and all Actions Tryable at Select Courts shall be Tried at that Town where either Plaintiff or Defendant dwelleth as the Plaintiff seeth cause and any Action Tryable before a Magistrate one of the Parties must live or reside in the County where the Magistrate lives or resides unless both Parties be Strangers because much time is lost in the beginning of Courts of Tryals and Appeals by neglect of timely Entring of Actions Time of Entry of Actions 2. It is therefore Enacted by this Court c. That Actions shall be Entred upon or before the first day of the Courts Sitting and not after and in case any Plaintiff shall delay his Entry longer than the Forenoon of the first day of the Court he shall pay ten shillings to the Countrey or Counties use besides the ordinary Fees for Trial of Actions to this end all Marshals and Constables are required to make their Returns of all Summons and Attachments and their doings therein under their hands Time of return of warrants by the Marshal or Constable sometime at or before the first sitting of the Court that is to take cognizance of the Case or seasonably give to the Party the Summons or Attachment Sealed up and directed to the Clerk of the Court to which the same is Returnable Chrages of Tryals 3. That the ordinary settled Charges for Entring of Actions shall be fifteen shillings and six pence at a Court of Assistants which shall be thus divided two shillings to the Secretary six pence to the Marshal two shillings to the Fore-man of the Jury and one shilling a piece to the rest of the Jury and at a County Court there shall be paid nine shillings for Entring an Action to be divided according to former custom unless the County Courts have otherwayes agreed with their Officers and made Provision for their Jurors and for Entring an Action at a Select Court shall be paid three shillings and on a Tryal before a Magistrate shall be paid three shillings for a Witness Sworn at home one shilling and two shillings a day for a Witness that tends the Court and if the Defendant obtain a Verdict he shall not only have his Cost allowed for Witnesses as abovesaid but two shillings and six pence per day for what time he hath necessarily attended on the Action which shall be given without Suit and this shall bar the Defendant from Suit unless by Imprisonment or otherwayes he hath been more than ordinarily damnified 4. Whereas in Suits and Actions brought into Courts between Party and Party sometimes the Plaintiff and sometimes the Defendant and sometimes neither of them do attend the Call to Prosecute or Answer None attendance on Action to the great abuse of Court and Jury and others concerned in the Case and is contrary to the laudable Custome of all Courts in our Native Countrey and elsewhere It is therefore Ordered and Enacted That if any Plaintiff have Entred an action to be Tryed in any Court or which comes by Replevin Review or otherwise Penalty on the Plantiff and doth not by himself or by his Attorney make their appearance and Prosecute their Action after they have been three times called in Court they shall be Non suited and if the Defendant appear not to such Call the Plaintiff appearing the Suit shall nevertheless proceed and if Plaintiff or Defendant appear at their Call The Defendant they shall have their Costs granted against him that appeared not and if afterwards both Parties do agree to try the Case at the same Court they shall be allowed so to do the Plaintiff paying for a new Entry What shal be grounds of Nonsuit and what not 5. It is Enacted by this Court That in all Summons or Attachments the special ground of the Action shall be expressed and that a Circumstantial Error in a Summons or Warrant shall not be taken as a sufficient ground for a Non-suit where otherwise both the Party and Case intended may be Rationally understood and it shall also be expressed in the Warrant in what quality the Plantiff Sues whither as Principle Attorny Guardian or otherwise 6. And all Persons whither Parties or Witnesses are Injoyned to Attend their Respective Concerns the whole time of the Courts publick sitting No further Plea after the case is commited to the Jury until they are Issued and shall present the whole Plea or Evidence before the Case be committed to the Jury and no other Plea or Evidence be Admitted to any Person any Usage or Custom to the Contrary notwithstanding Warrants when to be served 7. That all Warrants whither to Attach or Summons any to answer to any Action or Presentment shall be Served five compleat working dayes before the first day of the Court. 