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Proceedings in sum. pro.

Fees.

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and other process in civil actions, triable in the said circuit courts, shall issue from, and be returnable to, the court of Common Pleas in Charlestown, in the usual manner, but with this variation, that instead of being directed to the provost marshal, they shall be directed to all and singular the sheriffs of the said Province, and shall be served by the sheriff (or his deputy,) for the district where the defendant is found or resides, and all proceedings thereon shall be carried on in the said court in Charlestown, until the cause shall be at issue; and that the practice and proceedings in the said courts, respectively, shall be as nearly similar as may be to those now held in Charlestown, and to the courts holden in Great Britain by his Majesty's justices of Assize, Oyer and Terminer, and General Goal Delivery, and also of nisi prius; provided nevertheless, that nothing herein contained shall extend or be construed to put in force any statute of Great Britain, which is not otherwise of force in this Province; and that in all capital cases, the said courts of General Sessions of the Peace, Oyer and Terminer, Assize and General Gaol Delivery, shall have power to respite execution until thirty days after sentence.

IV. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the said judges in the said courts, or any of them, to determine without a jury in a summary way on petition, all disputes cognizable in the said courts, for any sum not exceeding twenty pounds sterling, except where the title of lands may come in question, in which suit the plaintiff and defendant shall have the benefit of all matters in the same manner as if the suit were commenced in the ordinary forms of common law or in equity, and the said judges are hereby required so to do, and to give judgment and award execution, together with costs, against the body or goods of the party against whom the same shall pass; but in case both parties shall desire to have the said causes tried by a jury, or on application of either party at his own expense, then the said judges shall immediately order issue to be joined, and the said cause to be tried by the jury impannelled at such circuit court: that the said petition shall contain the plaintiff's charge or demand, plainly and distinctly set forth, a true copy whereof shall be personally served or left at the defendant's usual and notorious place of abode, by the sheriff or his deputy for the district where the cause is determinable, twenty days before the first sitting of the said court; and where bail is required, an affidavit shall be made of the debt, and indorsed on the petition, in which case the sheriff shall take a bail bond, which shall be subject to the order of the court: that the following fees, and no others, shall be allowed in such proceedings, viz:

To the Attorney, for the petition and copy, three shillings proclamation money.

For attending the hearing the cause and taking out execution, ten shillings, proclamation money.

A fee to counsel, if any appears, twenty shillings, proclamation money. To the Sheriff, for serving a copy of the petition, eight shillings, proclamation money.

To the Clerk, for attending the hearing the cause, filing all the proceedings, and entering the judgment among the acts of court, in a book to be kept for that purpose, six shillings, proclamation money: provided always, that every person shall have a right to transact his own business before the said judges, in the summary way aforesaid, without employing any counsel or attorney, whatever.

V. And be further enacted by the authority aforesaid, That the clerk

Acts relating to Courts.

A. D. 1768.

Clerks may ap

of the crown and pleas, and the clerk of the court of Common Pleas, of the Province aforesaid, for the being, shall have power to act by themselves, point deputies. in the business of their proper courts, or to appoint clerks of the said courts, respectively, for the conduct of which clerks they shall, respectively, be answerable.

VI. And be it further enacted by the authority aforesaid, That the office of provost marshal of this Province shall be, and the same is hereby, Sheriffs to be appointed, and forever abolished, and that a sheriff for each of the districts or precincts how. above mentioned, shall be appointed in the following manner, (viz) the court of Common Pleas at their first sitting after his Majesty's gracious allowance of this Act, and after the court houses and gaols hereinafter mentioned shall be built, and every second year thereafter, at their meeting at October court, shall nominate three proper persons, being freeholders, resident in the district or precinct for which they are to be appointed, whose names they shall present to his Excellency the Governor, Lieutenant Governor, or Commander-in-chief for the time being, in order that he may commission one of them to be sheriff of such district and precint, which sheriff, so commissioned, shall be sheriff of that respective district and precinct accordingly; and in case any person or persons so presented by the said chief justice and justices, and so commissioned by the Governor or Commander-in-chief, as aforesaid, shall neglect or refuse to take upon himself and execute the office of sheriff, in manner herein directed, such person so neglecting or refusing, shall forfeit the sum of one hundred pounds, proclamation money; provided nevertheless, that nothing in this Act shall extend or be construed to extend to compel any member of his Majesty's Council, or any member of the Commons House of Assembly for the time being, to serve in the office of sheriff; and that the said sheriffs, before they enter upon the execution of their said offices, shall take the oaths of allegiance and supremacy, and the oath of office, and make and subscribe the usual declaration, before some person appointed to administer the State oaths, and give bond, with security, for the sum of two thousand pounds, proclamation money, to the public treasurer, in behalf of the public of this Province, for the due and faithful discharge and execution of their said offices; and the said bonds shall remain in his office, and may be sued for by order of the said court, for satisfaction of the public and all private persons aggrieved by the misconduct of the said sheriffs; and in case of the death, removal from this Province, or refusal to act, of any persons so appointed sheriffs, the chief justice and assistant judges and justices, or the justices of the court of Common Pleas, for the time being, shall immediately meet at the State house, in Charlestown, and nominate three persons to be presented to the Governor or Commander-in-chief for the time being, who shall commission one of them to serve as sheriff for the remainder of the said time, in like manner as is before directed, and no longer, who shall take the said oaths and give bond, and have the same emoluments, and be under the like penalties, as other sheriffs appointed by virtue of this Act.

iffs.

