three hundred dollars, unless he or she shall make a sufficient excuse for such non-attendance, which shall be judged of by the court; but shall nevertheless be subject to the action of the person at whose suit such witness shall have been summoned, for any damage which he, and liable to she, or they may have sustained, by reason of such non-attendance.

damages.'

till dis

20. Sec. XXI. When a subpoena shall be served on any witness, Must attend in conformity to this act, it shall be the duty of sucl: person so sum- charged. moned to attend, from time to time, until the cause in which such witness shall have been summoned is tried, or be otherwise discharged by the court.

and mode of payment.

21. Sec. XXII. On the last day of the attendance of any witness Their fees, in each term, it shall and may be lawful, on application of such witness, to exhibit his account for attendance, against the person or persons at whose suit he or they may have been summoned, and the judge or presiding justice shall examine and certify the same under his hand, which shall be countersigned by the clerk, whereupon such account so certified, shall have the force and effect of an execution, and may be levied by the sheriff or constable, according to the amount thereof, off the goods and chattels of such party, in like manner as in cases of other executions. Provided nevertheless, that where any witness shall claim, and levy for more than is really due, such witness shall forfeit and pay to the party injured four times the amount of the sum so unjustly claimed. And no party cast in any suit shall be taxed for more than the cost of two witnesses to any Two witnessmaterial point in any cause, which shall be specially certified by the material court trying the same; nor shall any party be allowed to tax costs for point. different witnesses to different material points, where the same witnesses shall be sufficient, in the opinion of the court, to prove such material points.

es to every

out of the

22. Sec. XXIII. Where any witness resides out of the State, or Interrogatoout of any county in which his testimony may be required in any where wit ries may issue cause, it shall be lawful for either party, on giving at least ten days' ness resides notice to the adverse party, or his, her, or their attorney, accompanied county. with a copy of the interrogatories intended to be exhibited, to obtain a commission from the clerk of the court in which the same may be required, directed to certain commissioners, to examine all and every such witness or witnesses, on such interrogatories as the parties may exhibit; and such examination shall be read at the trial on motion of either party.*

SETS-OFF AND SPECIALTIES.

23. Sec. XXIV. In all cases of mutual debts and sets-off, where Sets-off. the jury shall find a balance for the defendant, such defendant may and shall enter up judgment for the amount, and take out execution in such manner as plaintiffs may do by this act : Provided, such defendant shall at the time of filing his answer, also file therewith a true copy or copies of the subject matter of such sets-off; and where the plaintiff shall be indebted to the defendant on open account for dealings between themselves, and where the defendant shall hold and possess in his own right, by assignment, endorsement, or otherwise, according to law, any bond, note, bill, or other writing, for money, or other thing of the said plaintiff's, such defendant shall and may offer the same as sets-off, and on due proofs shall be allowed the same.

* For the examination de bene essee of witnesses removing out of the jurisdiction of the State, see Act of 1806 (Evidence, Sec. 27) re-enacted in 1823 (Evidence, Sec. 24) Of Females, Act of 1829. Evidence, Sec. 37, &c.

Bonds, notes, &c. of equal

negotiable.

24. Sec. XXV. All bonds, and other specialties, and promissory dignity, and notes, and other liquidated demands, bearing date since the 9th day of June, 1791, whether for money, or other thing, shall be of equal dignity, and be negotiable by endorsement, in such manner and under such restrictions as are prescribed in the case of promissory notes. Provided that nothing herein contained shall prevent the party giving any bond, note, or other writing, from restraining the negotiability thereof, by expressing in the body thereof such intention.*

Verdicts and judgments.

cution.

VERDICTS AND JUDGMENTS.

