Proclamation

Office judg.

ments.

Dockets.

Juries de medictate.

Jurors, wit

nesses.

XLI. On the return of the pluries, that the defendant is not to be found, the court, instead of the process to outlawry formerly used, may order a proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him, which proclamation shall be published on three successive court-days, at the door of the courthouse of the county to which 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.

XLII: All judgments by default for want of an appearance, or special bail, or pleas as aforesaid, and non suits or dismissions obtained in the office, and not set aside, on the third day of the next 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, ascertainthe demand, unless the plaintiff shall chuse in any such case to have a writ of enquiry of damages, and in all other cases the damages shall be ascertained by a jury, to be impannelled and sworn to enquire thereof, as is herein after directed.

XLIII. Before every district court, the clerk shall enter in a particular docket, all such causes (and 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.

XLIV. Juries de medietate linguæ may be directed by the court to be summoned.

XLV. Jurors knowing any thing relative to the point in issue, shall disclose the same in open court.

XLVI. Any juror guilty of a contempt to the court, Contempts. shall be fined by the court any sum not exceeding ten pounds.

Papers read in evidence.

Conduct of sheriff's.

Qualifications of jurors.

XLVII. Papers read in evidence, though not under seal, may be carried from the bar by the jury.

XLVIII. No sheriff shall converse with a juror bat by order of the court.

XLIX. The qualification of jurors shall be the same as in the general court.

L. The fee for summoning a jury shall be fitty Fee for sumpounds of tobacco, or six shillings and three pence, to moning jury. be taxed in the biil of costs.

Summons for

LI. In all cases where witnesses are required to attend the district court, a summons shall be issued by witnesses. 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.

LII. When any witnesses shall be about to depart the country, or about to go to, or shall be in, the district of Kentucky, or by age, sickness, or otherwise shall be unable to attend the court, upon affidavit thereof, or on a certificate to that effect, from any justice of the peace, the clerk 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 should be unable 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.

Depositions.

missions.

LIII. Upon affidavit that any witness resides beyond sea, or in any foreign country, or in any other of the Foreign com, United States, the court wherein the suit is depending may, on request of either party, direct a commission to issue from the clerk's office, directed to such commissioners not exceeding five, as shall be nominated and agreed upon by the parties litigant, for which purpose, the party applying for a commission in such cases, shall give the adverse party, his attorney or agent, ten days previous notice of the day of his intended application to the court, without which no commission shall issue, and if the adverse party, his attorney or agent, shall not attend for the purpose, in that case the party praying the commission may nominate the commissioners himself, any three of whom in either case may proceed to execute the said commission: Provided nevertheless, that in either case reasonable notice shall be given to the adverse party, of the time and place of taking such deposition, and the costs of giving such notice as aforesaid, as well as of taking any deposition or depositions in any, or either of the United States, or beyond sea, or in any foreign country, may be taxed by the court against the party who, in their opinion, ought in justice to pay the same.

Single wit.

ness.

LIV. If any party in a suit at common law shall make oath, that he verily believes his claim or defence, as the case may be, or a material point thereof, depends on a single witness, the court, 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 reasonable notice of the time and place of taking such deposition to the adverse party.

LV. If any person summoned as a witness, and atWitnesses re- tending the court or the commissioners, to take his or fusing to tes- her deposition as aforesaid, shall refuse to give evitlfy. dence 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 by the court or commissioners, there to remain without bail or mainprise, until he or she shall give such evidence. If any person summoned to appear before commissioners or other persons, to depose or give testimony, shall fail to attend (not having a reasonable excuse) he or she, shall be fiued by the court, from whence the subpoena issued, in like manner as witnesses failing to attend the courts. witnesses,be. Every witness summoned to appear before the comfore referees, missioners or referees, shall be intitled to the same al&c, lowance, to be certified by the commissioners or referees, and entered of record by the court, to be taxed in the bill of costs, and be privileged from arrests, in like manner as is directed and prescribed by law, for witnesses attending courts.

