|Pages 319-338||Pages 362-387|
| CHAP. LVI.
An act for licensing counsel attornies at law and proctors.
|From Rev. Bills of 1779, ch. XCVII.|
|BE it enacted by the General Assembly, That no person, except the attorney general, shall be permitted by any court to practice therein as a counsel, attorney at law, or proctor, unless he shall heretofore have obtained a license, in the manner prescribed by the law then in force, or until he shall obtain a license in writing from three of those, who shall be at that time, judges of the high court of chancery, or general court; which license, if he produce to them a certificate from the court of that county wherein his usual abode shall have been during twelve months next preceding, that he is a person of honest demeanor, such three judges are empowered and required to grant, under their hands and seals, if, after examination, it be their opinion, that he is duly qualified. Every counsel, attorney, and proctor, before he shall practice, shall in some court of record, give assurance of fidelity to the commonwealth, and moreover in such court, if he shall thereafter obtain a license, shall take the oath following: "I do swear that I will honestly demean myself in the practice of a counsel, attorney, or proctor, and will execute my office according to the best of my knowledge and ability." A person, who shall have been convicted of treason, felony, forgery, or wilful and corrupt perjury, shall not be suffered to practice in any court, as a counsel, attorney, or proctor. If the general court, from their own observation, detect any mal-practice in a counsel, or attorney of that court, or if a complaint in writing be made to them, of such mal-practice in the said court, or in the court of a county, city, or borough, the party accused shall be summoned to shew cause why an information should not be filed against him; and if such information be ordered, and he be found guilty, of the matter therein charged, the said general court may either suspend his license, during a certain time, or vacate it altogether, as they shall think him to have deserved. And the high court of chancery and court of admiralty,|| Counsel, attornies at law and proctors, how
How suspended for malpractice.
|upon the like detection or complaint of mal-practice in those courts respectively, shall proceed in the same manner against a counsel, attorney, or proctor, and may inflict the same punishment upon the offender. −− No counsel, or attorney at law, practising in a court of a county, city, or borough, shall be permitted by the judges, to practice the same profession in the high court of chancery or general court.|
|From Rev. Bills of 1779, ch. CIII.|
|I. BE it enacted by the General Assembly, That any free person brought before a justice of the peace of a county or corporation, and by the testimony of another free person, charged with treason or felony, done in such county or corporation, shall be committed to jail by warrant of such justice, who shall, by his precept, order the sheriff to summon the other justices to meet in the court house, at an appointed time, not more than ten, nor less than five days after the commitment; and shall take the recognizance of witnesses to appear before the said justices, at that time and place. If the offence shall have been done in another county, the justice shall, by his warrant, cause the prisoner to be put into the custody of a sheriff, to be by him conveyed to the county or corporation where the offence was committed; every one of which sheriffs whilst he shall officiate in execution of this act, may impress so many men, horses, and boats, as shall be necessary for the safeguard and conveyance of the prisoner, into such other county, and there brought before some justice thereof, who shall proceed in like manner, as if the offender had been brought before him in the first instance; and the sheriff who shall be charged with the removal of a criminal from one county to another, shall be allowed|| Criminals, proceedings against, |
Called court, or court of examination.
Offence committed in another county.
|the same fee per mile for such service as is allowed to sheriffs for removing criminals from a county to the public jail, to be levied and paid by the county wherein the service was performed, and repaid by the public. The justices so convened shall be attended by the clerk of the peace, and any four or more of them, who will act, having examined the witnesses, as well for as against the prisoner, in his presence, for summoning which witnesses, on behalf of the prisoner, subpœnas shall be delivered to him or any other for him desiring them, by the clerk of the peace, and heard his defence, if, in their opinion, the evidence be not sufficient to convict him, shall enlarge him. If it seem to them that the evidence is sufficient to convict the prisoner, but that the offence is cognizable by the court of the county, they shall take the recognizance of the prisoner with surety, in such sum as they think proper to appear before such court at the next session, in which there will be a grand jury for the same county, or, if he do not give such surety, shall remand him to jail, there to remain until such session, or until he shall enter into the recognizance with surety, before any one of the said justices, who shall return it to the clerk of the peace. If they shall think the offence cognizable by the general court only, remanding the prisoner to jail, from whence he shall by mittimus of two of them be removed by the sheriff to the public jail, and delivered to the keeper thereof, or, if they think him bailable, admitting him to bail, the justices shall take the recognizance of the witnesses to appear before the general court, on the first day of the next term, and causing the examinations of the witnesses to be taken in writing, shall order them, together with the recognizances, both of the prisoner, if there be any, and of the witnesses, to be transmitted by the clerk of the peace, to the clerk of the general court; and the two justices, who give the mittimus, when there shall be one, may, by their warrant, empower the sheriff to impress so many men, horses, and boats, in all places he shall pass through, as shall be necessary for the safeguard and conveyance of the prisoner, to which warrant all persons shall yield obedience, and in execution whereof the officer shall proceed, as the law directs, in other cases, wherein impressments are authorised. If the justices shall be of opinion, that the prisoner may be bailed, and shall enter|| Number and power of examining court |
Criminal sent for further trial.
