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Constable's guide : containing a compilation of the statutes of Virginia & Kentucky : and so much of the statutes & common law of England as remains in force in Kentucky, relating to the office of constable : with a table of magistrates & consnstables fees / by Charles Humphreys.
Constable's guide : containing a compilation of the statutes of Virginia & Kentucky : and so much of the statutes & common law of England as remains in force in Kentucky, relating to the office of constable : with a table of magistrates & consnstables fees / by Charles Humphreys. Humphreys, Charles, 1775-1830. 400dpi TIFF G4 page images University of Kentucky, Electronic Information Access & Management Center Lexington, Kentucky 2002 b92-158-29919255 Electronic reproduction. 2002. (Beyond the shelf, serving historic Kentuckiana through virtual access (IMLS LG-03-02-0012-02) ; These pages may be freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. Constable's guide : containing a compilation of the statutes of Virginia & Kentucky : and so much of the statutes & common law of England as remains in force in Kentucky, relating to the office of constable : with a table of magistrates & consnstables fees / by Charles Humphreys. Humphreys, Charles, 1775-1830. Printed by Thomas T. Skillman, Lexington, Ky. : 1813. 104 p. ; 22 cm. Coleman Shaw & Shoemaker, 28790. Includes index. Microfilm. Atlanta, Ga. : SOLINET, 1994. 1 microfilm reel ; 35 mm. (SOLINET/ASERL Cooperative Microfilming Project (NEH PS-20317) ; SOL MN03345.08 KUK) Printing Master B92-158. IMLS This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. Constables Law and legislation Kentucky. Constables Law and legislation Virginia. A CONSTABLS GUIJDE, CONTAINING A COMPILATION OF THE STATUTES OF VIRGINIA 4 KENTUCKY, AND SO MUCH OF THE STQIITUTES COMMOX LAW OF EXGL1JZXD 18 remains in force in Kentucky, relating to the Office of Constable. WITH A TABLE OF MAGISTRATES 8 CONSTABLES FEES. BY CHEIRLES HUMPIIIREYS. LEXINGTON, Ky. Printed by Thomas 7. Skillman. 1813. This page in the original text is blank. A CONSTABLES GUIDE. THIS WORK WILL BE FOUND USEFUL TO JUSTICES, SHERIFFS, CONSTABLES, 4nd also all other persons who wvish to know when these officers are in the dis- charge of their duty. This page in the original text is blank. A TABLE OF SOME OF THE PRINCIPAL MATTERS. ircface. History of Constables Office. Common Law in force rela- lative to Preserving the Peace. Prosecuting Offenders. -General duties of Con- stables in mak ing Present- ments. Executing Warrants. - Making Arrests. - The consequences of as- saulting an Officer. - Entering Houses. - Imprisonment. - Breaking open Houses. - Search Warrants. - The qualifications of Constables. - Theirremoval from Of- fice. - Qualifications of Jurors. - Rescous. Provisions of the Constitu- tion, and Acts of Assem- bly, relative to Constables appointment, power and duty. To Fee Bills. -- Jury to try the right of property-. -- Riots, Routs, and Un. lawful Assemblies. - Executions. Privileges of Witnesses and Voters. Qualifications of Jurors. - Attachments. The Act enlarging the juris. diction. Table of Fees. 1i This page in the original text is blank. PREFACE. IN consequence of the late extension of the jurisdic. tion of the Magistrates, in civil cases, the authority of the Constable, also, is enlarged; and that officer who previ- ously had more weight in society than was well knowh, has now become so important as to merit the attention of the community at large. The chief object of the following compilation is to furnish a guide to Constables; many of whom necessarily are ignorant of the duties of the office; more particularly when they are first appointed. And they have not the means of acquiring the requisite information without hav- ing recourse to extensive law libraries-as there is no work extant in which the law on this subject is collect- ed together. The reason of this max be, that in England it was not thought safe to trust Constables with a knowl- edge of their powers. And in Virginia, whence the laws of this country were first borrowed, the power of a Con- stable was much more limited than it is now here. As the writer of this cannot concur in the notion that men should be vested with powers, and a knowledge of those powers be withheld from them for fear they should abuse them, this work has been undertaken. 