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Actions Civil.

ing of the Defendant or Defendants, or leaving an attefted Copy thereof at the Place or Places of his or their ufual Abode: But if an Attachment, the Service shall be the attaching the Defendant or Defendants Eftate or Perfon, and giving him Notice by reading the Writ to him or within his hearing, or by leaving an attested Copy thereof at the Place of his usual Abode, if that be within this State: And that all fuch Writs as are made returnable to the County Courts, shall be returned to the Clerks of faid Courts on the Day before the fitting of fuch County Courts, and not afterwards. That in cafe any Process be duly ferved on any Defendant. or Defendants, and return thereof made to the Court to which the fame is made returnable, then if fuch Defendant or Defendants do not appear, his or their Default fhall be recorded, and Judgment entered up against him or them thereupon; unless he or they fhall come into Court, on or before the fecond Day of the fitting of faid Court, and move for a Trial, in which Case he or they fhall be admitted thereto, upon paying down to the adverse Party the Cofts to that Time; and the Plaintiff fhall pay for entering the Action a-new.

commence

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3. But if the Party against whom Suit is brought, is not an Inhabitant or a Sojourner in this State, or is abfent out of the fame Perfons out of at the Time of commencing fuch Suit, and doth not return before the state at the the first Day of the court's fitting, the Judges of the Court where ment of the fuch Suit is brought, fhall continue the Action to the next Court; action against and if the Defendant doth not then appear, (by himfelf or Attor- them & do not ney) and be fo remote that the Notice of fuch Suit depending, return before could not probably be conveyed to him during the Vacancy, the the court, acthe fitting of Judges at fuch next Court may further continue the Action to the tions to be Court thence next following, and no longer; but may enter up continued &c. Judgment on Default after fuch Continuance or Conntinuances; And in fuch Cafes, where Judgment fhall be entered up by Default after fuch Continuances as aforefaid, Execution shall be stayed and not issue forth thereon until the Plaintiff shall have given or lodged with the Clerk, a Bond with one or more fufficient Sureties to the adverfe Party, in double the Value of the Estate or Sum recovered by fuch Judgment, to make Reftitution, and to refund and pay back fuch Sum as fhall be given in Debt or Damage, or fo much as fhall be recovered upon a Suit therefor; to be brought within twelve Months next after entering up the first Judgment: If upon fuch Suit the Judgment fhall be reverfed, an nulled or altered, the Security aforefaid to be no farther anfwerable than for the Recovery that fhall be made upon fuch Suit to be had within twelve Months, as aforesaid.

Provided alfo, That no real Estate taken in Execution, granted upon fuch firft Judgment, fhali be alienated or paffed away, until Proviso, after the Expiration of the faid twelve Months, or after a new Trial had on a Suit brought within the Space of twelve Months for the obtaining of Reftitution, as aforesaid.

4. That in Actions on joint Securities, or Contracts, when all In actions off the Defendants are not Inhabitants of this State, the Service of joint con

F

tracts, fervice

26

on thofe with in the State, good against all.

Non-fuit and
Withdraw

made.

Actions Civil.

the Procefs on fuch of the Defendants as are Inhabitants of this State (if any) fhall be fufficient Notice to maintain the Suit againft all the Defendants. And if any fuch Defendant on whom the Procefs was not ferved is aggrieved by the Judgment, he may be relieved by Audita Querela.

