Pages 381-401
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| Pages 381-401
| Pages 422-449
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| CHAP. VII. | ||
| ||
| (Passed November the 15th, 1792.) | ||
| SECT. 1. WHEREAS it hath been represented that the time allowed by the act of the last session for the owners of surveys to return their plats and certificates into the land office, and it is expedient to extend such time: Be it therefore enacted by the General Assembly, That the further time of one year and five months, to be computed from the month of July next, shall be allowed to the owners of surveys on the Western waters, and the further time of twelve months from the passing of this act, shall be allowed the owners of surveys on the Eastern waters, for returning all plats and certificates of surveys to the register of the land-office, who shall receive the same. Any law to the contrary notwithstanding. | Preamble. Surveys on the Western waters when to be returned. When on the Eastern waters. | |
| SECT. 2. This act shall commence and be in force from and after the passing thereof. | ||
 CHAP. VIII. | ||
| ||
| (Passed October the 12th, 1792.) | ||
| WHEREAS the time limited by law for the owners of entries on the Western waters to survey the same, will expire during the present session of Assembly, and it is expedient that a further time should be allowed such owners to comply with the requisitions of the acts of Assembly in such case made: Be it therefore enacted by the General Assembly, That the further time of two years shall be allowed to the owners of entries on the Western | Preamble. Entries on the Western waters, within what time to be surveyed. |
| waters to survey the same, in such manner as is directed by law. Any thing to the contrary hereof notwithstanding. | |
| CHAP. IX. An act declaring what remedy the Commonwealth shall have in certain cases. (Passed December the 25th, 1792.) | |
| SECT. 1. BE it enacted, That whensoever any person or persons heretofore have, or hereafter may receive, any sum or sums of money or tobacco, or any kind of public securities whatsoever, which of right do or shall appertain to this Commonwealth, and such person or persons shall refuse or neglect to pay such money, tobacco, or public securities, or any part thereof, to such officer of this Commonwealth, to whom by law the same ought to be paid; then and in case it shall and may be lawful for the governor, with the advice of the council of state, to institute an action upon the case against such person or persons, their executors or administrators, for money, tobacco, or public securities (as the case may be) had and received to the use of the Commonwealth; which action shall be instituted in the name of the governor for the time being, and his successors, for the use of the Commonwealth, and shall not abate by the death, resignation, or removal from office of the governor, in whose name it shall be brought. | Actions on the case may be brought against public debtors for
recovery of money, &c. due to the Commonwealth, In the name of the governor. |
| SECT. 2. Where such suit shall be brought against any public officer, such officer shall not be permitted to plead any official bond, or any condition or covenant therein, either in abatement or bar thereof. | No official bond to be pleaded in abatement or bar thereof. |
| SECT. 3. This act shall commence and be in force from and after the passing thereof. |
| CHAP. X. An act for ascertaining the Salaries to the officers of civil government. (Passed November the 22, 1792.) | |
| SECT. 1. BE it enacted, That the several officers herein-after mentioned, shall receive for their salaries in quarterly payments, after the same shall have been audited, according to law: The governor or chief magistrate, the sum of two thousand six hundred and sixty-seven dollars. The member of the privy council, the sum of six thousand six hundred and sixty-seven dollars, to be divided amongst them according to their attendance. The judges of the court of appeals, the judge of the high court of chancery, and the judges of the general court, each, the sum of one thousand dollars. The attorney-general, the sum of six hundred and sixty-seven dollars per annum, and to each of his deputies in the district courts, seventy-five dollars per annum. The auditor of public accounts, the sum of one thousand dollars per annum. The speaker of the senate, the sum of three dollars and thirty-four cents per day, during each session of Assembly, including his daily pay. The speaker of the house of delegates, the sum of six dollars and sixty-seven cents per day, in like manner. The clerk of the general court, for his ex officio services, the sum of one hundred dollars per annum. The register of the land-office and his clerks, the sum of one thousand three hundred and thirty-three dollars per annum. The treasurer, the sum of sixteen hundred and sixty-seven dollars per annum. The first clerk of the council, treasury, and auditor, the sum of five hundred dollars per annum each, and each of the other clerks of the council, treasury, and auditor, the sum of three hundred and thirty-four dollars per annum. And the keeper of the public jail, the sum of eighty-four dollars per annum. All those several sums shall be paid in specie; and the auditor is hereby authorised to audit the same, and issue his warrants upon the treasury accordingly. | Salaries payable quarterly to the officers of government. |
| SECT. 2. All and every act and acts, clauses and parts of acts heretofore made, containing any thing within the purview of this act, shall be, and the same are hereby repealed. | Repealing clause. |
