about any highway; eighthly, or for the felonious stealing of any horse, gelding or mare; ninthly, or for the felonious breaking of any dwelling house by day, and taking away of any goods or chattels, being in any dwelling house, the owner or any person being therein and put in fear. SEC. 2. The benefit of clergy shall not be allowed to principals in the second degree, in any of the cases abovementioned. SEC. 3. It shall not be allowed to accessories before the fact: First, in murder; secondly, or burglary; thirdly, or arson at common law; fourthly, or for the wilful burning of any court house or county or public prison, or of the office of the clerk of any court within this Commonwealth; fifthly, or for the robbing of any person or persons in their dwelling houses or dwelling places, the owner or dweller in the same dwelling house or dwelling place, his wife, his children or servants then being within and put in fear and dread by the same; sixthly, or for the robbing of any person or persons in or near about any highway. SEC. 4. It shall be allowed to principals and accessories in all offences which would otherwise be without clergy, whether the same be newly created by any act of the General Assembly, or exist under the common law, unless it be taken away by the express words of some act of assembly. SEC. 5. It shall not be allowed to any person more than once, except in the following case, that is to say: Whensoever any person shall have been admitted to the benefit of clergy, such admission shall not operate as a pardon or discharge for other offences of a clergyable nature, committed by him before that admission to the benefit of clergy, but he shall be again allowed the benefit of clergy for every other offence of a clergyable nature committed by him before that admission to the benefit of clergy, and shall be burned in the hand for every such offence. SEC. 6. But if any person who shall have been once admitted to the benefit of clergy, shall before that admission have committed any offence, in which the benefit of clergy is not allowed by law, or shall after that admission, commit any offence in which the benefit of clergy is even allowed by law, he shall suffer death without the benefit of clergy. Females entitled to it in SEC. 7. A female shall in all cases receive the same judgment and stand in the same condition with respect to the benefit of clergy, like manner as as a male. SEC. 8. A slave shall in all cases receive the same judgment and stand in the same condition with respect to the benefit of clergy, as a free negro or mulatto. SEC. 9. Nothing in this act contained shall be construed to take away the benefit of clergy, from any offence, in which it is now allowed by any act of the General Assembly, or to allow it in any males, And slaves as free negroes or mulattoes. Not taken away by this act when ex pressly allowed by any other, or allowed when expressly taken away. offence, from which it is now expressly taken away by any act of the General Assembly. [The above act is introduced on account of the particular phraseology of the thirteenth section of the act to amend the penal laws, which leaves it doubtful whether slaves are not still entitled to the benefit of its provisions. That section declares that "all claims to dispensation from punishment, by benefit of clergy, shall be and are hereby abolished.”—2 Litt. 14. The forty-fourth section of the same act declares that "slaves are excluded from the provisions of this act."-2 Litt. 26.] TITLE 44. CLERK S. Clerk of court of appeals, how appointed, to 1796. IN FORCE FROM FIRST JANUARY, 1797. AN ACT establishing the Court of Appeals: Approved December 19, 1796.—1 SEC. 4. The court of appeals, or the judges thereof in vacation, shall appoint the clerk of the said court, who, before he enters upon the duties of his office, shall take the oath prescribed by the constitution, to be taken by all officers of the Commonwealth, and shall give bond to the [Governor for the timebeing,] in a reasonable penalty, with one security at least, to be approved by the said court, The condi- or the judges thereof; conditioned faithfully to discharge the duties take oath and give bond. tion thereof. The clerk of of his office, and seasonably to record the decrees, judgments and orders of the said court; which bond shall be recorded in the said court of appeals, and shall not be void on the first recovery, but may be put in suit and prosecuted from time to time, at the costs and charges of any party or parties injured, until the whole sum of the penalty expressed in such bond be recovered thereon. SEC. 14. The clerk of the court of appeals shall carefully precourt of appeals serve the transcript of records certified to his court, with the bonds to preserve re- for prosecution, and all papers relating to them, and other suits depending therein, docketing them in the order he shall receive them that they may be heard in the same course, unless the court for good cause to them shown, direct any to be heard, out of its turn. cords, papers, &c. To draw up the proceedings each day. The proceedings of every day during a term, shall be drawn at full length by the clerk against the next sitting of the court; and such corrections as are necessary being first made therein, they shall be signed by the presiding judge. IN FORCE FROM ITS PASSAGE. AN ACT to reduce into one the several acts concerning the examination and trial of Criminals, Grand and Petit Juries, Venires, and for other purposes: Approved December 19, 1796.-1 Litt. 470. SEC. 22. The clerks of the said superior courts shall, in a book by them kept for that purpose, enter the names of all venire men and witnesses who attend the trial of criminals at such courts, the number of days each shall attend, the number of ferries each shall have crossed, with the distances they shall have travelled on that occasion. A certificate of which from the said clerk shall entitle the person to whom it is given to a warrant from the auditor for the amount, and to payment at the treasury according to law. IN FORCE FROM ITS PASSAGE. AN ACT to reduce into one, the several acts or parts of acts concerning sheriffs:- SEC. 25. The clerks of every court respectively shall, annually, before the first day of March, deliver or cause to be delivered to the sheriff of every county in this commonwealth respectively, their accounts of fees due from any person or persons residing therein, having first made the proper deductions at the foot of every such account, which shall be signed by the clerks respectively; and the said sheriffs are hereby required and empowered to receive such accounts, and to collect, levy and receive the several sums of money therein charged of the persons