VII. And be it further enacted by the authority aforesaid, That the said sheriffs shall, by themselves or their lawful deputies respectively, attend Duties and líaall the courts hereby appointed or directed to be held within their respective bilities of sherdistricts; and that the said sheriffs shall have the like powers and authorities, and they and their under sheriffs and goalers be subject and liable to all actions, suits, fines, forfeitures, penalties and disabilities whatsoever, which any sheriff, under-sheriff or goaler is liable or subject to, or may VOL. VII.-26.

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Persons serv

ing as sheriff, not again liable for ten years.

Sheriff to turn over papers and prisoners to his

successor.

es.

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incur by the laws and statutes of Great Britain, for and in respect of the escapes of prisoners, or for or in respect of any other matter or thing whatsoever, relating to or concerning their several and respective offices.

VIII. And be it further enacted by the authority aforesaid, That no person who shall have served the office of sheriff of any district or precinct, or shall have paid the fine for not executing the said office, shall be, within the ten years next ensuing, again liable to pay any fine for not serving in the same office of sheriff; and that no sheriff, under-sheriff, sheriff's clerk or other sheriff's officer, shall be an attorney or act as such, in his own name, or in the name of any other person, or be allowed to plead or practise in any of the King's courts in this province, during the time that he is in any such office.

IX. And for the ease of sheriffs with regard to the return of process; Be it enacted by the authority aforesaid, That the sheriff of each district or precinct, shall, at the expiration of his office, turn over to the succeeding sheriff, by indenture and schedule, all such writs and process as shall remain in his hands unexecuted, who shall duly execute and return the same; and in case any such sheriff shall refuse or neglect to turn over such process in manner aforesaid, every such sheriff so neglecting or refusing, shall be liable to make such satisfaction by damages and costs to the party agrieved, as he, she or they shall sustain by such neglect or refusal; and the said sheriff shall also deliver up to his successor the custody of the goal, and the bodies of such persons who shall be confined therein, and the cause of their detention.

X. And be it further enacted by the authority aforesaid, That the fees to the judges and several officers of the said courts, shall be the same as those of the same officers in the courts now holden in Charlestown, except where the proceedings shall be summary, as above mentioned, and the sheriff's shall have the same fees for business done therein by him, as the provost marshal hath had.

XI. And be it further enacted by the authority aforesaid, That the Building gaols judges of the said courts for the time being, shall be, and they are hereby, and court hous-authorized, empowered and required, to contract and agree with proper persons for the building and erecting court houses and goals, in the most convenient places for holding the said courts, in the country districts and precincts hereinbefore mentioned, and for the purchase of land for that purpose, and that provision for defraying the expense thereof shall be made in such a manner as the General Assembly shall think fit.

XII. And be it further enacted by the authority aforesaid, That this This Act, when Act shall not extend to any action which shall be commenced before notice to take effect. by proclamation of the Governor or Commander-in-chief, that the said court houses and prisons are built and compleated, but that all such actions and suits shall and may be proceeded in and determined in the same manner as if this Act had never been made; Provided, that no person shall be obliged to serve as a juror out of the district or precinct wherein he shall by this Act be liable to serve after courts have been therein respectively holden.

as attorney.

XIII. And be it further enacted by the authority aforesaid, That no Clerk not to act clerk of any of the courts aforesaid shall act as an attorney or solicitor therein, or in any other court, and that no person shall practise in or solicit the cause of any other in the said courts, unless he has been or shall be admitted a barrister at law or an attorney thereof, by the court of Common Pleas in Charlestown, or an attorney of that court, and an inhabitant of this Province.

Acts relating to Courts.

XIV. And be it further enacted by the authority aforesaid, That the said courts shall be courts of record, and all persons necessarily going to, attend. ing or returning from the same, shall be free from arrests in any civil

action.,

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XV. And be it further enacted by the authority aforesaid, That as soon as may be after the ratification of this Act, and after the court houses Jury lists to be and goals herein mentioned are built, the judges of the said court of Com- mude. mon Pleas in Charlestown shall cause lists of jurors in civil causes, grand and petit jurors, to be made for Charlestown, and also for each of the country districts and precincts, from the next antecedent tax list of persons within such respective districts or precincts aforesaid, whose names shall be written on separate pieces of paper; and the said judges shall cause jury boxes to be made for the said courts, and for the courts of General Sessions, to be provided at the public expense; and the said jury lists shall be put in the said boxes respectively, which boxes shall remain in charge of the respective sheriff's aforesaid, and shall be locked with the keys of any one of the judges and the sheriff of the district; and also, a box containing the names of special jurors, to consist of the inhabitants of Charlestown, for Charlestown district, and of persons living within five miles of the several court houses, for each district or precinct respectively, out of which said lists of special jurors, both in town and country, all tales shall be drawn; and the jurors for the said courts shall be drawn, summoned and empanneled, as nearly as may be, in the same manner as grand and petit jurors now are, the time of drawing, and places of meeting, and the attendance of the treasurer and coroner excepted, which shall be regulated by the said justices by a general rule of court, to be made and confirmed for that purpose, and entered in the Acts of each of the said courts; which method shall be pursued in the drawing of jurors until other jury lists shall be established by law.