| Provided always, that nothing in this act contained, shall be construed to affect any right which shall have accrued prior to the commencement of this act. | ||
| SECT. 3. This act shall commence in force from and after the first day of January next. | ||
| CHAP. XI. | ||
| ||
| (Passed October the 26th, 1792.) | ||
| SECT. 1. BE it enacted by the General Assembly, That the Court of Appeals shall consist of five judges, to be chosen and commissioned in the manner directed by the constitute a court. The said court shall be holden at the capitol, in the city of Richmond, or at such other place as shall be appointed by the General Assembly, or in their recess, by the governor, with the advice of the council of state, on any such emergency, as will make the adjournment lawful. The said court shall be holden twice in every year, namely, on the tenth day of April, and the tenth day of October, or when that shall happen to be Sunday, on the succeeding day, and shall sit each time, until the business depending before them shall be dispatched. Every judge before he exercises his office, shall in open court give assurance of fidelity to the Commonwealth, and take this oath −− "You shall swear that you will well and truly serve this Commonwealth in the office of a judge of the court of appeals, and that you will do equal right to all manner of people, great and small, high and low, rich and poor, without respect of persons. You shall not take by yourself or by any other, any gift, fee, or reward of gold, silver, or any other thing, directly or indirectly, of any person or persons, great or small, for any matter done or to be done, by virtue of your office, except such fees or salary, as shall be by law appointed. You shall not maintain by yourself or by any other, privily | Court of appeals to consist of five judges. Any three to constitute a court. Where to be holden. Terms. Oaths to be taken by the judges. |
| "or openly, any plea or quarrel depending in the courts of this Commonwealth. You shall not delay any person of right for the letters or request of any person, nor for any other cause; and if any letter or request come to you contrary to the law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request 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, favor or affection. So help you GOD." | |
| SECT. 2. The said court shall have jurisdiction not only in the cases provided for by the constitution of this Commonwealth, and in suits originating there or adjourned thither for trial by virtue of any statute, which trial shall be by juries according to the course of law, but also in such as are now pending therein, or shall be brought before them by appeals, writs of error or supersedeas, to reverse decrees of the high court of chancery, or judgments of the general court, or district courts of this Commonwealth, after those decisions shall be final there, if the matter in controversy be equal in value, exclusive of costs, to one hundred dollars, if the judgment sought to be reversed, shall be rendered in the district courts, or one hundred and fifty dollars, if in the general court or high court of chancery, to [or] be a freehold or franchise; and in all other cases therein depending at the commencement of this act. | Jurisdiction of the court. |
| SECT. 3. If a sufficient number of judges to constitute a court shall not attend on the first day of any term of the court of appeals, it shall be lawful for any one judge thereof to adjourn the court from day to day, for four days successively, or until a sufficient number shall attend, and if that shall not happen before four of the clock on the fourth day, then the court shall stand adjourned, and all suits depending therein continued to the next court. And if during any session after a court shall have been constituted, three judges shall not attend to make a court, there shall be no discontinuance of the term, but the court shall stand adjourned from day to day, till a sufficient number shall attend; provided that shall happen in four days, and if it does not, then the term and suits shall stand adjourned to the next court, as before directed. | Regulations respecting the adjournment of the court when the judges do not attend. |
| SECT. 4. Although one or more of the judges
of the court of appeals be interested in the event of any suit, matter or thing depending
therein, the same shall be finally decided by the other judges, if there be a number of judges
not so interested sufficient to constitute a court.
SECT. 5. If on an appeal from the high court of chancery, or on any question concerning any decree or order made therein, or process to be directed thereto, a majority of, or all the judges of the court of appeals be interested, then in the former case the remaining judges of the court of appeals not so interested, and as many of the judges of the general court, as will make the number at least five; and in the latter case so many of the judges of the general court not so interested, as will make the number five at least, shall constitute a special court for the trial of such appeal or question. If on an appeal, writ of error, or supersedeas to or from any judgment or order made in the general court, or any question concerning the same, or any process to be directed thereto, a majority or all of the judges of the court of appeals be interested therein, then in the former case the remaining judges of the court of appeals, not being so interested together with the judge of the high court of chancery, and as many of the