either of the return days aforesaid, to the end that such defendant may be outlawed thereupon.

at the com

mon law.

XXIII. And for the more speedy determination of Rules in perall causes depending in the said court, Be it further sonal actions, enacted, by the authority aforesaid, That these following rules and methods shall be observed, to wit; that in all personal actions the plaintiff shall file his declaration within one month after the defendant shall have entered his appearance, with the clerk in the secretary's office, and if the plaintiff shall fail or neglect so to do, or if any plaintiff or demandant fails to appear, and prosecute his suit, he shall be non-suit.

That where any non suit shall be awarded, there Non-suit. shall be paid for the same, to every defendant or tenant, one hundred and fifty pounds of tobacco, and costs, where the defendant's or tenant's place of abode is at the distance of twenty miles, or less, from the place of holding the general court; and where it is more, five pounds of tobacco for every mile above twenty,

When the defendant has entered his appearance, Pleadings. and the plaintiff files his declaration, he may give a rule to plead with the clerk of the court in the secretary's office, which shall be out in one calender month after such rule given.

That all rules to plead, reply, rejoin, or for further or other proceedings, shall be given regularly, from month to month, after the first rule for pleading is expired, and shall not be out in less time than one calender month, nor shall any rule be given between month and month to the intent that all attornies and others, by inspecting the rule book to be kept by the clerk of the court, may be more certainly and readily informed what proceedings have been, or are to be, in the several causes there depending.

non-suit.

That upon the expiration of any rule, judgment by Judgment b default, or a non suit, shall be signed by the clerk in default, or the office, as of the preceding court, which judgment shall be final in actions of debt, where the debt is cer- Writ of intain, and in other actions a writ of inquiry shall be ex- quiry. ecuted, the next court after judgment signed in the office, the plaintiffs attorney giving the defendant or his attorney six days notice of the execution thereof, if the defendant lives within twenty miles of the

Trial.

place where the general court shall be held, and if more than that distance, twelve days notice.

That no issue shall be tried the next succeeding general court after it is joined, unless ten days notice be given by the plaintiffs attorney to the defendant, or his attorney, before the day of trial, if the defendant lives within twenty miles as aforesaid, but if he lives at greater distance, then twenty days notice shall be given.

If an issue be not tried, or writ of inquiry executed the next court after it is joined, or judgment by default, or interlocutory judgment entered, no notice of trial, or executing such writ, need to be given; but such causes shall be called in the same order as they staud on the docket.

Final judg- That when any final judgment shall be obtained out ment & law- of court, the clerk shall allow a lawyers fee in the bill yer's fee. of costs, if the plaintiff employed one; which fee is hereby declared in all cases in the general court, t › be fifty shillings current money, or five hundred pounds of tobacco, at the election of the party adjudged to pay the same, but no such fees shall be taxed against executors or administrators.

Special verdict, or case agreed.

Pleas in abatement.

That where a special verdict shall be found, or case agreed, time shall be allowed, upon the motion of either party, to the next general court to argue it, and if any causes shall at the end of the court remain undetermined, they shall be continued of course by the clerk to the next succeeding court, without calling the same in court.

That where a plea in abatement shall be pleaded, in any action, and upon argument the same shall be judged insufficient, the plaintiff or plaintiffs, in such action shall recover against the defendant or defendants, full costs to the time of over-ruling such plea, including the costs of that court in which such plea shall be over-ruled, (a lawyer's fee only excepted;) and that no plea in abatement, or of non est factum, shall be admitted or received, unless the party offering the same, shall, by affidavit, prove the truth thereof; and that the plaintiff in replevin, or the defendant in any other action, may plead as many several matters as he shall think necessary for his defence, so as they be not admitted to plead and demur to the whole.

That in all cases where a fine is laid on the justi- Fines on ces of any county court, or the vestry of any pa countycourts rish, one action may be brought against them all jointly.

or vestries.

That for the more entire and better preservation of Records of the records of the court, when any cause shall be fi- causes. nally determined, the clerk shall enter all the pleadings therein, and other matters relating thereto, together in a book to be kept for that purpose, so that an entire and perfect record may be made thereof; and where the title of any estate in land is determined, the pleadings shall be all in writing, and shall be entered at large, with the judgment thereupon, in particular books for that purpose.

That for prevention of errors in entering up the judgments of the court, the proceedings of every day shalt be drawn at large, by the clerk, against the next sitting of the court, when the same shall be read in open court, and such corrections as are necessary made therein, and then the same shall be signed by the secretary of this dominion, for the time being, or his deputy, and carefully preserved among the records.