chargeable therewith; and if such person or persons after the said fees shall be so demanded, shall refuse or delay to pay the same till after the tenth day of April in any year, the sheriff of the county wherein such person inhabits, or of the county in which such fees become due, shall have full power, and is hereby required to make full distress of the slaves or goods and chattels of the party so refusing or delaying payment, either in that county where such person inhabits or where the said fees become due. * Clerks to deliver their fee bills to sheriffs, and when. Sheriff may distrain if not paid. No suit or warrant to be brought on fee bills, unless the person charge SEC. 28. But no action, suit, or warrant from a justice, shall be had or maintained for clerk's or surveyor's fees, unless the sheriff's shall return that the person owing or chargeable with such fees, hath not sufficient within his bailiwick whereon to make distress, except where the clerk or other officer as aforesaid, shall have lost his fee book by fire or other misfortune, so that he be hindered from which to make * See the alteration of the above section by act of Feb. 20, 1808, post. able has not property on distress. Exceptions. putting his fees into the sheriff's hands to collect, and in that case any suit or warrant may be had and maintained for the recovery thereof. And if any sheriff shall be sued for any thing by him done in pursuance of this act, he may plead the general issue, and give this act in evidence. 1798. ferior courts & their deputies to take an oath. Form thereof. IN FORCE FROM FIRST OF MARCH. AN ACT to reduce into one the several acts respecting Clerks: Approved February 3, 1798.-2 Litt. 83. SEC. 1. Be it enacted by the General Assembly, That every Clerks of in-person hereafter admitted into office by any county, or other inferior court, as clerk or deputy (a) clerk of such court,shall at the time of his admission or appointment to such office, take the following oath: "I, A. B. do swear, that I will well and truly exercise the office of according to the best of my skill and judgment, making due entries and records of all orders, judgments, decrees, opinions, or proceedings of the court, and carefully filing and preserving in my office all books and papers whatsoever, which shall be delivered me in charge, or otherwise come to my hands or possession by virtue of my said office; and that I will not wittingly or willingly commit any mal-feasance of office, but in all things and at all times keep my said office free and accessible to every person having a right or claim to business therein, and faithfully executing the duties thereof, without favor, affection, or partiality. So help me God." And if any person shall presume to execute the office of clerk or deputy clerk (b) of any county or other inferior court without taking such oath, he shall forfeit and pay five hundred pounds, and suffer one year's imprisonment, without bail or mainprize. Any person executing the office without such oath to forfeit £500, and be imprisoned. Penalty for knowingly ma king a false entry or altering the record. SEC. 2. If any clerk shall wittingly make any false entry, or raze, alter or change any record in his keeping, belonging to his office, every such clerk so offending shall be amerced and imprisoned at the discretion of a jury, and shall moreover be liable to the action of the party grieved. And if any judgment shall be reversed by reason of any such false entry, razure, alteration, or change, the party grieved may sue by writ of error, or otherwise according to the law, if he see it expedient for him. (a) Any certificate which the clerk in the course of his official duty might make, may be made by his deputy, and the initials attached to his name importing that he is deputy, is equivalent to a full expression of it.-Moore v. Farrow, 3 Mar. 41. 2. Clerks cannot limit and restrict the power of their deputies.--Ellison v. Stevenson, 6Mon. 275. 3. A deputy clerk may allow the claims of witnesses, and tax the costs.-Ibid. (b) By our act of assembly, taking the oaths of office is necessary to give deputy any legal authority; at common law, a parol appointment was sufficient, and even now process issued by one so appointed or authorized, is not void.Commonwealth v. Arnold, 3 Litt. 316. SEC. 4. And be it further enacted, That it shall not be lawful for the court of any county, or the clerk of such court, to remove or cause to be removed the records and papers of the same, or any part thereof without the county, except in cases of actual invasion or insurrection, where, in the opinion of the court, the same will be endangered, or where for want of such opinion, occasioned by the suddenness of the alarm or danger, the clerk shall at his own discretion remove the same, returning them as soon as the alarm or danger ceases, or except also in other cases heretofore provided for by law; any member of a court, or clerk of the same, offending herein, shall forfeit and pay two hundred pounds. SEC. 6. And be it further enacted, That the clerk of every court shall enter in a docket, or book to be kept by him for that purpose, a list of all executions by him issued, the name of the person to whom delivered, and what return is made thereon, in case the same be returned, and shall constantly carry the said book to his court. 1798. IN FORCE THREE MONTHS AFTER ITS PASSAGE, AN ACT to reduce into one the several acts for the better regulating and collecting SEC. 8. Upon the resignation or removal from office of any clerk of the court of appeals, or any district court, court of quarter sessions or county court, such clerk shall immediately, upon application deliver to such person or persons as their respective courts shall appoint for that purpose, all books, records and other papers belonging to his office; and any clerk who shall fail or refuse to deliver such books, records and papers to such person or persons as shall be appointed by the courts respectively to receive them, upon application, shall forfeit and pay one thousand dollars, to be recovered by action of debt, or information, in any court of quarter sessions or district court, or any other court having cognizance of the same, and shall moreover be guilty of a contempt of the court to which he may be. long, and shall also be guilty of a high misdemeanor, and punished with fine and imprisonment. SEC. 9. The judges of the superior courts, and the justices of the quarter session and county courts, shall annually appoint three fit and proper persons to examine the offices of their clerks, and compare the records with the papers filed in the several suits in the respective offices, and report the state of the office to the court by |