judges of the general court, not being so interested, as will make the number five at least, shall constitute a like court for the purpose aforesaid. If on an appeal, writ of error, or supersedeas, to or from any judgment or order made in a district court, or any question concerning the same, or concerning any process to be directed thereto, a majority or all the judges of the court of appeals be interested, then in the former case, the remaining judges of the court of appeals not being interested, the judge of the high court of chancery not being so interested, and as many of the judges of the general , court, who are not so interested, and did not render the judgment or direct the order, as will make the number five at least, shall constitute a like court for the purpose aforesaid; and in the latter case no judge of the court of appeals shall sit; but any five of the judges last mentioned, and not disqualified as aforesaid, shall constitute a court. Provided always, that in case of the sickness or other disability of the judge of the high court of chancery to attend any special court of appeals, such court may, in any case, be constituted by other judges. And provided also, that when any special court shall be |
The court to determine causes in which one or more of the judges
may be interested if there remains a sufficient number to make a court. Special courts of appeals to be held for the trial of suits in which a majority of the judges of the court of appeals are interested. |
| appointed for the trial of any cause depending in the court of appeals, because a majority of the judges of that court are interested or otherwise disqualified to sit therein, in case of the sickness or disability of the remaining judge or judges of the said court not so disqualified, or either of them, the remaining judges appointed by law to hold such court, or any five of them attending may proceed to a hearing and decision of the cause, in the same manner as if all the judges of the courts of appeals, not so disqualified, had been present. | |
| SECT. 6. Whensoever a majority or all the judges of the court of appeals shall be interested in any of the cases abovementioned, the same shall be entered of record in the said court, and the clerk thereof shall thereupon issue a summons to the judge of the high court of chancery, and judges of the general court, requiring them, if not disqualified as aforesaid, to attend at the capitol, in the city of Richmond, or in case of adjournment of the court of appeals, to any other place, at such other place on the twentieth day of June or November, then next following, and stating the names of the parties, and the court whose decision is to be examined. A court constituted in any of the cases above described, shall hear, determine, and finally decide all suits, process, matters and things submitted to their cognizance and jurisdiction aforesaid. | When and where. |
| SECT. 7. The clerk of the court of appeals for the time being, shall attend all such special courts with the records in the cases to such special courts committed, and enter the proceedings of all such special courts in the order book of the court of appeals, and the same shall be signed by the presiding judge of such special court, and be certified to the inferior court; and the judgment or decree, sentence or order of such court shall be carried into execution in the same manner as if the same had been determined in the court of appeals. Such special courts shall be attended by the like officers with the court of appeals, who shall receive the like compensation as they now do in the said court; and such special courts may adjourn and do all and every act as a court during their session, which the courts of appeals may by law do. | To be attended by the clerk, and other officers of the court of appeals, and to have the same power of adjournment, &c. |
| SECT. 8. Provided always, That where any cause shall be pending in any such special court, and the same shall not be determined before there shall be a sufficient number of the judges of the court of appeals, qualified to | Causes in the special courts when to be resumed by the courts of appeals. |
| make a court for deciding the same, such cause shall be resumed by the court of appeals, and be determined there, as if such cause had never been committed to a special court. | |
| SECT. 9. Each judge attending in consequence of such summons, shall in open court take an oath to do his duty as a judge of appeals, in the case or cases on which he is summoned, impartially and truly, without favor or affection; which oath shall be administered by the eldest sitting judge, and shall then be administered to him, if he shall not before have qualified as a judge of the court of appeals by one other of the judges. | Oaths to be administered to the judges attending such special courts. |
| SECT. 10. Each judge attending in consequence of such summons, and not disqualified as aforesaid, shall be allowed for his attendance three dollars and thirty-three cents per day, and for travelling to and from the place of session, two dollars for every twenty miles: And the judges of the court of appeals, attending such special court, and not disqualified to sit therein, shall be paid the same allowance. | Allowances to them for attendance and travelling expences. |
| SECT. 11. The court of appeals shall appoint
a clerk, tipstaff, and cryer, the first removable for misbehaviour, in the manner directed by the
constitution, the two others at pleasure; and shall be attended by the sheriff of the county in
which they sit as their officer.
