shall immediately subscribe them seal them and the Writ up and return them with the Writ so sealed up to the Clerk of the General-Court if the Writ issue from the Governour or else to the Clerk of the County-Court whence the Warrant issued by either of the said Clerks to be Read at the time of the Tryals of the Cause in either of the said Courts XXX Penalties for non-appearance of Evidence BE it also Enacted That the Penalties to be inserted in Subpaena's to the General-Courts for Non-appearance of the Evidences summoned be One thousand pounds of Tobacco and for like default of the County-Courts Three hundred and fifty pounds of Tobacco And that all Witnesses summoned to give in their Evidences at either of the said Courts shall be allowed for their necessary time spent in coming and going to and from the said Courts Twenty pounds of Tobacco per day and for the time they attend there untill they have given in their Evidences Forty pounds of Tobacco per day And because many malitiously to aggravate the charge of the Suit summon many more Witnesses then are needful Be it therefore further Enacted That there shall not be allowed in any Bill of Costs the charge of above Three Witnesses to any one Action unless for proof of several Matters incident thereunto which severally may require the Attestation of Two Witnesses XXXI County-Courts appointed BE it also Enacted for the more due Administration of Justice in the several Counties and the greater ease of the people in obtaining the same The Courts be continued in each County as of long time hath been accustomed And that the said Courts do consist of Eight of the most able honest and judicious persons in the County which Eight or any four of them whereof one to be alwayes of the Quorum are to be impowred by Commission from the Governour for the time being to act according to the Laws of England and of this Countrey and to impower them severally and out of Court to act and do all such things as by the Laws of England are to be done by Justices of Peace there And be it further Enacted That these persons thus Commissionated take the Oaths of Allegiance and Supremacy and the Oath of a Justice of Peace That they be called Justices of Peace That the Courts be styled County-Courts And further that the Justices do keep the said Courts precisely upon the dayes appointed by this and former Acts of Assembly viz. Henrico the 1 day Charles-City the 3 day James-City the 6 day Isle of Wight the 9 day Nanzemond the 12 day Lower-Norfolk the 15 day Elizabeth-City the 18 day Warwick-County the 21 day Yorke-County the 24 day Northampton the 28 day New-Kent the 28 day Gloucester the 16 day Lancaster the Rappahanocke the Surry the Northumberland the Westmerland the And all Adjournments by all means possible be avoided And that all the Justices of the said Courts respectively shall duly attend the same and shall not depart or absent themselves from thence without the licence and consent of the rest of the Justices there present And if any of them shall happen to have a lawful cause of absence it is thought fit that in such cases they shall upon the first day of the Court signifie the same to the Court by writing and that they make good proof of the truth thereof at the next ensuing Court or else being Delinquent in the premises every Justice so offending shall forfeit for every time of his absence Three hundred pounds of Tobacco to be imposed by the Court and disposed of to the good of the County XXXII No Arrest without Entry of Action BE it also Enacted that all Actions to the County-Courts and Subpaena's for Witnesses or in Chancery be first entred with the Clerk of the County or his known Deputy before any Arrest made or Summons served under penalty of Five hundred pounds of Tobacco to be levyed upon the Sheriff that shall presume to serve any Process contrary to the tenor hereof And be it Enacted That the Plaintiff in any Action shall at least the day before the Court enter his Bill of Complaint and leave it in the Clerks hands that the Defendant if he will may have a Copy thereof and accordingly provide his Answer but the Original Declaration or Bill to be alwayes filed in the Office XXXIII The Defendant to put in his Answer AND be it further Enacted that for the better regulating and keeping the Records and transferring the Presidents to Posterity as also for prevention of new Suits upon mistake of the grounds of Orders That as the Plaintiff both in General-Courts and County-Courts files his Declaration so the Defendant in both those Courts shall also put in his Answer in writing and that the Judgment if for the Plaintiff be endorsed on the Declaration if for the Defendant on the Answer And further that all Evidences concerning that Cause be filed together with them and by the Clerk carefully preserved XXXIV Form of Entring the Court. BE it also Enacted That the form for entring the style of the Court Proclamation for silence the Cryers calling the Plaintiff and the Defendant to Answer be observed in the County-Courts as well as in the General-Courts varying only in the Title of the Court and the Assessors