|that opinion in their proceedings, and also the sums of money in which he and his bail ought to be bound, he may be bailed either by them, or by any justice of the same county, or by any judge of the general court, who shall transmit the recognizance to the clerk of the general court, and give a warrant for the deliverance of the prisoner, and the warrant being put into the hands of the officer in whose custody the prisoner shall be, he shall thereupon be delivered, if he be detained for no other cause. Any two judges of the general court, when it is not sitting, may admit to bail a prisoner, whom they shall think entitled thereto and grant a warrant for his deliverance, notwithstanding the justices, before whom the examination was, shall have been of a different opinion. When the justices shall have determined that a prisoner ought to be tried for an offence in the general court, the clerk of the peace shall issue a writ of venire facias, to be directed to the sheriff, commanding him to cause twelve good and lawful men, freeholders of his county, of the neighbourhood of the place where the fact shall have been committed, to come before the justices of the general court, at the time the witnesses shall be bound to appear there, which writ shall be executed by the said sheriff and the freeholders summoned by virtue thereof, or such of them as appear and be not challenged together with so many other goods and lawful men of the bystandars being freeholders within this commonwealth, as will make the number twelve, or, if the whole array be challenged, twelve of such bystanders shall be a lawful jury for the trial of the prisoner. After any man shall be indicted of treason or felony, if he be not already in custody, the sheriff shall be commanded to attach his body, by writ, or by precept, which is called a capias, and if he return that the body is not found, another writ or precept of capias shall be immediately made, returnable forthwith, in which the sheriff shall be also commanded to seize his chattels, and safely to keep them; and if he return that the body is not found, and the indictee cometh not, an exigent shall be awarded and the chattels shall be forfeited, but if he come and yield himself, or he be taken, before the return of the fourth capias, the goods and chattels shall be saved. And in all trials for such offences, the prisoner shall have a copy of the indictment, and of the|| Venire facias.|
|panel of the jurors who are to try him, whensoever he shall require it before trial or sentence. And when any of the panel shall be challenged by the attorney for the commonwealth, he shall assign the cause of his challenge, which shall be enquired of according to law When the grand jury shall have presented to the general court, any bill of indictment against one charged with treason or felony, the court shall cause the offender, if he be not forthcoming immediately, or so soon as may be, to be arraigned and tried the same term, unless they see good cause to adjourn the trial to the next, and shall allow him counsel to assist him at his trial, if he desire it. When any prisoner, committed for treason or felony, and applying to the general court by petition or motion, the first day of the term, shall desire to be brought to his trial before the end thereof, and shall not be indicted in that term, unless it appear by affidavit that the witnesses against him cannot be produced in time; the court shall set him at liberty, upon his giving bail in such penalty as they shall think reasonable, to appear before them at a day to be appointed of the succeeding term, and he and every other person charged with such crime, who shall not be indicted before or at the second term after he shall have been committed, unless the attendance of the witnesses against him appears to have been prevented by himself, shall be discharged from his imprisonment, if he be detained for that cause only; and if he be not tried at or before the third term after his examination before the justices, shall be forever discharged of the crime. The clerk of the peace, when the justices of his county shall have determined that a prisoner ought to be tried in the general court, shall deliver subpœnas for summoning his witnesses, to him or any person on his behalf, requiring them, returnable at the same time as the witnesses for the commonwealth shall be bound to appear, which subpœnas, the officers, to whom they shall be directed, shall obey; and the clerk of the general court shall cause subpœnas for the same purpose, and at the like request, to be delivered to the prisoner, or his agent, and the witnesses for the prisoner shall be examined upon oath, in the same manner as other witnesses. The keeper of the public jail, by warrant of any two justices of his county, may impress so many men to attend him for the safeguard of prisoners in|| Copy of indictment and panel.|
Bail, if not tried.