SECT. 12. If a vacancy shall happen in the office of clerk out of the terms of the said court, it shall be lawful for a majority of the judges, by commission under their hands and seals, to appoint a clerk to fill such vacancy. |
Court of appeals to appoint their officers; to be attended by
the sheriff of the county in which the court is holden. Judges may appoint a clerk in vacation. |
| SECT. 13. The clerk of the said court shall carefully preserve the transcripts of records certified to his court with the bonds for prosecution, and all papers relative to them, and other suits depending therein, docketing them in the order he shall receive them, that they may be heard in the same course, unless the court for good cause to them shown, direct any to be heard out of its turn, and shall faithfully record their proceedings and decisions, and certify the same to the proper courts. | Duty of the clerk. Rule in docking causes. |
| SECT. 14. Appeals, writs of error, and supersedeas, may be granted, heard and determined by the court of appeals, to and from any final decree or judgment of the high court of chancery, general court and district courts, in the same manner, and on the same principles as appeals, writs of error and supersedeas are to be granted, | Jurisdiction of the court with respect to appeals, writs of error, supersedeas, &c. |
| heard, and determined by the high court of chancery, and district courts, to and from any final decree or judgment of a county, city, or borough court, and the party shall proceed in like manner, and the damages in case of affirmance shall be the same in the court of appeals, as in those courts respectively; and the clerk of the said court shall issue the like process for summoning the adverse party, removing the records, suspending the execution, and for every other requisite purpose, making those alterations in the form, which are necessary to adapt it to the case, as are prescribed in the like cases in the high court of chancery, and the district courts, respectively. | |
| SECT. 15. Writs of supersedeas may be granted by any judge of the court of appeals during vacation, the party desiring to obtain the same, proceeding in like manner as in the case of a supersedeas, to be granted by a judge of the district courts, to a judgment of the county court. | Writs of supersedeas may be granted in vacation. |
| SECT. 16. Where one person or several, obtain an appeal, writ of error, or supersedeas, bond and security given by one party, or by any responsible person, shall be valid and sufficient. | By whom bond and security may be given in appeals, &c. |
| SECT. 17. Whensoever any appeal, writ of error, or supersedeas, shall be granted, and a transcript of the record be not sent to the court on or before the second term of the court of appeals, after the same shall have been granted, such appeal, writ of error, or supersedeas, shall be dismissed, unless good cause be shewn to the contrary. | When records in appeals, &c. are to be filed. |
| SECT. 18. After the dismission of an appeal, writ of error, or supersedeas in the court of appeals, no appeal, writ of error, nor supersedeas shall be allowed. | After dismission of appeals, &c. none others to be allowed. |
| SECT. 19. A clear and concise state of the case of each party in an appeal, writ of error, or supersedeas, with the points intended to be insisted on, signed by his counsel and printed, the expence whereof shall be taxed in the bill of costs, shall be delivered to every judge time enough before the hearing for his consideration; but the court, if this be neglected, may nevertheless hear and determine the matter, and may give such decree or judgment, if it be not affirmed or reversed in the whole, as the court whose error is sought to be corrected ought to have given, (affirming on those cases where the voices on both sides shall be equal, with an allowance of the costs of appeal to the party prevailing) to be certified to | Cases to be stated and printed for the judges. Judgments of the court, how to be rendered. |
| the court from which the matter was removed, who shall enter it as their own, and award execution thereupon accordingly. | |
| SECT. 20. It shall not be lawful for the high court of chancery or general court, to remove before the court of appeals, by adjournment, any question, matter or thing whatsoever. | No question to be removed by adjournment to the court of appeals. |
| SECT. 21. The judges of the court of appeals shall direct the form of writs from time to time in such manner as shall seem advisable. | The judges to direct the forms of writs. |
| SECT. 22. All acts and parts of acts, within the purview of this act, shall be, and are hereby repealed. | Former acts repealed. |
| SECT. 23. This act shall commence and be in force from and after the passing thereof. | |
| CHAP. XII. AN act reducing into one, the several acts concerning the High Court of Chancery. (Passed November the 29th 1792.) | |
| SECT. 1. BE it enacted by the General Assembly, That the high court of chancery shall consist of one judge, to be chosen and commissioned in the manner directed by the constitution of this Commonwealth. | High court of chancery to consist of one judge; how chosen and commissioned. |
| SECT. 2. The said court shall be holden at the Capitol in the city of Richmond, or at such other place as shall be appointed by the General Assembly, or in their recess by the governor, with the advice of the council of state, on any such emergency, as will make the adjournment lawful. | Where to be held. |
| SECT. 3. The said court shall be holden three times in every year, namely, on the first day of March, on the twelfth day of May, and on the tenth day of September; but if either of those days happen on a Sunday, on the day following. The session in March shall continue eighteen, and the session in May and September, twenty-four juridical days successively, unless the business depending before the said court shall be sooner dispatched. | Terms. |
| SECT. 4. If the judge shall not attend on the first day | The court to |
| of the term, such court shall stand adjourned from day to day until a court be made, if
that shall happen before four o'clock in the afternoon of the sixth day.
SECT. 5. 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 its decision, all suits, matters and things depending in court and undecided, shall stand continued to the next succeeding term. if from any cause the court shall not sit on any day of the term after it shall have been opened, there shall be no discontinuance; but so soon as the cause is removed the c court shall proceed to business until the end of the term, if the business depending before it be not sooner dispatched. |
be adjourned from day to day for six days when the judge does
not attend.
