102. A Bill for Regulating Proceedings in Courts of Common Law
Be it enacted by the General Assembly, that all writs, given by the twenty-fourth chapter of the statutes, made in the thirteenth year of the reign of King Edward, the first, of England, and heretofore in use, shall continue to be used, in the same manner as if that statute were hereby re-enacted.1 Actions of account may be maintained against the representatives of deceased guardians, bailiffs, and receivers, and also by one joint tenant, or tenant in common, or his executor, or administrator, against the other, as bailiff for more than his share; and the auditors appointed by the court, in any action of account, may examine the parties, upon oath, touching the matters in question; and shall have such allowance, for their trouble in taking and auditing the accounts, as the court shall adjudge to be reasonable, to be paid by the party against whom the balance of the account shall appear to be. The representatives of a deceased executor, whether rightful or wrongful, who shall have converted to his own use, or wasted the estate of his testator or intestate, shall be chargeable for such conversion or waste of the assets in their hands, in the same manner as their testator or intestate might have been charged. Process, from the General Court, shall run in the name of the commonwealth, be issued and signed by the clerk, and bear teste in the name of the Chief Justice, the preceeding return-day; but the day it issued shall be endorsed thereon, and noted in the book where the names of the parties to the suit are first entered. The return-day of process, issuing from the General Court, to arrest or summon persons to answer in actions real, personal, and mixt, where other days be not in extraordinary cases especially directed or authorised by some statute, shall be the eighth and twenty third days of the March and October terms, and of process, in pleas of the commonwealth, the first day of the term after the emanation; and no process shall be returnable later than to some day of the next term but one after emanation. Process, from the court of a county, city, or borough, shall run in the name of the commonwealth, be issued by the clerk of the peace, bear teste in his name, be signed by him, and, if not an exigent, shall be returnable to the session next after the teste, unless where, if the process be to arrest one in a civil action or suit, such next session will happen within three days after the teste, in which case the process shall be returnable to the session in the month following; and every such process, to arrest one, shall be executed at least three days before the return-day thereof. Process in an action at common law, against the Governor, a member of the Privy Council, a Judge, or a clerk of the High Court of Chancery, General Court, or Court of Admiralty, or a sheriff, shall be summons and distress, and against such Governor, Judge, or clerk, shall issue from the General Court, if the value of the matter in controversy exceed ten pounds; and process in any such action, to arrest a person so privileged, or issuing against such Governor, Judge, or clerk, from any other court, than the General Court, shall be void. Such action against a Governor, Judge, or clerk, shall be tried, if the plaintiff require it, on some day in the term next, or next but one, after the issue shall be joined, unless good cause for deferring the trial be shewn; but if more than two Judges of the General Court be parties or interested, the case shall be adjourned to the Court of Appeals, and be tried before them at their first or second session after the adjournment, if no good cause for deferring the trial be shewn. The second days next after the March and October terms shall be the days of appearance upon process from the General Court, returnable to the eighth and twenty-third days of those terms respectively. Every party to any civil action, not allowed to sue in forma pauperis, unless he be under the age of twenty-one years, or of unsound mind, and in that case his guardian, to be specially assigned by the court, may, by warrant, under his hand or by appointment personally declared in court, empower an attorney to appear for him, and without such authority, entered of record, no attorney shall be permitted to appear, neither shall any act done by him bind the party. Warrants of attorney to confess judgments, or suffer them to pass by default, and releases of error, made before the actions brought, shall be void; and an attorney appearing by such warrant, knowing it to have been made before the action brought, shall forfeit and pay to the defendant the amount of the debt or damages, for which the judgment shall be given to be recovered by action of debt; and shall moreover be liable to his action for damages. In any action, if affidavit be made before some Justice of the Peace, or the clerk who shall issue the writ, that the debt demanded, or the value of the goods detained, or alledged to have been converted to the use of the defendant, or the damage sustained by non-performance of the condition, covenants, promise, or agreement, for which the action is brought, amounts to a certain sum, exceeding ten pounds, if the action be in the General Court, or five pounds, if in the court of a county, city, or borough, or, if a Judge of the court, from which the writ shall issue, certify in writing, under his hand, that