Witness for prisoner.
|his custody, and during such time as shall be mentioned in the warrant, so as no one of them be compelled to attend more than one day in a week, the charge where of shall be defrayed by the public. In a presentment to the county court, if the penalty of the offence exceed not thirty shillings, or three hundred pounds of tobacco, or to the general court if the penalty exceed not five pounds of current money, or one thousand pounds of tobacco, no information thereupon shall be filed, but a summons shall be issued against the defendant to answer the presentment, and such summons having been served upon him, or a copy thereof having been left at the place of his usual abode, where the prosecution shall be in the county court, at least ten days before the return day, if he do not appear, judgment shall be entered against him for the penalty, and if he do appear, the court shall in a summary way, without a jury, hear and determine the matter of the presentment, in the form in which it shall have been made, and give judgment thereupon according to law and the very right of the cause, disregarding any exception that may or might be taken to the form of the presentment. Execution of a sentence of death shall not be done in less than thirty days after judgment shall have been given against the prisoner. All such expences as shall be incurred by the apprehension, commitment, examination, and removal of offenders, triable in the general court only, shall be defrayed by the county wherein the matter shall have been transacted, and reimbursed by the public. The clerk of the general court shall enter in books, to be kept for that purpose, the names of jurors attending for the trials of prisoners, and the names of witnesses, appearing on behalf of the commonwealth, against them, with accounts of the days they shall have attended, and certify such entries to the board of auditors.|| |
Presentments, how tried.
Criminal charges, how paid.
|CHAP. LVIII.||From Rev. Bills of 1779, ch. CIV.|
|I. BE it enacted by the General Assembly, That the justices of every county shall be justices of oyer and terminer for trying slaves charged with treason or felony: Which trials shall be by five at the least without juries upon legal evidence at such times as the sheriffs shall appoint, not being less than five nor more than ten days after the offenders shall have been committed to jail. No slave shall be condemned in any such case unless all of the justices sitting upon his or her trial shall agree in opinion that the prisoner is guilty. Provided always, That when judgment of death shall be passed upon any such offender there shall be thirty days at least between the time of passing judgment and the day of execution, except in cases of conspiracy, insurrection, or rebellion. The value of a slave condemned to die, who shall suffer accordingly, or before execution of the sentence perish, to be estimated by the justices triers, shall be paid by the public to the owner. One being detained in slavery, and having commenced an action to assert his freedom, shall be prosecuted and tried for any such crime in the same manner as a free man ought to be prosecuted and tried. No person having interest in a slave shall sit upon the trial of such slave.|| Court for trial of slaves.|
Must be unanimous, to convict.
Time between sentence and execution.
Value, how estimated and paid.
Slave suing for freedom, how tried.
Who may sit on trial.
An act for reforming the method of proceeding in writs of right.
From Rev. Bills of 1779, ch. CV.
|I. BE it enacted by the General Assembly, That for trial of disputed titles to land in a more simple mode than that which hath most commonly been used||Writs of right mode of proceeding in.|
|of late, the claimant or demandant of an estate in fee simple may sue forth against the possessor or tenant a writ of præcipe quad reddat; which issuing from the general court shall be in this form or to this effect: −− "The commonwealth of Virginia to the sheriff of E, greeting, command C. D. that he justly and without delay, render unto A. B. tenement containing of land, with the appurtenances in the county of E, which he claimeth to be his right, and whereof he complaineth that the aforesaid C. D. doth withhold the possession. And unless he shall do so then summon the said C. D. that he appear before the justices of our general court at on the day of the next court, to shew wherefore he hath not done it. And have you then there this writ. Witness chief justice of our said court at the day of in the year ." And issuing from the court of a county, city, or borough in the like form with necessary alterations; and shall be directed to the sheriff of that county, or the proper officer of that city or borough wherein the tenant resideth, or that wherein was his last place of abode. Upon which writ the court* shall be in this form or to this effect: "E to wit: A. B. by F. G. his attorney, demands against C. D. tenement, containing of land with the appurtenances in the county of E and bounded by And whereupon the said A. B. saith that he hath right to have the tenement aforesaid, with the appurtenances, and offereth proof that such is his right." If several tenements be demanded in the same count, the contents, situations and boundaries of each shall be inserted therein. To which count the tenant may plead in this form or to this effect: "And the aforesaid C. D. by H. I. his attorney cometh and defendeth the right of the said A. B. when and where it behoveth him and all that concerneth it, and whatsoever he ought to defend, and chiefly the tenement aforesaid with the appurtenances, as of right namely tenement containing of land in the county of E, and bounded by and putteth himself upon the assize, and prayeth recognition to be made, whether he hath greater|| |