8. That a Summons or Attachment from any Magistrate or Person that is Authorized for that End shall be sufficient Warrant to bring any Person within this Government to Answer to any Civil Action or Complaint commenced against him Summons or Attachments shall be sufficient Warrant and where there is Attachments they shall be granted against the Estate and for want thereof the Person 9. It is also Ordered That it shall be at the liberty of any Plantiff to withdraw his Action at any time before the Jury bring in their Verdict Plantiffs liberty to withdraw if he see cause In which Case he shall allow the Defendant full cost and may afterwards Renew his Suit at another Court 10. Be it Enacted That no man in any Suit or Plaint against another shall falsly pretend great Damages or Debts to vex or discredit his Adversary Vexations Suits and in all Cases where it appears to the Court that the Plantiff hath willingly wronged the Defendant in commencing Suit or prosecuting complaint or Inditement against him he shall pay unto the Defendant double costs besides damage and be Amerced to the Country or County not exceeding five pounds as the Case may be circumstanced for such his vexatious Suit or Plaint 11. Be it also Enacted That a Jury bringing in a Verdict the Court concurring and accepting it Judgement be forthwith entered When Judgement to be entred if they concur not the Jury may be put upon farther consideration of the Case and if they Retain their Verdict it shall be accepted and Judgment entered accordingly 12. It is further Enacted That in case a Plantiff obtain not a Verdict or be not satisfied therewith having new Plea or Evidence he may Rreveiw his Action if he see cause As likewise may the Defendant Reveiws but must bring their Reveiw where the Action wrs first Commenced but if either Party be cast in their Reveiw and go on to Reveiw a second time and be cast they shall be accounted Vexatious and Troublesom to the Court and to the Party Prosecuted and shall be Awarded to pay double cost to the Party and twenty shillings fine to the County Foreigners to give
Security to respond Costs before Summons or Attachment gr nted 13. That no Attachment or Summons shall be granted in any Civil Action to any Forreigner against a settled Inhabitant of this Jurisdiction or against a Forreigner before he hath given sufficient security or caution duly to Prosecute his Action and to answer the Defendant such Cost and Damages as the Court may award on penalty of making good the Damage by the Granter 14. And it is further Ordered That in all Attachments of Goods and Chattels Lands or Heriditaments In Attachment of Goods c. Legal notice to be given to the parties concerned Lands or Heriditaments whether it be by Forreigners or settled Inhabitants Legal notice shall be given to the Party concern'd either personally or by leaving a Copy of the Summons or Attachment five compleat working dayes before the Court at the House or place of or that was his usual abode before the Suit proceed but if he be out of the Jurisdiction the Cause notwithstanding shall proceed to Tryal and if Judgment pass for the Plantiff it shall be Entred And in what case Execution shall be respited but Execution shall not be granted until the next Court and that the Plantiff hath given sufficient Security to be Responsible to the Defendant if he shall Reverse the Judgment within one Year or such further time as the Court shall see cause to order 15. Be it Enacted That henceforth Lands or Goods Attacht to a Tryal shall not be Released upon the Appearance of the Party or Judgment given lands or goods Attacht when to be released and when not but shall stand ingaged until the Judgment or the Execution granted upon the said Judgment be discharged provided Execution be levied thereon within one Month after Judgment and that where any Marshal or Constable or their lawful Deputie shall by virtue of any Warrant Attach any mans Person he shall take Bond of him with sufficient Security or Sureties And so of Bonds and furties bound to such Officers for his or their Appearance at the Court Attached to and to abide Tryal and in case of Appeal to the Court Appealed to till the Judgment be there Entered How the Officer shall make his Return and that the Person Attached be forth-coming any time within six dayes after Judgment for the Plantiff to lay his Execution on if he see cause after which time the Surety to be cleared The officer shall make his Return and Indorse his Bond on the back-side of the Attachment and when the Officer shall deliver the Person to the Jaylor or take the Bond and return the same with the Attachment to Court And if any Person Attached shall neglect or refuse to give Bond or sufficient Security be shall by said Officer be delivered to the Jaylor of the County who shall keep him in Custody until six dayes after Judgment or till Released by the Party at whose Suit Attached and the Plantiff Levy his Execution afterwards as the Law Directs 16. Liberty is granted by this Court to any person to improve one or two Attorneys in any Civil Action to help him in his Pleas provided they be persons of good Repute and such as the Court shall approve and the said Attorneys are Required as to be faithful to their Client Attorneys allowed so also to avoid fraudulent Pleas that may have a tendency to mislead the Court or darken the Case and in no Case shall be allowed for Attoneys more than five shillings and Attorney or Attorneys at Select Courts or Magistrates Courts to be allowed but two shillings in any Case Barratry punished 17. And it is Enacted that if any Person be proved a common Barrater by vexing others with unjust frequent and troublesome Suits it shall be in the power of the Court both to eject his Cause and punish him for his Barratry by Fine or Imprisonment 18. It is Ordered That no man's Person shall be Restrained Imprisoned by any Authority whatsoever Who Bailable before the Law hath Sentenced him thereunto if he can put in sufficient Security Bail or Mainprize for his Appearance and good Behaviour in the mean time unless it