Defendant on whom the Procefs was not served is agrieved by the Judgbe relieved by Audita Querela.

ment,

he may

Be it further enacted by the Authority aforefaid, That 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, 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 3 the former Withdraw or Non-fuit being frft recorded.

And be it further enacted by the Authority aforefaid, That all Suits brought for the Trial 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 Fats are done concerning which the Title of Land may be in Queftion. And that all other Actions that may be brought before the Superior or County Courts, fhall be brought and tried in that County where the Plaintiff or Defendant dwells, if they or either of them are Inhabitants within this State. And that all Suits and Profecutions cognizable before an Affiftant, or Juftice of the Peace, fhall be made and profecuted before fuch Authority in thofe Towns only where the Plaintiff or Defendant dwells; unlefs there be no Authority which may lawfully try the Caufe in either of faid Towns: In which cafe the Plaintiff may bring his Suit before an Affiftant, or Juftice of the Peace in one of the next adjoining Towns to the Place of his Abode.

And be it further enacted by the Authority aforefaid, That all Caufes wherein the Title of Land is not concerned, and wherein the Debt, Trefpafs, Damage or other Matter in Demand, doth not exceed Four Pounds, or if the Action be on Bond or Note given for the payment of Money or Bills of Credit only, vouched by two Witneffes, when the Sum demanded does not exceed Ten Pounds, fhall and may be heard and determined by any one Affiftant or Juftice of the Peace; who are hereby refpectively empowered to hear and determine the fame, by their Difcretion and according to Law, and award Execution thereon.

Always provided, That where the Sum demanded fhall exceed the Sum of Forty Shillings, 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.

And all Actions that fhall be tried before the Superior or County Courts, when iffue 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 fhall find the Matter in Iffue, with the Debt or Damages, and Coft according to Law and their Evidence; and the Judges fhall make up 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

6

Provifo,that

the parties may agree to put the matter of fact to

the court to determine.

Scire facias

on the farther breach of a Bond, &c.

Actions civil.

proceed to confider what is due in Equity on fuch Bond at that Time, and enter up Judgment for the fame, with Cofts, 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 courfe of Law, wherein the Parties fhall join Iffue on any Matter of Fact, and agree and do put themselves on the Court for Trial of fuch Iffue; the Judges of faid refpective Courts, having Jurifdiction of tuch Action or Actions, may and fhall proceed to hear and try the fame without a Jury, and to award Damages and Cofts, and grant Execution thereon; any Thing before to the contrary notwithstanding.

And upon any further or other Breach, or neglect of Performance of any other Particular in the Condition annexed to, or indorfed on faid Bond, the Obligee, his Executors or Adminiftrators, may take out a Scire Facias against the Obligor, his Heirs, Executors or Adminiftrators, from the Clerk of that Court in which Judgment was given, to fhew Caufe why Execution shall not be awarded for the Money then due, or Damages then fuftained: And the Court fhall proceed to make up Judg ment 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 And the Judges fhall alfo determine Matters of Law, ftated and refered to them by the Jury in their special Verdicts, which Verdicts the Jury in all Cafes wherein Matters of Law are to them fo obfcure that they cannot Special ver clearly and fafely give a pofitive Verdict, fhall have Liberty to give a fpecial Verdict therein; finding and prefenting the Facts, and thereon ftating and puting the Question inLaw, viz. "If the Law be fo in fuch a Point, then we find for the Plaintiff, but if the Law be otherwife, then we find for the Defendant."

dia.

And be it further enacted by the Authority aforesaid, That the Judges of the Court fhall have Liberty, if they judge the Jury have not attended the Evidence given in, and the true iffue of the Cafe in their Verdict, to cause them to return to a fecond Confideration of the Cafe, and fhall for the like Reason have Power to return them to a third Confideration, and no more. And when the Court have committed 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 Twenty Shillings, upon fuch Officer or Juryman as fhall be disorderly, or neglect, or refufe due Attendance of their Duties refpectively, during their attending the Court.

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

And be it further enacted by the Authority aforefaid, 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 difcovery of new Evidence, or for other reasonable Cause appearing, according to the common and ufual Rules and Methods in fuch Cales.

That all Actions wherein the Matter in Demand does not exceed the Value of Twenty Pounds lawful Money; and all Actions brought on Bond

or

Action's civil.

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.

That in any Action brought to, heard and tried by any County Court, wherein the title of Land is in Queftion, or wherein the value of the Debt, Damage or matter in Difpute fhall exceed the value of Twenty Pounds, (except it be on Bond of Note vouched by two Witneffes) if either Party fhall be agrieved 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.