XXXV Court not to take Cognizance of any thing under Two hundred pounds of Tobacco AND be it also Enacted That the Court shall not take Cognizance of any Cause under the value of Two hundred pounds of Tobacco or Twenty shillings sterling which a private Justice may and is hereby authorized and impowred to hear and determine And whereas many vexatious persons do very much trouble the Courts and their Neighbours for brabling words sometimes passionately but not malitiously spoken â—e it therefore Enacted That no Action be admitted for Defamation in any Court Action of Defamation where the words are not Actionable And further that there be no words Actionable but such as if true might have brought the person to suffer punishment by Law any other to be cast out of the Court and the Plaintiff to be non-suited not that liberty is hereby given or intended to any scurrilous person to abuse others at his pleasure but that his Majesties Courts be not for such brawles forced to wave matters of greater consequence And because Offences of this nature may be determined by a particular Justice who is hereby impowred to bind the persons so offending to the good Behaviour or if they find not good Security for the same to commit them to Prison till they find it XXXVI Private Courts prohibited WHereas many things are acted and Administrations granted at private Courts which tend to the apparent dammage of divers of the Inhabitants of this Countrey Be it therefore Enacted That no Private-Courts be kept but that all business tryable or grantable by or at the County-Courts be tryed and granted in open Court at the times and places by
sit Judges in all the County-Courts and there hear and determine all causes then depending in them by Action or reference from any other preceding Court in that County Provided no Councellor be appointed to go the circuit in the River wherein he doth inhabit XXVI Appeals how to be made WHereas many Appeals are made from County-Courts to General-Courts and from General-Courts to Assemblies whereby the speedy Execution of Justice is often retarded and many persons disabled by the charge of going to James-City to prosecute are forced many times to desist from the claim of their Just Rights Be it therefore Enacted that for the avoiding delayes and for the ease of the Inhabitants all Appeals made in any Court after the General-Court in March be referred to the hearing of the Governour or Itinerary-Councellours in their Circuit From whose sentence it there if any person will appeal If the Governour be present shall be made to the next Assembly if two of the Council then to the next General-Court from which the said Councellors during the Tryal of such cause or causes in which they had at the County-Courts given their opinions shall be suspended But because in the Winter time the General-Courts are more frequent and all Causes there receive a speedier determination and because Tobacco being only then payable may be paid in kind It is Enacted That all appeals made from October December and other Intervening County-Courts be made to the next succeeding General-Court and from thence to the Assembly And because there may be as great Errors of Judgement or Will in matters of small value as in the greatest It is further Enacted That Appeals shall lie open as aforesaid for any thing of what value soever alwayes Provided that the Appellant put in good Security for prosecuting the Appeal and payment of Fifty per cent Damages to the Defendant if the Appellant be cast in the Suit for his unjust molestation Provided also that no Appeals be made from Northampton-County whose remoteness and dangerousness of Passage is such as is not for inconsiderable causes to be attempted under the value limited by former Acts of Assembly being Three thousand pounds of Tobacco or Thirty pounds sterling any thing in this Act to the contrary notwithstanding And be it further Enacted That all causes of what value or nature soever not touching life or member may be tryed at the County-Courts and that no Arrest be made to the General-Court in any Action under the value of Sixteen hundred pounds of Tobacco or Sixteen pounds sterling upon penalty of Five hundred pounds of Tabacco to be paid by the Plaintiff to the Defendant for his Charges XXVII Amerciaments in the General-Courts Fifty pounds of Tobacco per Cause in County-Courts Thirty per Cause WHereas many Suits are raised upon frivolous occasions by litigious persons for prevention thereof for the future Be it Enacted and confirmed That all persons whatsoever that are cast in any Cause be they Plaintiffs or Defendants shall be Amerced besides the Dammages and Costs to the Recoverers Fifty pounds of Tobacco in the General-Courts to the use of the Publique and in the County-Courts Thirty pounds of Tobacco for the maintenance of the Commissioners For the due Collecting whereof Be it Enacted That the Clerks of the General-Courts and the several County-Courts keep an exact Accompt of the Amerciaments and deliver or send the same to the several Sheriffs of the particular Counties who are hereby required to Collect the