25. Sec. XXVI. In all cases where a verdict shall be rendered, the party in whose favor it may be, shall be allowed to enter and sign judgment thereon at any time within four days after the adjournment of the court, at the clerk's office, for the amount of such verdict and all legal costs recoverable thereon, and no execution shall issue on any verdict until such judgment shall be entered, signed by the party or his attorney; and all the property of the party against whom such verdict shall be entered, shall be bound from the signing of the first judgment; but where several judgments shall be of equal date, the first execution delivered to the sheriff shall be the first satisfied:§ ProStay of exo- vided always, that any party against whom such judgment shall be entered, may enter good and sufficient security, either in open court or in the clerk's office, within the time aforesaid, for the payment of the judgment and costs within sixty days; and if such party shall not pay the same agreeably thereto, execution may issue against such party, and the security, without any other proceeding thereon: And provided also, that in case either party shall be dissatisfied with the verdict of the jury, then, and in all such cases, either party may, within four days after the adjournment of the court in which such verdict was ob tained, enter an appeal in the clerk's office of such court (as matter of right;) and if such verdict shall be obtained in the inferior court, it shall be the duty of the clerk thereof to transmit such appeal to the clerk of the superior court of the county in which such verdict shall be obtained, who shall enter the same on the appeal docket, which appeal|| shall be admitted and tried by a special jury. Provided the person or Upon paym't persons so appealing shall, previous to obtaining such appeal, pay all of costs and costs which may have arisen on the former trial, and give security for the eventual condemnation money, except executors and administrators, who shall not be liable to give such security; but if, on hearing such appeal, it shall appear to the jury that the appeal was frivolous, and intended for delay only, they shall assess damage to the party aggrieved 25 per cent. by such delay, not exceeding twenty-five per centum on the principal sum which they shall find due; and such damages as shall be so assessed, shall be specially noted in the verdicts of such jurors, and no person shall be allowed to withdraw an appeal after it shall be entered but by the consent of the parties. And in case of a jury committing a contempt, or breaking up before giving in their verdict in any civil

Appeal.

entering security.

dam. may given for frivolous appeals.

be

By the Act of 1826, (Sec. 182,) indorsers (except on notes in bank) are not entitled to notice, and may be treated as other sureties. For damages, &c. on dishonored bills drawn on places in other States, see Sec 147. If drawn on places out of the United States, see Sec. 184, &c. The interests of sureties protected by Act of 1831. See Sec. 216, 217.

Except military equipments. See Militia, 21.

And see Justices of the Peace, Sec. 23. How far recovery in Trespass or Trover vests the property in defendant, see act of 1830, Sec. 199, 200. As to the fraudulent enforcement of dormant judgments, see acts of 1822 and 1823. Sec. 130, 131, 132, 165.

§ This provision repealed by act of 1822. See Sec. 131.

As well from courts of ordinary, as other appeals. Act of 1823. Sec. 149.

case, the court may declare the same a mis-trial, and shall fine each Mis-trial. of the offending juror or jurors in a sum not exceeding one hundred dollars. And if any party, plaintiff or defendant, be hereafter nonsuited or cast, by reason of the neglect or misconduct of the attorney, who shall hereafter bring or be employed in such suit, in all cases Attorney liathe said attorney shall pay all costs that may accrue thereby, and the in certain court shall immediately enter up judgment accordingly for the same.

ble for costs

cases.

26. Sec. XXVII. No confession of judgment shall hereafter be Confession of entered up, but in the county where the defendant or defendants may judgment. reside, or unless the cause hath been regularly sued out and docketed in the usual way as in other cases, nor until such cause be called in order by the court for trial.

on unliqui

27. Sec. XXVIII. No verdict shall be received on any unliquidated No interest demand where the jury have increased their verdict on account of in- dated deterest, nor shall interest be given on any open account, in the nature mands. of damages.

Sec. XXIX. [Superseded by act of 1812.]

ARBITRATION.

28. Sec. XXX. In all matters submitted to reference by parties, Arbitration. in a suit under a rule of court or other agreement in writing signed by the parties, judgment shall be entered up by the party in whose favor the award is given, and execution shall issue for the sums awarded, to be paid as they respectively become due, and to be levied on the property of the party against whom the judgment shall have been entered up, and such other proceedings shall be had thereon by the court, as in cases of judgments entered up on verdicts of juries. Provided, that no judgment shall be entered upon an award, where it shall appear any other cause or causes stand on the docket of the court against the defendant or defendants, undetermined, before the cause in which a rule or other agreement in writing for arbitration is entered.

