|Pages 509-523||Pages 541-558|
| CHAP. XI.
An Act concerning Juries.
|[From edit. 1752,]|
|I. FOR the more regular inquiry into the breaches of penal laws, and trials of matters of fact, in the several courts of justice within this dominion, by grand juries and petit juries: Be it enacted, by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That every county court shall cause twenty four freeholders of their county, not being ordinary keepers, constables, surveyors of highways, or owners or occupiers of a mill, to be summoned to appear in May and November courts, annually out of which shall be impanelled a grand jury of fifteen at lease, who shall be sworn to enquire into the breach of penal laws, and make presentment of the offenders, but shall present such offences and breaches only, as shall be committed within the space of twelve months before the time of such presentment, and no longer, unless the same be otherwise directed by law; and such grand jury having presented all such matters as come to their knowledge, shall be discharged, always observing, that when they make presentment upon information of any other person than themselves, to writ the names of the informers, under such presentment, for the more effectual prosecution thereof; and every such grand jury shall and may present, and the several county courts shall have full power and authority to hear and determine, all offences made penal by the laws of this colony, altho' the recovery of the fines for such offences shall be otherwise directed by the laws inflicting the same, and altho' the forfeiture or penalty thereby inflicted shall not amount to twenty five shillings current money, or two hundred pounds of tobacco: And if any freeholder, being summoned,|| Grand juries to be summoned to every county court, in May & November. |
Their duty in presenting offenders against penal laws.
How presentments shall be made and determined.
|shall fail to appear as aforesaid, so as no grand jury can be impanelled, he shall be fined by the court, four hundred pounds of tobacco to the king his heirs and successors, for the use of the same county, unless legal cause for [of] non-appearance be shewn, and allowed at the next court held for such county: and if the court of any county shall fail to order a grand jury to be summoned as aforesaid, or upon the appearance of fifteen shall omit to swear a grant jury, every member of such court, shall forfeit and pay, four hundred pounds of tobacco; and if any sheriff, upon order of court, shall fail to summon twenty four freeholders, and return a pannel of their names to May and November courts, annually, he shall forfeit and pay one thousand pounds of tobacco, both which last mentioned penalties shall be to the king, his heirs and successors, for the use of the county wherein the same shall be forfeited, and recoverable by information in the general court of this dominion.|| Fines on jurors not appearing. |
On courts not ordering summons.
On a sheriff not executing a snmmons & returning a pannel.
|II. And be it further enacted, by the authority aforesaid, That when any offence or offences shall be presented by the grand jury of any county, and the penalty or forfeiture by law inflicted thereon, shall not exceed five pounds current money, or one thousand pounds of tobacco, be it to the king and informer, or to the informer or party only, or appropriated to any other use whatsoever, such presentment need not be drawn up in other form, than as the same stands presented by the grand jury; and thereupon the court shall order a summons forthwith to issue, to summon any person or persons, so presented, to appear and answer such presentment, at the next court, and shall not admit of any exception or pleading, to the form or manner thereof, but shall proceed to trial, without the formality of a jury, and give judgment upon such presentment, according as the very right of the cause and matter in law shall appear unto them; and if the party summoned fails to appear, the court may give judgment for the penalty.||Method of prosecuting presentments, where the penalty does not exceed 5l. or 1000l. of tobacco.|
|III. And for presentments to be made at the general court, Be it further enacted, by the authority aforesaid, That the sheriff or officer attending the said court, shall summon a grand jury of the bystanders, being freeholders, who shall and may, and are hereby declared to have full power to make presentments||Grand juries at the general court.|
|of any offences whatsoever, committed within this colony, except such only, where the penalty inflicted by the law in force, is under twenty shillings, or two hundred pounds of tobacco; and the court shall have power to hear and determine such offences, in the same manner as is herein before directed in the county courts: And to the end such grand juries may be of the most capable persons, it shall be lawful for the said court, upon the first or second day of their sitting to make a rule for the officer attending the court, to summon twenty four persons for a grand jury; and if any person so summoned, shall fail to appear and attend such court, he shall be fined four hundred pounds of tobacco, to the king, his heirs, and successors, for and towards the better support of this government, and the contingent charges thereof.|| |
Not to present offences under 20s. or 200l. of tobacco.