5. Be it further enacted, That if any Perfon who hath entered an Action to be tried in any Court being called three Times (after twelve of the Clock on the firft Day of the Court's fitting) fhall not appear, either by himself or attorney, to profecute his Action, how & when he fhall be non-fuited, and pay all Cofts and Charges to the Defendant, and for the Entry of the Action, as if the fame had been profecuted in fuch Court. And that the Plaintiff in all Actions brought to any Court, fhall have liberty to withdraw his Action, or to non-fuit himself, before the Jury have given in their Verdict: In which Cafe he fhall pay full Cofts to the Defendant; and may afterwards renew his Suit at another Court; the former Withdraw or Non-fuit being firft recorded.

to be tried in the County

where the

Land lies:

tions in the

6. And be it further enacted, That all Suits brought for the Trial Title of Land of the Title of Land, or wherein the Title of Land is concerned, fhall be tried in the fame County where the Land lies, or Facts are done concerning which the Title of Land may be in Question. And that all other Actions that may be brought before the SupeAll other Ac-rior or County Courts, fhall be brought and tried in that County County whare where the Plaintiff or Defendant dwells, if they or either of them onc or both the are inhabitants within this State. And that all Suits and ProfeParties live, & cutions cognizable before an Affiftant, or Juftice of the Peace, ali Actions be- fhall be made and profecuted before fuch Authority in thofe Towns ant or Juftice, only where the Plaintiff or Defendant dwells; unless there be in the Town no Authority which may lawfully try the Caufe in either of faid where one of Towns: In which Cafe the Plaintiff may bring his Suit before the Parties an Affiftant, or Juftice of the Peace in one of the next adjoining live, if within Towns to the Place of his Abode.

'fore an Afift

this State.

7. And be it further enacted, That all Caufes wherein the Title Juftices Jurifof Land is not concerned, and wherein the Debt, Trespass, Damdiction to ex- age, or other Matter in Demand, doth not exceed Fifteen Dollars, or tend to 15 dol. if the Action be on Bond or Note given for the Payment of Money where the Ti- or Bills of Credit only, vouched by two Witneffes, when the Sum tle of Land is demanded does not exceed Thirty-five Dollars, fhall and may be not concerned, heard and determined by any one Affiftant or Juftice of the Peace; on Bond who are hereby refpectively empowered to hear and determine the or Note, fame, by their Difcretion and according to Law, and award Exewitneffed with cution thereon.

and to 35 dol.

two Witnelles.

Provifo.

Jury to try
Matters of
Fact.

Always provided, That where the Sum demanded fhall exceed the Sum of Seven Dollars, an appeal fhall be allowed to the next County Court, except in Actions brought on Notes of Hand or Bond, vouched by two Witneffes as aforefaid, in which Cafe no Appeal fhall be allowed.

8. And all Actions that shall be tried before the Superior or County Courts, when Ifue is joined on any Matter of Fact, fhall be tried by a Jury of twelve Men of the Neighbourhood, qualified, impannelled, and fworn according to Law, who

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ters of Law,

&c.

fhall find the Matter in Iffue, with the Debt or Damages, and Coft Judges to deaccording to Law and their Evidence; and the Judges fhall make termine Matup and declare the Sentence thereon: And every Cafe wherein the Parties fhall join in Demurer in Law, fhall be heard and determined by the Judges; and if there be any Matter of apparent Equity, as upon the Forfeiture of a Bond or Obligation, or Breach of Covenant without Damage, or the like, the Judges fhall determine fuch Matter of Equity: And if upon a Bond with Conditions, the Breach of which may happen at feveral Times, a Suit be brought on the first Breach of fuch Condition, the Court upon the Forfeiture of fuch Bond, found on Trial, Demurer, Confeffion or otherwife, fhall, on Motion made for that Purpose, proceed to confider what is due in Equity on fuch Bond at that time, and enter up Judgment for the fame, with Costs, and award Execution thereon.

