8

Adultery.

Alarms.

Arbitration.

Actions of

when under

405.

after commenced or profecuted in any County or Superior Court in this trefpafs, &c. State, (except only where the Title, or Inheritance, or Intereft of Lands or freehold Estate is the principal Matter in Question 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, Ufage or Cuftom to the contrary notwithstanding.

Provided nevertheless, That when the Defendant in any of the Actions aforefaid, fhall 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.

E it enacted by the Governor, Council, and Reprefentatives, in General Court mit Adultery with a married Woman, and be thereof convicted before the Superior Court, both of them fhall be feverely 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 shall wear a Halter about their Necks, on the outside of their Garments, during their Abode in this State, fo as it may be visible: And as often as either of them shall 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.

BE

An A& relating to Alarms.

E 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 fo 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 shutting 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 Imprifonment.

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

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

E it enacted by the Governor, Council, and Reprefentatives, in General Court affembled, and by the Authority of the fame, That all Merchants and others defiring to end any Controverfy (for which they have no other Reme dy but a perfonal Action, or Suit in Equity) by Arbitration, may agree that their Submiffion of the Suit to the Award or Umpirage of any Perfons, 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 Submission, or the Condition of the Bond, or Promise; and on producing an Affida vit of fuch Agreement, and upon reading, and filing the fame in the Court

fo

fo chofen, the fame may be entered of Record in fuch Court, and a Rule of Court fhall 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 fo chofen, 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.

And be it further enacted by the Authority aforefaid, That if any Merchant, or other Perfon defiring to end any Controverfy, as aforefaid, by Arbitration, fhall perfonally appear before any Superior, or County Court, and acknowledge 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 so 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 aforefaid, That when any perfonal Action fhall be commenced, the Parties in fuch Action defiring to refer the fame, on each Party's choofing 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 Coft.

An Act concerning Arrefts and Imprisonment.

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 thail be arrested and imprisoned for any Debt, Damage, or Fine, where fufficient Means of Satisfaction can otherwife lawfully be found, from his Eftate, to be shewn and presented by him; but if no fuch Satisfaction can be found, his Perfon may be arrested and imprifoned: Where he fhall be kept at his own Charge, 'till Satisfaction be made; unless the Court that hath Cognizance of the Caufe, 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 Prifon, without a Mittimus granted and figned by Civil Authority; declaring the Caufe and Ground of his Commitinent, requiring the Goaler, Master, 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 Perfon or Perfons by Execution or Diftrefs, or Warrant for Fines or Rates, and commit him or them to Prison; in which Cafe a Copy of the Execution or Distress, 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 Perfon 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 fhali judge it reasonable; in which Cafe the Superior or County Court fhall have Power to order and difpofe of fuch

B

Debtor

No Man's perfon to be imprisoned for debt, &c. in cafe, &c.

Provifo,

Debtor to fatisfy the debt safe, &c.

by fervice, in

Provifo.

Any eftate being attach

ed, copy to be left.

If real eftate

is taken, copy

to be left with the town clerk

Debtor in Service, for the Purpose aforefaid, to fome Inhabitant of this
State, whether the Execution by which he is held iffued from fuch Court

or not.

Provided always, That no Court in this State fhall, in any Civil Cafe, affign or difpofe of any Perfon in Service, until fuch Court is fatisfied by the Oath of the Parties or other ways, that fuch Debtor hath not Estate fufficient to pay the Debt for which he is holden by Execution, except fuch Neceffaries as are by Law exempted from being taken by Execution; and the Debt for which he is holden is really and bona fide due, on good Confideration.

BE

An A&t concerning Attachments.

E it enacted by the Governor, Council, and Representatives, in General Court affembled, and by the Authority of the fame, That when any Eftate real or perfonal, is attached by Virtue of a Writ of Attachment in any Civil Action, the Officer who ferves the fame, fhall leave with the Perfon whose Estate is fo attached, or at the Place of his ufual Abode, if within this State, a true and attefted Copy of the Writ, and of his Return, defcribing the Eftate by him attached, thereon. And when any real Eftate is taken, the Officer ferving the Writ, fhall leave a true and aftefted Copy thereof, and a Defcription of the Eftate taken, at the Town Clerk's Office, in the Town where the Eftate lies; and until the Service is fo compleated, the Eftate fo attached, fhall not be held by fuch Attachment, against any other Creditor or bona fide Purchafer, unlefs fuch Copy is left in Service, within feven Days next after attaching the Eftate, and before the Time limited by Law for the Service of fuch Writ is expired.