'Judge Blackstone observes, vol. 1. p. 355. "The General duty of all Constables, both high and petty, as Nvell as of the other officers, is to keep the king's peace in their several districts; and to that purpose, they are armed with very large povers, of arresting and imprisoning, of breaking open houses and the like; of the extent of which powers, considering iv hat manner of mt'n are for the post part put into these vffi- Ces, it is parhatpz well that twey are gcncriiiy Ikept in ignorance." PREFACE. A work of this kind is not only calculated to be use. ful to Constables, but in experienced Justices will, also, most probably, be benefitted by it; inasmuch as the of- Lice of Constable being particularly connected with, and dependant on the office of Magistrate, almost every thing appertaining to the office of Constable, should be known to Justices of the Peace. And this work will, perhaps, be found useful to many others besides officers-all who have any thing to do with Constables, Constables clothed "with a little brief authority," sometimes abuse the trust reposed in them by their coun- try, and go beyond their legal 'powers. rhey too often infringe both the rights of persons and property, but more particularly in extorting unreasonable fees. In this work will be found, amongst other things, a table of fees; so that any one who can read may, by consulting it, de- tect an imposition in this particular attempted to be prac- tised by a Constable. In the execution of the work, an attempt has been made to bring together the various scraps of the statute, and common law of England, which remain still in force; and for greater certainty and satisfaction, reference is had to the authority, copying the words of the author. And in digesting the statutary provisions of this country, th various acts embracing or referring to the office of Con- stable have been gone over, and such as remain unrepeal- ed are her_ transcribed verbatim, in every instance where it could be thought at all necesary. It is possible and even probable some errors may be discovered here- after, though considerable labour has been bestowed up- on the subject in order to insure correctness. HISTORY OF COVSTABLE8 OFFICE. THE old writers say that the word Constable, is Sax. on, and composed of two other words, which signify the stay or support of the King. The office of Constable seems to have been appendant on the feodal system, and was anciently in most of the kingdoms of Europe highly important and eminently honorable. The grand high Constable in England was the next person in the realm to the king. And, indeed, in progress of time, the power annexed to this office was deemed too great to be held by the subject, and after the attaint of the duke of Buck- ingham, lord high Constable, for treason, in the 13th year of Henry the 8th, this office became forfeited to the crown. And since that time it has never been granted to any one but pro hac vice, to be exercised at coronations, c. The power and jurisdiction of the lord high Consta- ble was the same with the earl Marshal, and he sat as judge, having precedence of the earl Marshal in the marshal's court, and they had several courts under them. These tribunals had cognizance of all matters of war, arms, combats, blazons of armory, and contracts touch- ing these matters. Out of the high Constable's office were drawn subordinate offices of Constables of hun- dreds, and of franchises; whose duty was also principally confined to military affairs. Under these Constables of Blackstone is of opinion that it is derived from the French. 2 HISTORY OF CONSTBLES OFFICE. hundreds, by statute and custom, there were created sub. Constables, for the preservatioe of the public peace, cal. led parish Constables: these last at she only description with whom we have any thing to do in Kentucky. See Bacon's abridgment under the title Constable. 1 vol. Jacob's Law Dictionary. Bum's Justice. A CONSTABLES GUIDE. The Comman and Statutary Laws of England remaining in force in this state, on the subject of a Constables (AFce. CONSTABLES are to be persons of honesty, knowledge, and ability-not infants, lunatics, c. Jacob's Law Dictionary. As Constables were originally instituted Constables for the better preservation of the peace, they mTayYn rITS may, by the common law, arrest felons and all other sus. suspicious persons that go abroad by night picious per and sleep by day, or resort to bawdy houses, rants, ac. or keep suspicious company. Bacon Abr. Gwi. E. vol. 1. page 687. They are justifiable in arresting persons Constables may arrest directly charged with felony, although it should those char. turn out afterwards, that no felony had been gedthough no felony is committed. Doug. p. 359. 