the defendant appeared, by affidavit, to have been guilty of a mayhem, or of a violent battery, and ought to give bail in a certain sum, or, if the action be founded upon some act of the General Assembly, requiring the defendant to give bail, the clerk, at the request of the plaintiff, shall endorse on the writ a direction, with his name thereunto subscribed, that the sheriff or officer take bail, in the sum mentioned in the affidavit, or certificate, which shall be lodged with the clerk, or in a sum equal to the forfeiture inflicted by the act, if it be ascertained, or, if not, in the amount of such damage as the plaintiff shall make affidavit, in manner aforesaid, to have been sustained. And the sheriff, or other officer, shall discharge out of his custody, every person arrested by force of such writ, or by a capias, upon an indictment of trespass, or misdemeanor, upon sufficient surety given to appear at such day and place as the writ shall require. And the bonds, executed by the defendant and surety, shall be returned with the writ. And if no direction, to take bail, be endorsed on the writ, in any action personal, the sheriff, or other officer, shall not arrest the body of the defendant, but shall serve him personally with a copy of the process against him; and, if he shall not appear, at the time and place he ought to do so, the plaintiff may proceed against him, in the same manner as if the defendant had entered his appearance. No person shall be out-lawed in any action quare vi et armis. Whensoever a writ of exigent shall be sued out in any civil case, it shall be directed to the sheriff of that county wherein the last place of abode of the defendant was, and, issuing from the court of a county, city, or borough, shall be returnable to the sixth session next after the teste, and shall be audibly read by the said sheriff, who shall also set up copies thereof at the door of the court-house of his county five sessions, successively; and if the defendant be returned five times required, and shall not appear at or before the return of the writ of exigent, the plaintiff may proceed, in the same manner, as he might have proceeded against the defendant, if he had appeared. If a defendant, arrested by force of any process, and enlarged upon giving a bail-bond, with surety, for his appearance, to the sheriff, or other officer, shall not appear accordingly, or offering to appear, and being ruled by the court to put in special bail, shall neither put in such bail, nor surrender himself to prison, the plaintiff may proceed against him, in the same manner, as if the defendant had appeared, and put in special bail; and the sheriff or other officer, shall assign the bail-bond to the plaintiff, at his request, and thereupon the surety shall be subject to the same judgment, and may make the same defence, as the party, for whose appearance he was bound, is subject to, and might have made; but if the surety shall not appear, judgment shall not be entered against him, until ten days at least after a rule, to shew cause to the contrary, shall have been served upon him, or, if he be not found, left at the place of his usual abode, whereof affidavit shall be made and filed; and the surety may, at any time before such judgment, put in a plea in bar thereto, or discharge himself of the action, by bringing the defendant into court, or delivering him into the custody of the sheriff, which he shall have the same power to do, as if he were special bail; or the surety may, at any time after such judgment, by order of the court, obtain an attachment against the estate of the defendant, directed to the sheriff of any county: which estate may be sold, towards satisfaction of the judgment, or may be replaced, in the same manner, as if it had been taken in execution, by writ of fieri facias. The sheriff, or officer, who shall execute process, where special bail is required, neglecting to take and return the bail-bond, or taking such surety for appearance as the court shall judge to be insufficient, shall be liable for the demand, may make defence, and may be relievable against the defendant, or out of his estate, in the same manner as the surety; but every surety shall be deemed sufficient, unless exception be made to him, and a note of such exception be filed, during that term, or session, of the court, to which the process shall have been returned, or at the day of appearance, next after the term, and reasonable notice, in writing, of the exception to be given to the sheriff, or officer, suggested to be liable to justify the surety in some day of the term, or at the session next after the notice, and an affidavit of the notice be made and filed. The recognizances of special bail may be taken by any Justice of the court, in which the action dependeth; and such recognizances, in actions depending in the General Court, may also be taken by any persons, being Justices of the Peace, whom that court shall appoint; and the recognizances shall be transmitted, by those who take them, to such court respectively, where any special bail may be excepted to; and if he be not justified, at the term, or session, next after the recognizance shall have been transmitted, and after reasonable notice, in writing, of such exception, proved, by affidavit filed, to have been given to the party liable, in case the bail be adjudged insufficient, the recognizance shall be discharged, and the plaintiff may