|* So in original, but it should be count, as in Revised bills of 1779, ch 105.|
|right to hold the tenement aforesaid with the appurtenances, as he now holdeth it (or them) or the said A. B. to have it as he now demandeth it (or them.") And to such plea the replication shall be in this form or to this effect: "And the aforesaid A. B. in like manner putteth himself upon the assize, and prayeth recognition to be made whether he hath greater right to hold the tenement aforesaid as he demandeth, or the said C. D. as he holdeth it (or them.") Whereupon twelve good and lawful men, qualified as jurors are required to be, shall be elected, tried, and charged, as the manner is, to make recognition of the assize; which charge shall be in this form or to this effect: "You shall say the truth whether C. D. hath more right to hold the tenement which A. B. demandeth against him, by his writ of right, or A. B. to have it (or them) as he demandeth." And at the trial, any matter may be given in evidence which might have been specially pleaded. And upon the verdict, or in the case of a demurrer, the like judgment shall be given, and upon such judgment, the like execution awarded, as in case of a writ of right; and the party, for whom judgment shall be given, shall recover his costs of suit; and the demandant, if he recover his seisin, may also recover damages to be assessed by the recognitors of assize, for the tenants withholding possession of the tenement demanded. Where the præcipe quad reddat shall issue from the general court, if return thereof be made that the tenant is not found in the bailiwick of the officer to whom it was directed, the demandant may sue forth a writ of exigi facias in this form or to this effect: "The commonwealth of Virginia to the sheriff of E, greeting. We command you that you cause C. D. to be required, from county court to county court, until five courts be passed, if he doth not appear, and if he doth appear, then summon him that he be before the justices of our general court, at on the day of the next court, to shew wherefore he hath not rendered unto A. B. tenement containing of land, with the appurtenances in the county of E. And have you then there this writ. −− Witness chief justice of our said court at the day of in the year ." And when the residence or last place of abode of the tenant shall be out of the county, in which|| |
Charge to jury.
|the land demanded lieth, a like writ of exigi facias shall also be directed to the sheriff of the latter county, and in either case a copy of such writ shall within four weeks after the teste thereof, be printed in the Virginia Gazette; and the said writ or writs of exigi facias being returned in due form, and being printed as aforesaid, if the tenant shall not appear at the court to which the same is or are returnable, judgment shall be entered, that the demandant recover his seisin against the tenant. Where the præcipe quad reddat shall issue from the court of a county, city, or borough, if return thereof be made that the tenant is not found in the bailiwick of the officer to whom it was directed, the demandant may sue forth a new præcipe every court, for five courts following, successively, if the tenant be not by one or other of them before summoned; and when the residence or last place of abode of the tenant shall be out of the county, city, or borough, in which the land demanded lieth, a testatum præcipe shall also be directed to the sheriff or proper officer of the latter county, city, or borough; and in either case a copy of the first of the said five præcipes, shall within four weeks after the teste thereof, be printed in the Virginia Gazette, and a copy of that and every other of them, shall, within fourteen days after the teste of each, be set up at the door of his courthouse by the officer to whom it shall be directed, and who by an endorsement on such writ, shall be required by the clerk to do so, and return of the said five writs being made that the tenant is not found in the bailiwick or bailiwicks of the officer or officers, to whom they were directed, and that they had been set up as is before directed; and the first of them being printed as aforesaid, if the tenant shall not appear at the court to which some one of the said writs was returnable, judgment shall be entered, that the demandant recover his reisin against the tenant; but if the tenant, against whom without having appeared, or without having been summoned, any such judgment shall be rendered, shall be out of Virginia, at the time of the suit brought, the judgment shall be no bar to an action commenced by him, or any claiming under him, to be restored to the land recovered, within a year and a day after he or they shall come into the country, or remaining out of it, within seven years after the judgment;|| |
|in which action or in a separate one, damages may also be recovered. If the tenant whether summoned or not shall appear, and afterwards make default, judgment shall be entered against him; and if having been summoned he shall not appear, the court shall make an order, that, unless he appear at the then next court, or see judgment shall be entered against him, which shall be entered accordingly, if a copy of that order being delivered to him or left at the place of his usual abode, fifteen days, or more, before such next court, and affidavit thereof being made, he shall not then appear. If the demandant or tenant, against whom any such judgment shall be rendered, at the time of the suit brought, shall be an infant, a married woman, or a person of unsound mind, the judgment shall be no bar to another action, commenced within five years after attainment of full age, discoverture, or recovery of understanding, or within the same time after the death of such privileged person.|| |
Judgment by default.