Causes to be continued to the next term when the court does not sit, or does not finish the business. |
| SECT. 6. Every person so commissioned before
he enters upon the duties of his office, shall take and subscribe the oath of fidelity to this
Commonwealth, and take the following oath: "You shall swear that well and truly you will serve this Commonwealth in the office of judge of the high court of chancery, and that you will do equal right to all manner of people, great an small, high and low, rich and poor, according to equity and good conscience, and the laws and usages of Virginia, without respect of persons. You shall not take by yourself, or by any other, any gift, fee, or reward, of gold, silver, or any other thing, directly or indirectly, of any person or persons, great or small, for any matter done or to be done by virtue of your office, except such fees or salary, as shall be by law appointed. You shall not maintain by yourself, or by any other, privily or openly, any plea or quarrel depending in the courts of this Commonwealth. You shall not delay any person of right for the letters or request of any person, nor for any other cause; and if any letter or request come to you contrary to law, you shall nothing do for such letter or request, but you shall proceed to do the law, any such letter or request 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, favor, affection or partiality. So help you God." Such oath shall be taken before the executive, and a certificate recording in the said court. |
Oaths to be taken by the judge. |
| SECT. 7. If any person shall presume to execute the | Penalty for |
| said office, without having taken the said oaths, he shall forfeit and pay the sum of fifteen hundred dollars for his said offence. | acting without taking the oaths. |
| SECT. 8. The said court shall have general jurisdiction over all persons and in all causes in chancery, now pending therein, or which may hereafter be brought before it, whether by original process, appeal from any inferior court, certiorari, or other legal means, and also in such other cases, as by any statute, are, or shall be made cognizable therein: but no person shall commence an original suit in any matter of less value than thirty-three dollars and thirty-three cents, except it be against the justices of any county or other inferior court, on pain of having the same dismissed with costs. | Jurisdiction of the court. |
| SECT. 9. The said court shall be considered as always open, so as to grant injunctions, writs of ne exeat certiorari, and other process heretofore usually granted in vacation. | In what cases to be considered as always open. |
| SECT. 10. The said court shall have power to appoint a clerk, who shall hold his office during good behaviour, and be entitled to such fees or salary as the legislature may appoint, as also a serjeant at arms. And in case of a vacancy in the recess of the said court, the said judge may make the like appointments under his hand and seal, during a vacation; and such succeeding clerk or serjeant, having, in any court of record, taken the oaths required by law, shall exercise the same power, perform the same duties, and be entitled to the same fees and profits, as if he had been appointed in term time. | Officers to be appointed. |
| SECT. 11. It shall be lawful for the high
court of chancery to send any matter of law to the general court, for their opinion to be
certified thereupon.
SECT. 12. Although any of the defendants, whether debtors or others, in any suit instituted in the said court, should be absent from the Commonwealth, the court may nevertheless proceed to a hearing and decree therein, as in the case of absent debtors having effects within the Commonwealth. |
The court may require the opinion of the general court in
matters of law.
May proceed against other absent defendants as against absent debtors. |
| SECT. 13. The said court in its discretion, may direct an issue to be tried, whenever it shall be judged necessary, either in that court, or in any other court whatsoever, as justice or convenience to the parties may require, and in all other cases the mode of trial shall be the same as hath been heretofore used and practised in the courts of chancery in Virginia. | May direct issues to be tried. Mode of trial in all other cases. |
| SECT. 14. 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 roper for the jurisdiction of such court, it may be lawful to institute such suit 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. | Suits properly cognizable in the general court may be tried in the court of chancery, when a majority of the judges of the former are interested. |
| SECT. 15. It shall be lawful for the said court to arrange the business thereof, in the most convenient and equitable manner. | |
| SECT. 16. Any party thinking himself aggrieved by a decree of the court of a county, city, or borough, in chancery, and not having entered an appeal from the decree at the time it was pronounced, may appeal from such decree at any time within one month after the decree pronounced, lodging for that purpose with the clerk of the high court of chancery, a copy of the proceedings in the suit, and a petition suggesting error in the decree, signed by some counsel attending the high court of chancery, and also lodging with the petition a bond executed by the appellant or his agent, and a surety or sureties with the like condition as is annexed to other appeal bonds, and affidavits, or solemn affirmation, verifying the sufficiency of the sureties; and the clerk shall thereupon issue a summons against the appellee, requiring him to appear and answer the said petition and appeal, and shall also issue a supersedeas, if necessary, to enjoin from proceeding in execution of the decree; and the court shall and may hear and determine the appeal in the same manner as if the appeal had been entered at the time the decree was pronounced. | When appeals may be made from decrees in county courts where not entered when the decrees were pronounced. |
| SECT. 17. Provided always, That whenever an appeal is prayed for from any inferior court to the said high court of chancery, or bond is given for the removal of any suit in chancery, in any manner whatsoever, it shall be sufficient in either case, if the said bond or bonds shall be executed by good and sufficient securities, although the appellant or party shall not execute the said bond or bonds. | By whom bond and security may be given in appeals, &c. |