proceed in the same manner, as he might have done, if no recognizance had been taken; but if no exception be made, or the bail be not adjudged insufficient, the recognizance shall be as effectual, as if it had been taken in court. Whosoever shall personate another, before any authorised to take bail, shall not only be liable to the action of the party injured, but also be amerced, and imprisoned. Special bail may discharge himself of his recognizance as well before as after judgment against the defendant, either by bringing him in court, and there delivering him up, or by delivering him to the officer who arrested him, or his successor, so as such render, after judgment, be in due time, and so as notice, of a render to the officer, be given to the clerk of the court, where the action was commenced, within such time as a render in court ought to be made; and thereupon such proceedings shall be, as might have been if the defendant had not been bailed. If return of any process, whereon a direction to take bail shall have been endorsed, be made, that the defendant is not found in the bailiwick of the officer, the plaintiff may sue out an attachment against the estate of the defendant, directed to the same officer; and if any of the defendant’s estate be attached, and he shall not replevy the same, by giving bond with surety to the officer, with condition for his appearance, at the return of the attachment, or shall not at that time appear and put in special bail, being ruled to do so by the court, the plaintiff may proceed as if the defendant had not appeared, and, judgment being given for him, the estate attached shall be disposed of as if it had been taken by writ of fieri facias. A defendant, arrested by process from the General Court, in any action, not having given a bail-bond, but remaining in custody, and not having put in an attorney to appear for him, shall, by writ of habeas corpus, to be granted to the plaintiff, at his desire, after the day of appearance, and after the declaration filed, be brought before the court, at some certain day, in any term, when, if the defendant, being present at the bar, shall not enter his appearance in person, or put in an attorney to appear for him, and plead, upon a rule given him, to be out before the last day of the term, judgment may be entered against him, as appearing in person. And where a person shall sue forth a writ from the General Court against a prisoner, in the public jail, the defendant, by order of the said court, may be brought before them, by the jailer, at any day of the term; and the same proceedings shall be thereupon, as if the prisoner had been arrested by force of such process; and, in either case, such charge, in court, by declaration, signified by rule to the jailer, shall be a good cause of detention of the prisoner, in his custody, and subject such jailer, suffering an escape, to an action; and a defendant, in prison, by force of process from the court of a county, city, or borough, and brought before such court, by their order, may be charged, in like manner; and the officer, in whose custody he remains, shall have the same power to detain him, and shall be subject to the like action for an escape, as in the case of a prisoner in the public jail. In an action at common law, commenced in the General Court, the defendant, or tenant, at the day of appearance, or whenever he shall afterwards enter his appearance, may give the plaintiff, or demandant, a rule to put his declaration, if it shall not have been put in before; and, after the declaration shall be put in, if the defendant, or tenant, do not plead thereto, before the end of one month, the plaintiff, or demandant, may then give the defendant, or tenant, a rule to plead; and either party, at the end of one month after he shall have put in any pleading, may give the other party a rule to plead further, in answer thereto, until issue be joined; and every such rule shall be entered by the clerk of the court in a book, and shall be out in one month; and, after the expiration of the rule, a nonsuit or judgment, against the party making default, shall be entered by the clerk, in the same book, as an act of the court, in the preceeding term, and shall stand confirmed, unless good cause to the contrary be shewn to the court, on the eighth day of the succeeding term, at which time any judgment entered during that interval, against a defendant, or against a defendant and his surety, or against a defendant and the sheriff, shall be set aside, upon the appearance of the defendant, and by his putting in special bail, if he be ruled to do so, and pleading, and any other proceeding, in the clerk’s office may then also be examined, and, being judged erroneous, may be corrected by the court. A dilatory plea, or a plea of non est factum, shall not be received, unless the party offering it make affidavit of the truth thereof, or shew some probable matter to the court to induce them to believe the fact of the plea to be true. The defendant or tenant, in any action, or the plaintiff, in replevin, may, with leave of the court, plead as many several matters thereto, as he shall think necessary for his defence. In an action of trespass quare clausum fregit, the defendant may plead a disclaimer, and that the trespass was involuntary, and that he tendered sufficient amends for such trespass before the action brought; upon which points, or some of them, the plaintiff