|IV. Provided always, That no grand jury shall make any presentments of their own knowledge, upon the information of less than two of their own body.||Rule in presentments.|
|V. And be it further enacted, by the authority aforesaid, That for the trial of all causes, except treason and felony, both in the general court, and county court, the sheriff or officer, attending such court, shall, every day the court sits, summon a sufficient number of the bystanders, qualified as hereafter is directed, to attend the court that day, that out of them may be impanelled sufficient juries, for the trial of causes depending in such court; and if any person so summoned, shall fail to attend the court accordingly, he shall be fined four hundred pounds of tobacco, to the king, his heirs and successors, for and towards the better support of this government, and the contingent charges thereof.|| Sheriff shall summon jurors at every court. |
Fine if they neglect to attend.
|VI. And be it further enacted, by the authority aforesaid, That no person shall be capable to be of a jury, for trial of treason, felony, breach of the peace, misprision of treason, breach of penal law, or any other pleas of the crown, or of any estate of freehold, or estate or title in or to lands, tenements, or hereditaments, in any court of record of this dominion, or to be a juror in any cause whatsoever, depending in the general court, unless such person be a freeholder, and possessed of a visible estate, real and personal, of the value of one hundred pounds current money, at the|| Qualifications of jurors. |
In the general court.
|least; and that no person shall be capable to be of a jury for trial of any cause whatsoever, in any county court, unless he be possessed of a visible estate, real or personal, of the value of fifty pounds at least: And that no sheriff or officer shall at any time summon, or return, any juror not qualified as this act directs: Provided always, That no exceptions against any juror on account of his estate shall be allowed, after he is sworn.|| In county courts. |
But shall not be challenged for want of estate after sworn.
|VII. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause and clauses heretofore made, for or concerning any matter or thing within the purview of this act, shall be and are hereby repealed.||Repealing clause.|
|VIII. And be it further enacted, by the authority aforesaid, That this act shall commence and be in force from and immediately after the tenth day of June, which shall be in the year of our lord one thousand seven hundred and fifty one.||Commencement of this act.|
| CHAP. XII.
An Act declaring the law concerning Executions; and for relief of Insolvent debtors.
|[From edit. 1752.]|
|I. WHEREAS by the common law of England, and divers acts of parliament, which are binding upon the subjects of this colony, all persons recovering any debt, damages, or costs, by the judgment of any court of record, may at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum, within the year, for the taking the goods, lands, or body of the person or persons against whom such jndgment is obtained, to the end the said several writs issuing out of any of the courts of record within this dominion, and the manner of executing and returning the same, may be uniform, and the mischiefs arising from the incorrect forms, and insufficient returns of such writs prevented.|| |
|II. Be it enacted and declared by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted, by the authority of the same, That the several writs aforesaid, shall be issued in the king's name, and in the manner following: That is to||Writs of execution.|
|say, all such writs issued from the secretary's office shall bear test by the governor, or commander in chief of this dominion for the time being, and shall be returnable to the eighth, or twenty third day, of the next succeeding general court; and all such writs issued from the clerk's office of any county court, or other inferior court of record, shall bear test by such clerk, and be returnable to his next succeeding court; so that there be always at least fifteen days between the test and return of each of the writs aforesaid, but if the plaintiff in any county court, or other inferior court, shall desire an execution to issue returnable at a further day, the clerk shall issue the same accordingly, so as the day next after the test thereof: And that the forms of the said several writs shall be as follows, mutatis mutandis, to wit,|| How to be issued and returned, |
15 days, at least, between the test and return, or more if the plaintiff desire it, but not exceeding 90 days,
Forms of the writs,
|A Fierie Facias, in Debt.|
