the forms of writs, from time to time, in such manner as shall seem advisable, and until an alteration be made therein, the forms shall be, as nearly as may be, assimilated to those now used in the general court. | Forms of writs. |
| XXIII. All writs, summonses, and other legal process, shall be issued by the clerk, bear teste in his name, and be returnable to the next court, to be holden for the district, except in the case of subpœnas for witnesses, which might be returnable immediately, if issued in term time, or on any day of the term. | Teste of writs. |
| XXIV. Writs of habeas corpus may be granted without a seal, pursuing in all other respects the act, intituled, "An act directing the mode of suing out and prosecuting writs of habeas corpus," and in all cases in which they are now obtainable by law from the general court. | Habeas corpus. |
| XXV. In all actions or suits which may be commenced against the governor of this commonwealth, any member of the privy council, any of the judges of | Suits against governor, council, sheriff. |
| the superior courts, or the sheriff of any county during his continuance in office, instead of the ordinary process, a summons shall issue to the sheriff, or other proper officer, reciting the cause of action, and summoning such defendant to appear and answer the same on the proper return day in the next district court; and if such defendant, being summoned, or after a copy shall have been left at his house ten days before the return day, shall not appear to answer the same, the court shall proceed against such defendant in the same manner as if he had been taken upon a capias ad respondendum. Provided always, that after judgment and the return of a fieri facias by the sheriff of that county in which the defendant in any such case resides, that no effects or not sufficient are to be found in his bailiwick to satisfy the said judgment, a capias ad satisfaciendum may be issued as in other cases. | |
| XXVI. No writ of capias ad respondendum shall be issued against any person in any other district than that in which he resides, until a non est inventus has been returned in his or her district, upon a capias issued against such defendant in the same suit, and every writ issued contrary thereto shall be ipso facto void, and dismissed on the first calling thereof: Provided nevertheless, that where tow or more persons are or shall be jointly, or jointly and severally bound for the performance of any contract, or for the payment of money or tobacco, by bond, covenant, or otherwise, it shall be lawful to prosecute such persons jointly, in whatever district either of them may reside, and process shall be issued and served accordingly. And where the bond or other writing on which such suits shall be founded shall be filed in the general court of one district, and oyer thereof shall be demanded by the defendant, or defendants, to a suit in another district, it shall be sufficient for the plaintiffs in the last mentioned suit to file a copy of the bond or writing, attested by the clerk of the courts wherein the same is filed; and the defendant, or defendants, shall be obliged to plead thereto in like manner as if the original bond or writing was filed, and such copy shall be admitted as evidence on the trial. If, however, the defendant, or defendants, shall in such case, plead that the original bond or writing is not his or their deed, the clerk of | Capias respondendum. Copy of bond when evidence. |
| the court having such original paper in his custody, shall, on being summoned as a witness, attend with the same at the trial of the issue for the inspection of the jury. | |
| XXVII. In all actions to recover the penalty for breach of any penal law not particularly directing special bail to be given, in actions of slander, tresspass, assault and battery, actions on the case for trover or other wrings, and all personal actions, except such as shall be hereinafter particularly mentioned, the plaintiff or his attorney, shall, on pain of having his suit dismissed, with costs, endorse on the original writ, or subsequent process, the true species of action, that the sheriff, to whom the same is directed, may be thereby informed whether bail is to be demanded on the execution thereof; and in the cases before mentioned the sheriff may take the engagement of an attorney practising in the district court endorsed upon the writ, that he will appear for the defendant, or defendants, and such appearance shall be entered with the clerk in the office on the first day after the end of the court to which such process is returnable, which is hereby declared to be the appearance day in all process returnable to any day of the court next preceding. Every attorney failing to enter an appearance according to such engagement, shall forfeit to the defendant fifty shillings, for which, judgment shall be immediately entered, and execution may issue thereupon. And although no such engagement of an attorney shall be offered to the sheriff, he shall nevertheless be restrained from committing the defendant to prison, or detaining him in his custody, for want of appearance-bail; but the sheriff in such case shall return the writ executed, and if the defendant shall fail to appear thereto, there shall be the like proceeding against him only, as is hereinafter directed against defendants and their appearance-bail, where such is taken. Provided always, that any judge of the general court, in actions of trespass, assault nnd battery, trover and conversion, and in actions on the case, where upon proper affidavit, or affirmation, it shall appear to him proper, that the defendant, or defendants, should give appearance-bail, may, and he is hereby authorised to direct such bail to be taken by endorsement on the original writ, | Bail, in personal actions. |
| or subsequent process; and every sheriff shall govern-himself accordingly. | |
| XXVIII. In all actions of debt founded on any writing obligatory, bill or note in writing, for the payment of money or tobacco, all actions of covenant or detinue, in which cases the true species of action shall be endorsed on the writ as before directed, and that appearance-bill is to be required, the sherif shall return on the writ, the name of the bail by him taken, and a copy of the bail-bond to the clerk'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 for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subject to, if he had appeared and given special bail; and in actions of detinue the bail-piece shall be so changed, as to subject the bail to the restitution of the thing, whether animate or inanimate, sued for, or the alternative value, as the court may adjudge. And if the sheriff shall not return bail and the copy of the bail-bond, or the bail returned shall be adjudged insufficient by the court, and the defendant shall fail to appear and give special bail, if ruled thereto, in such case the sheriff may have like liberty or defence, and shall be subject to the same recovery, as is provided in the case of apperance-bail. And if the sheriff depart this life before judgment be confirmed against him, in such case the judgment shall be confirmed against his executors or administrators, or if there shall not be a certificate of probate or administration granted, then it may be confirmed against his estate, and a writ of fieri facias may in either case be issued: But the plaintiff shall object to the sufficiency of the bail during the sitting of the court next succeeding that to which the writ is returnable, or in the office on the first or second rule day, and at no time thereafter. | Bail in debt, detinue, &c. |