EXECUTIONS.

Sec. XXXI. [Respecting executions-superseded, see Sec. 72-3.]

29. Sec. XXXII. In all cases where execution shall issue illegally, Illegality in and the person against whom such execution may be shall make oath executions. thereof, and shall state the causes of such illegality, such sheriff shall return the same to the next term of the court out of which the same issued, which court shall determine thereon, at such term. [The residue of this section relates to claims, and is superseded by the act of 1821: see Stc. 124, &c.]

30. Sec. XXXIII. No sales in future shall be made by sheriffs of Sales by exproperty taken under execution, but on the first Tuesday in each ecution. month, and between the hours of ten and three in the day;* and it Hours of sale. shall be the duty of the sheriffs to give thirty days' notice in one of the public gazettes of the State, of all sales of lands and other property executed by him, and also advertise the same in three of the most public places in the county where such sales are to be made, and shall give a full and complete description of the property to be sold, making known the name of the defendant, and the person who may be in possession of the property, except horses, hogs, and cattle, which may be Sale of live sold at any time by the consent of the defendant; and in which case it shall be his duty to give the plaintiff ten days' notice thereof, and also

* From ten o'clock in the forenoon till four in the afternoon, act of 1821. See Sec. 129. Purchasers of real estate to be put in possession. Act of 1823, Sec. 163. Purchasers of personal property under incumbrance to give bond, Sec. 206, &c. As to any purchaser who may fail to comply with the terms of sale, sce Sec.

222-3.

stock.

Clerks' duty.

Must be sworn, and give bond

The oath.

to advertise the same in three or more of the most public places in the county where such property may be, at least ten days before the sale.

CLERKS.

31. Sec. XXXIV. The clerks of the several courts in this State, shall copy into a book of record, all the proceedings in all civil cases in the said courts respectively, which entry of record shall be made within forty days after the determination of any cause; and the said clerks shall be allowed the sum of ten cents for every hundred words of recording such proceeding, to be taxed in the bill of cost.* And the said clerks shall also keep regular and fair minutes of all the proceedings in any of the said courts, which shall be signed by the judge of the superior, or presiding justices of the inferior courts (as the case may be) prior to the adjournment from day to day.

32. Sec. XXXV. The clerks of the said superior and inferior courts, hereafter to be appointed, shall, before they enter upon the and security. duties of their appointments, and after being commissioned by the governor, take the following oath before one of the judges of the superior courts, or a justice of the inferior court of the county: "I do solemnly swear (or affirm) that I will truly and faithfully enter and record all the orders, decrees, judgments, and other proceedings of the superior (or inferior) court of the county of and all other matters and things which by law ought by me to be recorded, and that I will faithfully and impartially discharge and perform all the duties required of me, to the best of my understanding." And shall also enter into bond with one or more good and sufficient security or securities, to the governor for the time being, in the sum of $3,000, conditioned for the faithful discharge of the duties required of them: And the said clerks shall in virtue of their offices be justices of the peace, so far as to administer all oaths appertaining to the business of their office.

May admin

ister oaths appertaining to their off:

cial business. Not to act as attorney.

33. Sec. XXXVI. No clerk of a court or other person employed in his office, shall act as attorney in his own name, or the name of any other person, or be allowed to plead or practise in such courts, during the time he shall be employed in such office: And the same person May be clerk may be clerk of the superior and inferior court of the same county; Provided, that nothing herein contained shall extend to prevent any officer of the court from prosecuting or defending any suit to which he is a party.

of both

courts.

Duty of solicitor and attorney gen.

In case of their absence, the

court may appoint.

Pheir qualifications.

LAW DEPARTMENT.