shall join issue; and if the issue be found for the defendant, or the plaintiff be nonsuited, the plaintiff shall be barred. In an indictment, or information, for a libel, the defendant may plead a justification, and if the jury find the facts contained in the writing, supposed to be a libel, to be true, he shall be acquitted; and where the defendant shall plead not guilty to such indictment, or information, or to any declaration for a libel, or for slanderous words, if, at the time of putting in the plea, he shall file a writing, therein, stating specially, the matters of fact he will endeavour to prove, in his defence, he shall be admitted, on the trial, to give evidence of such of the said matters of fact, as are pertinent to the cause, in mitigation of the fine or damages. In every action of ejectment, commenced merely to try the title of the lessor of the plaintiff to lands or tenements, such lessor, and all persons claiming under him, shall be bound, and finally barred, by a judgment given against the plaintiff, of all right and title to the same lands and tenements, prior to the commencement of the action. An action shall not abate by death of one or more of the plaintiffs, or demandants, or of the defendants, or tenants, if it might afterwards originally be maintained by or against the survivor or survivors, such death being suggested on the record. If either or both the parties die, after verdict, judgment shall be entered, in the same manner, as if they were living. An action shall not abate by death of either party, or of both parties, after an interlocutory, and before a final judgment, if it might, after such death, originally be maintained by or against his or their representatives; but a scire facias shall be sued forth by the living plaintiff, or demandant, or the executor, administrator, heir, or devisee, against the defendant, or tenant, or the executor, administrator, heir, or devisee, representing him or them, respectively, to shew cause why the debt, or other thing demanded, or the damages alledged to have been sustained, should not be recovered; and if the person, against whom the scire facias shall be sued, appearing at the return of the writ, shall not alledge matter sufficient to arrest the judgment, or being returned warned, or, if return being made on two writs of scire facias, that he could not be found in the county, he shall make default, an enquiry of damages shall be made by a jury, which being done, judgment final shall be given, in the same manner, as it might have been, if the parties to the scire facias had been parties to the original action. An action brought in the name of the Governor, in behalf of the commonwealth, shall not abate by his death. All causes, civil and criminal, commenced, and all appeals entered, before the twelfth day of April, one thousand seven hundred and seventy four, wherein George the third, King of Great Britain, or his Attorney General, was a party, or wherein other persons, suing as well on behalf of themselves as of the said King, were parties, and which remain undetermined, and wherein the King’s right hath devolved upon the commonwealth, shall stand revived, and be in the same condition as they then were, or, by virtue of any act of General Assembly since made, now are, and may be prosecuted, and in like cases actions upon bonds and recognizances made payable to the said King may be commenced and prosecuted, and execution of judgments recovered by the said King, or his Attorney, or by others who sued on behalf as well of themselves as of the said King, yet remaining unsatisfied, may be done; the name of the commonwealth, or of the Attorney General thereof being inserted in all future forms, where the name of the said King, or of his said Attorney, respectively, ought to have been inserted, if the government of this country, as formerly exercised under the crown of Great Britain had not been dissolved. The court shall give leave to either party to an action, at any time before the trial, to amend his declaration, or other pleading, so that the amendment do not alter the nature of the action, or delay the trial, and the party who desires it pay the costs occasioned thereby. Mistakes and irregular entries by the clerk of a court may, at any time before execution, be corrected and reformed by the same court. In an action upon a bond, or upon a contract, subjecting the party to the payment of a penal sum, for non-performance of a condition, covenant, or agreement, the plaintiff may assign as many breaches as he will, and the jury, upon trial, shall assess damages for such of these as shall be proved to have happened, or judgment upon demurrer, or by confession, or by nil dicit, having been given for the plaintiff, he may suggest the like breaches upon the record, and a jury shall be summoned and charged to enquire of the truth of them, and to assess the damages sustained thereby; and in either case judgment shall be for the penalty, to be discharged by payment of such damages, with the costs, as well as of the damages, which may be thereafter assessed, for other breaches, if any, to be suggested as often as they shall happen, in a writ of scire facias. Judgment, in an action upon a bond, for a debt, shall be for the penalty, to be discharged by payment of the principal debt, with the interest due, and to become due, and costs, or for the costs only, if the defendant shall, before judgment, pay