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Actions Civil.


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ing the Suit, if the Cause of Action furvive to the furviving Plaintiff or
Plaintiffs, or against the furviving Defendant or Defendants, the Writ or
Action fhall not abate; but fuch Death being suggested upon the Record,
the Action fhall proceed.

An Act relating to the Age, Ability and Capacity of


E it enacted by the Governor, Council, and Representatives, in General Court affembled, and by the Authority of the fame, That all Perfons of the Age of Twenty-one Years, of right Understanding and Memory, whether excommunicated or other, (not otherwife legally incapable) fhall have full Power, Authority and Liberty to make their Wills and Teftaments, and all other lawful Álienations of their Lands and other Eftates; and to give their Vote, Verdict or Sentence in any Matter or Caufe. And all fuch Perfons of the Age of Seventeen Years, fhall have Power and Authority to difpofe of their perfonal Estate, by Will or Testament. And the Age for choofing Guardians, fhall be fourteen Years for Male, and twelve Years for female Children.

Writ not to abate by the death of one

of the par

ties, &c.

Age for difpofing of

real estate

by will, &c.

Age for difpofing of personal eftate: And for choofing guardians.

Provided nevertheless, That fuch Perfons as are condemned to Death, the Provifo. Charges of their Profecution, Imprifonment and Execution being firft anfwered and paid out of their Eftate, the Remainder thereof fhall be difpofed of according to Law.

And in order to avoid Perpetuities, it is hereby provided, That no Eftate, Provifo, to either in Fee-Simple, Fee-Tail, or any leffer Estate, shall be given by Deed prevent paror Will to any Perfon or Perfons but fuch as are in Being, or to the im- petuities. mediate Iffue or Defcendants of fuch as are in Being at the Time of making fuch Deed or Will. And that all Estates given in Tail, fhall be and remain an abfolute Eftate in Fee-Simple, to the Iffue of the first Donee in Tail.

An Act for the directing and regulating of Civil Actions.

process what.

E it enacted by the Governor, Council, and Reprefentatives, in General Court affembled, and by the Authority of the fame, That the ordinary Procefs in Civil Actions in this State, fhall be a Summons or an Attachment, Ordinary fairly written, figned by a Magiftrate, Juftice of the Peace, or Clerk of the Court, mentioning the Court, the Time and Place of Appearance; therein alfo containing a Declaration of the Subftance of the Action: Which Attachments may be granted againft the Goods or Chattels of the Defendant; How ferved. and for want of them, the Lands or Perfon of the Defendant may be attached Provided the Plaintiff when he prays out an Attachment, gives fufficient Security to profecute his Action to Effect, and anfwer all Damages in Cafe he make not his Plea good. And like Security fhall be given by fome fubftantial Inhabitant of this State, on granting a Summon, when the Plaintiff is not an Inhabitant of this State; or if it fhall appear to the Authority figning the fame, that the Plaintiff is unable to pay the Coft of Prosecution, if recovered against him. And all Writs and Proceffes fhall be directed to the Sheriff, his Deputy, or fome Conftable, if fuch Officer can be had without great Charge or Inconvenience: And in every Cafe wherein the Authority figning a Writ fhall find it neceffary to direct the fame to an Indifferent Perfon, fuch Authority fhall infert the Name of the Indifferent Perfon in the Direction of the Writ, and the Reason of fuch Direction; and if any Writ be otherwife directed, it fhall abate.

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12days notice for fuperior or

county courts

6 days before juftices court.

Perfons out of the ftate at the

commencement of the action against them & do not return before the fitting of

tions to be

continued &c.


In actions on joint contracts, fervice on thofe within the State, good against


Actions Civil.

Provided nevertheless, Nothing herein fhall extend to affect Summons's for Witneffes, Warrants to Collectors of Rates, or Warrants granted by Military Officers.

And that no Perfon fhall be required to make Anfwer in any Civil Action, real, perfonal or mixt, except the Writ or Procefs, if returnable to the Superior or County Court, hath been ferved upon him at least twelve Days inclufive, before the Day of the Court's fitting or if returnable to an Affiftant or Juftice, the fame hath been served fix Days inclufive, as aforefaid: Which Service fhall be, if a Summons, by reading the fame in the Hearing of the Defendant or Defendants, or leaving an attefted Copy thereof at the Place or Places of his or their ufual Abode: But if an Attachment, the Service fhall be the attaching the Defendant or Defendants Eftate or Perfon, and giving him Notice by reading the Writ to him or within his hearing, or by leaving an attefted Copy thereof at the Place of his ufual Abode, if that be within this State: And that all fuch Writs as are made returnable to the County Courts, fhall be returned to the Clerks of faid Courts on the Day before the fitting of fuch County Courts, and not afterwards. That in cafe any Procefs he duly ferved on any Defendant or Defendants, and return thereof made to the Court to which the fame is made returnable, then if fuch Defendant or Defendants do not appear, his or their Default fhall be recorded, and Judgment entered up against him or them thereupon; unless he or they fhall come into Court, on or before the fecond Day of the fitting of faid Court, and move for a Trial, in which Cafe he or they fhall be admitted thereto, upon paying down. to the adverse Party the Cofts to that Time; and the Plaintiff hall pay for entering the Action a-new.