| XXIX. And all questions concerning the sufficiency of bail so objected to in the office shall be determined by the court at their next succeeding term; and in all cases where the bail shall be judged insufficient and judgment entered against the sheriff, he shall have the same remedy against the estate of the bail, as against the estate of the defendant: And that every judgment entered in the office against a defendant and bail, or | Exceptions to bail. |
| against a defendant and sheriff, shall be set aside if the defendant at the succeeding court shall be allowed to appear without bail, put in good bail being ruled so to do, or surrender himself in custody, and shall plead to issue immediately; the court shall regulate all other proceedings in the office during the preceding vacation, and rectify any mistakes or errors which may have happened therein. In every case where judgment shall be confirmed against any defendant, or defendants and bail, or the sheriff, his executors, administrators, or estate as aforesaid, the court, upon motion of such bail, or of such sheriff, his executors or administrators, or any other person on behalf of his estate, may order an attachment against the estate of such defendant or defendants, returnable to the next succeeding court; and upon the execution and return of such attachment, the court shall order the estate seized, or so much thereof as will be sufficient to satisfy the judgment and costs, and all costs accruing under the attachment, to be sold as goods taken in execution upon a fieri facias; and out of the money such judgment and costs shall be satisfied, and the surplus, if any, restored to the defendant or defendants when required. | Office judgments. |
| XXX. Any judge of the general court, when the district court is not sitting, or any justice of the peace, may take recognizance of special bail in any action therein depending, which shall be transmitted by the person taking the same before the next succeeding court, to the clerk of the said court, to be levied with the papers in such action; and if the plaintiff or his attorney shall except to the sufficiency of bail so taken, notice of such exception shall be given to the defendant or his attorney, at least ten days previous to the day on which such exception shall be taken: And if such bail shall be judged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall be had as if no such bail had been taken. | Special bail. |
| XXXI. Every special bail may surrender the principal before the court where the suit hath been or shall be depending at any time either before or after judgment shall be given: Provided, such surrender be made before the appearance day of the first scire facias against the bail, returned executed, or of the second returned nihil, but in either case the special bail shall pay the costs of the said scire facias, and judgment for | Surrender of principal. |
| the same shall be entered against him accordingly. Upon such surrender, the bail shall be discharged, and the defendant or defendants shall be committed to the custody of the sheriff or jailor attending such court, if the plaintiff or his attorney shall desire the same, or such special bail may discharge himself or herself by surrendering the principal or principals to the sheriff of the county where the original writ was served, and such sheriff shall receive such defendant or defendants, shall commit him, her, or them to the jail of his county, and shall give a receipt for the body or bodies of such defendant or defendants, which shall be by the bail transmitted to the clerk of the court where the suit is or was depending. When such tender after judgment shall be to the sheriff, he shall keep such defendant or defendants in his custody, in the same manner, and subject to the like rules as are provide for debtors committed in execution for the space of twenty days, unless the creditor, his attorney or agent, shall sooner consent to his, her, or their discharge. The bail shall give immediate notice of such render, to the creditor, his attorney or agent, and if within the said twenty days, such creditor, his attorney or agent, shall not in writing charge the debtor, or debtors in execution, he, she, or they shall be forthwith discharged out of custody; but the plaintiff or plaintiffs may nevertheless afterwards sue out any legal execution against such debtor or debtors, without suing out a scire facias. | |
| XXXII. When the sheriff or other proper officer shall return on any original or mesne process, that he hath taken the body of any defendant and committed him to prison for want of appearance-bail, the plaintiff may proceed and the defendant make his defence in like manner as if his appearance-bail had been entered and accepted, but the defendant shall not be discharged out of custody, until he shall put in good bail, or the plaintiff shall be ruled by the court to accept an appearance without bail, and where any defendant after appearance entered, shall be confined to prison, the plaintiff may file his declaration, give a rule to plead, and deliver copies of such declaration and rule to the defendant or his attorney; and if the defendant shall fail to enter his plea within two months after receiving such declaration and notice, the plaintiff may have his judgment by default as in other cases. | Proceedings against defendant in custody. |
| XXXIII. Where the sheriff or other proper officer shall return on any writ of capias, to answer in any civil action, that the defendant is not found within his bailiwick, the plaintiff may either sue out an alias or a pluries capias until the defendant shall be arrested, or a testatum copias where he shall be removed into another county, or may at his election sue out an attachment against the estate of the defendant to force an appearance; and if the sheriff or other officer shall return that he hath attached any goods, and the defendant shall not appear and replevy the same, by entering his appearance and giving special bail, in case he shall be ruled so to do, the plaintiff shall file his declaration, and be entitled to a judgment for his debt or damages and costs, which judgment shall be final in all actions of debt founded on any specialty, bill, or note in writing ascertaining the demand: unless the plaintiff shall chuse in any such case to have a writ of enquiry of damages; and in other cases the damages shall be settled by a jury sworn to inquire thereof. The goods attached shall remain in the hands of the officer till such final judgment be entered, and then be sold in the same manner as goods taken upon a fieri facias; and if the judgment shall not be thereby satisfied, the plaintiff may sue out execution for the residue; and in case more goods be attached than will satisfy the judgment, the surplus shall be returned to the defendant. | Alias capias. |
| XXXIV. If any writ or process shall be executed, and for want of a return thereof to the officer from which it issued an alias, pluries, attachment, or other process be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, if it be in his possession, but if it be not in his possession, then he shall return the subsequent process, with an endorsement of the execution of such first process, and the name of the appearance-bail, if any was taken, and shall also return a copy of the bail bond; on which there shall be the same proceedings as if the said first process had been duly returned. | Writs executed but not returned. |