into court, to the use of the plaintiff, the principal debt, with the interest then due. Private statutes may be given in evidence in any case, without pleading them specially. A defendant may plead payment of the principal debt and interest, in bar of an action, upon a judgment, or upon a bond, although the payment shall have been after the time mentioned in the condition thereof, or upon a single bill; and may also plead a tender and refusal, between the time of payment, and the commencement of the action. Where a demurrer shall be joined, in any action, the court shall not regard any other defect or imperfection in the writ, return, declaration, or pleading, than what shall be specially alledged, in the demurrer, as causes thereof, unless something so essential to the action or defence, as that judgment according to law, and the very right of the cause, cannot be given, shall be omitted. Upon an interlocutory judgment, the damages sustained by the plaintiff, shall be inquired of in court; but such inquiry shall not be made, in the General Court, at the term next after the judgment, unless twenty days previous notice thereof be given to the defendant, and affidavit of such notice be made and filed. A question of law, arising upon a special verdict, or upon a special case, stated by counsel on both sides, shall not be argued the same term or session, without consent of parties. The clerk of every court shall issue and deliver subpœnas to all persons requiring them, for summoning witnesses to appear before such court, at such days of any term, or session, as he shall be directed by such persons. No negro, mulatto, or Indian, shall be a witness, in any cause, if either of the parties be a white person. Any party, in an action, may have commissions, to take the examinations of his witnesses; and, reasonable notice being given, to his adversary, of the time and place of executing the commissions, such examination of any witness, who may be lawfully examined, viva voce, may be read, as evidence at the trial, if the party, at whose instance the witness was examined, shall prove, that he was not in the commonwealth, or was dead, or so infirm that he could not attend personally. Any person who having been summoned to appear before the court, or commissioners, to testify, and attending accordingly, shall refuse to give evidence, may be committed to jail, and closely confined, until he shall submit to be examined. Any person summoned to appear before the court, or the commissioners, as witnesses, and failing to attend accordingly shall not only be liable to the party grieved, for damages, to be recovered, by an action on the case, but shall, moreover, forfeit and pay, to the same party, one thousand pounds of tobacco, by rule of court, to be made absolute, unless such rule being served upon him, good cause be shewn to the contrary, at the next term or session. The privilege, from arrest, of any person going to, attending on, or returning from a court of justice, shall continue, from the time of leaving his habitation, until his return thither, provided it exceed not one day for every twenty miles of the distance he must necessarily travel, over and above the time of attendance. Every witness shall be allowed one pound and a half of tobacco for every mile he shall necessarily travel, from the place of his abode, to that he shall have been summoned to appear at, and the same for returning, and his ferriage, and sixty pounds of tobacco for every day he shall attend, in obedience to such summons, to be paid by the party, on whose behalf he shall have been summoned. The forfeiture inflicted by any act of General Assembly, and not thereby otherwise appropriated, if no prosecution be commenced on behalf of the commonwealth alone for the whole, shall be, one half to use of the informer; and in either case, if the defendant be convicted, costs shall be recovered against him. In every action, the party for whom judgment final shall be given, shall recover his costs of suit against the other party, and in case of a non-suit, the defendant or tenant shall, moreover, recover, if the action be in the General Court, five pounds of tobacco, for every mile the place of his usual abode is distant from the place, at which the process, served upon him, shall have been returnable; or, if the action be in any other court, five shillings, to be taxed in the bill of costs. One, of several defendants, joined in the same action of trespass, assault, false imprisonment, or ejectment, who shall, upon trial of the issue, be, by verdict acquitted, shall recover his costs, in like manner as if all had been acquitted. In any personal action, the plaintiff, for whom a verdict shall be found, shall recover no more costs, than the damages assessed by the jury, if these be under forty shillings, unless the title or boundaries of land, or a franchise, shall appear to the court to have been in question, or unless the defendant be convicted of wrongful or unreasonable distress. The clerk, in taxing costs upon a judgment, shall allow, to the party who recovers costs, five pounds, in the General Court, and thirty shillings in any other court, in an action, where the title or boundaries of land shall appear by the proceedings, or shall be declared by the court, and entered on the record, to have been in controversy, on the trial, or fifty shillings in the General Court, and fifteen shillings in any