An act concerning partitions and joint rights and obligations.
|From Rev. Bills of 1779, ch. CVI.|
|BE it enacted by the General Assembly, That all joint tenants, or tenants in common, who now are, or hereafter shall be, of any estates of inheritance in their own rights, or in the right of their wives, and all joint tenants, or tenants in common, who now hold or hereafter shall hold, jointly, or in common, for term of life or years, with others who have, or shall have estates of inheritance, or freehold in any lands, tenements, or hereditaments, may be compelled to make partition between them, of such lands, tenements, and hereditaments, as they now hold, or hereafter shall hold, as joint tenants, or tenants in common, by writs de partitione facienda, the forms whereof shall be devised in the general court, and adapted to the cases aforesaid: But no such partitions between joint tenants, or tenants in common, who hold or shall hold estates for||Partition between joint tenants and tenants in common.|
|term of life or years, with others holding equal or greater estates, shall be prejudicial to any entitled to the reversions or remainders, after the death of the tenants for life, or after the expiration of the years. If they be such as might have been compelled to make partition, or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first, shall not accrue to the survivors, but shall descent or pass by devise, and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint tenants had been tenants in common. The representatives of one jointly bound with another for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the life-time of the latter, may be charged by virtue of such obligation, in the same manner as such representatives might have been charged if the obligors had been bound severally as well as jointly. Partition may be demanded by one and the same writ, of all the several parcels of land or other real estate to which the parties have title, and execution thereupon done by the sheriff and jury, as heretofore, or by special commissioners to be appointed by the court, with assent of the parties, by allotment to each party of part in each parcel, or of parts in one or more parcels, or of one or more individual parcels, with or without the addition of a part or parts of other parcels, as shall be most for the interest of the parties in general. No plea in abatement shall be received in any suit for partition, nor shall it abate by the death of any tenant. After a writ of partition returned, affidavit being made by some credible person, that due notice of the writ had been given to the tenant or tenants to the action, and that a copy thereof had been left with him, her, or them, if he, she, or they could be found, or if not, that such notice had been given to, and a copy left with the wife, son, or daughter, being of the age of twenty one years, or upwards, and at the usual place of abode of such as could not be found, or the person in actual possession not being the demandant of the lands whereof partition is demanded, twenty days or more before the day of return, if the tenant or tenants shall not cause an appearance|| |
Right of survivorship abolished.
Joint obligations effect of
Writs of partition.
Pleas in abatement not admissible.
|to be entered, at the time by law appointed, or within one month thereafter, the demandant having filed his or her declaration, the court may proceed to examine his or her titled, and the quantity demanded, and shall give judgment by default, for so much as he or she shall appear to them to have a right to, and award a writ to make partition, which being executed, after eight days notice given to the persons mentioned before, judgment final shall thereupon be given, which shall be as binding as if it had been given after an appearance; and upon a trial, unless any tenant within one year after the first judgment, or being an infant, a married woman, of unsound mind, or out of Virginia within one year after attainment of full age, death of the husband, recovery of understanding, or return to the country, respectively by motion to the court, either admitting the demandant's right and purpart, shall shew inequality in the partition, in which case the court may award a new partition to be made, and that in presence of all the parties, if they choose to attend it; and the second partition shall be as binding as if the tenant had appeared and pleaded in the first instance, or else shall shew sufficient matter in bar of the partition, or that the demandant hath not title to so much as he or she hath recovered, in which case the court may suspend or set aside the judgment, and admit the tenant to appear and plead, and the cause shall proceed as if no judgment had been given, and if upon the trial thereof, the court shall give the same judgment as the first, it shall stand confirmed, and the person or persons, in whose behalf the motion was made, shall be awarded to pay costs. The under sheriff, when the high sheriff cannot conveniently attend, may in presence of two justices of the peace, proceed to the execution of a judgment in partition, by inquisition in due form of law, and the high sheriff shall make the same return as if he had acted in person. They who were tenants of the messuages, lands, tenements, and hereditaments or any part thereof, before they were divided, shall hold the same of the landlords, to whom shall be allotted by the partition in severalty, under the same conditions, rents, covenants and reservations, and the landlords shall warrant the several parts unto the tenants, as they were bound to do by leases or grants, respectively: And any demandant who was|
Judgment by default.
How judgment opened.
When under sheriff may execute.
Judgment in partition.
