Plea, or demurrer set down for argument.

Plea or de-*

murrer over

ruled.

When to be

argument.

If the complainant conceives any plea or demurrer to` be naught, either for the matter or manner of it, he may set it down, with the clerk, to be argued; or if he thinks the plea good, but not true, he may take. issue upon it, and procede to proofs, giving such notice of hearing as aforesaid; and if such plea shall be adjudged faise, the complainant shall have the same advantage, as if the same plea were found false by verdict at common law.

If a plea be pleaded, or demurrer put in, and overruled, no other plea or demurrer shall thereafter be received; but the defendant shall answer the allegati. ons of the bill.

The complainant, a month after a plea or demurrer set down for put in, may cause the same to be set down, to be argued: But if the complainant shall not procede to have the same set down to be argued, before the second court after such plea or dumurrer put in, the bill may be dismissed of course, with costs and a lawyer's fee. The same notice shall be given, of arguing a plea or demurrer, as of hearing, in other cases.

Notice.

Costs, on plea or de

murrer.

Refusal to

answer.

Commissions

Witnesses a

Upon a plea or demurrer, argued and over-ruled, costs shall be paid, as where an answer shall be adjudged insufficient; and the defendant shall answer within two months after; but if adjudged good, the defendant to have his costs.

If any defendant shall obstinately insist on a demurrer, and refuseth to answer, where the court shall be of opinion that sufficient matter is alledged in the bill to oblige him to answer, and for the court to procede upon, the bill shall be taken pro confesso, and the matter thereof decreed.

Commissions to examine witnesses, may be issued of course, by the clerk of the court, at any time.

After any bill filed, and before the defendant puts in ged and in his answer, upon oath made, that any of the complainfirm or going ant's witnesses are aged aud infirm, or going beyond beyond seas. sea, whereby the complainant thinks he is in danger of losing the benefit of their testimony, the clerk may issue a dedimus, to take the examinations of such witnesses, de bene esse, giving notice so as to be valid, if the complainant has not an opportunity to take their examinations in the ordinary course of proceedings.

Cause set

down for hearing.

When any cause shall be at issue, and the examination of witnesses returned, if the complainant shall not

within a month thereafter, set down the cause for hearing, with the clerk, in the secretary's office, the defendant may have the cause set down at his request, and bring on the cause to hearing, giving the complainant, or his attorney, such notice as is herein before directed; any former or other law, rule, or custom, to the contrary hereof, in any wise, notwithstanding.

XVII. And whereas, some doubt hath heretofore been, whether any, and what allowance was settled by law, for witnesses attending the county court, and inhabiting within the same county? For settling the same for the future,

XVIII. Be it further enacted, by the authority afore- Allowance to said, That every person summoned to appear as a wit- witnesses atness at any county court, and being an inhabitant of tending the same county, shall be paid by the person or per- county sons, at whose suit the summons issued, thirty pounds of tobacco per day, for every day's attendance upon such summons.

courts.

to issue.

XIX. And be it further enacted, by the authority afore- Summons for said, That the clerk of every county court shall and witnesses, may, and is hereby authorized and impowered, to issue when & how one or more summons or summonses, for any person or persons, to attend as witnesses upon any survey of land, which shall be ordered to be made by the county court. And if any witness or witnesses shall be an inhabitant of another county, the clerk of the same court is hereby authorized and impowered, to issue one or more summons or summonses, into any other county or counties where such witness or witnesses is or are an inhabitant or inhabitants, or most usually resident: Which summons or summonses so to be issued, may be directed to the sheriff or coroner of that county whereof or wherein such witness or witnesses is or are an inhabitant or inhabitants, or most usually resident.

Further da

XX. And if any person summoned to attend as a wit- Witness fallness at any county court, shall fail to attend accordingly; ingto attend, every person so failing, shall forfeit and pay, to the penalty on. person or persons, at whose suit the summons issued, mages. three hundred and fifty pounds of tobacco; and shall be further liable to an action on the case, for what damages such person shall sustain for want of such witness's testimony,

A 2-Vol. 4.

When they

cused.

XXI. Provided always, That if sufficient cause be may be ex- shewn by the person so summoned and failing to appear, of his or her incapacity to attend at the time he or she ought to have appeared, then no forfeiture or penalty shall be incurred by such failure; but if suffi cient cause be not shewn at the next succeeding court after such failure, it shall and may be lawful for the said court, upon the motion of the party for whom such witness was summoned, to grant judgment for the forfeiture afore-mentioned, against the person or persons so summoned and failing to appear, as aforesaid.

Executions

may be issu ed by justi

ces; and attachments

for sums un der 20 shillings.

(Ch. 11, 1710.)

for whole debt.

