« AnteriorContinuar »
le bath attached any goods, and the defendant shall noi appear and replevy the same, by entering his apPitarance and giving special bail, in case he shall be ruled so to do, the plaintiff' shall file bis declaration, and be entitled in a judgment for his debt, or damages and costs, which judgment shall be final in all actions of debt founded on any specialty, bill or note in writing; ascertaining the demand; and in other cases, the damage3 shall be settled by a jury sworn to enquire thereof. The goods attached shall remain in the hands of the officer till such final judgment be entered, and then be sold in the same manner as goods taken upon a fieri facias; and if the judgment shall not be, thereby satisfied, the plaintiff may sue out execution for the residue: and in case more goods be attached than will satisfy the judgment, the surplus shall be returned to the de.. fendant.
XVI. On the return of the pluries, that the defen. davi is not to be found, the couri, instead of the process 10 ontlawry formerly used, may order a proclamation to be issued, warning the defendant to appear at a certain day therein named, or that judgment will de rendered against him; which proclamation shall be published on three successive court-days at the door of the court-house of the county to wbich the last process was directed, and also three times in the Virginia Gazette; and if the defendant fails to appear pursuant to such proclamation, the same proceedings shall be had, and the same judgment given as in other cases of default.
XVII. The plainuill shall file his deciaration in the clerk's office at the next such succeeding rule-day after the defendant shall have entered his appearance, or the defendant may then enter a rule for the plaintiff to declare, which if he shall fail or neglect to do at the succeeding rule-day, or shall at any time fail to prosecute bis suit, he shall be nonsuited, and pay to the defendant or tenant, besides his costs, one hundred and fifty pounds of tobacco, where his place of abode is at the distance of twenty miles or under from the place of holding the district couri, and where it is more, five pounds of tobacco for every mile above twenty.
XVIII. One month after the plaintiff hath filed bis declaration, he may give a rule to plead with the clerk, and if the defendant shall not plead accordingly at the expiration of such rule, the plaintiff may enter judgment by default for his debt or damages and costs.
XIX. All rules to declare, plead, reply, rejoin, or for other proceedings, shall be given regularly from month 10 month, shall be entered in a book 10 be kept for that purpose, and shall be out on the succeeding rule-day.
XX. All judgments by default for want of an appearance, or special bail, or pleas as aforesaid, and pon-suits or dismissions obtained in the office, and pot set aside at the third day of the succeeding district court, shall be entered by the clerk as of that day, which judgment shall be final in actions of debt founded on any specialty, bill, or note in writing ascertaining the riemand; and in all other cases the damages shall be ascertained by a jury, to be impannelled and swory to inquire thereof, as is berein after directed.
XXI. No plea in abaleneni, or of non est factum, shall be adimitted or received if the defendant be not an executor or administrator, unless the party offering the same shall prove the truth thereof by affidavit or affirmation, as the case may be; and where a plea in abatement shall npon argument he judged insufficient, the plaintiff shall recover full costs to the time of overruling such piea, a lawyer's fee only excepted.
XXII. The plaintiff in replevin, and the defendant in all other actions, may plead as many several matters, whether of law or fact, as he shall think necessary for his defence.
XXIII. Before every district court the clerk shall enter in a particular docket all such causes (aud those only) in which an issue is to be tried, or enquiry of damages to be made, or a special verdict, case agreed, demurrer, or other matter of law is to be argued, in the same order as they stand in the course of proceeding, setting as near as may be an equal number of causes to each day.
XXIV. In all cases where witnesses are required 10 attend the district court, a summons shall be issued by the clerk, expressing the day and place where they are to appear, the names of the parties to the suit, and in whose behalf summoned.
XXV. When any witness shall be about to depart the country, or shall be out of the commonwealth, or by age, sickness, or otherwise, shall be unable to at
tend, the court, upon affidavit thereof, or on a certificate from any justice of the peace, the court, when they are sitting, or the clerk in vacation, may, on request of either party, award a commission for taking the deposition of such witness, de bene esse, to be read as evidence at the trial, in case the witness shall be un, able to attend; but the party obtaining such commission shall give reasonable notice to the other party of the time and place of taking the deposition, otherwise the same shall be void.
XXVI. If any party in a suit at common law shall make oath, that he verily believes bis claim or defence, as the case may be, or a material point thereof, depends on a single witness, the court, when sitting, or the clerk in vacation, may award a commission to take the deposition of such witness, de bene esse, although he or she be not about to depart the country, nor under any disability, the party in such case giving rea. sonable notice of the time and place of taking such deposition to the adverse party.