|GEORGE the second, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, &c. To the sheriff of county, greeting: Wee command you, that of the goods, and chattels, of A. B. late in your bailiwick, you cause to be made the sum of which C. D. lately, in our general court, hath recovered against him for debt; also, the sum of which to the said C. D. in the same court, were adjudged for his damages, as well by reason of detaining the said debt, as for his costs in that suit expended, whereof he is convicted, as appears to us of record: And that you have the said before the justices of our said court, the day of to render to the said C. D. of the debt and damages aforesaid, and have there then this writ. Witness, &c.|| Against goods and chattels, |
|The same, in case upon a Promise.|
|−−−− As before, unto −−−− For his damages, which he sustained, as well by reason of his not performing a certain promise, and assumption, to the said C. D. by the said A. B. lately made, as for his costs by him about his suit in this behalf expended: &c. −−−−||Case, assumpsit.|
|−−−− As before, unto −−−− For damages, as well by occasion||Trespass.|
|of a certain trespass by the said A. B. to the said C. D. offered, as for his costs, &c.|
|If for the Defendant, say,|
|−−−− For his costs about his defence, in a certain action at the suit of the said, &c.||For the defendant.|
|−−−− As before, unto −−−− For damages, &c. −−−− by occasion of the breach of a certain covenant between the said A. B. and C. D. lately made, &c.||Covenant,|
|The Form of a Writ of Elegit.|
|GEORGE, &c. −−−− Greeting. Whereas, A. B. at our general court, −−−− &c. −−−−, before our justices held, hath recovered against C. D. the sum of which to the said plaintiff was adjudged for a certain debt −−−− or damages −−−− as before −−−−, and the said A. B. by the statute in that case made and provided, hath chosen to have delivered to him, all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick: To have and to hold the goods and chattels aforesaid, as his own proper goods, and the said moiety, as his freehold, to him and his assigns, until he shall have levied thereof the debt and damages aforesaid: Therefore we command you, that you caused to be delivered, all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick, whereof he, at the day of obtaining the said judgment, was seised, or at any time afterwards, by reasonable price and extent: To have and to hold, the said goods, and chattels, to him the said A. B. as his own proper goods, and chattels, and the said moiety as his own freehold, to him and his assigns, according to the form of the statute aforesaid, until he shall have levied thereof the debt and damages aforesaid: And that you certify our said justices, under your own seal, and the seals of those by whose oaths you shall make this extent, and appraisement, how you execute this writ, the day of and have then there this writ, &c.||Against land and tenements.|
|A Capias ad Satisfaciendum.|
|GEORGE, &c. greeting: We command you, that||Against the body.|
|you take A. B. late of if he be found within your bailiwick, and him safely keep, so that you have his body before our justices of our general court, &c. −−−− the day of to satisfy C. D. the sum of which the said C. D. hath recovered against him for debt, also, &c. as before −−−−|
|In Case, Trespass, or Covenant, as in the Fieri Facias.|
|Which said writs, so issued, shall be executed by the sheriff, or other officer, or minister, to whom the same shall be directed, and shall be returned according to the respective forms hereafter mentioned, to wit.||Forms of the returns.|
|The return of a Fieri Facias.|
|BY virtue of this writ to me directed, I have caused to be made the within mentioned sum of of the goods, and chattels of the within named A. B. which said sum of before the justices within mentioned, at the day and place within contained, I have ready as that writ requires.||Fieri facias, executed.|
|THE within named A. B. hath no goods, or chattles, within my bailiwick, whereof I can make the sum within mentioned.||Where no goods.|
|BY virtue, &c. I have caused to be made of the goods and chattels of the within named A. B. the sum of which I have ready to render to the within named C. D. in part of the debt and damages within mentioned: And I do further certify, that the said A. B. hath no more goods and chattels within my bailiwick, whereof at present I can make the residue of the said debt and damages, as by the said writ is required.||Where part is levied.|
|Return of a Writ of Elegit.|
|sc. INQUISITION indented, taken at in the county aforesaid, the day of in the year of our Lord before me E. F. Gent. sheriff of the county aforesaid: By virtue of a||Elegit, executed.|