But if the Party against whom Suit is brought, is not an Inhabitant or a Sojourner in this State, or is abfent out of the fame at the Time of commencing fuch Suit, and doth not return before the firft Day of the Court's fitting, the Judges of the Court where fuch Suit is brought, fhall continue the Action to the next Court; and if the Defendant doth not then appear, (by himself or Attorney) and be fo remote that the Notice of fuch Suit depending, could not probably be conveyed to him during the Vacancy, the Judges at fuch next Court may further continue the Action to the Court thence next following, and no longer; but may enter up Judgment on Default after fuch Continuance or Continuances: And in fuch Cafes where Judgment fhall be entered up by Default after fuch Continuances as aforefaid, Execution fhall be stayed and not iffue forth thereon until the Plantiff fhall have given or lodged with the Clerk, a Bond with one or more fufficient Sureties to the adverfe Party, in double the Value of the Estate or Sum recovered by fuch Judgment, to make Restitution, and to refund and pay back fuch Sum as fhall be given in Debt or Damage, or fo much as fhall be recovered upon a Suit therefor; to be brought within twelve Months next after entering up the firft Judgment: If upon fuch Suit the Judgment fhall be reverfed, annulled or altered, the Security aforefaid to be no farther anfwerable than for the Recovery that fhall be made upon fuch Suit to be had within twelve Months, as aforefaid.

Provided alfo, That no real Estate taken in Execution, granted upon fuch first Judgment, shall be alienated or paffed away, until after the Expiration of the faid twelve Months, or after a new Trial had on a Suit brought within the Space of twelve Months for the obtaining of Restitution, as aforefaid.

That in Actions on joint Securities, or Contracts, when all the Defendants are not Inhabitants of this State, the Service of the Procefs on fuch of the Defendants as are Inhabitants of this State (if any) fhall be fufficient Notice to maintain the Suit against all the Defendants.

And if any fuch


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Defendant on whom the Process was not ferved is aggrieved by the Judgment, he may be relieved by Audita Querela.

Be it further enacted by the Authority aforefaid, That any Person who hath entered an Action to be tried in any Court, being called three Times (after twelve of the Clock on the first Day of the Court's fitting) fhall not appear, either by himself or Attorney, to profecute his Action, he fhall be non-fuited, and pay all Cofts and Charges to the Defendant, and for the Entry of the Action, as if the fame had been profecuted in fuch Court. And that the Plaintiff in all Actions brought to any Court, fhall have Liberty to withdraw his Action, or to non-fuit himself, before the Jury have given in their Verdict: In which Cafe he fhall pay full Cofts to the Defendant; and may afterwards renew his Suit at another Court; the former Withdraw or Non-fuit being first recorded.

And be it further enailed by the Authority aforefaid, That all Suits brought for the Trial of the Title of Land, or wherein the Title of Land is concerned, shall be tried in the fame County where the Land lies, or Facts are done concerning which the Title of Land may be in Queftion. And that all other Actions that may be brought before the Superior or County Courts, shall be brought and tried in that County where the Plaintiff or Defendant dwells, if they or either of them are Inhabitants within this State. And that all Suits and Profecutions cognizable before an Affistant, or Juftice of the Peace, fhall be made and profecuted before fuch Authority in thofe Towns only where the Plaintiff or Defendant dwells; unless there be no Authority which may lawfully try the Caufe in either of faid Towns: In which Cafe the Plaintiff may bring his Suit before an Affiftant, or Juftice of the Peace in one of the next adjoining Towns to the Place of his Abode.

And be it further enacted by the Authority aforefaid, That all Caufes wherein the Title of Land is not concerned, and wherein the Debt, Tref pass, Damage, or other Matter in Demand, doth not exceed Four Pounds, or if the Action be on Bond or Note given for the Payment of Money or Bills of Credit only, vouched by two Witneffes, when the Sum demanded does not exceed Ten Pounds, fhall and may be heard and determined by any one Affistant or Juftice of the Peace; who are hereby respectively empowered to hear and determine the fame, by their Difcretion and according to Law, and award Execution thereon.

