Admiralty

causes.

Juries.

Motions.

Criminal cau

ses.

Questions adourned.

ing the same. Provided also, that writs of habeas corpus, appeal, error, supersedeas, mandamus, and certiorari, and controversies concerning mills, wills, roads, caveats, and letters of administration, shall not be heard or determined by any district court, unless such writ of error, super edeas, mandamus, and certiorari, relate to some record or proceeding within the said district, or the person praying the habeas corpus, or the mills or roads, or lands, for which the caveats have been instituted, be within the same, or the wills. or letters of administration be cognizable by the court of some county within the said district.

XII. Those cases in which the court of admiralty hath jurisdiction by law, and which are not taken away by the constitution of the United States, are hereby transferred to the district courts, to be proceeded on as the law requires in the said court of admiralty.

XIII. The court shall have power to try all issues, and enquire of damages by a jury in all causes before them, and to determine all questions concerning the legality of evidence, and other matters of law, which may arise, for which trial the court shall cause the sheriff attending them to impannel and return jurors, to be sworn well and truly to try the issue joined, or te enquire of damages (as the case may be) according to evidence.

XIV. The court shall hear and determine motions against sheriffs or other officers, and attornies at law, for the directors of the James river and Potowmack companies, and for securities against their principal, or against each other, for contribution in all cases, and according to the rules prescribed by law.

XV. The district court to be held as aforesaid, shall have full power to hear and determine all treasons, murders, felonies, and other crimes and misdemeanors, committed within their district, and which shall be brought before them under the regulations herein before prescribed.

XVI. The court, when a question new or difficult arises, may adjourn any matter of law to the general court, or any party thinking himself aggrieved by the judgment of the district court, may appeal thereupon as of right, or obtain a writ of error thereto from the

Court of appeals, not of right, but at the discretion of the court.

XVII. On an adjournment of a question to the ge- No costs on. neral court, or an appeal or writ of error to the court of appeals, the same proceedings shall be had as in cases heretofore going from the general court to the court of appeals, but no costs shall be incurred on any adjourned question.

XVIII. No judge shall twice successively attend the Same district.

Judges.

XIX. The judges of the general court shall forthwith assemble at the capitol in the city of Richmond, Allotment of on a day to be appointed and notified to each judge, by the governor, with advice of the council, and they, or such as shall meet, provided the number be five, shall proceed by a majority of votes to appoint a clerk for each district court. making a list of the several appointments to be returned to, and entered of record in the general court at their next succeeding session: They shall also give to each clerk elected, a certificate of his appointment, who having taken the oath for giving assurance of fidelity to the commonwealth, and the oath required to be taken by clerks of courts, adapting the same to the district court, shall thenceforth be enabled to execute the duties of his office; which oaths may be taken by the clerks respectively, either before the judges so assembled, or any court of record in the commonwealth, and a certificate thereof, as well as of the appointment of each, shall be entered of record in his district, wherein at the first session he shall moreover enter into bond, with sufficient security, in the penalty of three thousand pounds, payable to the governor or chief magistrate, and his successors, with condition for the faithful performance of his duty; which bond may be put in suit for the henefit, and at the costs of any person or persons aggrieved by the non-feazauce or mis-feazance of the clerk, as often as there shall be occasion, until the whole penalty shall be recovered or levied. Each clerk shall hold his of fice during good behavior, shall be removable on conviction upon an indictment or information, for misuser or nonuser in office, and shall reside and keep his of fice at the district courthouse of which he is clerk, but when it is held alternately at different courthouses, then he shall keep his office either at the one or the other courthouse, as he may think best, S 4

VOL. INT.

Vierks.

Fees of clerks.

Writs.

Forms of

Teste of writs.

pus.

XX. Whensoever there shall be a vacancy in the of fice of clerk of any district court, or if a number sufficient to appoint clerks shall not meet at the capitol, in the city of Richmond, on the day aforesaid, it shall be lawful for a majority of the judges of the general court to appoint by commission under their hands and seals. Provided, That when such vacancy shall hap pen during the session of a district court, or the judges of the general court shall neglect to supply any vacancy until the ensuing session of the district court, in which the vacancy shall be, it shall be lawful for the judges attending such district court to appoint a clerk by commission under their hands and seals, which shall be as valid and effectual as if granted by a majority of the judges of the general court. And where the clerk of any district court cannot attend, it may be lawful for the judges of such court to appoint a clerk pro tempore.

XXI. The clerks fees shall be the same with those of the county courts for similar services, and for all other services, the same as those of the clerk of the general court, and shall be collected and accounted for in the same manner, and under the same penalties, as those of the clerks of the county courts now are.