be in Crimes Capital and Contempt in open Court or in such Case where some express Act of the General Court doth allow it No Levy on Lands where Goods found nor Surety Destrained where princile sufficient nor Beast of Plough or Draught 19. It is Ordered That no Debt be Levied on Lands or Rents so long as the Debtor hath Goods and Chattels to be found to satisfie neither shall the Pledges or Suits be Distreined so long as the Principle or sufficient Estate of the Principles can be found nor Beasts of the Plough or Draught for Debt if others may be found to satifie it except for Damage feizant 20. That every Man shall have liberty to Replevy his Chattel or Goods Impounded Replevin Distreined or Seized unless it be upon Execution after Judgment or for payment of Rates or Fines Provided he put in Security to Prosecute his Replevin and to satisfie such Damage and Charge as his Adversary shall Recover against him in Law Age Ability Age of Discretion 21. IT is Ordered by this Court and the Authority thereof That none shall have power to pass away Lands Hereditaments or other Estate or be capable of Sueing or being Sued at any Court in their own Person neither shall give Votes Verdicts or Sentence in any Civil Court or Cause until he or they attain unto the age of twenty one years But any Parent or Master shall or may Require and Sue for Satisfaction for any wrong or damage done their Children or Servants And any Orphan may have liberty to chuse their Guardian to act for them at fourteen years to Secure or Defend their Estate or otherwise act for them as may be requisite the Court allowing thereof and the Court may chuse and appoint Guardians for such as are under fourteen years But in any matter Criminal as well younger as elder shall be liable to Answer for the same in their own persons Appeals 22. IT is Ordered by this Court and the Authority thereof That it shall be the liberty of any Person or Persons Cast of Sentenced Liberty to appeal in Cases Civil or Criminal to Appeal if from the Sentance or Determination of a Magistrate or Select Court or other Person Impowred to hear and determine in any Case as before unto a County Court and any may Appeal from a County Court to a Court of Assistants alwayes Provided they tender their Appeal in twenty four hours after Judgment and the Court not Dissolved and put in Security before the Judges of the Court or according to their Order to Prosecute their Appeal to effect and to satisfie all Damage before Execution granted and in Criminal Cases besides such Bond to give Bond with Security for their good Behaviour until the time of the Court
double to any one of his Brethren And where there is but one Brother he shall be sole Heir to such Brother or other Ancestor and where there is no Brother the Sisters of the whole Blood shall Inherit alike lands distrain'd 5. It is Ordered That all Houses Lands and other Hereditaments that have been or shall be Levied or Distrained and delivered in Execution according to Law and Possession orderly given by any Marshal or Constable or any of their Deputies that Levied the same and is Returned and Recorded shall be and remain to the Party to whom delivered and his Heirs and Assignes as good an Estate as it was to the Person from whom Taken or Recovered 6. That where Lands Tenements Hereditaments fall or happen to be in Partnership either by Descent Gift Graunt Purchase or otherwise Lands in partnership if any Partner die before it be divided the Heirs or Assignes of the Deceased shall have his or their part with the Survivers as fully as any of the Survivers Any Custome to the contrary notwithstanding Liberty to Sue out a division 7. It is also Ordered That any Partner may Sue out a Division of any such Land as he or they may shew good reason for 8. It is Ordered that where no Heir or Owner of Houses Lands Tenements Goods or Chattels can be found upon the Decease of the late Proprietor a true Inventory of every such Estate in all the parts and parcels thereof shall with the first conveniency be duely taken a just Apprizement made upon Oath by fit men thereunto appointed by a Magistrate Escheaâ—â— or in his absence by the Select Men of the Town where such Estate is and the whole Estate shall be seized by the Colony Treasurer till the true Heir or Owner shall make due Claim thereunto unto whom the same shall be delivered upon just and reasonable terms Conveyances to be acknowledged before a Magistrate 9. Ordered c. That all Sales Exchanges Gifts Mortgages or other conveyancies of Houses Lands and other Hereditaments shall be acknowledged before some Magistrate or otherwise that the Witnesses two of them at least to the Deed be Sworn that the Party Graunter Seller Mortgager c. did Seal and Deliver the said Instrument as his Act and Deed before it be committed to publick Record Except that by special Order of Court the clerk be Ordered to Record any Instrument that is not so Proved or Acknowledged and that after the end of May next which shall be in the year 1686. No Sale Bargain Mortgage or Conveyance of any Houses Lands or other Hereditaments where the Seller Bargainer Mortgager c. Remains in possession shall be of any force against other persons Except the Granter Seller Mortgager c. his Heirs unless the same be acknowledged or otherwise proved as abovesaid and committed to Record 10. An Act made July 10. 