| XXXV. Rules shall be monthly held in the clerk's office of each district court, beginning the day after the rising of such court. | Rules in clerk's office. |
| XXXVI. The plaintiff shall file his declaration in the clerk's office, at the next succeeding rule day after the defendant may then enter a rule for the plaintiff to declare, which if he fail or neglect a rule for the plaintiff to declare, which if he fail or neglect to do at the succeeding rule day, or shall at any time fail to prosecute his suit, he shall be non-suited,, and pay to the defendant or tenant, besides his costs, one hundred and fifty pounds of tobacco, where his place of abode is at he distance of twenty five miles or under, from the place of holding the said district court, and where it is more, five pounds of tobacco for every mile above twenty. | Practice. |
| XXXVII. One month after the plaintiff hath filed his declaration, he may give a rule to plead with the clerk, and if the defendant shall not plead accordingly at the expiration of such rule, the plaintiff may enter judgment for his debt or damages, and costs. | |
| XXXVIII. All rules to declare, plead, reply, rejoin, or for other proceedings, shall be given regularly from month to month, shall be entered in a book to be kept for that purpose, and shall expire on the succeeding rule day. | |
| XXXIX. No plea in abatement shall be admitted or received, unless the party offering the same, shall prove the truth thereof by oath or affirmation, as the case may require: And no plea of non est factum offered by the person charged as the obligor or grantor of a deed, shall be admitted or received, unless the truth thereof shall in like manner be proved by oath or affirmation: And where any person other than the obligors, shall be defendant, such defendant shall prove by oath or affirmation, that he or she, verily believes, that the deed on which the action is founded, is not the deed of the person charged as the obligor or grantor thereof; in which last mentioned case, the plea of non est factum shall not be admitted or received without such oath or affirmation. And where a plea in abatement shall upon argument be judged insufficient, the plaintiff shall recover full costs to the time of over-ruling such plea, an lawyer's fee only excepted. | Pleas in abatement. |
| XL. The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence. | Several pleas. |
| XLI. On the return of the pluries, that the defendant is not to be found, the court, instead of the process to outlawry formerly used, may order a proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him, which proclamation shall be published on three successive court-days, at the door of the court-house of the county to which the last process was directed, and also three times in the Virginia gazette; and if the defendant fails to appear pursuant to such proclamation, the same proceedings shall be had, and the same judgment given, as in other cases of default. | Proclamation. |
| XLII: All judgments by default for want of an appearance, or special bail, or pleas as aforesaid, and non-suits or dismissions obtained in the office, and not set aside, on the third day of the next succeeding district court, shall be entered by the clerk as of that day, which judgment shall be final in actions of debt founded on any specialty, bill, or note in writing, ascertain- [ascertaining] the demand, unless the plaintiff shall chuse in any such case to have a writ of inquiry of damages, and in all other cases the damages shall be ascertained by a jury, to be impannelled and sworn to enquire thereof, as is herein after directed. | Proclamation. |
| XLIII. Before every district court, the clerk shall enter in a particular docket, all such causes (and those only) in which an issue is to be tried, or enquiry of damages to be made, or a special verdict, case agreed, demurrer, or other matter of law is to be argued, in the same order as they stand in the course of proceeding, setting as near as may be, an equal number of causes to each day. | Dockets. |
| XLIV. Juries de medietate linguæ may be directed by the court to be summoned. | Juries de medieta e. |
| XLV. Jurors knowing any thing relative to the point in issue, shall disclose the same in open court. | Jurors, witnesses. |
| XLVI. Any juror guilty of a contempt to the court, shall be fined by the court any sum not exceeding ten pounds. | Contempts. |
| XLVII. Papers read in evidence, though not under seal, may be carried from the bar by the jury. | Papers read in evidence. |
| XLVIII. No sheriff shall converse with a jury but by order of the court. | Conduct of sheriffs. |
| XLIX. The qualification of jurors shall be the same as in the general court. | Qualification of jurors. |
| L. The fee for summoning a jury shall be fifty pounds of tobacco, or six shillings and three pence, to be taxed in the biil of costs. | Fee for summoning jury. |
| LI. In all cases where witnesses are required to attend the district court, a summons shall be issued by the clerk, expressing the day and place where they are to appear, the names of the parties to the suit, and in whose behalf summoned. | Summons for witnesses. |
| LII. When any witnesses shall be about to depart the country, or about to go to, or shall be in, the district of Kentucky, or by age, sickness, or otherwise shall be unable to attend the court, upon affidavit thereof, or on a certificate to that effect, from any justice of the peace, the clerk may, on request of either party, award a commission for taking the deposition of such witness de bene esse, to be read as evidence at the trial, in case the witness should be unable toa ttend; but the party obtaining such commission shall give reasonable notice to the other party, of the time and place of taking the deposition, otherwise the same shall be void. | Depositions. |
| LIII. Upon affidavit that any witness resides beyond sea, or in any foreign country, or in any other of the United States, the court wherein the suit is depending may, on request of either party, direct a commission to issue from the clerk's office, directed to such commissioners not exceeding five, as shall be nominated and agreed upon by the parties litigant, for which purpose, the party applying for a commission in such cases, shall give the adverse party, his attorney or agent, ten days previous notice of the day of his intended application to the court, without which no commission shall issue, and if the adverse party, his attorney or agent, shall not attend for the purpose, in that case the party praying the commission may nominate the commissioners himself, any three of whom in either case may proceed to execute the said commission: Provided nevertheless, that in either case reasonable notice shall be given to the adverse party, of the time and place of taking such deposition, and the costs of giving such notice as aforesaid, as well as of taking any deposition or depositions in any , or either of the Untied States, or beyond sea, or in any foreign country, may be taxed by the court against the party who, in their opinion, ought in justice to pay the same. | Foreign commissions. |