XXII. And be it also enacted and declared, That when any justice shall have given judgment in any matter cognizable before him, he shall and may, and is hereby declared to have full power and authority, to issue an execution upon such judgment; which may be directed to the sheriff or constable. And upon complaint that any person, indebted to the complainant, in any less sum than twenty shillings sterling, or two hundred pounds of tobacco, is removing himself out of the county privately, or hath absconded, and conceals himself, so that a warrant cannot be served upon him, it shall and may be lawful, to and for any justice of the peace, taking bond and security as is directed by the act of assembly, for establishing county courts, and for regulating and settling the proceedings therein, to grant an attachment against the estate of such debtor, or so much thereof as shall be of value sufficient to satisfy the debt of the party praying such attachment, returnable before himself, or any other justice of the peace of the county, who shall andjmay procede thereupon, as upon an attachment returnable to the county court.

XXIII, And if any attachment, returnable to the Attachments County court, or before a justice of the peace, shall be notreplevied returned executed, and the goods attached shall not be judgment replevied, as the law directs, the plaintiff shall have judgment for his whole debt, and may take execution thereupon: And all goods taken upon an attachment awarded by the county court, or by any justice of the peace, and not replevied, as herein before is mentioned, shall be sold and disposed of, for and towards satisfaction of the plaintif's judgment, in the same manner as goods taken in execution, upon a writ of fieri facias.

Ch. 3, 1726,
Goods, how

sold.

XXIV. And for the further prevention of delay, trouble, and vexation, by arresting and reversing judg ments given in the several courts of justice within this colony,

XXV. Be it further enacted, That the several acts Jeofails, staof parliament heretofore made, and commonly called tute of Statutes of Jeofails, and now in force and use in England, shall be and are hereby declared to be, for so much of the said statutes as relates to any mispleading, jeofail, and amendment, in full force in this dominion also.

Warrants for

sums under 20 shillings.

XXVI. And for the more speedy recovery of small debts, in the several county courts of this dominion. XXVII. Be it further enacted, That from and after the said fifteenth day of April, it shal & may be lawful, to and for the justices of any county court, to hear and determine all suits thereafter to be brought, for any debt or demand, due by judgment, obligation, or account, for any sum or sums of money or tobacco, of the value of twenty shillings sterling, or two hundred pounds of tobacco, and not exceeding the sum of five pounds current money, or one thousand pounds of tobacco, by petition. And the said justices are hereby authorized and required, and shall have full power and authority so to do, and to award execution thereupon; and that, upon filing any such petition in the clerks of fice, a summons of course shall be issued, under the Petition and hand of the clerk, returnable to the next court; which, summons,for together with the copy of the petition, shall be delivered to the defendant, and the same being so delivered, shillings, and or left at the usual place of his abode or residence, ten 5 pounds. days before the next succeeding court, and oath made of the due service thereof, if the defendant do not, or shall not then appear, it shall and may be lawful to and for the said justices to hear and examine into the truth of the matter complained of, and to determine the cause upon the evidence produced, or to dismiss the petition, as to them shall seem just. And if the defendant shall appear upon any such summons, he shall put in such answer or plea thereto, as will bring the matter of the complaint in issue: And thereupon, or if he shall fail to plead, the said justices shall instantly procede to hear and determine the cause, in a summary way, upon such evidence as shall be given, and shall give judgment according as the very right of the cause

sums between 20

Witnesses,

moned.

and matter in law shall appear unto them, without re} gard to form, or want of form, in the process, petition, or course of proceedings; so as sufficient matter be set forth, whereupon the court may give judgment according to the very right of the cause: In which proceedings, the defendant shall have the benefit of all matters in his defence, that he might have had, if he had been sued in the ordinary forms of law.

XXVIII. And be it further enacted, That the clerk may be sum- of every county court shall and may issue summonses for witnesses to attend the trial of any such petition; who shall be paid for attendance, and be subject to the same forfeiture, on failure to appear and attend the trial, as herein before is mentioned and expressed.

Security for XXIX. And be it further enacted, That from and afcosts, when ter the commencement of this act, when any process demandable. I shall be sued forth, or any suit either in law or equity shall be commenced and prosecuted in any court, or before any judge or magistrate within this colony, by virtue of any letter or warrant of attorney, or letter or warrant of substitution, or by virtue of any other deputation of power, from any person or persons residing in other parts than within this colony, against any person or persons inhabiting within this colony; such person so suing forth such process;or commencing or prosecuting any suit, at his or their first appearance, or at any time thereafter, when thereunto required, shall give good and sufficient security with the clerk of the general court, or in the court of the county, or other court, where such process shall be sued out, or suit depending, to satisfy and pay to the party prosecuted, all such damages, costs, and charges, as upon the same suit shall be awarded to him, her, or them, by the court, judge, or magistrate, before whom the suit shall be Suit dismiss heard and determined: And if such person or persons ed for want shall fail to give such security, being thereunto required, the suit shall thereupon abate, and the party prosecuted, shall be thence dismissed, without day.

of.

And

that one act of a general assembly of this colony, intituled, An act for attorneys prosecuting suits on beRepeal of ch. half of persons out of the country, to give security for ,36, 1705. paiment of such costs and damages as shall be awarded against them, is and shall be from henceforth hereby repealed and made void, to all intents and purposes, as if the same had never been made.