same with the Levies and are accordingly impowred for default of payment to make distress and commanded not to return any Arrears Executors and Administrators who cannot pay without orders alwayes excepted XXVIII Subpaena's to be Issued by the Clerk BE it also Enacted That the Clerk of the General-Court shall issue Subpaena's from the Secretaries Office for all Evidences required in the tryal of any Cause there depending if the Witnesses required do not dwell beyond the Bay or the North-side of James-River And if they do that then a Dedimus Potestatem shall issue for taking the Deposition in the County or Counties where the Witnesses do dwell Provided alwayes That in Criminal-Causes all Witnesses be bound over to give in their Evidences vivâ voce at the tryal in the General-Court XXIX Dedimus Potestatem how to issue WHereas many Causes between parties and parties are lost for want of Evidence who living so far remote cannot but at a charge and expence farr exceeding the value of the Cause be brought to give it vivâ voce at the General-Court or at the County-Courts if the party dwell out of the County or else a greater mischief is introduced by the partial and illegal Examination of Witnesses in presence of but one party before some one Commissioner perhaps too favourably inclined to the party in whose behalf the Depositions are taken besides the trouble expence and hinderance of the Witnesses themselves who many times are forced One hundred Miles from the place of their Residence for a small allowance to give Evidence in tryals of petty and inconsiderable values For remedy whereof and that all parties may with more convenience less trouble and cost have their Evidences impartially and legally taken Be it Enacted and confirmed That if the Cause be to be Tryed at the General-Court the Governour if in any County-Court any one of the Council or the Judge of the Court shall grant and sign a Writ of Dedimus Potestatem for Examination of Witnesses in the Counties where they dwell directed to three such persons as the Plaintiff and Defendant if they both desire the Writ shall by consent make choice of and nominate But if it be the single request of either Plantiff or Defendant then the Governour Councellour or Judge of the County-Court out of Court-time shall nominate and appoint three or more such indifferent persons to examine all such Witnesses as by the party desiring the Writ they shall be moved to summon before them And to this end the Commissioners thus made choice of or appointed to execute the Writ or any two of them shall by the said Writ be impowred and required to appoint a time and place when and where they will receive the Evidences and to issue out Subpaena's for their appearances accordingly and if upon such Summons any of the Witnesses refuse or neglect to come and give in their Evidences then the Commissioners or any two of them be further impowred by this Act to lay such a fine upon them as the Act of Assembly gives in such cases for non-appearance of Witnesses at the General or County-Courts Provided alwayes That the parties procuring the Writ shall give the party concerned against him notice of the time and place when and where the Commissioners intend to sit at least ten dayes before the day appointed by the said Commissioners for putting it into Execution And Be it further Enacted That the said Commissioners or any two of them which take the said Examinations
Law appointed Provided alwayes that it shall and may be lawful for the dispatch of Merchants and other Sea-affairs which cannot without much prejudice and detriment to the said Merchants or Masters be deferred till the Courts in course should come It is Enacted That it shall be lawful for any Justice of the Quorum by his Warrant directed to the Sheriff to call a particular Court and to summon any person or persons before them XXXVII Tryals by Juryes WHereas the Seventieth Act made in 1642. and continued by the Ninety-first Act 1657. seems to restrain both Plaintiff and Defendant from Trial by Juryes unless the Plaintiff in his Declaration or the Defendant upon Entry of his appearance do desire the same which restriction is quite contrary to the Law of England by which the Tryal of all matters of Fact is as appropriate and inherent in the Jury as matter of Law is in the Judges for which cause and that we may in all our Tryals come as near as may be to the Laws of England by which we are to be governed as our present capacities will admit Be it enacted That every Morning the Court sits whether the General or County-Courts the Sheriff of the County in which it sits shall impannel a Jury to attend the Court that day to try such Causes as the Court shall find proper to be referred to them and that whenever a Jury is sent our an Officer sworn to that purpose shall keep them from meat and drink until they have agreed on their Verdict XXXVIII Grand-Juryes to present Offenders WHereas the several Laws constituted and made for the redress of several Misdemeanors and Offences either through the remisness of the County-Courts or the Justices that keep the same or else through