And be it further enacted by the Authority aforefaid, That no Eftate attached as aforefaid, fhall be held to refpond the Judgment obtained by the Plaintiff at whofe Suit the fame is attached, either against the Debtor, or any other Creditor, unless fuch Judgment Creditor take out Execution on fuch Judgment, and have the fame levied on Goods or perfonal Estate, within fixty Days after final Judgment, or on real Estate, and the fame have appraised and recorded within four Months after fuch Judgment obtainfour months. ed: or if faid Goods or Eftate are incumbered by any prior Attachnient, the Execution be levied as aforefaid within the refpective Times aforefaid, after fuch Incumbrance is removed.

Eftate attached, not to be held, unless,

&c. within

Execution to

be levied within five

days, or pri

foner not to be held.

And that when the Body of any Perfon is attached, and for want of Bail is committed to Prifon, the Perfon fo committed fhall not be holden in Prifon by Virtue of fuch Attachment, for a longer Time than five Days after the rifing of the Court in which final Judgment in fuch Cafe fhall be rendered: And in Cafe no Execution fhall be taken out upon fuch Judgment, and levied upon the Perfon of fuch imprifoned Debtor, within five Days as aforefaid, the Keeper of the Goal, upon his Fees being paid, may not hold fuch Prifoner any longer by Virtue of faid Commitment, any Law, Ufage or Cuftom to the contrary notwithstanding.

[This Act was paffed in October, One thousand feven hundred and feventy.]

An Act for the Appointment and regulating Attornies,

For the well-ordering Proceedings and Pleas at the Bar:

E it enacted by the Governor, Council, and Reprefentatives, in General Court affembled, and by the Authority of the fame, That the County Courts in the refpective Counties in this State, fhall appoint, and they are hereby

impowered

The county courts to ap nies in their point attorrefpective

impowered to approve of, nominate and appoint Attornies in their refpec-
tive Counties, as there fhall be occafion, to plead at the Bar: Which
Attornies fhall, before fuch Court, take the Oath by Law provided for
Attornies: The Administration and taking of which Oath, together with
the faid Appointment, fhall be registered by the Clerk of the faid Court counties.
and be a fufficient Evidence of his Admiffion as an Attorney at the Bar.
And that no Perfon (except in his own Cafe) fhall be admitted to make
any Plea at the Bar in any Court, but fuch as are allowed and qualified
Attornies, aforefaid.

And whofoever fhall tranfgrefs the Rules of Pleading, appointed by any
Court, fhall be liable to fuffer fuch Fine for every fuch Offence, as the faid
Court fhall impofe; not exceeding the Sum of Five Shillings.
And that in all Actions wherein the Title of Land is not concerned,
and the Demand is not above Ten Pounds, there fhall be allowed but one
Attorney on a Side, to plead at the Bar: But in all other Cafes there fhall
be allowed to each Party two Attornies to plead at the Bar; and no

more.

And the Fees of such Attornies fhall be as ftated in the Table of Fees: And the Party that fhall recover Judgment, fhall have his Attorney's Fees according to the above Regulation, allowed as Part of Coft of Trial.

And it is further enacted by the Authority aforefaid, That in each County in this State, there fhall be one State Attorney, who fhall profecute, manage and plead in the County where fuch Attorney is appointed, in all Matters proper for, and in behalf of the State. Which Attornies fhall alfo be appointed by the respective County Courts.

And that the feveral Attornies, who fhall be allowed and appointed as aforefaid, fhall from Time to Time, be under the Directions of the Courts before whom they plead; who upon juft Reason, fhall and may difplace, and wholly fufpend any of faid Attornies, or fine them, as is before in this A&t provided.

An Act relating to Auditors and Actions of Account.

Baffembled,

No perfons to plead at the bar, except. Tranfgreffors of the rules fined.

When two attornies are to be allowed.

Their fees as in the table of fees.

State attorney appointed in each

county.

The courts power to dif place attor nies, &c.