Always provided, That where the Sum demanded fhall exceed the Sum of Forty Shillings, an Appeal fhall be allowed to the next County Court, except in Actions brought on Notes of Hand or Bond, vouched by two Witneffes as aforefaid, in which Cafe no Appeal fhall be allowed.

Non-fuit and Withdraw how & when made.

Title of Land to be tried in

the County where the Land lies: All other AcCounty where

tions in the

one or both

the Parties

live, and all Actions be

fore an Affiftant or Justice, in the Town the Parties live, if with

where one of

in this State.

Juftices Jurif

diction to extend to £.4 where the Title of Land is not concern100n Bond ed, and to or Note, witneffed with two Witnesses


And all Actions that fhall be tried before the Superior or County Jury to try Courts, when Iffue is joined on any Matter of Fact, fhall be tried by a Matters of Jury of twelve Men of the Neighbourhood, qualified, impannelled, and Fact. fworn according to Law, who fhall find the Matter in Iffue, with the Debt or Damages, and Coft according to Law and their Evidence; and the Judges fhall make up and declare the Sentence thereon: And every Cafe wherein the Parties fhall join in Demurer in Law, shall be heard and Judges to dedetermined by the Judges; and if there be any Matter of apparent Equity, ters of Law, as upon the Forfeiture of a Bond or Obligation, or Breach of Covenant &c. without Damage, or the like, the Judges fhall determine fuch Matter of Equity And if upon a Bond with Conditions, the Breach of which may happen at feveral Times, a Suit be brought on the first Breach of fuch Condition, the Court upon the Forfeiture of fuch Bond, found on Trial, Demurer, Confeffion or otherwife, fhall, on Motion made for that Purpose,


termine Mat


Provifo that

the parties may agree to put the matter

of fact to the

court to determine.

Scire facias

on the breach of a bond, &c.

Actions Civil.

proceed to confider what is due in Equity on fuch Bond at that Time, and enter up Judgment for the fame, with Cofts, and award Execution


Provided nevertheless, That in all Actions which may be brought or come before the faid Superior or County Courts in due Courfe of Law, wherein the Parties fhall join Iffue on any Matter of Fact, and agree and do put themselves on the Court for Trial of fuch Iffue; the Judges of faid refpective Courts, having Jurifdiction of such Action or Actions, may and fhall proceed to hear and try the fame without a Jury, and to award Damages and Cofts, and grant Execution thereon; any Thing before to the contrary notwithstanding.

And upon any further or other Breach, or Neglect of Performance of any other Particular in the Condition annexed to, or indorsed on said on the farther Bund, the Obligee, his Executors or Adminiftrators, may take out a Scire Facias against the Obligor, his Heirs, Executors or Adminiftrators, from the Clerk of that Court in which Judgment was given, to thew Caufe why Execution fhall not be awarded for the Money then due, or Damages then fuftained: And the Court fhall proceed to make up Judgment for what fhall appear in Equity to be then due, with additional Cofts, and award Execution thereon; and fo from Time to Time till all the Particulars mentioned in fuch Condition are performed and compleated. And the Judges fhall alfo determine Matters of Law, ftated and referred to them by the Jury in their special Verdicts; which Verdicts the Jury in all Cafes wherein Matters of Law are to them so obfcure that they cannot clearly and fafely give a pofitive Verdict, fhall have Liberty to give a fpecial Verdict therein; finding and prefenting the Facts, and thereon ftating and putting the Question in Law, viz. "If the Law be fo in fuch a Point, then we find for the Plaintiff; but if the Law be otherwise, then we find for the Defendant."

Special verdia.

Court impower'd to

return the

jury to a third confideration

No pleas, &c.

after caufe is committed to the jury,

New trials.

No appeal, unless matter in demand exceed zol.

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And be it further enacted by the Authority aforefaid, That the Judges of the Court fhall have Liberty, if they judge the Jury have not attended the Evidence given in, and the true Iffue of the Cafe in their Verdict, to cause them to return to a fecond Confideration of the Cafe, and shall for the like Reason have Power to return them to a third Confideration, and no more. And when the Court have committed any Cafe to the Confideration of the Jury, the Jury fhall be confined under the Cuftody of an Officer appointed by the Court, until they are agreed on a Verdict: And the Court may fet a fuitable Fine, not exceeding Twenty Shillings, upon fuch Officer or Juryman as fhall be diforderly, or neglect, or refufe, due Attendance of their Duties refpectively, during their attending the Court.