7

Appeals, when to be allowed-s

when to be

entered, &c.

how paya

ble.

And all Bonds for Profecution in Civil Caufes, fhall be made payable Bond for to the adverse Party. And all Appeals to the Superior Court, fhall be profecution, entered before the fecond opening of fuch Court, and not after; unlefs the Appellant fhall pay to the Appellee all his Coft in fuch Cafe arifen to that Time, (which fhall not be refunded however the Caufe may finally iffue); which Coft being taxed and paid, the Action may be entered by the Appellant, 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.

That in all Actions brought by any Perfon who is not an Inhabitant of this State, to any Court in this State, the Clerk of fuch Court thall enter in the record of the Cause, the name of the Attorney by whom fuch Stranger appeared; which Record, or an attefted Copy thereof, fhall be good Evidence in Law, that such Attorney, was the lawful Attorney for faid Stranger.

That no Coft fhall be allowed for Travel to get a Writ, or for carrying it to an Officer.

And be it further enacted by the Authority aforefaid, That when any Affiftant or Juftice of the Peace hath given Judgment in any Cafe, and before the fame is fatisfied or Execution granted thereon, fhall be removed by Death or otherwife; the Party in whofe Favour fuch Judgment was given, may bring an Action of Debt for the recovery of the Sum due thereon, at any Time within five Years after fuch Removal; which Action brought before an Affiftant or Juftice of the Peace, if the Debt or Damage recovered and due doth not exceed Ten Pounds; and the original Record or a Copy thereof attefted by the Perfon 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,

may be

That in any Action wherein Bond for Profecution is not given at the Commencement thereof, the Court, Affiftant or Juftice of the Peace before whom the fame is brought, fhall on Motion of the Defendant, and satisfactory Proof that the Plaintiff is unable to pay a Bill of Coft, if recovered against him, order the Plaintiff to give Bond with fufficient Surety, to profecute his Action 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 refuse or neglect to give fuch Security, his Action fhall be non-fuit. And for preventing trivial and vexatious Suits ;

Be it further enacted by the Authority aforefaid, That in Actions of Trefpafs, Affault and Battery, and Trefpafs upon the Cafe which fhall be here.

after

Appeals to be entered before the ad.opening unlefs, &c.

of the court,

If the plain tiff is not an

inhabitant of this ftate,his attorney's

name to be entered, &c.

travel to get a writ, &c.

No coft for

When the juftice before whom judg ment is had,

affiftant or

is removed before exe

cution had, &c. how to proceed.

Bond for profecution quired if the may be replaintiff in · unable to Pay coft,&c.

8

Actions of trefpafs, &c. when under 405.

Provifo.

punished.

Adultery. Alarms.
Alarms. Arbitration.

after commenced or profecuted in any County or Superior Court in this State, (except only where the Title, or Inheritance, or Intereft of Lands or freehold Estate is the principal Matter in Queftion on the Trial of fuch Cafe) if the Damage is therein found, by Verdict of a Jury or otherways, to be under Forty Shillings lawful Money, the Plaintiff fhall recover no more Cofts than Damages; any Law, Usage or Custom to the contrary notwithstanding.

Provided nevertheless, That when the Defendant in any of the Actions aforefaid, shall remove fuch Action by Appeal from an Affiftant or Justice 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 shall recover his full Cofts of Suit; any Thing in this Act to the contrary notwithstanding.

An Act against, and for the punishment of Adultery.

BE it enacted by the Governor, Council and Reprefentatives, in General Court affembled, and by the Authority of the fame, That whosoever fshall commit Adultery with a married Woman, and be thereof convicted before Adultery how the Superior Court, both of them shall be severely punished, by Whipping on the naked Body, and ftigmatized, or burnt on the Forehead with the Letter A, on a hot Iron And each of them fhall wear a Halter about their Necks, on the outside of their Garments, during their abode in this State, fo as it may be vifible: And as often as either of them fhall be found without their Halters, worn as aforefaid, they fhall, upon Information and Proof of the fame, made before an Affiftant or Juftice of the Peace, be by him ordered to be whipt, not exceeding thirty Stripes.

Penalty for caufing a falfe alarm.

Provifo.

Controverfies

ed.

An Act relating to Alarms.

BE it enacted by the Governor, Council and Reprefentatives, in General Court affembled, and by the Authority of the fame, That if any Perfon or Perfons in this State, (without juft and neceffary Occafion so to do) fhall caufe any Alarm, by firing any Gun or Guns, or otherwise, in any Town or Plantation in this State, at any Time between the fhutting in of the Evening, and break of Day, and fhall thereof be legally_convicted, fhall each of them pay a Fine of Four Pounds to the public Treasurer of the County where fuch Conviction fhall be made; or fuffer two Months Imprisonment.