|writ of our lord the king, to me directed, and to this inquisition annexed, and by the oath of G. H. I. K. &c. good and lawful men of my bailiwick, who being charged and sworn, upon their oath do say, that A. B. in the said writ to this inquisition annexed, named, the day of the caption of this inquisition was possessed of the goods and chattels following, as of his own proper goods, viz, of the price of which I, the said sheriff, have caused to be delivered to the same C. D. to hold to him as his own proper goods and chattels, in part of satisfaction of his debt and damages aforesaid, in the said writ mentioned; and further, the said jurors upon their oath do say, that the said A. B. at the time of rendering the judgment aforesaid, was seised in his demesne, as of fee, of and in −−−− (here name the houses and lands) −−−− with the appurtenances, of the annual value, in all the issues beyond reprises, of pounds, acres of which, or thereabouts, are a true and equal moiety of all and singular the lands, tenements, and hereditaments whatsoever, in the county aforesaid, of the said A. B. which said moiety, I the said sheriff, the day aforesaid, to C. D. in the said writ named, at a reasonable extent have delivered, to hold to him and his assigns, as his freehold, according to the form of the statute in that case made and provided, until he shall have levied the residue of the debt and damages aforesaid, as the writ aforesaid requires: And further, the said jurors upon their oath do say, that the said A. B. at the time of giving the judgment aforesaid, hath [had] not, nor at the day of taking his inquisition hath, any other or more goods or chattels, lands or tenements, in the county aforesaid, to the knowledge of the jurors aforesaid. In testimony whereof, as well I the said sheriff, as the jurors aforesaid, to this inquisition have severally put our seals, the day, year, and place, above mentioned.|
|Return of a Capias ad Satisfaciendum.|
|BY virtue of this writ to me directed, I have taken the within named A. B. whose body, before the justices named, at the day and place within contained, I have ready, to satisfy C. D. of the debt and damages within mentioned, as within to me is commanded.||Capias executed.|
|THE within named A. B. is not found in my bailiwick.||Not executed.|
|III. And whereas before the statute made in the twenty first year of the late king James the first, it hath been questioned, if any person being in prison, charged in execution by reason of any judgment given against him, should happen to die in execution, whether the party at whose suit such person stood charged in execution, at the time of his death, were not for ever concluded and barred, to have execution of the lands and goods of the person so dying? And least any person of sufficiency in real and personal estate, intending to deceive others of their just debts, for which he stands charged in execution, should obstinately and wilfully choose rather to live and die in prison, than to make any satisfaction to his creditors: Be it further enacted by the authority aforesaid, That the party or parties at whose suit, or to whom any person shall stand charged in execution, for any debt or damages recovered, his or their executors or administrators, may after the death of the person so dying in execution, lawfully sue forth and have new execution against the lands and tenements, good [goods] and chattels, or any of them, of the person so deceased.|| If a debtor dies in prison, creditors
may have new execution against his estate. |
|IV. Provided always, That this act shall not extend to give liberty to any person or persons, their executors or administrators, at whose suit any such party shall be, and die in execution, to have, or take any new execution against any the lands, tenements, or hereditaments of such party dying in execution, which shall at any time after the said judgment, or judgments, be by him sold, bona fide, for the payment of any of his creditors, at whose suit he shall be in execution, and the money paid, or secured to be paid, to any such creditors, with their privity, in discharge of his or their debts, or some part thereof.||Debtor may sell his lands, for the benefit of such creditors at whose suit he is in execution.|
|V. And for the better direction of clerks in the issuing of executions, Be it further enacted by the authority aforesaid, That when any writ of execution shall issue, and the party at whose suit the same is issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the clerk may issue the same, if the first writ be not returned||Rules in issuing the writs.|
|and executed; and where upon a capias ad satisfaciendum, the sheriff shall return, that the defendant is not found, the clerk may issue a fieri facias; and if upon a fieri facias shall return, that the party hath no goods; or, that only part of the debt is levied, in such case, it shall be lawful to issue a capias ad satisfaciendum, upon the same judgment; and so where part of a debt shall be levied upon an elegit, a new elegit shall issue for the residue; and where nihil shall be returned upon any writ of elegit, a capias ad satisfaciendum or fieri facias, may issue, and so vice versa; and where one judgment is obtained against several defendants, execution thereon shall issue as if it were against one defendant, and not otherwise.|
|VI. And whereas by the common law, if a creditor take execution upon any judgment or statute, and the debtor shall before make alienation of part of his lands, and such lands be omitted out of the extent, the whole execution may be avoided by audita querea, [querela], and thereby the party extending may lose his costs, and be delayed of his just debt; and so again, upon a new extent, toties quoties: And if any one acre of land happen to descend to an infant, the whole execution must be deferred till the full age of such infant; and if afterwards other part of the lands or tenements, liable for such debt, shall descend to another infant, then further delay will happen during that infancy also; for remedy of which inconveniencies and delays.|