2 Hale's pleas of done. the crown. 84: 89: 91. 2 Haw. B. 02: C. when noti- 12: and C. 13: 2 Bacon. 687. fied that a burglary is If they have notice that a burglary hath conmittyed been committed it is their duty to pursue the bound to pursue the felon immediately: Cro: Eliz: 652. felon. They ought to present to the grand jury sho'd make 4U offences. Dal. 388. mrents. [ 12 ] Constable A Constable is not only empowered, as all bound at Isis peril to private persons are, to part an affray in his pre. endeavour sence, but is bound at his peril to endeavour it, to part af- frayers. not only by doing his utmost himself, but, al- He mayde- so, by demanding the assistance of others, mand as. sistance, which they am bound to give him under pain the citizens of fine and imprisonment. And it is said bound to o- bey him. that if he sees persons actually engaged in an Constables affray, whether the violence were done or of- may impri- fered to another, or even to himself, or see gs untflthfe them upon the very point of entering into an heat of Pa- affray, as where one threatens to beat another, f1 take thi c. he may carry the offender before a Justice to justiceof of the peace in order to find sureties for his the peace. keeping the peace, or may imprison him a rea- carnot Cina sonable time until the heat be over. But he init in ally other man. has no power to commit the offender in any o. nor- ther manner or for any other purpose, for he Constable cannot commit him to jail until he shall be manyd otnay punished: neither ought he to lay hands on those who those who barely contend with words, without Larely quar threats or any personal hurt, but all he can do I-el with wcrds, but in such a case, is to command them, under lustj Com- pain of imprisonment, not to fight. Bacon's P;ace. abr. vol. 1. p. 687. This has been set down as law in the words Author's of the author, because no repeal of it in rt-narls. express terms has been found; yet Consta- bles should exercise the power of impri- soning mentioned here with great caution, and never use it but in extreme cases, lest it should not turn out to be law at this day.. [ is ] If a1n affray be in a house the Constable may break open the doors to preserve the peacc; and if affirayers fly to a house and the Constable freshly follow, he may break open the doors to take them. But he cannot of his ovwn authority, compel a man to find sureties, who is delivered into his hands as having bro- ken the peace in his absence, but ought to carry him before a Justice of the peace Nei- ther can he arrest a man for any affiay out of his view, without a warrant from a Justice of the peace, unless felony were done or like to be done. If a constable see a person expose an in- fant in the street who refuses to take it away, he may lawfully apprehend and detain such erson till he or she shall consent to take care of it, and so may a private person. 2 Bacon 688. 2 Haw. C. 19. As a Constable is the proper officer to a Justice of the peace, he is bound to execute his warrants. Hence it has been resolved that where a statute authorises a Justice of the peace to convict a man of a crime, and to levy the penalty by warrant of distress without say- ing to whom such warrant shall be directed, or by whom it shall be executed, the consta- ble is the proper officer to serve such warrant, and indictable for disobeying it.-Bacon's Abr. vol. 1. p. 689. Constable may break dpen hou- ses to pre- serve the peace. Cannnot compel one to give surety of the peace. cannot ar- rest a man for an affray out of his presence. Seeing one about leav- ing a child inthestreet may detain them. same of pri- vate per- sons. a constable the officer of a Justice and when a Justice is required to issue his warrant the constable is the officer to whom it should be directed, unless oth- erwise di- rected by law. C 14] If a warrant be direeted to all Constables, generally, no one can execute it out of his own precinct; but if it be directed to a particular Constable, by name, he may execute it any where within the jurisdiction of the Justice.