fore fuch juflice, to answer the plaintiff of the plea in the fame warrant to be mentioned, and upon the return of fuch fummons, if the fame be duly ferved, or upon bringing the defendant before fuch juflice, by virtue of any fuch warrant, or at fuch other time and place, as the fame juftice fhall think reafonable to appoint, not exceeding fix days thereafter, the fame juflice fhall proceed to hear and examine the allegations and proofs of the parties, plaintiff and defendant, and within four days thereafter, give judgment thereon in fuch manner as fhall appear to him to be agreeable to law and equity, together with cofts of fuit, as hereafter allowed.

freeholders and inha

lies. to be by fum

mons.

the procefs was ferved

II. And be it further cnacted by the authority aforesaid, First process against That the first procefs againft all freeholders and inhabitants bitants having fami- having families (except as hereafter is excepted) fhall be by fummons, which shall be served at leaft fix days before the time of appearance mentioned therein, by reading the fame fummons to the defendant, and delivering to him or her a copy thereof, when required, if he or fhe fhall be found, and if not, by leaving a copy thereof at his or her houfe or place of abode, in the prefence of fome one of the family, of fuitable age and difcretion, who shall be informed of the contents thereof; and the conflable or officer ferving fuch fummons fhall, upon the oath of his office, indorfe thereupon the time and manner he executed the fame, and fign his name thereto. And in cafe the defendant does If the defendant not appear at the time and place appointed in fuch fumdoes not appear, and mons, and it fhall appear by the return indorfed thereon, on him perfonally, the that the fummons was duly ferved upon the perfon of the Juftice to proceed to defendant, in the manner aforefaid, and no fufficient reafon fhall appear to the juftice, why the defendant does not appear at the time appointed, then the faid juftice who iffued But if not perfonal- the faid fummons fhall proceed to hear, and try and deterly ferved, a warrant or new fummons to mine the caufe, in the fame manner as if the defendant had appeared; but if fuch fummons was ferved only by leaving a copy thereof at the houfe or place of abode of the defendant, as aforefaid, and the defendant does not appear at the time and place appointed in fuch fummons, and no fufficient reafon fhall appear to the juftice, why the defendant does not appear, then the faid juftice fhall iffue a warrant again fuch defendant, in the manner aforefaid, and proceed as above directed, unless the plaintiff shall elect to have a new fummons against fuch defendant. And in all cafes where a fufficient reafon fhall appear to the juftice, why the defendant does not appear at the time and place appointed in the fummons, the justice fhall give the defendant fuch further time as he shall think reasonable, and at fuch time fo given the juftice fhall and may proceed as aforefaid.

trial.

be iffued.

ified, and the justice

or unable to try the

may try it.

III. Provided always, and be it further enacted by the auWhen a warrant is tharity aforesaid, That in all cafes where a warrant fhall be who ifined it is abfent, iffued by virtue of this act, and upon fervice thereof, the caufe, the next juftice juftice who iffued the fame fhall be abfent, or unable to hear and try the cause, it shall and may be lawful for the conftable, or other officer ferving fuch warrant, to carry the defendant before the next juftice of the city or county where the juftice who iffed the warrant, fhall refide, and fuch other juftice fhall take cognizance of, and hear, try and determine the caufe, in the fame manner as he could or might have done, if he had iffued the warrant, by virtue of which the defendant fhall be taken; but in all other cafes, where any process who iffues the procefs fhall be iflued in pursuance of this act, and ferved on the defendant, for any debt, damages or demand, of what na

In all other cafes,he

hall try the cause.

the plaintiff.