| LIV. If any party in a suit at common law shall make oath, that he verily believes his claim or defence, as the case may be, or a material point thereof, depends on a single witness, the court, or the clerk in vacation, may award a commission to take the deposition of such witness de bene esse, although he or she be not about to depart the country, nor under any disability, the party in such case giving reasonable notice of the time and place of taking such deposition to the adverse party. | Single witness. |
| LV. If any person summoned as a witness, and attending the court or the commissioners, to take his or her deposition as aforesaid, shall refuse to give evidence upon oath or affirmation, as the case may be, to the best of his or her knowledge, every person so refusing, shall be committed to prison by the court or commissioners, there to remain without bail or mainprise, until he or she shall give such evidence. If any person summoned to appear before commissioners or other persons, to depose or give testimony, shall fail to attend (not having a reasonable excuse) he or she, shall be fined by the court, from whence the subpœna issued, in like manner as witnesses failing to attend the courts. Every witness summoned to appear before the commissioners or referees, shall be intitled to the same allowance, to be certified by the commissioners or referees, and entered of record by the court, to be taxed in the bill of costs, and be privileged from arrests, in like manner as is directed and prescribed by law, for witnesses attending courts. | Witnesses refusing to testify. Allowance to witnesses, before referees, &c. |
| LVI. No person convicted of perjury shall be capable of being a witness in any case, nor shall any negro, mulatto, or Indian be admitted to give evidence, but against, or between negroes, mulattoes, or Indians. | Who not witnesses. |
| LVII. If any person summoned as a witness to attend the district court shall fail to attend accordingly, such person shall be fined five pounds or one thousand pounds of tobacco, at the option of the payer to the use of the party for whom such witness was summoned; and the witness so failing shall farther be liable to the action of the party for all damages sustained by the non-attendance of such witness; but if sufficient cause of his or her inability to attend be hewn to the court at the time he or she ought to have appeared, or at the next | Witnesses failing to attend. |
| succeeding court, then no fine or action shall be incurred by such failure. | |
| LVIII. Witnesses shall be privileged from arrests in all cases except treason, felony and breaches of the peace, during their attendance at the District Court, coming to and returning from thence, allowing one day for every twenty miles from their places of abode; and all arrests shall be void. | Privileges of witnesses. |
| LIX. Every witness summoned and attending the district court, shall be paid by the party at whose suit the summons issued, two pounds of tobacco or three-pence per mile, for travelling to the places of attendance, and the same for returning, besides ferriages, and fifty pounds of tobacco or six shillings and three pence per day for his attendance; which allowance shall be entered by the clerk of course, except where disputes arise concerning the same, and then such disputes shall be determined by the court. Witnesses in civil cases, and witnesses and venire-men in criminal cases, shall be sworn as to their travelling, ferriages, and attendance; for which purpose, and for affidavits justifying securities to bonds to be taken in the clerk's office, he or some of his assistants, specially empowered by the court of the district, shall administer the oaths. | Witnesses attendance. |
| LX. Interpreters may be sworn truly to interpret when necessary. | Interpreters. |
| LXI. Every person desirous of suffering a non-suit, on trial shall be barred therefrom, unless he do so before the jury retire from the bar. | Non-suit. |
| LXII. Not more than two new trials shall be granted to the same party in the same cause. | New trials. |
| LXIII. The statutes of Jeoffails which were passed prior to the year one thousand seven hundred and fifty three, are declared to be in force. | Jeoffails. |
| LXIV. After issue joined in an ejectment, on the title only, no exception of form or substance shall be taken to the declaration in any court whatsoever. | Ejectments. |
| LXV. Any instrument, to which the person making the same, shall affix a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation, as if it were actually sealed. | Scrolls. |
| LXVI. If in detinue the verdict should omit price or value, the court may at any time award a writ of inquiry to ascertain the same. | Detinue. |
| LXVII. If on an issue concerning several things in one count in detinue, no verdict be found for part of them, it shall not be in error, but the plaintiff shall be barred of his title to the things omitted. | Part of issue found. |
| LXVIII. Where there are several counts, one of which is faulty, and entire damages are given, the verdict shall be good; but the defendant may apply to the court, to instruct the jury to disregard such faulty count. | Faulty count. |
| LXIX. A judgment on confession shall be equal to a release of errors. | Confession of judgment. |
| LXX. In all judgments for plaintiff or defendant, the clerk shall allow a lawyer's fee in the bill of costs, if the party employed one, which fee, in real, personal, or mixed actions, where the title or bounds of land shall, or may come in question, shall be thirty shillings, or two hundred and forty pounds of tobacco, and in all other causes, fifteen shillings or one hundred and twenty pounds of tobacco, at the election of the party paying, except in causes transferred from the general court, in which the fee taxed shall be the same as now taxed in the general court: Provided, that this shall not be construed to alter the law, as to costs to be paid or not to be paid, by executors or administrators, which shall remain as heretofore. | Lawyers fees. |
| LXXI. There shall not be allowed in the bill of costs, the charge of more than three witnesses for the proof of any one particular fact. | Witnesses to a fact costs. |
| LXXII. The laws of costs shall not be interpreted as penal laws. | Costs. |
| LXXIII. The district court shall possess the same power over costs, as the general court now possesses. | |
| LXXIV. Executions shall issue to any sheriff or coroner from the clerks of the district courts, and be returnable to the first day thereof. | Executions. |
| LXXV. An execution, writ, or other process, appearing to be duly served in other respects, shall be deemed good, although it be not directed to any sheriff. | Not directed. |
| LXXVI. If a distringas issue in detinue, the court, for good cause shewn may direct it to be superseded, so far as it respects the specific thing, and to be executed for the alternative price or value only, if fixed in | Distringas. |
| the judgment, or if the same shall afterwards be fixed by a writ of enquiry. | |
| LXXVII. Upon any judgment in a district court, or in a county, or other inferior court, in case the defendant, on the service of an execution, would have a right by law to replevy his estate, by giving security for payment of the money or tobacco recovered at a future day; such defendant may enter int bond with security for such payment, in the clerk's office, or to the sheriff, if execution be issued at any time before seizure, or within five days after paying for the same | Replevy bonds, in clerk's office. |