|VII. It is hereby further enacted and declared, That when any judgment, statute, or recognizance shall be extended, the same shall not be avoided or delayed, by occasion that any part of the lands or tenements extendible, are or shall be omitted out of such extent.||No extent shall be avoided by omission of part of the land extendible.|
|VIII. Saving always to the party and parties whose lands shall be extended, his and their heirs, executors and assigns, his and their remedy for contribution against such person and persons, whose lands are, or shall be omitted out of such extent, from time to time.||Saving remedy of contribution.|
|IX. Provided nevertheless, That this act, or any thing therein contained, shall not be construed to give any extent or contribution, against any heir within the age of one and twenty years, during such minority of such heir, for, or in respect of any lands to such heir descended, further or otherwise than might have been made before the making of this act.||Infant's lands excepted.|
|X. And be it further enacted, by the authority aforesaid, That no writ of fieri facias, or other writ of execution, shall bind the property of the goods against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff, under sheriff, coroner, or other officer, to be executed; and for the better manifestation of the said time, such sheriff, coroner, or other officer, his deputy, or agent, shall, upon the receipt of any such writ, without fee for doing the same, endorse upon the back thereof, the day of the month, and year, when he received the same; and if two or more writs shall be delivered against the same person, in the same day, that which was first delivered shall be satisfied first.||Officer shall endorse the time of receiving writs of execution.|
|XI. And be it further enacted, by the authority aforesaid, That when any sheriff or other officer, shall take the goods or chattels of any person whatsoever, by virtue of any writ of fieri facias, and the owner of such goods and chattels shall not, within five days after such taking, satisfy the party suing out such writ, his debt, damages, and costs, such sheriff, or officer, shall, and may lawfully sell, by auction, the goods and chattels so taken, or so much thereof as shall be sufficient to satisfy the judgment, for the best price that can be got for the same; but shall give notice of the time and place of such sale, at the church of the parish where such goods shall be taken in execution, by setting up a note thereof, before the service begins, in some convenient or usual place near such church, and by publishing the same in the church yard, immediately after divine service, upon the next Sunday, after expiration of the said five days; which sale shall be made the third day after such notice given, and not sooner.||Rules in executing a fieri facias.|
|XII. Provided always, That if the owner of such goods and chattels shall give sufficient security to such sheriff, or officer, to have the same goods and chattels forthcoming at the day of sale, it shall be lawful for the sheriff, or officer, to accept such security, and to suffer the said goods and chattels to remain in the possession, and at the risque of such debtor until the time aforesaid, and if then such owner shall tender to the sheriff, or officer, the debt, damages and costs, for which his goods and chattels were so taken, such sheriff, or officer shall accept the same, and restore the said goods to the owner.|| Officer may accept security for goods seised,'til the day of
Payment before sale, discharges the goods.
|XIII. Provided also, That where any execution shall be served upon the goods and other estate of the debtor, if such debtor shall, within five days or at the time of sale, tender sufficient sureties approved by the creditor, to be bound with him, to pay the money, or tobacco, for which execution was so served, and all costs, with lawful interest for the same, to such creditor within three months, then the sheriff or officer shall restore to such debtor the goods or estate so taken; and where no such security shall be offered, and the goods or other things taken in execution cannot be sold for three fourths of their value, at the least, in the opinion of the sheriff, or other officer, he may set up and sell the same for money, or for tobacco, if the judgment be for tobacco, to be paid at the end of three months, and shall take bond of the buyer or buyers, with one or more sufficient sureties, to pay the same accordingly, with interest, to such creditor.|| Or, security to pay in three months. |
Where goods taken, cannot be sold for 3-4 of their value, officer may sell such upon three months eredit.
