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and place of treasurer, according to the true intent and meaning of the afore-recited act of assembly.
IV. Provided always, That in case of the death, de. Vacancy, parture out of the colony, or other legal disability of how suppli
ed. the treasurer bereby appointed, that then it sball and may be lawful, to and for the honourable the lieutenant-governor, or the governor and commander in chief, for the time being, with the advice of bis Majesty's council, to appoint and constitute such other person as he shall think fit, to execute the said office of treasurer, according to the several rules and directions in this act expressed, who shall hold, have, and enjoy, the said office of treasurer, with all and singular the rights and profits to the said office belonging, until the then next session of assembly; giving such bond and security as herein before is directed; any thing in this, or any other act, to the contrary, in any wise, notwithstanding
(From edit. CHAP. III.
1733, p. 356.) An Act to repeal the Act intituled, An Act directing the
manner of levying Executions, and for relief of poor Prisoners for debt; and one other Act to explain the said Act; and to declare the Law concerning Execu
tions; and for relief of poor Prisoners for debt. 1. HEREAS heretofore, by reason of the scarcity of money in this colony, it was thought
Preamble. expedient that all persons who should be taken in execution, for the satisfying any debt or damages recovered against them in any of the King's courts within this colony, might be at liberty to redeem their bodies, and to discharge such debt or damages, by tendering and delivering sufficient of their goods and chattels: And that all creditors should be bound to accept the same, according to a reasonable valuation thereof, to be made by indifferent men, to be chosen and appointed for that purpose: And it hath also been judged reasonable that when the goods and chattels of any debtor should be taken, by virtue of any writ of execution, for the satisfying any judgment, the plaintiff should accept the same, according to the like valuation. And for that end, one act of assembly, in the fourth year of the reign
38. of the late Queen Anne, was made, intituled, An act
directing the manner of levying Executions, and for relief of poor Prisoners for debt: But by long experience thereof, it hath been found, that the indul. gence thereby intended to debtors, hath been grossly abused, and sundry dishonest people taking advantage of the defects of the said act, have frequently tendred only such part of their goods and chattels, as were of little value, and of no use to themselves or others; and the partiality of appraisers hath also often concurred to promote such foul practices, and many creditor's have rather chosen to lose their debts, than be obliged to pay the overplus of an unjust and excessive appraisement: Which abuses daily more and more encreasing, to the great dishonour of the good people of this colony, and to the discouragement of trade, and the decrease
of personal credit among the people here: Chap 38, II. Be it enacted by the Lieutenant-Governor, Coun1705, re- cil, and Burgesses, of this present General Assembly, and pealed.
it is hereby enacted, by the authority of the same, That the said act of assembly, made in the fourth year of the reign of her said late Majesty Queen Anne, intituled,
An act directing the manner of levying Executions; and Also ch. 52, for relief of poor Prisoners for debt; and also one other 1705.
act made in the same year, to explain part of the said act, and every clause, matter, or thing, therein contained, be and are hereby repealed, and utterly made
void, to all intents and purposes. Fieri facias, III. And forasmuch, as by the common law of Eng. elegit, and land, and divers acts of parliament, which are binding capias satis. upon the people of this colony, all persons recovering facieudum, how execu- any debt, damages, or costs, by the judgment of any ted and re- court of record, may, at their election, prosecute writs turned. of fieri facias, elegit, and capias ad satisfaciendum,
within the year, for the taking the body, goods, or lands, of the person or persons against whom such judg. ment is obtained, to satisfy the same: To the end, the said several writs issuing out of any of the courts of record within this dominion, and the inanner of executing and returning the same, may be uniform throughout the whole country; and the mischiefs which may arise from the incorrect forms, and insufficient returns of such writs, may be prevented,
IV. Be it enacted and declared, by the authority aforeTeste and return.
said. That the several writs aforesaid, shall be hereafter issued in the King's name, and bear teste, by the clerk of the court out of wbich the same shall issue, and be made returnable in the general court, to some day in the next general court; and in the county courts, to the next succeeding court; so that there be always at least fifteen days between the teste and return, according to the respective forms hereafter mentioned, mutatis mutandis.