Provided nevertheless, That in all Actions which may be brought or come before the faid Superior or County Courts in due Course Provifo that of Law, wherein the Parties fhall join Iffue on any Matter of Fact, may agree to the parties and agrée and do put themfelves on the Court for Trial of fuch put the matter Iffue; the Judges of faid refpective Courts, having Jurifdiction of fact to the of fuch Action or Actions, may and fhall proceed to hear and try court to deter the fame without a Jury, and to award Damages and Cofts, and grant Execution thereon; any Thing before to the contrary notwithstanding.

mine.

breach of a

9. And upon any further or other Breach, or Neglect of Performance of any other Particular in the Condition annexed to, or Scire facias on indorsed on faid Bond, the Obligee, his Executors or Adminiftra- the farther tors, may take out a Scire Facias against the Obligor, his Heirs, bond, &c. Executors or Adminiftrators, from the Clerk of that Court in which Judgment was given, to fhew Caufe why Execution fhall not be awarded for the Money then due, or Damages then fufstained: And the Court fhall proceed to make up Judgment for what fhall appear in Equity to be then due, with additional Cofts, and award Execution thereon; and fo from Time, to Time till all the Particulars mentioned in fuch Condition are performed and compleated.

10. And the Judges fhall alfo determine Matters of Law, ftated and referred to them by the Jury in their fpecial Verdicts; which Verdicts the Jury in all Cafes wherein Matters of Law are to them so obfcure that they cannot clearly and fafely give a pofitive Verdict, fhall have Liberty to give a fpecial Verdict therein; Special ver finding and presenting the Facts, and thereon ftating and putting dict. the Question in Law, viz. "If the Law be fo in fuch a Point, then we find for the Plaintiff; but if the Law be otherwile, then we find for the Defendant."

return the

11. And be it further enacted, That the Judges of the Court fhall have Liberty, if they judge the Jury have not attended the Court imEvidence given in, and the true Iffue of the Cafe in their Verdict, power'd to to caule them to return to a fecond Confideration of the Cafe, and jury to a third fhall for the like Reafon have Power to return them to a third confideration. Confideration, and no more. And when the Court have com.

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No pleas, &c. after caufe is

Actions Civil.

mitted any Cafe to the Confideration of the Jury, the Jury fhall be confined under the Cuftody of an Officer appointed by the Court, until they are agreed on a Verdict: And the Court may fet a fuitable Fine, not exceeding Three Dollars and Thirty-four Cents, upon fuch Officer or Juryman as fhall be diforderly, or neglect, or refufe, due Attendance of their Duties respectively, during their attending the Court.

12. And that when the Parties have made their Pleas in any Court and given their Evidences,, and the Cafe is committed to committed to the Jury, there fhall be no after Pleas, Arguments, Evidences or the jury. Teftimonies, heard or received in fuch Cafes, before the Jury have returned their Verdict into Court, and the fame is recorded.

New trials.

No appeal, unlefs matter

in demand exceed 70 dol.

13. And be it further enacted, That the Superior and County Courts in this State, fhall and may from Time to Time, as Occafion fhall require, and as fhall by them be judged reasonable and proper, grant new Trials of Caufes that fhall come before them for mifpleading, or discovery of new Evidence, or for other reafonable Caufe appearing, according to the common and usual Rules and Methods in fuch Cafes.

14. That all Actions wherein the Matter in Demand does not exceed the Value of Seventy Dollars; and all Actions brought on Bond or Note, given for the Payment of Money, or Bills of Credit only, vouched by two Witneffes (except fuch Matters as by Virtue of this Act may be tried by an Affiftant or Juftice of the Peace) fhall be heard and finally determined by the County Court.

15. That in any Action brought to, heard and tried by any County Court, wherein the Title of Land is in Question, or wherein the Value of the Debt, Damage or Matter in Difpute shall exAppeals when ceed the Value of Seventy Dollars, (except it be on Bond or Note to be allowed, vouched by two Witneffes) if either Party fhall be aggrieved by the Sentence or Judgment of fuch Court therein, an Appeal fhall be allowed to the next Superior Court to be holden in the fame County. Provided that fuch Appeal be entered during the Time of the fitting of the Court from which the Appeal fhall be made; and fufficient Bond with Surety be given by the Party appealing, to profecute fuch Appeal to Effect, and answer all Damage in Cafe he make not his Plea good.

when to be entered, &c.