XXII. The judges of the court of appeals shall direct the forms of writs, from time to time, in such manner as shall seem advisable, and until an alteration be made therein, the forms shall be, as nearly as may be, assimilated to those now used in the general

court.

XXIII. All writs, summonses, and other legal process, shall be issued by the clerk, bear teste in his name, and be returnable to the next court, to be holden for the district, except in the case of subpoenas for witnesses, which may be returnable immediately, if issued in term time, or on any, day of the term.

XXIV. Writs of habeas corpus may be granted Habeas cor- without a seal, pursuing in all other respects the act, intituled, "An act directing the mode of suing out and prosecuting writs of habeas corpus," and in all cases in which they are now obtainable by law from the general court.

Suits against governor.

council, sheriff.

XXV. In all actions or suits which may be commenced against the governor of this commonwealth, any member of the privy council, any of the judges of

the superior courts, or the sheriff of any county during his continuance in office, instead of the ordinary process, a summons shall issue to the sheriff, or other proper officer, reciting the cause of action, and summoning such defendant to appear and answer the same on the proper return day in the next district court; and if such defendant, being summoned, or after a copy shall have been left at his house ten days before the return day, shall not appear to answer the same, the court shall proceed against such defendant in the same manner as if he had been taken upon a capias ad respondendum. Provided always, that after judgment and the return of a fieri facias by the sheriff of that County in which the defendant in any such case resides, that no effects or not sufficient are to be found in his bailiwick to satisfy the said judgment, a capias ad satisfaciendum may be issued as in other cases.

Capias re. spondenda.

XXVI. No writ of capias ad respondendum shall be issued against any person in any other district than that in which he resides, until a non est inventus has been returned in his or her district, upon a capias issued against such defendant in the same suit, and every writ issued contrary thereto shall be ipso facto void, and dismissed on the first calling thereof: Provided nevertheless, that where two or more persons are or shall be jointly, or jointly and severally bound for the performance of any contract, or for the payment of money or tobacco, by bond, covenant, or otherwise, it shall be lawful to prosecute such persons jointly, in whatever district either of them may reside, and process shall be issued and served accordingly. And Copy of bond where the bond or other writing on which such suits when evishall be founded shall be filed in the general court, in dence. a county or other inferior court, in the court of one district, and oyer thereof shall be demanded by the defendant, or defendants, to a suit in another district, it shall be sufficient for the plaintiffs in the last mentioned suit to file a copy of the bond or writing, attested by the clerk of the conrt wherein the same is filed; and the defendant, or defendants, shall be obliged to plead thereto in like manner as if the original bond or writing was filed, and such copy shall be admitted as evidence on the trial. If, however, the defendant, or defendants, shall in such case, plead that the original bond or writing is not his or their deed, the clerk of

the court having such original paper in his custody, shall, on being summoned as a witness, attend with the same at the trial of the issue for the inspection of the jury.

XXVII. In all actions to recover the penalty for Bail, in per- breach of any penal law not particularly directing sonal actions. special bail to be given, in actions of slander, tresspass, assault and battery, actions on the case for trover or other wrongs, and all personal actions, except such as shall be hereinafter particularly mentioned, the plaintiff or his attorney, shall, ou pain of having his suit dismissed, with costs, endorse on the original writ, or subsequent process, the true species of action, that the sheriff, to whom the same is directed, may be thereby informed whether bail is to be demanded on the execution thereof; and in the cases before mentioned the sheriff may take the engagement of an attorney practising in the district court endorsed upon the writ, that he will appear for the defendant, or defendants, and such appearance shall be entered with the clerk in the office on the first day after the end of the court to which such process is returnable, which is hereby declared to be the appearance day in all process returnable to any day of the court next preceding. Every attorney failing to enter an appearance according to such engagement, shall forfeit to the defendant fifty shillings, for which, judgment shall be immediately entered, and execution may issue thereupon. And although no such engagement of an attorney shall be offered to the sheriff, he shall nevertheless be restrained from committing the defendant to prison, or detaine ing him in his custody, for want of appearance-bail; but the sheriff in such case shall return the writ executed, and if the defendant shall fail to appear thereto, there shall be the like proceeding against him only, as is hereinafter directed against defendants and their appearance-bail, where such is taken. Provided always, that any judge of the general court, in actions

trespass, assault and battery, trover and conversion, and in actions on the case, where, upon proper affidavit, or affirmation, it shall appear to him proper, that the defendant, or defendants, should give appearancebail, may, and he is hereby authorised to direct such bail to be taken by endorsement on the original writ,