|XIV. And be it further enacted, by the authority aforesaid, That all and every bond and bonds, so taken in pursuance of this act, shall mention, that the same was, or were entred into for goods or other estate, taken in execution and restored to the debtor, or sold to the obligor, as the case shall be, and before the expiration of the said three months, shall be returned, by the sheriff or officer taking the same, to the office of the clerk of the court from whence the execution issued, there to be safely kept, and shall have the force of judgments; and if the money or tobacco shall not be paid, according to the condition of any such bond, it shall be lawful, and full power and authority is hereby given to the justices of the court where such bond shall be lodged, upon motion of the party to whom the same is payable, to award execution thereupon, with costs; provided the obligors have ten days notice of such motion: And upon such execution, the sheriff or officer shall not take any sureties for payment of the money or tobacco, at a further day, but shall levy the same immediately: And for the better direction of such sheriff or officer, the clerk shall endorse upon the back of every such execution, that no security is to be taken.||Proceedings upon bonds taken in pursuance of this act.|
|XV. Provided always, That nothing in this act contained shall be construed to extend to any execution upon any judgment obtained against a sheriff, or||Executions against collectors of public debts, excepted out of this act.|
|other collector of levies or officers fees, for any debt, due to any public or county creditor, or for secretary's county court clerks, surveyor's or other officer's fees, put into his hands to collect, but such executions shall and may be proceeded upon immediately, and no security shall be taken, or further time allowed, any thing in this act to the contrary notwithstanding.|
|XV.I And be it further enacted, by the authority aforesaid, That no sheriff, or other officer, to whom any writ of fieri facias shall be directed, shall take in execution any slave or slaves, unless the debt and costs, mentioned in such fieri facias, shall amount to the sum of ten pounds, or two thousand pounds of tobacco, provided there be shewn to such sheriff, or officer, by the defendant or any other persons, sufficient other goods or chattels of such defendant, within the bailiwic or liberty of such sheriff or officer, upon which he may levy the debt and costs, mentioned in such fieri facias: And that no collector of any officer's fees, or of public, county, or parish levies, shall seise or make distress upon the slave or slaves of any person, for such fees or levies, if other sufficient distress can be had: And that no sheriff, or other officer, or collector of fees or levies, shall make or take unreasonable seisures or distresses: And if any sheriff, or other officer, or collector, as aforesaid, shall act contrary hereto, such sheriff, officer, or collector, shall be liable to the action of the party grieved, grounded upon this act, wherein the plaintiff shall recover his full costs, altho' the damages do not exceed forty shillings.|| In what cases slaves may not be seised. |
Penalty for making unlawful seisure.
|XVII. And be it further enacted, by the authority aforesaid, That no execution shall be levied, nor distress made for tobacco, between the last day of September, and the last day of December in any year.||No execution or distress for tobacco, between 30th September and 31st December.|
|XVIII. And be it further enacted, by the authority aforesaid, That if any sheriff, or other officer or minister, shall make return upon any writ of fieri facias, that he hath levied the debt, damages, and costs, as in such writ is required, or any part thereof, and shall not immediately pay the same, to the party to whom the same is payable, or his attorney, the clerk of the court out of which such writ issued is hereby required, upon request of the party, to issue a scire facias against such sheriff, or officer, to have execution against him, for the money so by him levied.||Process against officer not paying monies by him levied.|
|XIX. And if the goods taken by any sheriff, or other officer, or minister as aforesaid, or any part thereof, shall remain in his hands for want of buyers, he shall make return accordingly, and thereupon the writ of venditioni exponas shall issue, to such sheriff, officer, or minister directed, according to the form following.||The manner of executing a writ of venditioni exponas.|
|GEORGE, &c. Greeting: We command you, that you expose to sale those goods and chattels of A. B. to the value of which according to our command, you have taken into our hands, and which you detain for want of buyers, as you have certified to our justices of our court, to satisfy C. D. the sum of whereof in our said court he hath recovered execution against the said A. B. by virtue of a judgment in the said court: And that you have, &c.||Form of the writ.|
|And thereupon such sheriff, or officer shall dispose of such goods and chattels in any manner, either for ready money, or upon credit, as he and the party prosecuting such writ shall think best.|
|XX. And be it further enacted, by the authority aforesaid, That where judgment shall be obtained in any county court, or other inferior court of record, for any debt or damages, and the person, against whom such judgment shall be obtained, shall remove himself and his effects, or shall reside out of the limits of the jurisdiction of such court, it shall be lawful for the clerk of the court where judgment was given, at the request of the party for whom the same was rendred, to issue any writ of fieri facias, or capias ad satisfaciendum, in the form, and under the test herein before prescribed, and to direct the same to the sheriff of any county within this dominion, where the defendants, or debtor, or his goods shall be found; which said sheriff, or other officer to whom the same shall be directed, is hereby impowered and required to serve and execute the same, and shall make return thereof to the court where the judgment was given, in the manner herein before prescribed and directed.|| |
Method of issuing executlon against defendant in another county.