1669. for quieting Mens Estates and avoiding Suits in Law touching Title of Lands in case time Suit may be Commenced for Lands detain'd where when barred It is Enacted by the Court and the Authority thereof That no person or persons having had for the space or term of ten years fully past and expired any Right or Title of Entry into or cause of Action for any Lands Tenements or Hereditaments whatsoever now detained from him or them shall thereinto Enter or Commence Suit for but within five years next after the end of this present Session of Court and at no time after And that no person or persons having had for the space or term of eighteen years fully past and expired any Right or Title of Entry into or cause of Action for any Lands Tenements or Hereditaments whatsoever now detained from him or them shall thereinto Enter or Commence Suits for but within two years after the end of this present Session of Court and at no time after And that no person or persons shall at any time hereafter make any Entry into or Commence Suit for any Lands Tenements or Hereditaments but within fifteen years next after his or their Right Title or Cause of Action or Suit which shall hereafter first descend fall or accrue to the same otherwise such Title or Cause of Action shall be for ever after barred and the party or parties claiming and his and their Heirs utterly excluded from Entry into or Suit for the same Provided nevertheless That if any person or persons which hath or shall have such Right Title or cause of Action first be or shall be at the time of the said Right Title or Cause of Action descended according or fallen within the Age of twenty one years Feme Covert non compos mentis imprisoned or beyond the Seas then such person or persons his or their Heirs shall or may notwithstanding the said fifteen years expired bring his Action or make his Entry at any time within five years next after his or their full Age discoverture coming of sound mind enlargement out of Prison or coming into this Country take benefit of and so for the same and at no time after the said five years It is further Enacted by the Court c. That such person or persons as have had Right or Title or Entry into or cause of Action for any Lands Tenements Hereditaments hitherto detained from him or them for the space or Term of twenty years fully past and compleat and neglected hitherto to make his or their Entry or to commence Suit for the same shall be for ever Barred and Excluded and utterly disabled from such Entry or Suit to be made excepting as in the abovesaid Proviso This Act to stand at present suiting our Infant Estate till the Court see cause otherwise to Order mean while it shall be the concern of all for the future cause to obtain the best Evidence they can for the Title and Hold of their Lands A supplement to the Prefatory Declaration and Order in the Preface now Orders by His Majesties General Court held at Plimouth June 2d Anno Dom. 1685 As followeth viz. It is by this Court and the Authority thereof Ordered and Declared That all the Lands with their and every their Appurtenances belonging which have been formerly granted by the Court unto Townships or particular Persons according to the several Graunts or Bounds thereof shall be and remain to the several Townships and Grauntees their Heirs Successors and Assignes for ever in as free full ample and beneficial manner to all Intents Constructions and Purposes whatsoever as the Governour and Associates or General Court by vertue of their Letters Patents Declaratory from His Majesty or by any other ways and means whatsoever might or could Graunt And that the Governour for the time being Confirm all such former Graunts of Lands whether Graunted unto Townships or particular Persons which desire the same under the Seal of the Government not yet affixed thereunto And that the Court of Assistants be a Committee from
Ordain and Constitute that no Act Imposition Law or Ordinance be Made or Imposed upon us at present or to come but such as shall be Enacted by consent of the body of Freemen or Associates or their Representatives legally assembled which is according to the free Liberties of the free born People of England Annually chosen by the free men 2. And for the well Governing this Colony It is also Resolved and Ordered that there be a free Electron annually of Governour Deputy Governour and Assistants by the Vote of the Freemen of this Corporation Justice to be equally and speedily administred 3. It is also Enacted that Justice and Right be equally and impartially Administred unto all not sold denied or causelesly deferred unto any None to suffer but according to Law and by due course process of Law 4. It is also Enacted that no person in this Government shall suffer or be indamaged in respect of Life Limb Liberty Good Name or Estate under colour of Law or countenance of Authority but by Virtue or Equity of some express Law of the General Court of this Colony or the good and equitable Laws of our Nation suitable for us in matters which are of a civil nature as by the Court here hath been accustomed wherein we have no particular Law of our own And that none shall suffer as aforesaid without being brought to answer by due course and process of Law 5. And that all Cases whither Capital Criminal