Tenure not altered by judgment.
|tenant in actual possession, to the tenant to the action for his purpart of the messuages, lands, tenements, and hereditaments, divided by virtue of a writ of partition, or any part thereof, shall hold it for the same term, and under the same conditions and covenants when it shall be allotted in severalty.|
An act for speedy recovery of money due from certain persons to the public.
|From Rev. Bills of 1779, ch. CVIII.|
|BE it enacted by the General ssembly, That when any person who hath received, or shall receive, public money from the treasurer for recruiting or paying the army, building, rigging, or furnishing ships or vessels of war, erecting fortifications, buying clothes, provision, arms, or ammunition, erecting or prosecuting public manufactories, or for other public use, hath not applied, or shall not apply the said money accordingly, or hath neglected, or shall neglect, to account for and repay so much thereof as shall remain unapplied, upon a motion on behalf of the commonwealth, made to any court of record, notice thereof in writing having been given ten days or more to the delinquent, with a state of the matter alledged against him, either by delivering copies of such notice and allegation to him, or leaving them at the place of his usual abode, the said court may give judgment, and award execution against him and his sureties, for so much as a jury to be impannelled instantly, unless good cause be shewn for deferring it, for trial of an issue, if he appear, and make it up, or for enquiry of damages if he appear not, or appearing, refuse to make up such issue, shall find to be due from him, on any such account as aforesaid, with damages, to be assessed by the jury, and costs. When the attorney prosecuting on behalf of the commonwealth, shall commence an action for breach of a contract, which hath been or shall be entered into with government,||Public debtors, summary remedy against.|
|or with an agent thereof, to supply the army or navy with provision or other articles, at the emanation of the writ he shall file a declaration, with an assignment of the breaches, which with the writ shall be delivered to the officer to whom that is directed and served upon the defendant, fifteen days or more before the return day; and on such return day, or on the return day of the subsequent process, in case the preceding be not legally served, if the defendant appear and make up an issue, or if he appear not, or appearing, refuse to make up such issue, a jury shall be impannelled instantly, unless good cause be shewn for deferring it, to try the issue or inquire of the damages. And in like cases, the agents or contractors of the confederating states of America may, by the like remedy, on behalf and in the name of the said states recover money due the them.|
An act for recovering demands of a small value in a summary way.
|From Rev. Bills of 1779, ch. CIX.|
|Be it enacted, by the General Assembly, That any debt, or penalty, amounting to more than twenty five shillings, or two hundred pounds of tobacco, and not exceeding one hundred shillings, or eight hundred pounds of tobacco, may be demanded by petition to the court of a county, city or borough. The Clerk of the peace shall draw the petition, stating therein how the debt become due, or by breach of what act of general assembly the penalty was incurred, and shall issue a summons directed to the sheriff, or other proper officer, commanding him to summon the defendant to appear and answer the petition; and the defendant being summoned ten days at least before the return day, and being at the same time served with a copy of the petition, together with a copy of the account, which shall be filed, when the debt shall have arisen by account, the court shall and may hear and determine the||Petitions and summons for small accounts, how prosecoted.|
|matter in dispute in a summary way, and give such judgment as shall appear to be just. And any person may, by petition to be served and tried in like manner, demand and recover goods detained, or damages for goods found by the defendant and converted to his use, where the goods, with the damages, are not of greater value than one hundred shillings, or eight hundred pounds of tobacco. And whosoever shall bring any other action, than a petition, if it appear, either by his own shewing in the declaration, or by the verdict of a jury, that he might have brought a petition by this act, shall be non-suit.|
|From Rev. Bills of 1779, ch. CX.|
|BE it enacted by the General Assembly, That if any person hereafter sue with good faith any action popular, and any defendant in the same action plead any manner of recovery by action popular, in bar of the said action, or that he before that time barred any plaintiff in any such action popular, then the plaintiff in the action taken with good faith may aver that the said recovery in the said action popular was had by covin, or else may aver that the said plaintiff was barred in the said action popular by covin: then if after the said collusion or covin so averred, be lawfully found, the plaintiff in that action sued with good faith, shall have recovery according to the nature of the action, and execution upon the same, in like wise and effect as though no such afore had been had. Provided always, That no plaintiff be in any wise received to aver any covin, in any action popular, where the point of the same action, or else the covin or collusion shall have||Collusive popular actions, no bar.|
|been once tried, or lawfully found with the plaintiff or against him by trial of twelve men, and not otherwise. If the prosecutor of an action or information for the recovery of any penalty not wholly appropriated to the use of such proprietor, shall compound with the offender, or direct such suit or information to be discontinued, unless it be by leave of the court wherein the said suit or information shall be depending, such persecutor shall be liable for so much of the penalty to the commonwealth, or any other, as they would have been entitled to if the defendant had been convicted.|
|From Rev. Bills of 1799, ch. CXI.|
|BE it enacted by the General Assembly, That every action at common law, or suit in equity, commenced in the name of a person, not residing in Virginia, unless he be employed abroad in the service of the commonwealth, or of the United States of America, shall be dismissed if security be not given with the clerk of the court from whence the process shall issue, or wherein it shall be depending, within sixty days after notice, shall, at any time during such non-residence, have been given to the demandant, or plaintiff, or his attorney, by some person interested, that such security is required for payment of the costs and damages which may be awarded to the tenant or defendant, and also of the fees which will become due to the officers of the court. No information for a trespass or misdemeanor, shall be filed in any court but by express order of the court, entered on record, nor unless the party supposed to be culpable shall have failed to appear and shew good cause to the contrary, having been required so to do by a summons, appointing a convenient time for that purpose, served upon him, or left at his usual|| Security for costs.|
Information, rules for filing.