Actions of ac

count how. proceeded

E it enacted by the Governor, Council, and Reprefentatives, in General Court affembled, and by the Authority of the fame, That when any Defendant in any Action of Account, depending in any Superior or County Court in this State, fhall plead in his Defence any Plea (which being true he ought with. not to account), it shall be tried by a Jury, if either Party defire it: And in Cafe the Iffue be found against the Defendant by the Jury or otherwise, the Court fhall enter Judgment against him that he shall account: And thereupon fhall appoint three able, judicious and difinterested Men, Auditors n fuch Cafe; who fhall be fworn to hear, examine and adjust the Account or Accounts: And the Auditors appointed as aforefaid, are hereby authored and impowered to appoint Time and Place for the hearing and adjaftig the Accounts aforefaid.

Defendant's refufal to appear, plaintiff whole de

to recover his

And upon the Defendant's Refufal (due Notice being given him of the Time and Place appointed) to attend upon them and produce his Accounts, the Auditors fhall award to the Plaintiff the Whole of his Demand; and upon the Parties producing to them their Accounts, the Auditors fhall have Power to administer an Oath unto them to answer to fuch Interroga- mand. tories as they fhall think proper, refpecting their Accounts: And upon either of the Parties Refufal to take fuch Oath, or to answer directly to fuch Interrogatories, it fhall be in the Power of the Auditors to commit the Party fo refufing to Gaol; there to remain at his own Charge, until he will account or anfwer as aforefaid. B 2 And

12

On return of auditors, final judgment to be given.

Like remedy in actions on book, if above 51.

count be

Auditing the public Accounts.

And when the Auditors have adjusted the Accounts, or awarded as aforesaid, and returned the fame to the Court, (either at the fame Seffion or the next) that final Judgment fhall be made up for the Recovery of the Sum awarded and the Cofts, together with fuch reasonable Cofts for the Service of the Auditors, as the Court fhall award; which fhall be by the Party in whofe Favour the Caufe is determined, then paid down to the Auditors; and fhall be allowed him in his Bill of Cofts.

And be it further enacted, That in all Actions brought on Book Accounts, if the Account be alledged to be above Five Pounds, the like Method may be taken in appointing Auditors for the Adjustment of the Accounts between the Parties; and whofoever fhall be awarded by them to be in Arrears, the Court fhall enter up Judgment for the fame, with additional Cofts as aforesaid.

And be it further enacted by the Authority aforefaid, That Executors who Action of ac- are alfo refiduary Legatees, when all or any Part of their Legacies are with-holden from them by their Co-executors, may bring their Action of Account against their Co-executors for the Recovery thereof: And the like Action is also hereby allowed to refiduary Legatees against Executors.

tween executors, &c.

Alfo,

That when two or more Perfons have and hold any Eftate or Intereft, in Common, as Joint-Tenants, Tenants in Common, or Co-parceners, and one or more of the Owners of fuch Common-Intereft, fhall take, receive, use, or take Benefit of, fuch Common Intereft in greater Proportion than Between joint his or their Interest in the principal Estate, fuch Owner or Owners, his tenants, &c. or their Executors and Adminiftrators, shall be liable to render his or their reasonable Account, for fuch his or their taking, ufe and profit of fuch Common-Intereft and Eftate, to his or their Fellow-Commoner or Commoners, jointly or feverally; and that fuch their Fellow-Commoner or Commoners, or any or either of them, their Executors or Administrators, may and are hereby enabled to have his or their Action of Account against fuch Receiver or Receivers, or either of them, as their Bailiffs for receiving more than their Part or Proportion as aforefaid.

No appeal.

Auditors to

be annually appointed in October, &c.

Treasurer's duty.

And no Appeal thall be allowed from any Judgment given on an

Award of Auditors.

An A&t for regulating and auditing the public Ac

counts.

FOR preventing Inconveniences in the public Accounts, and that ng Arrears in the State's Accounts be ftanding out after the Year be expired.

E it enacted by the Governor, Council, and Reprefentatives, in General Court affembled, and by the Authority of the fame, That meet Perfons fhall by this Court be appointed annually in May, to make up and audit the State's Accounts with the Treasurer; which Accounts fhall be audited and perfected before the fitting of the General Court in October yearly. And all fuch Perfons as fhall be appointed to audit faid Accounts, fhall before their entering upon that Service, take the Oath provided by Law for fuch Auditors.

And the Treasurer is hereby obliged to make himfelf Debtor for the feveral Sums due from every of the Towns in this State, and also for all Fines belonging to the State Treafury; and fo for the whole Rate or Sum Total arifing, by bringing the feveral particular Sums into one intire Sum; and to bring in Credit (according to Law) until he fhall confummate and perfect the State's Account as aforefaid.

And