34. Sec. XXXVII. It shall be the duty of the State's attorney and solicitors, or one of them, to prosecute all delinquents for crimes and other offences, cognizable by the said courts, and all civil actions in which this State shall be concerned, and to give advice or opinion in writing to his excellency the governor, in questions of law in which the State may be interested. And in case it should so happen, that neither the State's attorney or solicitors, or either of them, can attend the said courts, then the judge presiding may, and he is hereby authorized and required, to appoint some attorney at law, to prepare and prosecute the indictments and other business of the State; and such person so appointed shall be entitled to the same fees and emoluments therein, as the State's attorney or solicitors would have been entitled to.

JURIES.

35. Sec. XXXVIII. All free male white citizenst above the age

The justices of the inferior courts are authorized to allow annually to their clerks compensation for extra services. Resolution 27th November, 1802. Vol.

II. 677.

But as to clergymen, see Sec. 64.

of twenty-one years, and under sixty years, are declared to be qualified and liable to serve as petit jurors for the trial of all civil causes for recovery of debts or damages, to any amount whatsoever; but no person shall be capable to be of a jury for the trial of treason, felony, breach of the peace, or any other cause of a criminal nature, or of any estate of freehold, or of the right or title to any lands or tenements, in any court of record within this State, who shall not be qualified to vote at elections for members of the legislature; and if any person not qualified as aforesaid, shall be returned on any jury, he shall be discharged on the challenge and proof thereof, of either of the parties to such suit, or on his own oath, of the truth thereof: Provided, that no exception against any juror, on account of his qualification, shall be allowed after he is sworn.

Sec. XXXIX and XL. [Directing the mode of selecting and drawing juries superseded by act of 1805. See Sec. 57.]

not less than

36. Sec. XLI. No grand jury shall consist of less than eighteen or Grand jury more than twenty-three, but twelve may find a bill or make a present- 18, nor more ment. [The rest of this section superseded. See sec. 57, 96]

than 23.

issue.

37. Sec. XLII. The clerk of the court shall annex a pannel of the Precept to jury, containing the names of the persons drawn to serve on the grand inquest, exactly transcribed from the minute-book to the precept for summoning such grand jury; and shall also annex another pannel containing the names of the persons drawn as petit jurors for the trial of civil and criminal cases, exactly transcribed as aforesaid, to the precept for summoning the petit jurors, in the mandatory part of which precept shall be written the words following, viz.; "The several persons named in the pannel hereunto annexed," which precept, with the several pannels annexed as aforesaid, shall be delivered by the clerk of the court within three days after the drawing of such juries as aforesaid, to the sheriff of the county or his deputy.

summoned

summons.

38. Sec. XLIII. The sheriff or his lawful deputy for the time Juries to be being, upon the receipt of any precept for summoning grand or petit jo days be jurors, shall cause the several persons whose names are written in the fore court. pannel thereunto annexed, to be served with a summons, at least ten days before the sitting of the court for which they are drawn and impannelled; which summons shall be in the following words, or words to that effect: " By virtue of the precept to me directed, you are here- Form of the by commanded to appear before the judge of the superior court, at the next superior court, to be held at the court-house in and for the county of, on the day of, at ten o'clock in the forenoon of that day, to be sworn on the grand jury (or as a juror for the trial of civil and criminal causes then and there depending, as the case may be :") which shall be signed by the sheriff or his lawful deputy for the time being; which sheriff or lawful deputy aforesaid, shall make return of all such precepts, in each of which he shall set forth the names of all such persons as shall have been summoned by virtue of such writs or precepts, and the time when they were summoned, and also the names of the persons whom he may not have summoned, together with the reasons why they were not summoned, on pain of being fined by the court. 39. Sec. XLIV. The clerk of the court shall make due entry in Defaulting the minute book of such court of the appearance of all jurors, and shall juron may likewise enter and make report of the names of all such as shall make default in appearing; that if any person who shall be drawn, empannelled, summoned, and returned to serve as jurors at any court as aforesaid, shall neglect or refuse to appear, or after appearance shall refuse to serve, or shall absent himself without leave of the court, then and in that case, it shall be lawful for the court to fine such person,

be fined.