|place of abode: and the name and surname of the prosecutor, and the town or county in which he shall reside, with his title or profession, shall be written at the foot of the information, before it be filed, and of every bill of indictment for any trespass or misdemeanor, before it be presented to the grand jury; and if the defendant shall appear to shew cause against the filing the information, or to answer the information or indictment, and the prosecutor shall not proceed further, or if the defendant shall be found not guilty by the petit jury, or a judgment shall be given for him, he shall recover his costs against the prosecutor with an attorney's fee, if one was employed, and the allowances to witnesses, to be taxed in the bill of costs, and may have execution for them, as the manner is in civil cases: And in every such information or indictment, the amercement which ought to be according to the degree of the fault, and saving to the offender his contenement, shall be assessed by twelve honest and lawful men, either those by whom the offender shall have been convicted, n case of a verdict, or those who shall be impannelled for that special purpose, where judgment shall be given against him upon the argument of a demurrer, or by his confession or default. No escheator, sheriff, coroner, or other inquisitor, shall hereafter have power of amercement, for default of common summons, save only the judges of the general court, or the respective county or corporation courts.|| Amercements.|
An act providing a mean to help and speed poor persons in their suits.
|From Rev. Bills of 1779, ch. CXII.|
|I. WHERE it is intended that indifferent justice shall be had and administered to all the citizens of this commonwealth, as well to the poor as the rich, which poor citizens be not of ability, nor power, to sue according to the laws of this land for redress of injuries and wrongs to them daily done, as well concerning their persons and their inheritance as other causes:||Preamble.|
|For remedy whereof, in behalf of the poor persons of this land not able to sue for their remedy after the course of the law,|
|II. Be it enacted by the General Assembly, That every poor person which shall have cause of action against any person within this commonwealth, shall by the discretion of the court before whom he would sue, writ or writs original, and writs of subpœna, according to the nature of his cause, nothing paying for the same. And that the said court shall direct their clerk to issue the necessary process, shall assign to him counsel learned in the laws, and appoint all other officers requisite and necessary to be had for the speed of the said suit to be had and made, who shall do their duties without any regard for their counsels, help and business in the same.||Pauper suits how prosecuted.|
An act providing that an infant may sue by his next friend.
|From Rev. Bills of 1799, ch. CXIII.|
|In every case where such as be within age may sue, it is enacted by the general assembly that their next friends shall be admitted to sue for them.||Infants, may sue by next friend.|
|From Rev. Bills of 1779, ch. CXIV.|
|BE it enacted by the General Assembly, That any person absenting himself beyond sea, or elsewhere, for seven years successively, shall be presumed to be dead,||Presumption of death, when.|
|in any case wherein his death shall come in question, unless proof be made that he was alive within that time. But an estate recovered in any such case, if in a subsequent action or suit the person presumed to be dead shall be proved to be living, shall be restored to him who shall have been evicted, and he may moreover demand and recover the rents and profits of the estate, during such time as he shall have been deprived thereof, with lawful interest.|
|From Rev. Bills of 1779, ch. CXV.|
|BE it enacted by the General Assembly, That if a bill of exchange, for the sum of five pounds, or upwards, dated at any place in Virginia, drawn upon a person at any other place therein expressed, to be for value received, and payable at a certain number of days, weeks, or months after date, being presented to the person, upon whom it shall be drawn, shall not be accepted by subscribing his name, with his proper hand to the acceptance, written at the foot, or on the back of the bill, or being accepted in that manner, and not otherwise, shall not be paid before the expiration of three days after it shall become due, the person to whom it shall be payable or his agent, or assigns, may cause the bill to be protested by a notary public, or if there be no such, by any other person in presence of two or more credible witnesses, for non-acceptance, in the form or to the effect following, written under a fair copy of the bill: "Know all men, that I, , on the day of , presented to him the bill, of which the above is a copy, and which||Bills of exchange, inland, how protested.|