Defendant may let off ture foever, the cause shall be tried before the juflice who any demand against firit iffued fuch process, and not before any other juftice; and the defendant, if he or she has any account or demand against the plaintiff in fuch action, fhall and may plead and fet off the fame against the debt or demand of the plaintiff.

ger of the plaintiff's

IV. And be it further enacted by the authority aforesaid, When there is dan- That if any plaintiff, or his or her attorney, fo applying for foting his debt, a war- proceis, fhall prove, upon oath, to the fatisfaction of the rant inay be iffued. juftice, that if fuch procefs be by fummons again any fuch freeholder or inhabitant having a family, the plaintiff will be in danger of lofing his debt or demand thereby, or doth really and fincerely believe that fuch freeholder or inhabitant will depart the city or county wherein he or fhe doth refide, then the juflice fhall iffue a warrant, in fuch manner as is above directed.

parties, caufe may be

pro

V. And be it further enaded by the authority aforefaid, By agreement of That where any parties fhall agree to enter an action betried without process. fore any juftice, without any process, the juflice finall ceed to trial, in the fame manner as if a fummons or warrant had iffued. VI. And be it further enacted by the authority aforesaid, When a warrant is That in all cafes where a warrant fhall be iflued, if the iflued, trial may be adjourned at the re- plaintiff or defendant fhall require a longer time than is firit quest of either party, on giving fecurity." appointed by the court, to try the faid caufe, and will, if required, give fufficient fecurity to appear and fland trial, on fuch other day as fhall be appointed, then the juftice is hereby empowered and required to adjourn the trial of fuch caufe, to any day he fhall judge moft convenient, not exceeding twelve days, nor less than three days, unleis the juftice and parties fhall other wife agree. Provided always, That where the plaintiff in any caufe of action to be brought by virtue non-refident, may of this act, fhall be a non-refident of the county, and shall giving fecurity. give fecurity to pay the debt or damages, and coils of fuit, in cafe judgment fhall be given against him, that then he may have a warrant returnable immediately; and the juftice before whom fuch caufe is to be tried, fhall not adjourn the fame for more than three days, unlefs the parties agree to allow a longer time. And if any adjournment be made without the confent of the plaintiff, then the defendant thall give fufficient fecurity for his or her perfonal appearance, on the day to which fuch adjournment fhall be made, and in default of fuch appearance, to pay the debt and cofts, if judgment fhall be given against him or her; and in default of giving fuch fecurity, the juluce fhall proceed to trial without an adjourn

Plaintiff being a

have a warrant on

ment.

No perfon to be VII. And be it further enaked by the authority cforefaid, proceeded against by That no perfon fhall be proceeded against by fummons, out own city or county. of the city or county where he or she does refide.

funinons out of his

VIII. And be it further enacted by the authority aforefaid, Actions on this act That in every action that fall hereafter be brought in this may be tried by a jury. flate, by virtue of this act, it fhall be lawful for either of the parties to the fuit, or the attorney of either of them, after ifiue joined (and before the court fhall proceed to enquire into the merits of the caule) to demand of the faid court, that fuch action be tried by a jury; and upon fuch demand, the faid juftice holding fuch court, is hereby required venire to a constable, to iffue a venire, directed to any conftable, or other proper officer, of the city, town or place where the faid caute is to be tried, commanding him to fummon twelve good and

Juftice to iflue a

to fumanou twelve sien,

lawful men, being freeholders or freemen of fuch city, or being freeholders of fuch town or place, where the faid cause is to be tried, and who fhall be in no wife of kin to the plaintiff or defendant, nor interested in such fuit, to be and appear before fuch juftice iffuing fuch venire, at fuch time and place as fhall be exprefled in fuch venire, to make a jury for trial of the action between the parties mentioned in the faid venire; which conftable or officer fhall, at the return of the faid venire, return a panel of names of the jurors Six of them to be he fhall fo fummon by virtue thereof, and the names of bailotted for the trial. each perfon fo impanelled, fhall be written on feveral and diflinct pieces of paper, as nearly of one fize as may be, and fhall be delivered to the faid juftice, before whom fuch action is to be tried, by the conftable, or other officer returning fuch panel, and fhall, by the faid conftable, or other officer, be rolled up, all as near as may be, in one and the fame manner, and put together in a box, or fome convenient thing; and on the trial of fuch caufe, fuch juftice, or fuch indifferent perfon as he fhall appoint for that purpose, shall draw out fix of the faid papers, one after another; and if any of the perfons whofe names fhall be fo drawn, fhall not appear, or shall be challenged and fet afide, then fuch further number thereof fhall be drawn, as fhall make up the number of fix who do appear, after all legal caufes of challenge allowed by the faid juftice; unless the parties agree that the faid constable shall summon fix men at his difcretion; and the that conftable fum- faid fix perfons fo firft drawn and appearing, and approved by the court as indifferent, fhall be the jury who fhall try the cause, to each of whom the faid juftice fhall adminifter the following oath :

Parties may agree

mon fix at ius difcre

tion.