Allowance to

Who not wit

nesses.

Witnesses

LVI. No person convicted of perjury shall be capable of being a witness in any case, nor shall any negro, mulatto, or Indian be admitted to give evidence, but against, or between, negroes, mulattoes, or Indians.

LVII. If any person summoned as a witness to atfailing to attend the district court shall fail to attend accordingly, tend. such person shall be fined five pounds or one thousand pounds of tobacco, at the option of the payer to the use of the party for whom such witness was summoned; and the witness so failing shall farther be liable to the action of the party for all damages sustained by the nonattendance of such witness; but if sufficient cause of his or her inability to attend be shewn to the court at the fime he or she ought to have appeared, or at the next

succeeding court, then no fine or action shall be incurred by such failure.

LVIII. Witnesses shall be privileged from arrests Privileges of in all cases except treason, felony and breaches of the witnesses. peace, during their attendance at the District Court, coming to and returning from thence, allowing one day for every twenty miles from their places of abode; and all such arrests shall be void.

LIX. Every witness summoned and attending the witnesses atdistrict court, shall be paid by the party at whose tendance. suit the summons issued, two pounds of tobacco or three-pence per mile, for travelling to the places of attendance, and the same for returning, besides ferriages, and fifty pounds of tobacco or six shillings and threepence 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. Witnesses in civil cases, and witnesses and venire-men in criminal cases, shall be sworn as to their travelling, ferriages, and attendance; for which purpose, and for affidavits justifying securities to bonds to be taken in the clerk's office, he or some of his assistants, specially empowered by the court of the district, shall administer the paths.

LX. Interpreters may be sworn truly to interpret Interpreters. when necessary.

LXI. Every person desirous of suffering a non-suit, Non-suit. on trial shall be barred therefrom, unless he do so before the jury retire from the bar.

LXII. Not more than two new trials shall be gran- New trials. ted to the same party in the same cause.

LXIII. The statutes of Jeoffails which were passed Jeoffails. prior to the year one thousand seven hundred and fifty

three, are declared to be in force.

LXIV. After issue joined in an ejectment, on the Ejectments title only, no exception of form or substance shall be taken to the declaration in any court whatsoever.

LXV. Any instrument, to which the person making the same, shall affix a scroll by way of seal, shall be adjudged and holden to be of the same force and obligation, as if it were actually sealed.

LXVI. Ifin detinue the verdict should omit price or value, the court may at any time award a writ of enquiry to ascertain the same.

Scrolls.

Detinue.

found.

Part of issue LXVII. If on an issue concerning several things iu 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.

LXVIII. Where there are several counts, one of Faulty count which is faulty, and entire damages are given, the verdict shall be good; but the defendant may apply to the court, to instruct the jury to disregard such faulty count.

Confession of judgment.

LXIX. A judgment on confession shall be equal to a release of errors.

LXX. In all judgments for plaintiff or defendant, Lawyers fees 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, except in causes transferred from the general court, in which the fee taxed shall be the same as now taxed in the general court: Provided, that this shall not be construed to alter the law, as to costs to be paid or not to be paid, by executors or administrators, which shall remain as heretofore.

Witnesses to a fact costs.

Costs.

Executions.

Not directed.

Distringas.

LXXI. There shall not be allowed in the bill of costs, the charge of more than three witnesses for the proof of any one particular fact.

LXXII. The laws of costs shall not be interpreted as penal laws.

LXXIII. The district court shall possess the same power over costs, as the general court now possesses. LXXIV. Executions shall issue to any sheriff or coroner from the clerks of the district courts, and be returnable to the first day thereof.

LXXV. An execution, writ, or other process, appearing to be duly served in other respects, shall be deemed good, although it be not directed to any she

riff.

LXXVI. If a distringas issue in detinue, the court, for good cause shewn, may direct it to be superseded, so far as it respects the specific thing, and to be execu« fed for the alternative price or value only, if fixed in