|the said did not accept, I the said do hereby protest the said bill. Dated at , this day of ;" or for non-payment after acceptance, in the same form or to the same effect, except that the words "presented to him the bill, of which the above is a copy, and which said did not accept," shall be left out, and instead of them the words "demanded payment of the bill, of which the above is a copy, and which the said did not pay," be inserted; And the drawer, such protest being sent to him, or notice thereof in writing being given to him, or left at the place of his usual abode, within fourteen days thereafter, shall pay the money mentioned in the bill to the person entitled to it, with interest, at the rate of five per centum by the year, from the day of the protest; and he, to whom the bill shall be payable, neglecting to procure the protest to be made, or due notice thereof to be given, shall be liable for all costs and damages accruing thereby. If the bill shall be lost or shall miscarry, the drawer shall sign and deliver another of the same tenour, sufficient security being given to indemnify him against all persons who may claim under the former An action of debt may be maintained upon a note or writing, by which the person signing the same, shall promise or oblige himself to pay a sum of money or quantity of tobacco to another. Assignments of bonds, bills, and promissory notes, and other writings obligatory, for payment of money or tobacco, shall be valid; and an assignee of any such may thereupon maintain an action of debt, in his own name, but shall allow all just discounts, not only against himself, but against the assignor, before notice of the assignment was given to the defendant.|| Debt on notes.|
Assignment of bonds.
|I. BE it enacted by the General Assembly, That the inspection of tobacco on the lands of Richard Baker||Inspection of tobacco at South Quay revived.|
|at South-Quay, in the county of Nansemond, shall be, and the same is hereby revived and established; and that the houses erected for the reception of tobacco shall be kept in repair at the expence of the proprietor of the said land. The transfer notes issued by the inspectors at the said warehouse, shall be received in discharge of officers fees and public dues in the same manner as those of Suffolk inspection. Each of the inspectors at the warehouse shall receive a salary of twenty-five pounds per annum.|
|II. Provided always, and be it further enacted, That if the quantity of tobacco inspected at the said warehouse shall not be sufficient to pay the usual charges and the inspectors salaries, the deficiency shall not be paid by the public.|
|I. WHEREAS it is represented, that John Owen, sheriff of the county of Pittsylvania, in the years one thousand seven hundred and eighty-two, and one thousand seven hundred and eighty-three, sold parts of sundry tracts of land to satisfy and pay the taxes then due thereon, in the manner prescribed by law, but before any conveyances were executed, the said John Owen departed this life; and application hath been made for an act to authorise some person to execute deeds to the purchasers, for the said lands:||Lands sold for taxes, by John Owen, sheriff of Pittsylvania, how conveyed.|
|II. Be it therefore enacted by the General Assembly, That the sheriff of the said county of Pittsylvania shall, and he is hereby authorised and required, to execute deeds of conveyance for all lands sold under the revenue law by the said John Owen, and not conveyed by|
|him, which shall be as effectual to all intents and purposes, as if the same had been conveyed by the said John Owen.|
An act for establishing a town in the county of Bourbon.
|I. WHEREAS the village called and known by the name of Washington, in the county of Bourbon, containing about seven hundred acres of land, hath been laid off for in and out lots, with convenient streets; and it is represented to this present general assembly, that it will be of great advantage to the holders of the said lots and others, if the same were established a town:||Town of Washington in Bourbon county, Kentucky, established.|
|II. Be it therefore enacted, That the said seven hundred acres of land, so laid off into lots and streets, shall be, and the same is hereby established a town, by the name of Washington; and that Edmund Lyne, Edward Waller, Henry Lee, Miles W. Conway, Arthur Fox, Daniel Boone, Robert Rankins, John Gutridge, and William Lamb, gentlemen, be trustees of the same. −− The said trustees, or a majority of them, are authorised to make such rules and orders for the regular building therein, as to them shall seem most conducive to the convenience of the inhabitants, and to settle and determine all disputes about the bounds of the said lots. In case of the death, resignation, removal out of the county, or other legal disability, of any one or more of the said trustees, it shall be lawful for the remaining trustees, it shall be lawful for the remaining trustees to choose others in their stead; which trustees so elected, shall have the same power and authority as any other in this act particularly appointed.|
|III. And be it further enacted, That so soon as the owners of lots within the said town, shall have built a dwelling-house, sixteen feet square, with a brick or stone chimney, such owner shall have and enjoy the same privileges and immunities, which the freeholders and inhabitants of other towns, not incorporated, hold and enjoy.|
|Pages 319-338||Pages 362-387|