OU

You do fwear, in the prefence of Almighty God, That you will we'll

and truly try the matter in difference between

plaintiff, and

defendant, and a true verdict will give according to evidence.

And after the faid jury have taken the oath aforefaid, they fhall fit together, and hear the feveral proofs and allegations of the parties, which fhall be delivered in public, in their prefence; and to each of the witneffes on the faid trial, the faid juftice fhall adminifter the following oath, viz.

OU do fwear, in the prefence of Almighty God, That the evidence you fhall give in this matter in difference between plaintiff, and defendant, shall be the truth, the whole truth, and nothing but

the truth.

And after hearing the proofs and allegations, the jury fhall be kept together in fome convenient place, until they all agree upon a verdict; and for which purpose a conftable shall be fworn, and to whom the faid justice shall adminifter the following oath, viz.

YOU do fwear, in the prefence of Almighty God, That you will, to the utmost of your ability, keep every perfon fworn on this inqueft together in fome private and convenient place, without meat or drink; you will not fuffer any person to speak to them, nor fpeak to them yourself, unless by order of the juftice, unless it be to afk them whether they have agreed on their verdict, until they have agreed on their verdict.

And when the jurors have agreed on their verdict, they fhall deliver the fame to the juftice in the fame court, who is hereby required to give judgment thereupon, and to award execution in manner herein after directed. Pro

Na ex parte affida

vit or oath of party,

to be allowed without

confent.

and witnefles for de

vered.

vided always, That no oath of either party, or ex parte affidavit of any other perfon, fhall be allowed or given in evidence in any fuch action, unless the parties agree to allow of fuch evidence.

IX. And be it further enacted by the authority aforefaid, Penalty on Jurors That every perfon fummoned and drawn as a juror, or fubfault, how to be reco- poenaed as a witness, who fhall not appear, or appearing, Shall refufe to ferve, or to give evidence in any fuch action, fhall forfeit and pay, for every fuch default or refufal (unle's fome reasonable cause be proved, on oath, to the fatisfaction of the faid court) fuch fine or fines, not exceeding the fum of four pounds, nor less than five fhillings, as the faid court fhall think reafonable to impofe; and the faid court is hereby authorifed and required to iffue a warrant to any conflable, or other proper officer, to levy the fame of the goods and chattels of the offender, and for want thereof, to take and convey him or her to the gaol of the city or coun ty wherein the offence shall have been committed, or for want of a gaol in fuch city or county, then to the nearest gaol, there to remain until he or she pay fuch fine, together with the colls attending the fame. And the keeper of fuch gaol is hereby commanded to keep such offender in fafe cuftody, in fuch gaol, until fuch fine, together with the cofts, fhall be paid. Provided always, That no fuch fine or fines fhall be impofed, unless oath fhall first have been made, before the court, by fome credible perfon, that fuch juror or witness fo in default, hath been lawfully fummoned or fubpoenaed as aforesaid; all and every of which faid fines, when recovered, fhall be delivered by the faid court, to the overfeers of the poor, for the ufe of the poor of the town or place where the fame fhall be levied.

awarded, and dent

and paid.