other court, in a different action, not being a petition to recover a small debt, and seven shillings and sixpence, in such petition, for a lawyer’s fee, if a lawyer was employed by him. When a dilatory plea, or plea in abatement, shall be overruled, the plaintiff shall recover his costs of suit to that time, a lawyer’s fee excepted. In taxing costs against the party from whom they shall be recovered, no office copy, taken out by, or for, the other party, of a writing, filed on behalf of himself, shall be allowed; nor shall the charge of more than three witnesses to the proof of any one matter of fact, be allowed, unless, from the contrariety of evidence, or the great number of witnesses, on the opposite side, or other circumstances the court shall think it reasonable to allow more. In an information, or indictment, for any trespass, or misdemeanor, or in an action against any person concerned in the administration of justice, for what he shall do in execution of his office, or by authority of a statute of the commonwealth, or against one for a penalty incurred by breach of a statute, the defendant, having pleaded the general issue, may, upon trial thereof, give evidence of any special matter, which if it had been pleaded, would have acquitted or justified him. Where there are mutual debts between the plaintiff and defendant, or where either party being an executor or administrator, there are mutual debts between the testator or intestate, and the plaintiff, or defendant, one debt may be set against the other, and such matter may be pleaded in bar, or may be given in evidence upon the general issue, so as, at the time of pleading the general issue, notice, in writing, be given of the particular sum or debt intended to be insisted on, and upon what account it became due; but if either of the debts shall have accrued by a penalty, contained in a bond or specialty, the debt, intended to be set off, shall be pleaded specially, and the amount of the sum due shall be shewn in the plea, and the plaintiff, in case judgment be given for him, shall recover no more than shall appear justly due, after one debt shall be set against the other. No writ of certiorari shall be granted, for removing an action into the General Court, if such action might not have been originally commenced there, nor after an issue shall have been joined; nor before the party praying the writ shall have given the adverse party ten days notice of the time when, and place where application will be made for it, and shall produce an affidavit of such notice; nor unless the reasons for desiring the writ be stated in a petition, to be verified by affidavit, and filed; nor where the action, before removed by certiorari shall have been remanded by writ of procedendo; neither shall such writ issue, before bond be given, with such surety as shall be approved of, and in such penalty, payable to the adverse party, as shall be directed by those who order the writ, with condition, that the party praying it, shall perform the judgment of the court. Such writ may be granted by two Judges of the court, in vacation; but, whensoever granted, shall not be obeyed, if it be not produced to the Judges, to whom it is directed, before issue joined, in the action. Any person apprehending himself to be aggrieved by a judgment of the court of a county, city, or borough, if the debt, or damages, or the value of the goods specifically recovered exclusive of costs, exceed ten pounds of current money, or two thousand pounds of tobacco, or if the title or boundaries of land, or a franchise, shall have been in question may enter and prosecute an appeal, from such judgment, to the General Court. Before the appeal shall be allowed, and before any writ of error, to reverse any such judgment shall issue, bond shall be given, with sufficient surety, and in an adequate penalty, payable to the appellee, or defendant in error, with condition, that the appellant, or plaintiff in error, shall prosecute the appeal, or writ of error, with effect, and perform the judgment of the General Court; which bond, in the former instance, shall be lodged with the clerk of the court below, and, in the other instance, with the clerk of the court above, to be delivered to the obligee. Such bond being given, in the case of an appeal, the clerk of the court below shall forthwith send a transcript of the record to the clerk of the court above, and the same proceedings shall be thereupon, as if the transcript had been removed by writ of error. No appeal or writ of error shall be granted before a final judgment. A writ of error, wherein there shall be a variance from the original record, or other defect, shall be amended, and made agreeable to such record, by the court, to which it shall be returnable. Upon an appeal or writ of error, the court above shall give such judgment as, in their opinion, the court below ought to have given. If the judgment against a defendant, whereby debt, or damages, or goods specifically demanded, shall have been recovered, be affirmed, in every part, the appellee or defendant in error shall recover, of the adverse party, five pounds by the year, from the time of rendering the judgment, for every hundred pounds of such debt, or damages, or of the value of such goods, including the costs, and after that rate for a less sum, or value, or a shorter time, besides the costs of the appeal, or writ of error; if the judgment against