|XXI. And be it further enacted, by the authority aforesaid, That if any person or persons, taken or charged in execution, shall enter into bond with good and sufficient securities, under a reasonable penalty, upon||Where prisoners may have liberty of the rules.|
|condition, that he, or they, shall not depart or go out of the rules and bounds of the prison to which he, or they, shall be committed, it shall be lawful for the sheriff, or officer, in whose custody such prisoner or prisoners shall be, to permit him or them to go out of the prison, and return at their pleasure.|
|XXII. And whereas it is not reasonable or just, that by the practice or contrivance of any debtors, their creditors should be defrauded of their just debts, and nevertheless it hath often so happened that several persons, having by bonds, or other specialties, bound themselves and their heirs, and afterwards died, seised of, and in messuages, lands, tenements, and hereditaments, have, to the defrauding such their creditors, by their last wills and testaments, devised the same, or so disposed thereof, that such creditors have lost their just debts: For remedy thereof, and that it may not be in the power of heirs at law, to avoid the payment of the just debts of their ancestors, by selling, aliening, or making over, any lands, tenements, or hereditaments, liable to such debt, before any process be sued out against them.|
|XXIII. Be it further enacted, by the authority aforesaid, That one act of parliament, made in the third year of the reign of the late king William, and queen Mary, intituled, An act for the relief of creditors against fraudulent devises, shall be, and is hereby declared to be in force, within this colony and dominion.||The statute for relief of creditors against fraudulent devises, enacted.|
|XXIV. And for relief of insolvent debtors, who shall be taken in execution, and to prevent the long imprisonment of unfortunate people, which can be no benefit, but may be rather a disadvantage to their creditors: Be it further enacted, by the authority aforesaid: That if any person or persons now are, or hereafter shall be, taken or charged in execution, and shall have remained in prison by the space of twenty days, it shall be lawful for any justice or justices of the peace, of any county, city, town, or liberty, within this colony, upon petition of such prisoner or prisoners, by warrant under his, or their hands and seals, to require the sheriff, goaler, or keeper, of any prison within their respective jurisdictions, to bring before the justices, at the next court held for such county, city, town, or liberty, the body of any person being in prison as aforesaid, together|| |
The method of insolvent debtors discharge.
|with a list of the several executions, with which he or she is charged in the said goal; which warrant every such sheriff, goaler, or keeper, is hereby commanded to obey; and notice thereof shall be given to the party or parties, his, or their executors, administrators, or agents, at whose suit such prisoner shall be in execution; and such prisoner coming before the justices, shall in open court, subscribe and deliver in a schedule of his whole estate, and make oath, and swear to the effect following, that is to say.|
|I. A. B. do, upon my corporal oath, in the presence of Almighty God, solemnly swear, profess, and declare, that the schedule, now delivered and by me subscribed, doth contain, to the best of my knowledge and remembrance, a full, just, true, and perfect account, and discovery, of all the estate, goods, and effects, unto me any ways belonging, and such debts as are to me owing, or to any person in trust for me, and of all securities and contracts, whereby any money may hereafter become payable, or any benefit or advantage accrue to me, or to my use, or to any other person or persons in trust for me; and that I, or any other person or persons in trust for me, have not land, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts, with which I am charged in execution; and that I have not, directly or indirectly, sold, lessened, or otherwise disposed of in trust, or concealed, all or any part of my lands, money, goods, stock, debts, securities, contracts, or estate, whereby to secure the same, to receive, or expect, any profit or advantage thereof, or to defraud or deceive, any creditor or creditors, to whom I am indebted, in any wise howsoever,||Prisoner's oath.|
|So help me God.|
|Which schedule being so subscribed, in the presence of the justices, in open court, is to remain with the clerk of the court, for the better information of the creditors of such prisoners.|