X. And be it further enacted by the authority ofarefid Cofts how to be That if the plaintiff, other than executors or adminiftrators, and damages levied in any fuch action fhall be nonfuited, or difcontinue, or withdraw his or her action, without the confent of the defendant, then judgment fhall be given against fuch plaintiff, for the cofts accrued, or if he or she fhall appear to be indebted to the defendant, then judgment fhall be given against him or her, for the debt or damages, and cofts, as the cafe may require; and whenever judgment fhall be given against either plaintiff or defendant, in any of the before mentioned actions, the faid court fhall grant execution thereupon, directed to one of the conflables, or other proper officer of the city, town or place where the party dwells, or can be found, commanding him to levy the debt or damages and cofts, of the goods and chattels of the perfon against whom fuch execution fhould be granted; and for want of fufficient goods and chattels whereon to levy the fame, to take the body of the perfon against whom such 12th feff. ch. 24. fec. execution shall be granted, and him or her to convey to the gaol of fuch city or county; which faid conftable, or other proper officer, after taking fuch goods and chattels into his cuftody, by vir tue of fuch execution, fhall immediately give public notice, by an advertitemont, figued by himself, and put up at three public places in fuch city, town or place where fuch goods and chattels fhall be taken, of the time and place when and where they will be expofed to fale, at leaft five days before the time appointed for felling them, and therein defcribe the goods and chattels fo taken; and at the time and place fo appointed for felling them, fhall expose them to fale by public vendue, to the highest bidder, and pay the debt or damages, and cofts levied, to the juftice who iffued the execution, returning Mm m

15.

↑ Altered,

the overplus, if any, to the owner; and for want of goods and chattels whereon to levy, the faid conftable, or other proper officer, fhall, according to the tenor of the faid execution, take the body of the perfon against whom the fame execution fhall be granted, and convey and deliver him or her, to the keeper of the common gaol of the city or county, which keeper is hereby commanded to keep fuch perfon in fafe cuftody, in the common gaol aforefaid, until the debt or damages, with costs, shall be fully paid, or until he or she shall be from thence delivered by due courfe of law. Provided nevertheless, That no execution of any judgment given by virtue of this act, fhall iflue against any freeholder or inhabitant having a family, in lefs than forty days after giving the faid judgment, unle's the party in whofe favour judgment fhall be given, fhall make it appear to the fatisfaction of the faid juftice, on his or her own oath, or the oath of fome other person, that fuch plaintiff or plaintiffs, will be in danger of lofing the debt or damages, if fuch delay be allowed; in which cafe the faid juftice fhall iffue execution immediately, as herein before directed, unless the party againft whom fuch judgment shall be given, fhall thereupon give fecurity to the party in whofe favourjudgment was given, that he or she will pay the debt or damages, and cofts, before, or furrender himself or herself in execution, at the expiration of forty days.

for neglecting to levy

executions.

execution, then the

be taken.

XI. And be it further enacled by the authority aforesaid, Penalty on conftable That in cafe any conftable, or other proper officer to whom any execution fhall be delivered, fhall not, within thirty days after receiving fuch execution, levy the fame on the goods and chattels of the perfon against whom fuch execution fhall be granted, and in ten days thereafter pay the debt and cofls fo levied, into the hands of the juftice who iffued the fame, or in cafe of his death or removal from office, to the person in whofe favour the execution was granted; or if no goods nor chattels can If no goods can be be found, whereon to levy, then if the faid conftable or found whereon to levy other officer fhall not take the body of the perfon against body of the perfon to whom fuch execution was granted, if to be found, within thirty days from the receipt of fuch execution as aforefaid; then, and in every fuch cafe, the faid conftable or other officer, fhall be holden to pay the amount of fuch execution, to be recovered by an action of debt, with cofts, by the perfon in whofe favour fuch execution was granted, in which cafe execution fhall iffue forthwith. Provided always, That neither this act, nor any thing herein contained, fhall be deemed or conftrued to extend to any action wherein the people of this ftate fhall be concerned, or where the title of any lands fhall, in any wife, come in queftion, or to any action of affault, and battery, or of flander; not to matters of account where the fum total of fuch accounts exceed in the amount or value thereof, the fum of eighty pounds, and that account proved to the fatisfaction of the faid court.

XII. And be it further enadled by the authority aforefaid, That when in any action of trefpafs to be brought by virtue of this act, the defendant or defendants fhall justify on a plea of title, the defendant or defendants fhall commit fuch plea of juflification to writing, and having figned the fame in the prefence of fuch juftice, fhall deliver fuch plea to the juftice, who fhall then counterfign the fame, and deliver it to the plaintiff or plaintiffs; and that it fhall and may be lawful to and for fuch plaintiff or plaintiffs, to commence and profecute an action for fuch trefpaís against fuch defendant or defendants, in the court of common pleas of the county in which fuch trefpafs fhall have