Salaries of

XVI. And be it further enacted by the authority aforesaid, That whenever it shall please his most sacred Majesty to appoint the chief justice Judges. and justices of this Province during good behaviour, the said chief justice and justices respectively, shall receive a salary, that is to say :-the chief justice, five hundred pounds, and each of the assistant judges and justices, three hundred pounds sterling per annum.

XVII. And be it further enacted by the authority aforesaid, That the present Attorney-general shall receive a salary of two hundred pounds sterling per annum, and the present clerk of the Common Pleas, three hundred pounds sterling per annum.

feitures appro

XVIII. And be it further enacted by the authority aforesaid, That all fines, penalties and forfeitures, that shall be imposed or recovered in any Fines and forof the courts aforesaid by virtue of this Act, shall be paid into the treasury priated to pay and appropriated and applied towards paying the several salaries hereinbe- salaries. fore granted, and in case they shall be insufficient for that purpose, then the public treasurer of this Province is hereby directed, authorized and required to pay the said salaries, annually, out of any money lying in the treasury.

XIX. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the court of Common Pleas in Charlestown, Special juries, when allowed. by consent of both parties, in any civil action concerning trade and disputes with merchants, or where the value in dispute is equal to fifty pounds sterling, or on application by either party at his expense, to order a special jury to be struck for trial of the said cause, either at bar (if a cause of

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ral may ap

Acts relating to Courts.

weight and importance,) or at the circuit court, to be holden in the district where the said cause shall be by this Act triable, which shall be done in the following manner, that is to say :-in case of a trial at bar, out of the list of jurors hereby directed to be made for Charlestown precinct or district, each party shall deliver to the said court the names of thirty persons, out of which number thirty shall be drawn by ballot, and the said thirty shall be summoned as a jury in the said cause, and out of the number appearing, twelve shall be drawn in like manner, who shall try the said cause; and in case of a trial in any of the circuit courts hereby established, the names of the said jurors shall be taken and struck as aforesaid, from the list of jurors for the district wherein the said courts shall be held; Provided, that nothing herein contained shall debar any person of legal challenges to any of the said jurors, and that for want of a sufficient number, the court in which the said cause is to be tried, shall and may order a tales to be drawn, in the same manner as is hereinbefore directed.

XX. And be it further enacted by the authority aforesaid, That no person shall be held to bail on any writ of capias ad respondendum for debt, unless an affidavit shall be made before, and attested by, some judge or justice of the peace, and indorsed on or annexed to the writ before the service thereof, of the sum really due; nor for any other cause without a judge's order on probable cause of action shown, to be indorsed on or annexed to the said writ, expressing the sum for which bail shall be given. XXI. And whereas, it may often happen that the Attorney-general or Attorney-gene- counsel for the King cannot attend to prepare or prosecute indictments for point deputies. criminal offences; Be it therefore enacted by the authority aforesaid, That the Attorney-general for the time being is hereby authorized and empowed to depute a fit person, being a barrister or attorney at law, for whose conduct he shall be answerable, to prepare and prosecute indictments in his stead, at such district and precinct courts where he cannot attend to execute the duty of his office in person; any thing in this or any other Act of Assembly to the contrary thereof in any wise notwithstanding; Provided nevertheless, that in case the Attorney-general or his deputy shall not attend any of the said courts, that then any barrister or attorney at law may prepare and prosecute indictments by leave and appointment of the justices of the said district or precinct courts, and be allowed the same fees as are appointed for the Attorney-general.

XXII. And be it enacted by the authority aforesaid, That the judges of Commissioners the said courts shall appoint fit and proper commissioners in each district, of bail, &c. to who shall have power and authority to take recognizances of special bail be appointed. and affidavits, (such recognizances being sealed and signed with the proper hand writing or mark of the person or persons entering in or making the same,) in any causes depending in the said courts, and to certify and transmit the same to the said courts, where they shall be deemed and taken to be as valid and effectual as if made or taken before any of the judges thereof. XXIII. And be it further enacted by the authority aforesaid, That in Court failing to case, by any unavoidable accident, the said courts shall fail to be held at be held, how to the times respectively appointed for holding the same, the proceedings shall be adjourned. not be discontinued, but that any one of the commissioners for taking recognizances of bail and affidavits, or the clerk of the court, shall and may adjourn the said courts de die in diem, not exceeding six days, until the said court shall meet; and in case they shall not meet and sit in six days as aforesaid, the said commissioners or clerk of the court shall adjourn the same to the next circuit court, to which time all causes then depending shall be continued over.