| LXXVIII. If a replevy-bond be quashed as faulty, the sheriff taking the same shall be at all times liable for damages to the party injured, or his representatives. | Replevy bonds, quashed. |
| LXXIX. Notice on replevy-bonds, and all other legal occasions, wherein no particular mode is, or shall be, prescribed, shall be good if given to the party in person, or delivered in writing to any free white person above the age of sixteen years, who shall be a member of the family of such person, and shall be informed of the purport of such notice, or left at some public place at the dwelling house, or other known place of residence of such person. | Notices, what good. |
| LXXX. For preventing errors in entering up the judgments of the said courts, the proceedings of every day shall be drawn up 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 being made therein, they shall be signed by the presiding judge, and carefully preserved among the records. | Records. |
| LXXXI. On the last day of each court, the proceedings therein shall be drawn up, read, corrected, signed and preserved as aforesaid. | |
| LXXXII. When any cause shall be finally determined, the clerk of the district court shall enter all the pleadings and papers, filed as evidence therein, and the judgment thereupon, so as to make a compleat record | Making up records. |
| thereof; and those, wherein the title of lands is determined, shall be entered in a separate book to be kept for that purpose. | |
| LXXXIII. On writs of scire facias for renewal of judgments, no judgment shall be rendered on the return of two nihils, unless the defendant reside in the district, or unless he be absent from the commonwealth, and have no known attorney within the same. But such scire facias may be directed to the sheriff of any county in this commonwealth, wherein the defendant or his attorney shall reside or be found, which being returned served, the court may proceed to judgment thereon, as if the defendant had resided in the district. | Scire facias. |
| LXXXIV. If any person or persons shall desire to remove any suit depending in any inferior court into the district court, provided the same be originally cognizable therein, a certiorari for such removal may be granted by the district court, for good cause shewn, upon motion, and ten days previous notice thereof given in writing to the adverse party; or in vacation, the party desiring such writ, shall by petition to the judges of the general court, set forth his or her reason, and make oath before a magistrate to the truth of the allegations of such petition, whereupon any judge of the said court may, under his hand, order the certiorari to issue, and direct the penalty of the bond to be taken previous thereto, or may reject such petition as to him shall seem just; provided that ten days previous notice of the time and place of applying for such writ be given in writing to the adverse party, upon which order of the judges the clerk shall issue the certiorari; Provided, That the party shall enter into bond with sufficient security, in the penalty so directed, with condition for satisfying all money or tobacco, and costs, which shall be recovered against the party in such suit; but if any suit so removed by writ of certiorari shall be remanded to the inferior court by procedendo or otherwise, such cause shall not afterwards be removed to the district court, before judgment shall be given therein in the inferior conrt. | Certiorari. |
| LXXXV. The clerks of the district courts shall carefully preserve all such petitions for writs of certiorari with the affidavits thereto in the office: and if any person in such affidavit shall wilfully make a false oath, and be thereof convicted, upon a prosecution |
| commenced within twelve months after the offence committed, such offender shall suffer the pains and penalties directed for wilful and corrupt perjury. | |
| LXXXVI. No writ of error or supersedeas shall be granted in any case, until a final judgment in the county or other inferior court. No supersedeas or writ of error shall be granted to any judgment in the district, or county, or other inferior court after the expiration of five years from and after the date thereof, in case of judgments hereafter to be obtained or after the first day of January, one thousand seven hundred and ninety three, in case of judgments already obtained; saving the rights of infants, femescovert, persons non-compos, in prison, or beyond seas, until the expiration of two years after the disability ceases. | Supersedeas. |
| LXXXVII. Where any person or persons, body politic or corporate, shall think themselves aggrieved by the judgment or sentence of any county court, or court of hustings, in any action, suit, or contest whatsoever, where the debt or damages or other thing recovered or claimed in such suit exclusive of the costs shall be of the value of thirty pounds, or three thousand pounds of tobacco or upwards, or where the title or bounds of land shall be drawn in question, or the contest shall be concerning mills, roads, the probate of wills, or certificates for obtaining administration, such person or persons, body politic or corporate, may enter an appeal from such judgment or sentence, to the first day of the next court of the district, in which such county is. | Appeals. |
| LXXXVIII. The party praying a writ of supersedeas, shall petition the district court for the same, pointing out the errors he means to assign in the proceedings, and procure some attorney practising in such courts respectively, to certify, that in his opinion, there is sufficient matter of error, for reversing the judgment, whereupon such courts in their session, or any judge of such courts respectively in vacation, may order such writ to be issued, or reject the petition, as to them shall seem just, but no supersedeas shall be issued in any case, except such as in respect to its value or nature, would have admitted of an appeal. | Petitions for supersedeas. |
| LXXXIX. Writs of error or supersedeas, may be granted by the district court to any judgment of the | Jurisdiction as to. |
| county court, above the value of ten pounds or one thousand pounds of tobacco. | |
| XC. Before granting any appeal, or the issuing of any writ of error or supersedeas, the party praying the same, shall enter into bond with sufficient security, in a penalty to be fixed by the court or judge granting the same, with condition to pay the amount of the recovery, and all costs and damages awarded, in case the judgment or sentence be affirmed. Where several appeal, or obtain a writ of error or supersedeas, bond and security given by any party shall be sufficient. | Bonds. |
| XCI. If upon hearing any writ of error or supersedeas, the judgment of the inferior court be reversed in whole or in part, the district court shall enter such judgment thereupon, as ought to have been entered in the inferior court. | Judgment. |
| XCII. Bonds to be given in court for obtaining writs of error, supersedeas, certiorari, appeals, or any other cause, shall be valid and sufficient if given by a responsible person and security, although the party interested in the event of the suit be not an obligor. | Bonds by whom. |