Rules for

That in all cases where witnesses are to appear before the general court, a summons shall be issued by witnesses. the clerk, expressly mentioning the day and place, when and where the witness shall appear, the names of the parties to the suit, wherein they are to give evidence, and on whose behalf they are summoned.

tend the

court.

That where any witness shall be departing this colo- Examinatiny, or by age, sickness, or other legal disability, is ons of such as rendered incapable of attending the court, the party cannot atrequiring such witness's testimony, may obtain certificate of such departure or disability, under the hand of one or more justice or justices of peace, of the county where such witness lives, which being produced to any two of the judges of the general court, they may, at any time, upon request of either party, order such witness's deposition to be taken, at such time and place, and before such persons, as they shall think proper; or where the court shall be satisfied of the disability of any witness to attend, they may grant such order if they think fit, and thereupon commissions to examine such witnesses, shall be issued by the clerk; but the party obtaining the same, shall give reasonable

Refusal to give evidence:

Recusant

notice, of the time and place of executing such commission, to the other party, otherwise the depositions taken shall be void.

That if any person whatsoever, summoned as a witness, upon his or her appearance before the court, or persons commissionated as aforesaid, to examine and take his or her deposition, shall refuse to give evidence, upon oath, or being one of the people called Quakers, solemnly to affirm and declare, to the best of his or her knowledge, every person so refusing, shall be committed to the common goal, there to remain without bail or mainprize, until he or she shall give such

evidence.

That popish recusants convict thall be incapable convict disa- to be witnesses, in any cause whatsoever.

bled to be a

witness.

to attend.

That if any person summoned to attend the genePersons sum. ral court, as a witness, shall fail to attend accordingmon'd failing ly, he or she so failing, shall be fined by the said court, one thousand pounds of tobacco, to be paid to the party for whom such witness was summoned, and shall be further liable to the action of such party, at the common law, for his or her damages: But if at the time such witness ought to have appeared, or at the next succeeding court, sufficient cause of his or her inabili ty to attend be shewn to the court, then no fine or forfeiture shall be incurred by such failure.

Witness's

That during the attendance of any witness at the privilege. general court, and coming to, and returning from thence, allowing one natural day for every twenty miles such witnesses place of abode shall be distant from the same, no person or persons whatsoever shall serve or execute, or cause to be served or executed upon any witness, coming to, attending, or returning from the said court, any writ or process whatsoever; and if any such be served or executed, the same shall be void, to all intents and purposes.

Their allow

ance.

That every witness attending upon summons shall be paid by the party at whose suit the summons issued, one pound of tobacco and a half, per mile, for coming to the place where he or she was summoned to appear, and the same for returning, besides ferriages, and sixty pounds of tobacco per day, for attendance until he or she shall be discharged.

That all witnesses attending the general court, shall claim their allowance by the clerk in the office, and

not in court, unless refused by the clerk and then the witness may apply to the court for allowance thereof.

That in any bill of costs there shall not be allowed the charge of more than three witnesses to the proof of any one particular matter of fact.

XXIV. And to the intent that erroneous proceedings and judgments of the inferior courts of record of this dominion may be corrected, and amended, Be it further enacted, by the authority aforesaid, That where any person or persons, bodies politic or corporate, shall at any time be aggrieved by the judgment, decree, or sentence, of any other court of record of this colony, in any action or suit whatsoever, where the debt or damage, or other matter recovered in such action or suit, exclusive of the costs, shall exceed ten pounds current money, or two thousand pounds of tobacco, or the value thereof, or where the title or bounds of lands shall be drawn in question, it shall be lawful for such party or parties to enter an appeal from such judgment, decrce, or sentence, to the general court, and to assign error in manner following, and not otherwise: That is to say, upon an appeal in any personal Rules in apaction, or suit where the judgment or decree shall not peals. exceed twenty pounds current money, or four thousand pounds of tobacco, the appellant shall assign error in matter of right only, and if upon a hearing in the general court, such judgment or decree shall appear to be according to the right of the cause, the same shall be affirmed, notwithstanding any mispleading, or error in matter of form.

And where the judgment or decree shall be for more than the sums last mentioned, and not exceed fifty pounds current money, or ten thousand pounds of tobacco, the appellant may assign error in matter of right, and such errors in the form or manner of the proceedings, as were insisted upon in the court from whence such appeal shall be made; and if such errors shall not appear sufficient to reverse the judgment or decree, the same shall be affirmed.

And in all personal actions, suits in chancery, informations, or other controversies, of greater value than fifty pounds current money, or ten thousand pounds of tobacco, and in all real actions, of what value so ever, the appellant may assign any errors of form or substance.

N 3 Vol. 5.