or between man and man All Trials to be by Jury be Tried by a Jury of twelve good and lawful men according to the Commendable custome of England except where some express Law doth referre it to the judgment of some other Judg or Inferiour Court where Jury is not in which Case also any party agrieved may Appeal and have Trial by a Jury with liberty to challenge any of the Jury And it shall be in the liberty of any person that is to be tried by a Jury to challenge any of the Jurors and if the challenge be found just and reasonable by the Bench it shall be allowed and others without just exception shall be Impannelld in their room And if it be in case of Life and Death the Prisoner shall have liberty according to the Law of England to except against twenty of the Jury without giving any reason for the same what testimony required in cases 6. That no Person shall be Cast Condemned or Sentenced in any Case Capital Civil or Criminal without the testimony of two sufficient Witnesses or other sufficient Evidence or Circumstances equivolent thereunto unless in any particuler Case the Law hath otherwayes provided 7. And it is Enacted Being the Priviledge of our Charter That all Persons of the Age of twenty one Years Power to make Wills of right understanding and memory whether Excomunicated Condemned or other having any Estate properly theirs to dispose of shall have Power and Liberty to make their reasonable Wills and Testaments and other lawful Alienations of their Lands and Estates be it only here excepted That such as are sentenced for Treason against the King's Majesty An Exception or Realm of England or other Capital crimes shall forfeit to the King or Colony for the carrying on the Charge of Government their personal Estate Their Lands and real Estate being still at their disposal 8. That whereas the great and known end of the first Comers in the year of our Lord The great end of our coming into this Wilderness was Liberty to enjoy the pure worship of God without offence to others 1620. leaving their dear Native Country and all that was dear to them there transporting of themselves over the vast Ocean into this remote wast Wilderness and therein willingly conflicting with Dangers Losses Hardships and Distresses sore and not a few Wars that without offence they under the protection of their Native Prince together with the enlargement of his Majesties Dominion might with the liberty of a good Conscience enjoy the pure Scriptural worship of God without the mixture of humane inventions and impositions and that their Children after them might walk in the Holy wayes of the Lord And for which end they obtained leave from King James of happy Memory and His Honourable Council with farther Graunts from His Gracious Majesty Charles the 1. and His Honourable Council by Letters Patents for sundry Tracts of Land with many Priviledges therein contained for their better Encouragement to proceed on in so Pious a Work which may especially tend to the propagation of Religion c. as by Letters Patents more at large appeareth with further assurance also of the continuance of our Liberties and Priviledges both Civil and Religious under the Royal hand and Seal of our Soveraign Lord King Charles the II. And whereas by the good hand of our God upon us many others since the first comers are for the same end come unto us and sundry others rise up amongst us desirous with all good Conscience to walk in the Faith and Order of the Gospel whereby there are many Churches gathered amongst us walking according thereunto And whereas by the Grace of God we have now had above sixty Years experience of the good consistancy of these Churches with Loyalty to our Prince civil Peace and Order and also with spiritual Edification together with the welfare and tranquility of the Government It is therefore for the honour of God and the propagation of Religion and the continued welfare of this Colony The Churches of Christ to be protected Ordered by this Court and the Authority thereof That the said Churches already Gathered or that shall be orderly Gathered may and shall from time to time by this Government be Protected and Incouraged in their peaceable and orderly walking and the faithful able And the Ministers of the Gospel to be provided for orthodox Teaching Ministry thereof duely incouraged and provided for together with such other orthodox able Dispensers of the Gospel which shall or may be placed in any Township in this Government where there is or may be defect of Church Order All the foregoing Fundamentals inviolably to be preserved 9. And finally It is Ordered and Declared by this Court and the Authority thereof that all these aforegoing Orders and Constitutions are so Fundamentally Essential to the just Rights Liberties Common Good and Special End of this Colony as that they shall and ought to be inviolably preserved CHAP. II. Actions 1. IT is Ordered by this Court and the Authority thereof That all Actâ—ons about Title of Land shall be first Tried in the County where the Lands lieth Title of Land to be tried in the County where it lieth other Trials where one of the parties dwell Trials before a Magistrate and all other Actions Tryable at a County Court shall be Tried at any of the Counties where either Plaintiff or Defendant dwelleth or resideth as the Plaintiff pleaseth