| XCIII. Where the defendant in any personal action appeals, or obtains such writ of error or supersedeas, if the judgment be affirmed, the damages besides costs shall be ten per centum per annum, upon the principal sum and costs, recovered in the inferior court, in satisfaction of all damages or interest. | Damages in personal actions. |
| XCIV. In real or mixed actions the damages shall be ten pounds, or two thousand pounds of tobacco, besides costs, and where the plaintiff appeals in any action, if the judgment be affirmed, and in all controversies about mills, roads, probat of wills, or certificates for administration, if the sentence of the inferior court be affirmed, the party appealing shall pay to the other all costs. | In real, or mixed. |
| XCV. When any person not being a slave, shall be charged before a justice of the peace with any criminal offence, which in the opinion of such justice ought to be examined into by the county court, the said justice shall take the recognizance of all material witnesses to appear before such county court, and immediately by his warrant commit the person so charged so the county jail, and moreover shall issue his warrant to the sheriff of the county, requiring him to summon the justices of the county to meet at their courthouse on a | Criminal cases. |
| certain day, not less than five nor more than ten days after the date thereof, to hold a court for the examination of the fact, which court shall consider whether, as the case may appear to them, the prisoner may be discharged from further prosecution, may be tried in the county or must be tried in the district court; and if they shall be of opinion that the fact may be tried in the county, the prisoner shall be bound over to the next grand-jury to be held for that county for trial, or upon refusing to give sufficient bail, shall be remanded to the county jail, there to remain until such court, or until he or she shall be bailed; but if they shall be of opinion that the prisoner ought to be tried in the district court, they shall take the depositions of the witnesses, and bind such, as they shall think proper, by recognizance, to appear and give evidence against such criminal at his or her trial, and having remanded the prisoner to jail, any two of the justices, one being of the quorum, by warrant under their hands and seals, shall direct the sheriff or his deputy to remove the prisoner and commit him or her to the district jail, there to be safely kept until he or she shall be discharged by due courts of law; by virtue of which warrant the sheriff, as soon as may be, shall remove the prisoner and deliver him or her with the warrant to the keeper of the district jail, who shall receive and safely keep him or her accordingly, and for enabling the sheriff safely to convey and deliver such prisoner, the said two justices, by their warrant, shall empower him, as well within his county, as without, to impress such and so many men, horses, and boats, as shall be necessary for the guard and safe conveyance of the prisoner, proceeding therein as the law may direct in cases of impressing on other occasions; and all persons are to pay due obedience to such warrant. Provided, That if such prisoner shall, in the opinion of the court, be bailable by law, he or she shall not be removed within twenty days after the examining court, but shall and may be admitted to bail before any justice of the same county within that time, or at any time afterwards, before any judge of the general court; | |
| XCVI. A public jailor shall be appointed to each district by the governor and council, shall give bond and security to the governor and his successors, as the public jailor in the city of Richmond now does, and | Public jailor. |
| shall be amenable to the judges of such court, in like manner as the keeper of the public jail hath heretofore been to the judges of the general court. And the judges attending each district court shall have authority to superintend and regulate the district jail, in the same manner as the general court had to regulate and superintend the public jail. | |
| XCVII. The jailor, during his continuance in office, shall be exempted from serving in the militia, and on juries, and shall have such allowance, over and above the fees, as by the general assembly shall be thought reasonable. | His privileges. |
| XCVIII. The keeper of the district jail shall constantly attend the said court, and execute the command of the said court, from time to time, and take or receive into his custody all persons by the court to him committed on original or mesne process, or in execution in any civil suit, or for any contempt of the court, and him or them safely keep until thence discharged by due course of law, and may demand of every such prisoner the legal fees for diet and care; but where such prisoner is so poor as not to be able to support him or herself in prison, the jailor shall be allowed by the public one shilling, per day, for the maintenance of every such poor prisoner, and no security shall be demanded of him, or her, nor shall he, or she, be detained for such prison fees. | His duty. |
| XCIX. The keeper of the district jail, by order of any two justices of his county, may impress guards to the safe-keeping of all prisoners in his custody, to be paid by the public. | Guards. |
| C. The fee to the sheriff of the county, and to the district jailor, for keeping and dieting any such prisoner, shall be one shilling, per day. | Diet of prisoners. |
| CI. If a prisoner shall desire any witnesses to be summoned for him or her to appear, either at the examining court, or on the trial at the district court, the clerk of the said court, or of the county court (as the case may be) shall issue subpœnas for such witnesses, who, being summoned and attending, shall have the like allowance for travelling and attendance, and be subject to the same penalty for failing to attend, as is provided for witnesses in civil cases. | Witnesses for prisoners. |
| CII. When any person shall be so removed to be tried for treason or felony, the clerk of the county | Records of criminal cases. |
| from whence the prisoner is removed, shall, immediately after the court holden for his or her examination, transmit to the attorney for the commonwealth in the district court, a copy of the warrant for his or her commitment, and of the depositions taken on the examination, and shall moreover issue a writ of venire facias to the sheriff of the county, commanding him to summon twelve good and lawful men, being freeholders of the county, residing, as near as may be, to the place where the fact is alledged to have been committed, to come before the district court on the first day of its next session, and return a pannel of their names; which freeholders, or so many of them as shall appear, not being challenged, together with so many other good and lawful freeholders of the bystanders, as will make up the number of twelve, shall be a lawful jury for the trial of such prisoner. | |
| CIII. Every venire-man summoned and attending the district court, shall have the same allowance for travelling and attendance, as is herein provided for witnesses, to be paid by the public. | Allowance to venire men. |
| CIV. If any person summoned as a venire-man, shall fail to attend accordingly, not having a reasonable excuse, to be made at the time he should have appeared, or at the next district court, every such person may be fined by the court, not exceeding forty shillings, or four hundred pounds of tobacco, for the use of the commonwealth. | Failing to attend. |
