111. A Bill for Preventing Vexatious and Malicious Prosecutions and Moderating Amercements
Be it enacted by the General Assembly, that every action at common law, or suit in equity, commenced in the name of a person not residing in Virginia, unless he be employed abroad in the service of the commonwealth, or of the United States of America, shall be dismissed, if security be not given with the clerk of the court from whence the process shall issue, or wherein it shall be depending, within sixty days after notice, shall, at any time during such non residence have been given to the demandant, or plaintiff, or his attorney, by some person interested, that such security is required, for payment of the costs and damages which may be awarded to the tenant or defendant, and also of the fees which will become due to the officers of the court. No information for a trespass, or misdemeanor, shall be filed in any court but by express order of the court, entered on record, nor unless the party supposed to be culpable shall have failed to appear, and shew good cause to the contrary, having been required so to do by a summons appointing a convenient time for that purpose, served upon him, or left at his usual place of abode; and the name and sur-name of the prosecutor, and the town or county, in which he shall reside, with his title or profession shall be written at the foot of the information, before it be filed, and of every bill of indictment for any trespass, or misdemeanor, before it be presented to the grand jury; and if the defendant shall appear to shew cause against filing the information, or to answer the information or indictment, and the prosecutor shall not proceed further, or if the defendant shall be found not guilty by the petit jury, or a judgment shall be given for him he shall recover his costs against the prosecutor with an attorney’s fee, if one was employed, and the allowances to witnesses to be taxed in the bill of costs, and may have execution for them, as the manner is in civil cases. And in every such information or indictment, the amercement which ought to be according to the degree of the fault and saving to the offender his contenement shall be assessed by twelve honest and lawful men either those by whom the offender shall have been convicted in case of a verdict, or those who shall be empannelled for that special purpose, where judgment shall be given against him upon the argument of a demurrer or by his confession or default. No escheator, sheriff, coroner or other inquisitor, shall hereafter have power of amercement, for default of common summons, save only the Judges of the General Court.1
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 80. MS (ViU); clerk’s copy. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 355–6.
Bill presented by Madison 31 Oct. 1785, postponed 14 Dec. to next session, brought up again 1 Nov. 1786, amended by both houses, and passed on 29 Nov. (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, 55, 60, 65, 66, 127). Text of Act as adopted and Bill as proposed by Committee of Revisors agree except as noted below; Act was suspended until 1 July 1787 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 410–11).
1. The Act adds the following: “or the respective county or corporation courts.”