| SECT. 18. The said court, or the judge thereof in vacation, shall have power, for good cause shewn, to allow a petition of appeal, and if necessary, order a supersedeas to stop the execution of any decree pronounced by an | How appeals may be obtained from decrees in county courts |
| inferior court, at any time within three years after pronouncing the same; the party praying such appeal and supersedeas, complying with the terms which the said court or judge shall annex to such order. | where not entered when the decrees were pronounced. |
| SECT. 19. All original process to bring any person to answer any bill, petition or information in the said court, and all subsequent process thereupon, shall be issued and signed by the clerk in the name of the Commonwealth, and bear teste by the judge of the said court; shall be returnable to the first or seventh days of the term, which shall be next after the suing out such process, and may be executed at any time before the return day thereof. And if any process shall be executed so late that the sheriff hath not reasonable time to return the same before the day of appearance, and thereupon any subsequent process shall be awarded, the sheriff shall not execute such subsequent process, but shall return the first process by him executed, on which there shall be the same proceedings as if it had been returned in due time. | Process, how to be issued. Return days. |
| SECT. 20. All appeals from decrees in chancery, obtained in any inferior court, shall be made to the third day of the next term. | Appeals to be made to the third day of the next term. |
| SECT. 21. In all suits in the said court, the following rules and methods shall be observed: The complainant shall file his bill within one calendar month after the day of appearance, or may be ruled on the requisition of the defendant to file such bill, and if he fails to do so within one calendar month after such rule, the suit may be dismissed with costs; and if he shall fail to file the same within three months after the subpœna shall be returned executed, the suit shall stand ipso facto dismissed with costs. | Rules to be observed in the pleading. |
| SECT. 22. And 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, an attachment, or other process of contempt, or an execution may issue, at the election of the defendant, returnable on any return day. | |
| SECT. 23. The complainant may amend his bill before the defendant or his attorney hath taken out a copy thereof, or in a small matter afterwards, without paying costs; but if he amend in a material pont after such copy obtained, he shall pay the defendant all costs occasioned thereby. |
| SECT. 24. If the defendant shall not appear on the day of appearance, (which in all cases shall be the second day after the term to which the subpœna is returnable) an attachment shall be awarded and issued against him, returnable to the next term, which being returned executed, if the defendant doth not appear, or being brought into court upon any such process, shall obstinately refuse to answer, the complainant's bill shall be taken as confessed, and the matter thereof decreed accordingly. | |
| SECT. 25. The defendant within three calendar months after his appearance and bill filed, shall put in his answer to be filed with the clerk in the office, at the expiration of which time, if no answer be filed, the clerk, upon request, shall issue an attachment, returnable to the next court; and if no answer be filed upon the return of such attachment executed, or a copy thereof left at the defendant's usual place of abode, or last place of residence, the complainant's bill shall be taken as confessed, and the matter thereof decreed; and if the attachment be returned not executed, an attachment with proclamation, and such subsequent process of contempt may issue as was heretofore issuable out of the general court sitting in chancery in like cases. | |
| SECT. 26. No process of contempt shall issue unless the subpœna be returned served by a sworn officer, or affidavit be made of the service thereof. | |
| SECT. 27. Every defendant may swear to his answer before any judge of this or of the general court, or any justice of the peace. | |
| SECT. 28. If the defendant does not file his answer within three months after the plaintiff shall have filed his bill, having also been served with the subpœna at least three months before the said time for filing his answer, the plaintiff may have a general commission to take depositions, or he may move the court to bring in the defendant to answer interrogatories, at his election, and proceed on to hearing in the last two cases, as if the answer had been filed, and the cause was at issue: Provided, that the court for good cause shewn, may allow the answer to be filed, and grant a further day for such hearing. | |
| SECT. 29. After answer filed, and no plea in abatement to the jurisdiction of the court, no exception for want of jurisdiction shall ever afterwards be made, nor shall the high court of chancery, or any other court, |
| ever thereafter delay or refuse justice, or reverse the proceedings for want of jurisdiction, except in cases of controversy respecting lands lying without the jurisdiction of such court, and also of infants and femes covert. | |
| SECT. 30. When a cross bill shall be exhibited, the defendant or defendants to the first bill shall answer thereto, before the defendant or defendants to the cross bill shall be compelled to answer such cross bill. | |
| SECT. 31. The complainant shall reply, or file exceptions within two calendar months after the answer shall have been put in. If he fails so to do, the defendant may give a rule to reply with the clerk of the court, which being expired, and no replications or exceptions filed, the suit shall be dismissed with costs; but the court may order the same to be retained if they see cause, on payment of costs. | |