a defendant or tenant, whereby any title to lands, or a franchise, shall have been recovered, be so affirmed, the appellee or defendant in error shall recover two thousand pounds of tobacco, besides the costs of the appeal, or writ of error; and if the judgment, against a plaintiff or demandant be so affirmed, the appellee or defendant in error shall recover fifty shillings, besides the costs of the appeal, or writ of error. No writ of error shall be granted in any personal action, if the thing recovered, exclusive of costs, be of less value than ten pounds, of current money, unless it be by special order of the General Court, after ten days notice of a motion, for that purpose, shall have been given to the plaintiff. Upon quashing any writ of error, for variance from the original record, or other defect, the defendant in error shall recover against the plaintiff issuing the writ the same costs, and in the same manner, as if the judgment had been affirmed. No judgment, after a verdict of twelve men, shall be stayed or reversed, for any defect, or fault, in any writ, original or judicial; or for a variance in the writ, from the declaration, or other proceedings; or for any mispleading, insufficient pleading, discontinuance, misjoining of the issue, or lack of warrant of attorney; or for the appearance of either party, being under the age of twenty one years, by attorney, if the verdict be for him, and not to his prejudice; or for not alledging any deed, letters testamentary, or commission of administration, to be brought into court; or for omission of the words, with force and arms, or against the peace, or for mistake of the christian name, or sur-name, of either party, sum of money, or quantity of merchandize, day, month, or year, in the declaration, or pleading, the name, sum, quantity, or time, being right in any part of the record preceeding; or for omission of the averment this he is ready to verify, or this he is ready to verify by the record; or for not alledging as appeareth by the record; or for omitting the averment of any matter, without proving which, the jury ought not to have given such a verdict, or for any informality in entering up the judgment by the clerk; neither shall any judgment entered upon confession, or by nil dicit, or non sum informatus, be reversed, or a judgment, after enquiry of damages, be stayed, or reversed, for any omission, or fault, which would not have been a good cause to stay or reverse the judgment, if there had been a verdict. The proceedings of the General Court shall daily be drawn up, and entered, by the clerk, in a well bound book, and, having been audibly read by him, in open court, and corrected by the court, shall be signed by the presiding Justice, on the following day, unless it be on the last day of a term, when they shall be signed the same day; which book shall be carefully preserved, with the other records. The minutes of the proceedings of the court of a county, city, or borough, before their adjournment, shall be audibly read by the clerk, in open court, and corrected by the court, and signed by the presiding Justice, and afterwards the proceedings shall be entered at large by the clerk, in a well bound book, to be carefully preserved with the other records. Complete records of the process, proceedings, and judgments of the General Court, in all actions, and of the court of every county, city, and borough, in those actions, wherein there shall be writs of error, or appeals, or wherein the titles or boundaries of lands, or franchises shall be in question, shall be made up by the respective clerks, in books well bound, and carefully preserved with the other records; the records in those actions, wherein the titles or boundaries of lands shall be determined, being entered in distinct books. The clerk of every court shall, on or before the first day of January, annually, transmit a list of the fines imposed on jurors, and others the preceeding year, to the sheriffs of the counties, wherein the delinquent shall dwell, to be collected, received, and accounted for by such sheriffs in the same manner, as taxes; and shall also, before the first day of September, transmit the like lists to the public Treasurer.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 71–5. MS (ViU); clerk’s copy.
See TJ’s Bill for Establishing a General Court, under date of 25 Nov. to 4 Dec. 1776; also the Act as adopted at the Oct. 1777 session (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends ix, 401–19) and notes to Bill No. 91, above. Bill was presented by Madison 31 Oct. 1785, read twice, and on 14 Dec. postponed to Oct. 1786 session; on 1 Nov. 1786 it was brought up again, read twice, and committed to a committee of the whole (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). Apparently no further action was taken. But see the Act passed at the Oct. 1792 session “reducing into one the several acts concerning the establishment, jurisdiction, and powers of District Courts” (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xiii, 427–49).
1. In DLC: TJ Papers, 232: 42063 is a MS bill endorsed “A Bill for continuing the use of certain writs” and also “13.E.1.c.24.” This entire bill was copied verbatim as the first sentence of Bill No. 102. It was written by the same clerk who transcribed the fragment of Bill No. 64 (q.v.); on its verso TJ jotted down the memoranda that form Part 5 of Document iv in this series.