And that when the Parties have made their Pleas in any Court and given their Evidences, and the Cafe is committed to the Jury, there shall be no after Pleas, Arguments, Evidences or Teftimonies, heard or received in fuch Cafes, before the Jury have returned their Verdict into Court, and the fame is recorded.

And be it further enacted by the Authority aforesaid, That the Superior and County Courts in this State, fhall and may from Time to Time, as Occafion fhall require, and as fhall by them be judged reasonable and proper, grant new Trials of Caufes that fhall come before them for mifpleading, or difcovery of new Evidence, or for other reasonable Cause appearing, according to the common and ufual Rules and Methods in fuch Cafes.

That all Actions wherein the Matter in Demand does not exceed the Value of Twenty Pounds lawful Money; and all-Actions brought on Bond


Actions civil.

or Note, given for the Payment of Money, or Bills of Credit only, vouched by two Witneffes (except fuch Matters as by Virtue of this Act may be tried by an Affiftant or Juftice of the Peace) shall be heard and finally determined by the County Court.

That in any Action brought to, heard and tried by any County Court, wherein the Title of Land is in Queftion, or wherein the Value of the Debt, Damage or Matter in Difpute fhall exceed the Value of Twenty Pounds, Appeals, (except it be on Bond or Note vouched by two Witneffes) if either Party when to be hall be aggrieved by the Sentence or Judgment of fuch Court therein, an allowedAppeal fhall be allowed to the next Superior Court to be holden in the fame County. Provided that fuch Appeal be entered during the Time when to be of the fitting of the Court from which the Appeal fhall be made; and entered, &c. fufficient Bond with Surety be given by the Party appealing, to profecute fuch Appeal to Effect, and answer all Damage in Cafe he make not his Plea good.


entered be

And all Bonds for Profecution in Civil Caufes, fhall be made payable Bond for proto the adverse Party. And all Appeals to the Superior Court, fhall be fecution, how entered before the fecond opening of fuch Court, and not after; unless payable. the Appellant shall pay to the Appellee all his Coft in fuch Cafe arisen to that Time, (which shall not be refunded however the Caufe may finally iffue); which Coft being taxed and paid, the Action may be entered by the Appellant, before the Jury attending fuch Court are difmiffed, and not after: And if the Appellant do not enter fuch Appeal, before the Jury are difmiffed, the Appellee may enter the fame, and have the Judgment of the County Court in the Cafe affirmed with the additional Cost, and Execution granted accordingly.

That in all Actions brought by any Person who is not an Inhabitant of this State, to any Court in this State, the Clerk of fuch Court shall enter in the Record of the Caufe, the Name of the Attorney by whom fuch Stranger appeared; which Record, or an attested Copy thereof, fhall be good Evidence in Law, that fuch Attorney, was the lawful Attorney for faid Stranger.

That no Coft fhall be allowed for Travel to get a Writ, or for carrying it to an Officer.

And be it further enacted by the Authority aforefaid, That when any Affiftant or Juftice of the Peace hath given Judgment in any Cafe, and before the fame is fatisfied or Execution granted thereon, fhall be removed by Death or otherwife; the Party in whofe Favour fuch Judgment was given, may bring an Action of Debt for the Recovery, of the Sum due thereon, at any Time within five Years after fuch Removal; which Action may be brought before an Affiftant or Juftice of the Peace, if the Debt or Damage recovered and due doth not exceed Ten Pounds; and the original Record or a Copy thereof attested by the Perfon who gave the Judgment, or any Affiftant or Juftice of the Peace, fhall be fufficient Evidence of fuch Judgment; in which Cafe no Appeal fhall be allowed.

Appeals to be fore the 2d opening of the court, unlefs, &c.

If the plaintiff is not an

inhabitant of this ftate, his attorney's name to be entered, &c.

No cost for

travel to get

a writ, &c.

When the af

fiftant or juftice before whom judgment is had, before execution had, &c. how to pro

is removed


Bond for profecution may be required if

That in any Action wherein Bond for Profecution is not given at the Commencement thereof, the Court, Affiftant or Juftice of the Peace before whom the fame is brought, fhall on Motion of the Defendant, and fatisfactory Proof that the Plaintiff is unable to pay a Bill of Coft, if recovered the plaintiff against him, order the Plaintiff to give Bond with fufficient Surety, to profecute his Action to Effect, and pay all Damage in Cafe he make not his Plea good, before proceeding to Trial of the fame; and if the Plaintiff refuse or neglect to give fuch Security, his Action fhall be non-fuit.

And for preventing trivial and vexatious Suits;

Be it further enacted by the Authority aforefaid, That in Actions of Trefpafs, Affault and Battery, and Trefpafs upon the Cafe which fhall be here


is unable to pay coft, &c.

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