| SECT. 32. If the complainant's attorney shall except against any answer as insufficient, he may file his exceptions, and give a rule with the clerk to make a better answer within two calendar months, and if within that time the defendant shall put in sufficient answer, the same shall be received without costs; but if any defendant insists on the sufficiency of his 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 term in court, and after the expiration of such rule, or any second insufficient answer put in, no farther or other answer shall be received but upon payment of costs. | |
| SECT. 33. If upon argument the complainant's exceptions shall be over-ruled, or the defendant's answer adjudged insufficient, the complainant shall pay to the defendant, or the defendant to the complainant, such costs as shall be allowed by the court. | |
| SECT. 34. Upon a second answer adjudged insufficient, costs shall be doubled. | |
| SECT. 35. If a defendant shall put in a third insufficient answer, which shall be so adjudged, he or she may be examined upon interrogatories, and committed until he or she shall answer them, and pay costs. | |
| SECT. 36. If the defendant, after process of contempt, put in an insufficient answer, which shall be so adjudged, the complainant may go on with the subsequent process of contempt as if no answer had been put in. | |
| SECT. 37. Rules to plead, answer, reply, rejoin, or |
| other proceedings not before particularly mentioned, when necessary, shall be given from month to month with the clerk in his office, and shall be entered in a rule book for the information of all parties, attornies, or solicitors, concerning therein. | |
| SECT. 38. No defendant shall be admitted to put in a rejoinder, unless it be filed on or before the expiration of the rule to rejoin, but the complainant may proceed to set his cause down for hearing. | |
| SECT. 39. After an attachment with proclamation returned, no plea or demurrer shall be received, unless by an order of court, upon motion. | |
| SECT. 40. 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 trial by jury, as has been heretofore used in other causes in chancery, where trial hath been by jury: And if thereupon the plea should be found false, the complainant shall have the same advantages as if it had been so found by verdict at common law. | |
| SECT. 41. If a plea or demurrer be over-ruled, no other plea or demurrer shall be thereafter received, but the defendant shall answer the allegations of the bill. | |
| SECT. 42. If the complainant shall not proceed to reply to, or set for hearing, as before mentioned, any plea or demurrer before the second court after filing the same, the bill may be dismissed of course with costs. | |
| SECT. 43. Upon a plea or demurrer argued and over-ruled, costs shall be paid as where an answer is judged insufficient, and the defendant shall answer within two calendar months after, but if adjudged good, the defendant shall have his costs. | |
| SECT. 44. If any defendant, after a demurrer shall have been over-ruled, shall refuse to answer, the bill shall be taken as confessed, and the matter thereof decreed. | |
| SECT. 45. After any bill filed, and before the defendant hath answered, upon oath made that any of the complainant's witnesses are aged, and infirm, or going out of the country, the clerk may issue a commission for taking the examination of such witnesses de bene esse; the party praying such commission, giving reasonable notice | When plaintiffs may obtain commissions de bene esse. |
| to the adverse party, of the time and place of taking the depositions. | |
| SECT. 46. Whenever a general commission shall issue for taking depositions upon answer and replication, six months from the time of the replication shall be allowed the parties for taking their depositions, and either party at the expiration of the said six months may set the same for hearing, nor shall any deposition taken after that time be read as evidence on the hearing, except the same was taken by consent of the parties by special order of court, or out of the state. | After a general commission six months allowed for taking
depositions. When causes are to be set for hearing. |
| SECT. 47. The court in their sittings may regulate all proceedings in the office, and for good cause shewn, may set aside any dismissions, and reinstate the suits on such terms as shall appear equitable. | Proceedings in the office subject to regulation by the court. |
| SECT. 48. For prevention of errors in entering up the decrees and orders of the court, the proceedings of every day shall be drawn up at large by the clerk, and read in open court the next day, except those of the last day of each term, which shall be drawn up, read, and corrected the same day, and any necessary corrections made therein, when they shall be signed by the judge of the court, and preserved among the records. | Proceedings in court to be read before signing. |
| SECT. 49. And 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 those wherein the title to lands is determined shall be entered in separate books to be kept for that purpose only. | Compleat records to be made in suits determined. |
| SECT. 50. The court in session, or the judge in vacation, may grant writs of certiorari, for removing before the said court the proceedings in any suit in chancery, depending in any county or other inferior court, writs of ne exeat to prevent the departure of any defendant out of the country, until security be given for performing the decree, and writs of injunction to stay execution of judgments obtained in any of the courts of common law, subject nevertheless to the rules following: | Writs of certiorari, ne exeat and injunction how granted. |
| SECT. 51. No writ of certiorari shall be granted to remove any suit, unless the matter in dispute be of value sufficient to entitle the high court of chancery to original jurisdiction therein, nor unless ten days notice of the motion be given in writing to the adverse party, nor in | Rules as to writs of certiorari. |
| vacation but upon such petition and affidavit as are by law directed for writs of certiorari to be granted by the district court; and in all cases, bond and security shall be given for performing the decree of the said high court of chancery, before the issuing of the certiorari. | |