the defect of the Laws in not appointing some peculiar Officers to look narrowly after the Offenders and to make presentment thereof to the said Justices at their County-Courts by which means the Laws themselves are slighted and contemned and become wholly useless and ineffectual Be it therefore enacted and confirmed That Juryes of Inquest be impanelled and sworn in every County to enquire of the breach of all Penal Laws in their several Counties and that they make presentment thereof to the several County-Courts twice yearly viz. in April-Court and December-Court when the Justices are to receive them and find them according to Law and to take for evidence the presentment of the Jury if made upon the certain knowledge of any of them or otherwise the Parties that inform the Jury to give their Evidence to the next Justice in presence of the Party presented which Deposition being produced by the Jury with their Presentment shall be sufficient ground for the Court to pass Judgment against the Offenders XXXXIX Pillories to be erected at each Court WHereas many Offences are punishable by the Laws of England and of this Country with Corporal Punishments for executing whereof no such Provision hath been made as the said Laws require Be it therefore enacted that in every County the Court cause to be set up a Pillory a pair of Stocks a Whipping-Post neer the Court-House and a Ducking-Stool in such place as they shall think convenient that such Offenders as by the Laws are to suffer by any of them may be punished according to their demerits and the Court not causing the said Pillory Whipping-Post Stocks and Ducking-Stool to be erected within six Months after the Date of this Act shall be fined Five Thousand Pounds of Tobacco to the use of the Publick XL. Fines to be disposed of by the Assembly WHereas divers Trespasses against the Publick are punishable by Fines which are by the present Law to be disposed of to the use of the Counties in which the Trespass is committed and yet nothing done for the good of any County as was intended whereby it may be presumed that the said Fines are either not gathered whereby the Trespassers by this lenity and impunity are encouraged to persist in their Contempts of the Laws or else the said Fines are by some evil Commonwealths-men perverted to their private uses For prevention whereof for the future Be it enacted That the Courts shall only lay and collect the Fines and that they cause the Clerk of their respective Courts to keep an Account thereof and to return the Estreatments to the Clerk of the Assembly at James-City by the Third of the General Court held there in March yearly And it is further enacted that the said Clerk of the Assembly do annually attend accordingly during the time at the place aforesaid to receive them and at the next Assembly to present them to the Burgesses who are to order the disposal of the said Fines as to them shall seem most necessary for the good and benefit of the several respective Counties wherein they accrewed due always proportioning to every County the use of all the Fines which were levied therein XLI Supersedeas by whom and how grantable WHereas the Writ of Supersedeas hath of late been too frequently granted upon slight pretences of errour in the Court thereby not only injuriously delaying Justice and keeping men from their Just Dues but also bringing Calumnies and Aspersions upon the Courts themselves Be it therefore enacted That no Supersedeas whatsoever shall hereafter be granted but by the Governour and two of the Council nor by them unless the Party desiring it make it probably appear to them that there is Error in the Judgement and shall then also give good security to make good his Plea and if he be cast at the next General Court to pay the Principal with Five and Twenty per Cent. Damages besides Costs XLII Prisons to be built in each County WHereas the First Act of the Assembly held at James-City the third of November 1647. and continued by the Assembly held there the Third of March 1657. for prevention of escapes for Prisoners hath enacted That sufficient Prisons should be built in each County and that an House built after the form of a Virginia-House our abilities not extending to build stronger should be accounted a sufficient Prison and that any Person being a Prisoner for Debt or Crime and breaking one of those Prisons should be proceeded against as a Felon and that neither Court Commissioner nor Sheriff should be answerable for such escape And whereas the Sixty first Act of the Assembly held at James-City the said Thirteenth of March 1657. makes the several Counties not building such Prisons lyable to the Sheriff for the Escape of any Person committed to his Custody which Acts have for want of a Penalty never been put in Execution for want whereof Felons may escape and Debtors for want of due Restraint delay alwayes and defraud oftentimes the Creditor of his Just Dues and by means thereof the Law it self made wholly void which intended principally that all men should by that Restraint have been forced to make a speedier Satisfaction For remedy whereof be