- Lord Raymond, 545. A sworn Constable, in executing a war_. rant in his precinct, woed not show it to the party, though he demand a sight of it; but, in making an arrest, he ought to acquaint him with the substance of it.-6. Co. 54. 2 Ba- con 688. But if he acts out of his precincts, or is not commonly known, he must show his war- rant, it demanded; otherwise the party may mak resistance, and' need not obey it.-2 raw. 5. 86. Dal. C. 169. 2. B. 688. But if the Constable ha no warrant, it is suffieenr to notify that it is inthe name of the commowalth.-1. H. 583. Perhaps, in all cases in this country, it would be safest to show the warrant, though the law may authoriw a different proceeding. By the Author. If a Constable come unto the party and re. quire him to go before the Justice, this is no arrest nor imprisonment. Dal. C. 170. For bae words will not make an arrest, without laying hold on the person, or othervise confining him. But if an officer comes into a room and tells the puty he arrests him, and a constablo cannot exe- cute a war- rant direc. ted to all constables out of his precinct; if to himself otherwise. Constable not obliged to show his Sanlt. But if he abCts Qut of his, pre. -C1nctssmust. show his warrant. All cases besttoshow the war- rant. Words do not amonmt to an ar- rest. To make an arrest there must ke a touch. r is 3 ocks the door, this is an arrest, forhe is ift custody of the officer. 1 Sal. 79. 2 Raw. 129. Cases in the time of Lord Har. 31. An unlawful arrest without a Justices war- rant, cannot be made good by a wrrant taken out afterwards. Dyer, 244. If a Constable, after he hath arrested a par- ty by force of a warrant, sufer him to go at large on his promise to return again, he cAnnot by force of the same warrant arrest him again. But if he return voluntarily into custody, the Constable may detain him, and bring him be- fore the Justice, in pursuance of the warrant 2 Bacon, 689. Dal. 117. S Haw. 9. But if the party arrested d: escape, the oa ficer upon frinsh pursuit may take him again, and again, so often as he escapeth, thougtr lie were out of view, or that he shall fly into ano- ther town or county. Dal. C. 169. B. A. 689. A Constable cannot justify an arrest by force of a wanrant from a Justice of the peace, which expressly appears ox the face of it to be for an offence whereof a Justice of the peace hath no jurisdiction, or to bring the par- ty before him at a place out of the county for which he is a Justice. Cro. 147. 148. 2 Strange 1002. 2 Bacon 689. A general warrant to apprehend all persons suspected, without naming or particularly des- cribing any person in special, is illegal and Ing ot the person, or a confine- Ment. The war- rant faer- ward does not make the persons arrest good if constable after arrest suffer him to go at large, he cannot take him again; but he may Deturn it custody. If the psar ty escape, the oficer may take him agai If the war rant shamwi that the magistrat. hal not ju- risdiction, the consta, ble cannot arrest. [ 16 ] A general void for its uncertainty; for it is the duty of 'Warrant to apprehend of the Magistrate, and ought not to be left to all offen- the officer to judge of the ground of suspi- ders with- out naming cion; and a warrant to apprehend all persons them bad. guilty of the crime thereon specified is not a legal warrant, for the point on which its au- thority depends is a fact to be decided on a a subsequent trial, namely, whether the per- son apprehended thereupon be guilty or not. 2 Bacon 689. 4 Bla. Com: 291. 3. B. 1742. 1 Bla. Reports, 562: 2 Str. 307. A Constable shall keep the peace, appre- hend felons, rioters, c. and make hue and cry after felons, and take care that the laws a- gainst rogues and vagrants be put in force. He ought to present unlawful games, tippling and drunkenness, bloodshed, affirays, c. He is to execute precepts, warrants, c. directed to him by a Justice of the peace, He should return all public house keepers who are not licensed, and all such personsas entertain inmates who are likely to become chargeable to the county. He should present night walkers, whores, and mothers of bastard children, likely to become chargeable to the county. Also, defects in high ways, and those who ought to repair them- all common nuisances in streets and high ways, bakers who sell bread under weight, forestal- lers, engrossers, c. Dal. C. 1. p. 