| SECT. 52. Writs of ne exeat shall not be granted but upon a bill filed and affidavits made to the truth of its allegations, which being produced to the court in term time, or the judge in vacation, such writ may be granted or refused as shall seem just; and if granted, he shall direct to be endorsed thereon in what penalty bond and security shall be required of the defendant. | As to writs of ne exeat, and how they may be discharged. |
| SECT. 53. If the defendant shall by answer satisfy the court that there is no reason for his restraint, or give sufficient security to perform the decree, the writ may be discharged. | As to injunctions. |
| SECT. 54. No injunction shall be granted to stay proceedings in any suit at law, unless the matter in dispute be of value sufficient to admit of original jurisdiction in the said high court of chancery, nor unless the court in term time, or the judge thereof in vacation, shall be satisfied of the plaintiff's equity, either by affidavit, certified at the foot of the bill, that the allegations thereof are true, or by other means, and shall order the same. | |
| SECT. 55. Where any injunction shall be granted, the clerk shall endorse on the subpœna that the effect thereof is to be suspended, until the party obtaining the same shall give bond with sufficient security in the office of the court in which the judgment to be enjoined shall have been obtained. | |
| SECT. 56. The party obtaining the injunction shall then enter into bond with sufficient security, and file the same in the clerk's office of that court in which the proceedings at law were had, for paying all money and tobacco and costs due, or to become due to the plaintiff in the action at law, and also all such costs as shall be awarded against him or her in case the injunction shall be dissolved; and the clerk shall endorse on the subpœna that the bond is filed. | |
| SECT. 57. It shall be lawful for the high
court of chancery in such cases as may require a report, which cannot be performed without great
delay to other business, to employ one or more commissioners, and to cause a reasonable allowance
to be taxed in the bill of costs.
SECT. 58. If any defendant or defendants shall be in |
Court may appoint commissioners in cases which require reports and make them an allowance for their trouble. |
| custody upon any process of contempt, and be brought into court by virtue of a writ of habeas corpus, or other process, and shall refuse or neglect to enter his or her appearance according to the rules of the court, or appoint an attorney of the court to do the same for him, the court in such case may direct an attorney to enter an appearance for the defendant or defendants, and thereupon such proceedings may be had as if he or they had actually entered an appearance; but if such defendant or defendants shall be in custody at the time a decree shall be made upon refusal or neglect to enter an appearance, or to appoint an attorney as aforesaid, or shall be forth coming so as to be served with a copy of the decree, then such defendant or defendants shall be served with such copy before any process shall be taken out to compel the performance thereof, and if such defendant or defendants shall die in custody before such service, then his heir, if any real estate be sequestered or affected by such decree, or if only personal estate, his executor or administrator shall be served with a copy in a reasonable time after such death shall be known to the plaintiff, and who is such heir, executor or administrator. | Method of proceeding against defendants in custody who refuse to enter their appearance. |
| SECT. 59. Whereas many persons against whom decrees may have been rendered in the high court of chancery, may desire to appeal from such decrees, but have been hindered from doing so, at the term in which the said decrees were pronounced: BE it enacted, That if upon a petition to any judge of the court of appeals, or the judge of the high court of chancery in vacation next after the term, when such decree shall have been rendered, for relief in such a case, it shall appear to his satisfaction, that the failure to appeal from his decree, at the time, or during the term when it was pronounces, did not arise from any culpable neglect in the petitioner, or that upon the whole circumstances of the case, the petitioner ought to have the benefit of an appeal, it shall be lawful for the said judge to grant the said appeal, which grant of appeal, shall be as effectual, both for staying proceeding on the said decree, and for bringing the same before the court of appeals for their decision, as if the same had been duly made during the term when the said decree was pronounced. | How appeals may be obtained from decrees in the high court of chancery where not entered when the decrees were pronounced. |
| SECT. 60. And whereas upon bills of review in the said high court of chancery, the judge of the said court may think it reasonable, during the pendency of such | Proceedings on decrees may be stayed during the |
| bills, or until cause shall be shewn to the contrary, to stay proceedings on the decree, which such bills are intended to review: Be it enacted, That in such case, the judge of the said high court of chancery, either in term time or in vacation, when a bill praying a review of the proceedings in which a decree shall have been pronounced by the said court, shall be presented to him, may upon such bill, and the circumstances of the case, as the same shall appear satisfactory to him, direct proceedings on such decree to be stayed, until a decree on the said bill of review shall be made or until the further order of the said judge; or the said judge may refuse to grant a stay of proceedings in that case, as to him shall seem right, Provided, that the said judge of the high court of chancery shall in either of the said cases direct such security to be given, and in such place as is usual in the cases of appeal and injunction, or such other security as to him shall seem to be reasonable. | pendency of bills of review. |
| SECT. 61. All acts and parts of acts within the purview of this act, shall be, and are hereby repealed. | Former acts repealed. |
| SECT. 62. This act shall commence and be in force from and after the passing thereof. |
| Pages 381-401
| Pages 422-449
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