|XXV. And be it further enacted, by the authority aforesaid, That all the lands, tenements, and hereditaments, which shall be contained in such schedule, for such use, interest, right, or title, as such prisoner or prisoners, then shall have in the same, which he, or she, may lawfully depart withal, and also all goods and chattels whatsoever, in such schedule contained, shall||How such debtor's estate shall be disposed of.|
|be vested in the sheriff of the county wherein such lands, tenements, hereditaments, goods or chattels shall lie, or be found; and such sheriff is hereby authorised impowered, and required, to sell and convey the same, to any person or persons whatsoever, for the best price that can be got for the same, and the money arising by such sale, shall be by such sheriff or officer paid to the creditor or creditors, at whose suit such prisoner or prisoners shall be imprisoned; saving to every such prisoner, his, or her necessary apparel, and utensils of trade.|
|XXVI. And that after delivering in such schedule, and taking such oath, as aforesaid, it shall be lawful for the justices of the said courts, by their order to command the sheriff, goaler, or keeper of any prison, within their respective jurisdictions, forthwith to set at liberty such prisoner; Which order shall be sufficient to discharge and indemnify such sheriff, or officer, against any escape or escapes, action or actions whatsoever, which shall or may be brought or prosecuted, against him or them by reason thereof; and if any action shall be commenced against any sheriff, or officer, for performing his duty in pursuance of this act, he may plead the general issue, and give this act in evidence.|| Prisoner's discharge. |
|XXVII. Provided always, That notwithstanding such discharge, it shall be lawful for any creditor or creditors, at whose suit such insolvent prisoner was imprisoned, at any time afterwards to sue out a writ of scire facias, to have execution against any lands or tenements, goods or chattels, which such insolvent person shall thereafter acquire, or be possessed of.||But creditor may afterwards have execution against such debtor's estate.|
|XXVIII. And be it further enacted, by the authority aforesaid, That where any person now is, or hereafter shall be committed, for any debt, or damages whatsoever, and shall not be able to satisfy and pay, his, or her ordinary prison fees, such of the said fees as shall become due for the first twenty days imprisonment, shall be discharged by the county; and the sheriff, or goaler, may demand and recover of the party or parties, at whose suit such insolvent person shall be imprisoned, all such fees as shall become due after the expiration of the said twenty days, until the creditor|| Insolvent debtors prison fees to be paid by
the county, for the first 20 days. |
Afterwards by the creditor; if he refuses sheriff may release his prisoner.
|shall agree to release such prisoner: And if the creditor, upon notice thereof given to him or her, his or her attorney, or agent shall refuse to give security to the sheriff or goaler, for payment of such prison fees, or shall fail to pay the same when demanded, either in tobacco, or money, at the rate of ten shillings per hundred, it shall and may be lawful for the sheriff, or goaler, to discharge such debtor out of prison. Provided nevertheless, That such insolvent prisoner shall be afterwards liable to the action of the creditor, to recover such fees; and such creditor shall and may, notwithstanding his consent to the releasing such prisoner, at any time afterwards, sue out a scire facias, to have new execution against the lands and tenements, goods and chattels, of such prisoner, in case he, or she, shall afterwards become possessed of any.|
But creditor may recover such fee of the debtor.
|XXIX. And be it further enacted, by the authority aforesaid, That where any writ of execution shall, after the passing of this act, be sued out upon any judgment, decree, or recovery, had, or to be had, or obtained, in any court of record of this dominion, for sterling money, the sheriff, or officer, to whom such writ shall be directed, shall levy the same in current money, at the rate of twenty five per cent. advance upon the sterling for a difference of exchange, and not otherwise.||Executions for sterling shall be levied in current money, at 25 per cent. exchange.|
|XXX. And be it further enacted, by the authority aforesaid, That all and every other act and acts, clause and clauses heretofore made, for or concerning any matter or thing within the purview of this act, shall be and are hereby repealed.||Repealing clause.|
|XXXI. And be it further enacted, by the authority aforesaid, That this act shall commence and be in force from and immediately after the tenth day of June, which shall be in the year of our lord one thousand seven hundred and fifty one.||Commencement of this act.|
|Pages 509-523||Pages 541-558|