Provided, The Delinquency be complained of, and prosecuted within fix Months after the fame is committed.

An Act for the more eafy and effectually finishing of
Controverfies by Arbitration.

that

BE it enacted by the Governor, Council and Reprefentatives, in General Court affembled, and by the Authority of the fame, That all Merchants and by arbitrators others defiring to end any Controverfy (for which they have no other Remehow manag- dy but a perfonal Action, or Suit in Equity) by Arbitration, may agree their Submiffion of the Suit to the Award or Umpirage of any Persons, fhall be made a Rule of any of the Superior or County Courts, which the Parties fhall choose, and may infert fuch their Agreement in their Submiflion, or the Condition of the Bond, or Promife; and on producing an Affidavit of fuch Agreement, and upon reading, and filing the fame in the Court

fo

so chosen, the same may be entered of Record.in fuch Court, and a Rule of Court shall be thereupon made that the Parties fhall submit to, and finally be concluded by fuch Arbitration, or Umpirage, and on the Award of fuch Arbitrators being returned into the Court to thofen, in Cafe of Difobedience of either Parties, the faid Court may grant Execution to levy, and collect the Sum awarded by faid Arbitrators, with Coft. ร

And be it further enacted by the Authority aforefaid, That if any Merchant, or other Perfon defiring to end any Controverfy, as aforefaid, by Arbitrati on, fhall perfonally appear before any Superior, or County Court, and ac knowledge before fuch Court, that they have mutually agreed to refer all their Matters of Difference, or any particular Thing to the Arbitrement of certain Perfons by them agreed on, naming the Perfons fo chofen, and defiring the fame may be made a Rule of Court; the fame may be entered of Record: And a Rule of Court fhall be thereupon made that the Parties shall submit to, and finally be concluded by fuch Arbitration, or Umpirage, and on the Award of fuch Arbitrators being returned into the Court fo chofen, in Cafe of Difobedience of either Party thereto, the faid Court may grant Execution in due form of Law, and levy and.collect the Sum, fo awarded, to be paid with Coft.

And be it further enacted by the Authority aforesaid, That when any perfo nal Action fhall be commenced, the Parties in fuch Action defiring to refer the fame, on each Party's choosing a Man, the Court may appoint a Third, whofe Award being by faid Referrees, or any two of them made, and returned into fuch Court, and by them accepted, fhall be a final End of fuch Controverfy, and the faid Court fhall grant Execution thereon according to the Award of fuch Referrees, with Cost.

An Act concerning Arrefts and Imprisonment.

BE E it enacted by the Governor, Council and Reprefentatives, in General Court affembled, and by the Authority of the fame, That no Man's Perfon fhall be arrested and imprisoned for any Debt, Damage, or Fine, where fufficient means of Satisfaction can otherways lawfully be found, from his Eftate, to be fhewn and prefented by him; but if no fuch Satisfaction can be found, his Perfon may be arrested and imprisoned: Where he shall be kept at his own Charge, 'till Satisfaction be made; unless the Court that hath cognizance of the Čaufe, fhall otherwife determine and order.

Provided nevertheless, That no Perfon or Perfons for the non-payment of Rates, Fines, Debts, or for any Crime or Offence, fhall be committed to Prison, without a Mittimus granted and figned by Civil Authority; decla- Provifo ring the Cause and Ground of his Commitment, requiring the Goaler, Mafter, or Keeper of the Prison to receive and keep fuch Perfon or Perfons within the Prifon, until difcharged according to Law: Unless where any proper Officer for want of Eftate, feize the Body or Bodies of any Perfor or Perfons by Execution or Distress, or Warrant for Fines or Rates, and commit him or them to Prifon; in which cafe a Copy of the Execution or Diftrefs, attefted and figned by fuch Officer, and delivered to the Goaler, Mafter, or Keeper of the Prifon, fhall be a fufficient Warrant or Order for him to receive fuch Person or Perfons; and him or them to hold in fafe Cuftody 'till delivered by Law.

And if no other Means can be found to pay the Debt for which fuch Debtor is imprisoned, the Debtor fhall fatisfy the fame by Service, if the Creditor defire it and the Court fhall judge it reasonable; in which cafe the Superior or County Court fhall have Power to order and difpofe of fuch

B

Debtor

Debtor to

fatisfy the debt by fer

vice, in cafe, &C.