| CV. The clerk of the district court shall, in a book by him kept for that purpose, enter the names of all the venire-men and witnesses who attend for the trial of criminals at such court, the number of days each shall attend, the ferries they shall have crossed, and the distance they shall have travelled on that occasion, and shall give certificates for the same, which shall be paid in the manner directed by law. | Entering witnesses allowances. |
| CVI. The sheriff for the time being of the county, in which the district court is holden, shall, before every meeting of the district court, summon twenty-four freeholders of the district, qualified as the laws require for grand jurors, to appear at the succeeding district court, on the first day thereof, which the said sheriff is hereby empowered to do, as well without his county, as within the same; and the said twenty-four men, or any sixteen of them, shall be a grand jury, and shall enquire | Grand juries. |
| of, and present, all treasons, murders, felonies, or other misdemeanors whatever, which shall have been committed or done within the district; and upon any indictment for a capital offence being found by a grand jury to be true, against any person or persons, the judges shall cause such person or persons to be immediately arraigned and tried by a petit jury, summoned as herein before directed; and he, she, or they, being found guilty, pass judgment as the laws direct, and thereupon award execution, and if the prisoner shall be found not guilty, to acquit him or her of the charge. Provided, that in all trials, the defendant shall be allowed counsel; and that, when sentence shall be passed upon any prisoner, there shall be one calender month at least between the judgment and execution. Provided also, that in case of the sickness, death, or non-attendance of any grand juror or grand jurors, after he or they shall be sworn, it shall be lawful for the court to cause others to be sworn in his or their stead. | |
| CVII. No grand jury shall make any presentment of their own knowledge, upon information of fewer than two of their own body, nor where the penalty inflicted by law is less than twenty shillings or two hundred pounds of tobacco. | Presentments. |
| CVIII. Every person summoned to appear on a grand jury, and failing to attend, not having a reasonable excuse, shall be fined by the court, not exceeding four hundred pounds of tobacco, to the use of the commonwealth. | Failing to attend. |
| CIX. Upon presentment made by the grand jury of an offence not capital, the court shall order the clerk to issue a summons, or other proper process against the person or persons so presented, to appear and answer such presentment at the next court, and thereupon hear and determine the same according to law. | Process on presentments. |
| CX. It shall be the duty of the attorney general to nominate and appoint proper persons to prosecute for the commonwealth, in such courts as he cannot attend himself. | Attornies for commonwealth. |
| CXI. Prison rules and bounds shall be assigned by the district courts. | Prison rules. |
| CXII. Where the prisoner shall be convicted, and hath estate sufficient to pay the charges of prosecution, the whole shall be paid out of such estate, and the public | Costs of prosecution. |
| only made chargeable where there is no estate, or not sufficient to be found. | |
| CXIII. If any criminals sent for trial to the general court shall not have been tried at their session in December, one thousand seven hundred and eighty-eight; or if any criminals so sent from the county court, or shall hereafter be sent for trial to the general court, it shall be lawful for the executive, upon application of the attorney general, to cause such criminals to be sent to the district from whence they came. Provided always, that it shall be lawful for any judge of the general court to admit such criminals to bail for their appearance at the district court, in all cases bailable by law. | Criminals. |
| CXIV. The several suits which shall be depending in the general court at the time of the commencement of this act (except appeals, writs of error, or supersedeas, and such others wherein there shall be a special verdict, case agreed, motion in arrest of judgment, or point of law reserved) shall be arranged by the clerk thereof to the districts of the counties wherein the original writs or process were respectively served, according to the directions of this act, and with the papers therein, and a state of the costs to that time in each, as well of plaintiff as defendant, delivered to the several clerks of the districts to which they respectivety belong, who shall docket the same according to the order of priority of commencement, those at issue, or in which writs of enquiry are to be executed on the court docket to be tried at the next district term, and all others on his rule-docket, to be proceeded in at the rules as is herein before directed for original suits, regarding the progress made therein at the time. | Suits transmitted from general to district court. |
| CXV. The sessions of the general court shall be holden at the capitol in the city of Richmond, and shall begin on the ninth day of June, and the ninth day of November, in each year, or when either of those days happen to be Sunday, then on the next day, and shall continue sixteen juridical days each, unless all the business before them be sooner dispatched. | Terms of general court. |
| CXVI. Three judges shall constitute a general court, except in the case of impeachment, on which occasion, a majority of the whole number shall be necessary. | Judges. |
| CXVII. The said general court shall continue to have jurisdiction over all causes depending therein at the commencement of this act, by appeal , writ of error, supersedeas, or mandamus, or scire facias on judgments therein, or in which there hath been a special verdict, case agreed, errors assigned in arrest of judgment, demurrer to evidence, or point of law reserved, but in none other of the suits so depending, which shall be sent to and tried in the respective district courts as is herein before directed: And that writs of scire facias may be issued from, and tried in the general court, upon all judgments which have been or shall be obtained therein, the said court may fine sheriffs, deputy sheriffs, or coroners, for not returning executions issued, or to be issued from the said court, and enter up judgments against the said officers for all money or tobacco for which they have made, or shall make themselves liable by law to judgments upon such executions; may award executions upon replevy bonds, or bonds to have goods forthcoming at the day of sale, if by law such bond shall continue to be authorized; may quash executions as illegally or improvidently issued or executed, and award new ones; or finally may exercise full jurisdiction in every other legal mode necessary for carrying into complete execution all judgements heretofore given, or hereafter to be given, in the said court, in like manner as if this act had never been made. The said court shall also have power to isssue writs of mandamus to the district courts. But no original suit shall, after the commencement of this act, be brought into the said general court, nor shall the said court exercise any power, jurisdiction, or authority, in any causes, civil or criminal, except what is by this act, or may, by law, be expressly given to the said court, motions, suits, and other proceedings, now depending, or that may be hereafter brought by the solicitor against public debtors, and public defaulters of every denomination, for and on behalf of the commonwealth; and the cases of impeachment directed by the constitution or form of government to be tried in the general court. | Jurisdiction of general courts. |
