vernment, or with an agent thereof, to supply the army or navy with provision or other articles, at the emanation of the writ he shall file a declaration, with an assignment of the breaches, which with the writ shall be delivered to the officer to whom that is directed, and served upon the defendant, fifteen days or more before the return day; and on such return day, or on the return day of the subsequent process, in case the preceding be not legally served, if the defendant appear and make up an issne, or if he appear not, or appearing, refuse to make up such issue, a jury shall be impannelled instantly, unless good cause be shewn for deferring it, to try the issue or inquire of the damages. And in like cases, the agents or contractors of the confederating states of America may, by the like remedy, on behalf and in the name of the said states recover money due to them.

CHAP. LXII.

An act for recovering demands of a small value in a summary way.

From Rev.

B lis of 1779,

ch CIX.

counts, how

BE it enacted by the General Assembly, That any Petitions and debt, or penalty, amounting to more than twenty-five summons for shillings, or two hundred pounds of tobacco, and not small ac exceeding one hundred shillings, or eight hundred prosecoted. pounds of tobacco, may be demanded by petition to the court of a county, city or borough. The clerk of the peace shall draw the petition, stating therein how the debt become due, or by breach of what act of general assembly the penalty was incurred, and shall issue a summons directed to the sheriff, or other proper officer, commanding him to summon the defendant to appear and answer the petition; and the defendant being summoned ten days at least before the return day, and being at the same time served with a copy of the petition, together with a copy of the account, which shall be filed, when the debt shall have arisen by account, the conrt shall and may hear and determine the

matter in dispute in a summary way, and give such judgment as shall appear to be just. And any person may, by petition to be served and tried in like manner, demand and recover goods detained, or the value of them, and damages for the detention, or damages for goods found by the defendant and converted to his use, where the goods, with the damages, are not of greater value than one hundred shillings, or eight hundred pounds of tobacco. And whosoever shall bring any other action, than a petition, if it appear, either by his own shewing in the declaration, or by the verdict of a jury, that he might have brought a petition by this act, shall be non-suit.

From Rev. Bills of 1779, ch. CX.

Collusive po.

no bar.

CHAP. LXIII.

An act providing that actions popular prosecuted by collusion, shall be no bar to those which be pursued with good faith.

BE it enacted by the General Assembly, That if any pular actions, person hereafter sue with good faith any action popular, and any defendant in the same action plead any manner of recovery by action popular, in bar of the said action, or that he before that time barred any plaintiff in any such action popular, then the plaintiff in the action taken with good faith may aver that the said recovery in the said action popular was had by covin, or else may ever that the said plaintiff was barred in the said action popular by covin: Then if after the said collusion or covin so averred, be lawfully found, the plaintiff in that action sued with good faith, shall have recovery according to the nature of the action, and execution upon the same, in like wise and effect as though no such afore had been had. Provided always, That no plaintiff be in any wise received to aver any covin, in any action popular, where the point of the same action, or else the covin or collusion shall have

been once tried, or lawfully found with the plaintiff or against him by trial of twelve men, and not otherwise. If the prosecutor of an action or information for the recovery of any penalty not wholly appropriated to the use of such proprietor, shall compound with the offender, or direct such suit or information to be discontinued, unless it be by leave of the court wherein the said suit or information shall be depending, such persecutor shall be liable for so much of the penalty to the commonwealth, or any other, as they would have been entitled to if the defendant had been convicted.

CHAP. LXIV.

From Rev.

Bills of 1779,

An act for preventing vexatious and ch. CXI. malicious prosecutions, and moderating amercements.

BE it enacted by the General Assembly, That every Security for action at common law, or suit in equity, commenced costs. in the name of a person, not residing in Virginia, unless he be employed abroad in the service of the commonwealth, or of the United States of America, shall be dismissed if security be not given with the clerk of the court from whence the process shall issue, or wherein it shall be depending, within sixty days after notice, shall, at any time during such non-residence, have been given to the demandant, or plaintiff, or his attorney, by some person interested, that such security is required for payment of the costs and damages which may be awarded to the tenant or defendant, and also of the fees which will become due to the officers of the court. No information for a trespass or misdemeanor, Information, shall be filed in any court but by express order of the rules for court, entered on record, nor unless the party suppos- fiing. ed to be culpable shall have failed to appear and shew good cause to the contrary, having been required so to do by a summons, appointing a convenient time for that purpose, served upon him, or left at his usual

place of abode: and the name and surname of the prosecutor, and the town or county in which he shall reside, with his title or profession, shall be written at the foot of the information, before it be filed, and of every bill of indictment for any trespass or misdemeanor, before it be presented to the grand jury; and if the defendant shall appear to shew cause against the filing the information, or to answer the information or indictment, and the prosecutor shall not proceed further, or if the defendant shall be found not guilty by the petit jury, or a judgment shall be given for him, he shall recover his costs against the prosecutor with an attorney's fee, if one was employed, and the allowances to witnesses, to be taxed in the bill of costs, and may have execution for them, as the manner is in civil cases: And in every such information or indictment, the amercement which ought to be according to the degree of the fault, and saving to the offender his contenement, shall be assessed by twelve honest and lawful men, either those by whom the offender shall have been convicted, in case of a verdict, or those who shall be impannelled for that special purpose, where judgment shall be given against him upon the argument of a demurrer, or by his confession or default. No escheator, Amerce- sheriff, coroner, or other inquisitor, shall hereafter have power of amercement, for default of common summons, save only the judges of the general court, or the respective county or corporation courts.

ments.

From Rev. Bills of 1779, ch. CXII.

Preamble.

CHAP. LXV.

An act providing a mean to help and speed poor persons in their suits.

I. WHERE it is intended that indifferent justice shall be had and administered to all the citizens of this commonwealth, as well to the poor as the rich, which poor citizens be not of ability, nor power, to sue according to the laws of this land for redress of injuries and wrongs to them daily done, as well concerning their persons and their inheritance as other causes:

For remedy whereof, in behalf of the poor persons of this land not able to sue for their remedy after the course of the law,

ted.

Pauper suits 11. Be it enacted by the General Assembly, That how prosecu. every poor person which shall have cause of action against any person within this commonwealth, shall have, by the discretion of the court before whom he would sue, writ or writs original, and writs of subpœna, according to the nature of his cause, nothing paying for the same. And that the said court shall direct their clerk to issue the necessary process, shall assign to him counsel learned in the laws, and appoint all other officers requisite and necessary to be had for the speed of the said suit to be had and made, who shall do their duties without any reward for their counsels, help and business in the same.

CHAP. LXVI.

From Rev. Bills of 1779,

An act providing that an infant may ch. CXIII. sue by his next friend.

In every case where such as be within age may sue, Infants, may it is enacted by the general assembly, that their next sue by next friends shall be admitted to sue for them.

friend.

CHAP. LXVII.

From Rev. Bills of 1779,

An act declaring when the death of ch. CXIV. persons absenting themselves shall be presumed.

BE it enacted by the General Assembly, That any Presumption person absenting himself beyond sea, or elsewhere, for of death, seven years successively, shall be presumed to be dead, when.