The Form of a Fieri Facias, in Debt.
France, and Ireland, king, defender of the faith,
Form of fieri
facias,indebt. &c. to the sheriff of
county, greeting: We command you, that of the goods and chattels of A. B. late in your bailiwick, you cause to be made the sum of
which C. D. lately in our general court, hath recovered against him, for debt; also the sum of
which to the said C. D. in the same court, were adjudged for his damages; as well by reason of detaining the said debt, as for his costs in that suit expended, where f he is convicted, as appears to us, of record: And that you have the said before the justices of our said court, the
day of to render to the said C. D. of the debt and damages aforesaid; and that you have there then this writ. Witness, &c.
A Fieri Facias, in Case upon a Promise.
As before, unto
for his damages which he sustained, as well by reason of his not perform- in case; ing a certain promise and assumption to the said C. D. by the said A. B. lately made, as for his costs, by him about his suit in this behalf expended, &c.
In Trespass. -As before, unto well by occasion of a certain trespass by the said A. B. to the said C. D. offered, as for costs.
for damages, as Trespass.
(If for the Defendant, say) For his costs about his defence in a certain action, at For the de
fondant. the suit of the said
for damage, &c. by occasion of the breach of a certain covenant between the said A. B. and C. D. lately made.
The Form of a Writ of Elegit. Elegit.
EORGE, &c. greeting, &c. Whereas A. B. at
our general court, before our justices held, &c. hath recovered against C. D.
which to the said plaintiff was adjudged for a certain debt or damages
as before And the said A. B. by the statute in that case made and provided, hath chosen to have delivered to him all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick; to have and to hold, the goods and chattels aforesaid, as his own proper goods, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof, the debt and damages aforesaid: Therefore we command you that you cause to be delivered all the goods and chattels of the said C. D. besides the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick, whereof he, at the day of obtaining the said judgment, was seized, or at any time afterwards by reasonable price and extent; to have and to hold, the said goods and chattels, and the said moiety, as his freehold, to him and his assigns, according to the form of the statute aforesaid, until he shall have levied thereof, the debt and damages aforesaid. And that you certify our said justices under your own seal, and the seals of those by whose oaths you shall make this extent and appraisement, how you execute this writ, the day of
And have then there this writ, &c.
The Form of a Capias ad Satisfaciendum. Capias ad sa
EORGE, &c. greeting, &c. We command you, tisfaciendum
in your bailiwick, and hiin safely keep, so that you have his body before our justices of our general court, the
to satisfy C. D. the sum of
which the said C. D. hath recovered against him for debt, &c.
And in Case, Trespass, and Covenant, as before, in
the Fieri Frecias. Which said writs so issued, shall be executed by the To be execusheriff, or other officer, or minister, to whom the same ted by sher
itf. shall be directed; and shall be returned, according to the respective forms hereafter mentioned.
The Return of a Fieri Facias. Y virtue of this writ, to me directed, I have caused Form of reto be made the within mentioned sum of
Executed, of the goods and chattels of the within named A. B. whcih said sum of
before the justices within mentioned, at the day and place within contained, I have ready, as that writ requires.
HE within named A. B. hath no goods or chattels Nihil.
in my bailiwick, whereof I can make tlie sum wit bin mentioned.
goods and chattels of the within named A. B. part. the sum of
which I have ready to render to the within named C. D. in part of the debt and damages within mentioned. And I do further certify, that the said A. B. hath no more goods and chattels within my bailiwick, whereof at present I can make the residue of the said debt and damages, as by the said writ is required.
The Return of a Writ of Elegit.
Return of el in the county aforesaid, the
egit. the year of our Lord
before me, E. F. gent. sheriff of the county aforesaid, by virtue of a writ of our Jord the king, to me directed, and to this inquisition annexed, and by the oath of G. H. I. K. &c. good and lawful men of my balliwic, who being charged and sworn, upon their oaths, do say, that A. B. in the said writ to this inquisition aunexed named, the day of