Bond for pro16. And all Bonds for Profecution in Civil Caufes, fhall be fecution, how made payable to the adverfe Party. And all Appeals to the Supayable. perior Court, fhall be entered before the fecond opening of fuch Court, and not after; unless the Appellant fhall pay to the Appellee all his Coft in fuch Cafe arifen to that Time, (which fhall Appeals to be not be refunded however the Caufe may finally iffue); which entered before Coft being taxed and paid, the Action may be entered by the Apthe 2d opening pellant, before the Jury attending fuch Court are difmiffed, and not after: And if the Appellant do not enter fuch Appeal, before the Jury are difmiffed, the Appellee may enter the fame, and have the Judgment of the County Court in the Cafe affirmed with the additional Coft, and Execution granted accordingly.

of the court,

unlefs, &c.

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an

inhabitant of

17: That in all Actions brought by any Perfon who is not an If the plaintInhabitant of this State, to any Court in this State, the Clerk of iff is not fuch Court fhall enter in the Record of the Caufe, the Name of this ftate, his the Attorney by whom fuch Stranger appeared; which Record, attorney's or an attested Copy thereof, fhall be good Evidence in Law,,that name entered &c. fuch Attorney, was the lawful Attorney for faid Stranger. 18. That no Coft shall be allowed for Travel to get a Writ, or No coft for for carrying it to an Officer.

to be

travel to get a

When the af

19. And be it further enacted, That when any Affiftant or Juftice writ, &c. of the Peace hath given Judgment in any Cafe, and before the fame is fatisfied or Execution granted thereon, fhall be removed fiftant or jufby Death or otherwife; the Party in whofe Favour fuch Judgment tice before was given, may bring an Action of Debt for the Recovery of the whom judg Sum due thereon, at any Time within five Years after fuch Remo- ment is had,, is removed beval; which Action may be brought before an Affiftant or Juftice fore execution of the Peace, if the Debt or Damage recovered and due doth not had, &c. how exceed Thirty-five Dollars; and the original Record or a Copy to proceed. thereof attefted by the Person who gave the Judgment, or any Affiftant or Juftice of the Peace, fhall be fufficient Evidence of fuch Judgment; in which Cafe no Appeal fhall be allowed.

Bond for prof

may

20. That in any Action wherein Bond for Profecution is not given at the Commencement thereof, the Court, Affiftant or Juf- ecution tice of the Peace before whom the fame is brought, fhall on Mo- be required if tion of the Defendant, and fatisfactory Proof that the Plaintiff is the plaintiff is unable to pay a Bill of Coft, if recovered against him, order the unable to pay Plaintiff to give Bond with sufficient Surety, to profecute his Ac- coft, &c. tion to Effect, and pay all Damage in Cafe he make not his Plea good, before proceeding to Trial of the fame; and if the Plaintiff refufe or neglect to give fuch Security, his action fhall be non-fuit,

21. And for preventing trivial and vexatious Suits ;

Be it further enacted, That in Actions of Trefpafs, Affault and Battery, and Treípafs upon the Cafe which shall be hereafter commenced or profecuted in any County or Superior Court in Actions oftrefthis State, (except only where the Title, or Inheritance, or Inter- pafs, &c. when under7dollars, eft of Lands or freehold Eftate is the principal Matter in Question on the Trial of fuch Cafe) if the Damage is therein found, by Verdict of a Jury or otherways, to be under Seven Dollars, the Plaintiff fhall recover no more Cofts than Damages; any Law, Ufage or Cuftom to the contrary notwithstanding.

677

Provided nevertheless, That when the Defendant in any of the Actions aforefaid, fhall remove fuch Action by Appeal from an Provife. Affiftant or Juftice of the Peace, to the County Court, or from the County Court to the Superior Court, the Plaintiff on his recovering final Judgment against the Defendant fhall recover his full Cofts of Suit: any Thing in this Act to the contrary notwith fanding.

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