| CXVIII. If at the commencement of the district courts, a common order shall have been confirmed, but shall not have been made final, it may be set aside on the usual terms, on the third day of the succeeding | Common orders. |
| general court: If it be not set aside, it shall be considered as a judgment obtained before the commencement of the district courts. The general court shall also at any time rectify any improper dismissions in their own court, or the office of their clerk, and shall send any suit which may be reinstated, to the proper district. The general court shall also direct to what districts those suits shall be sent in which writs were served, or were not directed to any sheriff; having regard, as far as can be ascertained, to the residence of the defendant. The said courts shall have the same power to issue commissions for examining witnesses respecting any matter depending before them, as is hereby given to the district courts. Writs of execution, scire facias, or other legal process, sued out of the general court, shall be returnable to the first day thereof. | |
| CXIX. For good cause shewn, the general court may direct a trial by jury at their own bar of any cause depending before a district court, for which purpose they may order the sheriff, or any other officer attending them, to summon a jury, qualified as the laws not directs in the cases of juries in the general court. | Trials at bar. |
| CXX. For good cause shewn the general court may change the venue in any suit depending in the district courts. | Change of venue. |
| CXXI. If a judge allotted to a district court be interested in the event of any suit, the general court shall, upon application to them made, change the venue and cause a trial at bar. | Judges interested. |
| CXXII. If before the commencement of this act, any appeal or supersedeas should be entered or obtained to a judgment or decree of any inferior court, the same shall be tried before the general court, as the said court shall be arranged under this act. | Appeals. |
| CXXIII. Deeds partly proved in the general court shall be retained there for full proof. | Deeds. |
| CXXIV. The general court shall retain jurisdiction over all wills, partly proved, or now under contest before them. | Wills. |
| CXXV. Traverses to inquisitions now depending in the general court shall be retained and determined there. | Inquisitions. |
| CXXVI. All process awarded since the general court in October last, and returnable to the said court, all declarations in ejectment, and other things hereafter returnable to the general court, shall continue to be returnable thereto. And the clerk of the general court upon his receiving the same, or if they should not be received before the first day of the next session of the said court, shall distribute the causes and matters to which they belong, to the proper and respective districts, according to the directions of this act. | Process. |
| CXXVII. A tax of six shillings shall be, and is hereby imposed on all final judgments in the district court, which shall be paid by the party obtaining the same to the clerk of the court, before such judgment shall be entered, and taxed in the bill of costs; and in all other respects, the tax on process in the district courts shall be the same, and be taxed in the bill of costs in like manner, as is by law directed concerning process in the general court; and the taxes on deeds, wills, and administrations, and on appeals from the district courts, and also on attornies practising therein, shall be the same; to be collected, accounted for, and paid, by the clerks, respectively, in like manner, and subject to the same mode of proceeding against them for default, as is directed for the like taxes in the county courts. | Tax on law process. |
| CXXVIII. No person shall be found guilty on an impeachment but by a jury; for which purpose the clerk of the said court, as soon as such impeachment shall be notified to him by the attorney general, or any other person or persons appointed by the house of delegates to prosecute the same, shall issue a venire facias to the sheriffs of the senatorial district, wherein the person accused resides; commanding them to summon in their counties to the first day of the next succeeding court of appeals, in proportions as nearly equal as possible, twenty-four jurors, qualified according to law for the trial of other criminal cases; which process may be repeated by order of the court as often as it shall be necessary. The prosecutor for the commonwealth, and the person accused, shall, in open court, alternately strike one, until the number shall be reduced to twelve; which remaining twelve shall be a jury, and shall try the impeachment, render a verdict, and | Impeachments. |
| proceed in the same manner, as is prescribed in the case of an indictment in the general court. The jurors, who shall attend on summons, shall have the same allowance, and be subject to the like penalties, as in the case of venire-men attending the district courts. −− If twenty-four jurors should not appear, bystanders may be summoned to make up the deficiency. The party accused may have one or more counsel, without petitioning the said court. | |
| CXXIX. No impeachment shall be tried during the session of the general assembly, unless the party accused shall request it. | |
| CXXX. It shall be lawful for any person impeached to challenge, for good cause, any juror, either before or after the names shall be struck. | |
| CXXXI. If a majority of the judges of the general court be interested in any suit, which, in the case of any other person, would have been proper for the jurisdiction of such court, it may be lawful to institute such suit under this act in the high court of chancery, where proceedings shall be had conformably to the rules of the general court; and process shall be returnable as the high court of chancery shall direct; and thereafter an appeal may be entered to the court of appeals. | Judges interested. |
| CXXXII. The clerk of each district court shall, annually, before the last dy of January, transmit to the sheriff of each county within the district, a list of all fines imposed by the district court, in the year next preceding, to the use of the commonwealth, on persons residing in such county; and the sheriffs shall, respectively, proceed to collect, levy, account for, and pay, the same in like manner, and subject to the same remedy and proceedings against them for default, as is or shall be directed in case of public taxes, being allowed in their accounts for insolvents, and five per centum commissions; and the said clerks shall severally transmit copies of such lists to the solicitor general, to enable him to call the sheriffs to account. | List of fines. |
| CXXXIII. An act passed at the October session, one thousand seven hundred and eighty-seven, intituled, "An act establishing district courts," and so much of all former laws as is contrary to this act, shall be, and the same is, hereby repealed. |
| Pages 703-729
| Pages 764-796
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