XXVII. If any person summoned as a witness, and attending the court or the commissioners to take his or her deposition as aforesaid, shall refuse to give evidence upon oath or affirmation, as the case may be, to the best of his or her knowledge, every person so refusing shall be committed to prison either by the court or commissioners, there to remain without bail or mainprise inntil he or she shall give such evidence.
XXVIII. No person convicted of perjury shall be capable of being a witness in any case, nor shall any negro, mulatio, or lodian be admitted to give evidence but a gainst or between negroes, mulalloes or Indians,
XXIX. If any person suinmoned as a witness to attend the district court, shall fail to attend accordingly, they shall fie such person five pounds, or one thou. sand pounds of tabacco, at the option of the payer, to the use the party for whom such witness was summon, ed; and the witness so failing, shall farther be liable to the action of the party for all damages sustained by the non-attendance of such witness; but if sufficient cause of his or her inability to attend be shewn to the court at the time he or she ought to have appeared, or at the next succeeding court, then no fine or action shall be incurred by such failure.
XXX. Witnesses shall be privileged from arrests in all cases during their attendance at the district court, coming to and returning from thence, allowing one day for every twenty miles from their places of abodez and all such arrests shall be void.
XXXI. Every witness summoned and attending the district court shall be paid by the party at whese suit the summons issued, iwo pounds of tobacco, or three pence per mile for travelling to the place of attendance, and the same for returning, besides ferriages, and sixty pounds of tobacco, or seven shillings and sixpence, per day, for his attendance which allowance shall be entered by the clerk of course, except where disputes arise concerning the same, and then such disputes shall be determined by the court.
XXXII. Interpreters may be sworn truly to interpret, when necessary.
XXXII. And the court shall have power to try all issues, and enquire of damages by a jury in all causes before them, and to determine all questions concerning the legality of evidence, and other matters of law which may arise, for which trial the court shall cause the sheriff attending them to impannel and return jurors of the by-standers, qualified as the law directs concerning the general court, to be sworý well and truly to try the issue joined, or to enquire of damages, as the case may be, according to the evidence.
XXXIV. For good cause, which shall be entered of record, and may be enquired into on a writ of error, the court may discharge a juror without the consent of the parties.
XXXV. Special juries and juries de medietate linguæ, may be directed by the court to be summoned.
XXXVI. Jurors knowing any thing relative to the point in issue, shall disclose the same in open court.
XXXVII. Any juror guilty of a contempt to the couri, shall be fined by the court any sun noi exceeding ten pounds.
XXXVIII. Juries may separate with the leave of the court.
XXXIX, Papers read in evidence, though not onder seal, may be carried from the bar by the jury.
XL. No sheriff shall converse with a juror but by order of the court.
XLI. The qualification of jurors shall be the same as in the general court.
XLII. The fee for summoning a jury shall be fifty pounds of tobacco, or six shillings and three-pence, lo be taxed in the bill of costs.
XLII. Every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.
XLIV. If in detinue the verdict should omit price or value, the court may at any time award a writ of enquiry to ascertain the same.
XLV. if on an issue concerning several things in one count in detinue, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted.
XLVI. Where there are several counts, one of which is faulty, and entire damages be given, the verdici shall be good; but the defendant may apply to the court to instruct the jury to disregard such fanlly count.
XLVII. Not more than two new trials shall be granted to the same party in one cause. Brantevoreniny
XLVIII. Final judgment shall be given in all cases in the district court.
XLIX. If in detinue price or value be omitted, the court may award at any time a writ of enquiry to ascertain the same.
L. A judgment on confession shall be equal to a release of errors.
LI. The statutes of jeofails which were passed prior to the year one thousand seven hundred and fifty three, are declared to be in force; and no discontinuance shall be for a failure to hold a court.
LII. In all judgments for plaintiff or defendant, the clerk shall allow a lawyer's fee in the bill of costs, if the party employed one; which fee in real, personal, or mixed actions, where the title or bounds of land shall or may come in question, shall be thirty shillings, or two hundred and forty pounds of tobacco; and in all other causes fifteen shillings, or one hundred and twenty pounds of tobacco, at the election of the party paying.
LIII. There shall not be allowed in the bill of costs the charge of more than three witnesses for the proof af any one particular fact,