8. Ja- cob's Law Dictionary. Constable to keep the peace- make hue and cry af- ter felons, prosecute offenders. Make pre- sentments. Execute warrants. Return of- fenders. Tavern keepers. Vagrants. Mothers of bastard children. Overseers of roads. And all common nusances. [ 17 ] A Constable may make fresh pursuit into a- nother county; also, may command all persons to assist, to prevent a breach of the peace; and he may justify beating another if assaulted, and if he happens to be killed doing his duty it will be taken to be premeditated murder. Constables may take any person into custody they see committing a felony. But if it be out of their sight, as where a person is seized by another, they may not do it without a war- rant from a Justice. A Constable cannot detain a man at his pleasure, but only stay him to bring him be- fore a Justice to be examined; and this detain- er may be for a day without warrant and be justified. Dal. C. 1. p. 8. Hale's pleas, 135. If one abuse a Constable, he cannot carry him to prison there to remain until tried, but must carry him before a Justice who may commit him. 2 Danv. 149. Jacob's Law Dic. tionary. But it is said by the original power ina Con- stable he may, fora breach of the peace and some other misdemeauours less than felony, impris- on a man; and if an offence be committed for which a Constable may arrest, he may convey the offender to the sheriff or jailor. Though the safest way in all cases is to bring him to a Justice of the peace, to be bailed or commit. ted as the case may require. 2 Hale, 88. 89. 2 Constable may make fresh pur- suit into a- nother county. May jus. tify beating another if assaulted and if kil- led it is murder. May take any one in custody they see of- fending. Not so if out of their sight. May de- tain offen- ders a short time with, out a war- rant. Cannot commit to jail. Must bring him before a Justice of the peace. r 18 J Must exc- The Constable's office being ministerial precepts and relative to the Justices of the peace, their from a Jus- precepts ought to be executed by him, or on peace. default he may be indicted and fined. 2 Hale 88. 89. Not obli- If a warrant be dirrected to a Constable ged to go by name, to execute out of his own parish or outC of his precinct, he may execute it, but he is not obli- ged to do it. 1 Salk. p. 175. 3 Salk. 99. It is at the election of the Constable to- stable may carry an offender before any other Justice than convey the him who issued the warrant, if the -warrant be iffenderbe- not specified to bring the offender before the fore any ntseiidt rn Justice he Justice that granted it. 5. R. 59. Jacob's Law tpheiks pro- Dictionary, under title of Constable. A Constable is not obliged to return a Jus- Constable tices warrant to the Justice, but may keep the not obliged to return a same for his justification in case he should be Justices questioned for acting; but he may give the warrant to Justice. Justice an account of what he hath done upon it. 2 Lord Raymond, 1196.. Here it may be necessary to observe that the above applies exclusively to criminal eases, -under our act of Assembly, the officer is Best in all expressly directed to return all warrants, cases to rh- attachments, c. in 30 days, and as Magis- warrant trates courts are by our lawvs made courts leave itwith the justice. of record, which they were not in Lord Raymond's time, perhaps in all cases the officer should not only return the warrant- E 19' to the Justice, but suffer it to remain in his hands, from whence copies canl be had in case of necessity. Constables may stop such persons as go or ride unlawfully armed to the terror of the people, may take away their arms and carry them before a Justice. Dal. 358. Constables with others summoned by them may enter bawdy houses, and arrest persons committing a breach of the peace. Sta. X3 year. Hen. 7. A Constable permitting or aiding a felon to escape before arrested, is guilty of a misde- meanor, for which he may be fined and in- prisoned-and if he be actually in custody, and then he voluntary permit him to escape, it is felony in the Constable; but if the escape be involuntary it is only finable. He may put a felon in the stocks and lock him in, or put irons upon him, or pinion him, to prevent an escape. Dal. 272. A Constable may discharge any person ar- rested on suspicion of felony, where no felony has been committed. Dal. 272. Cro. Eliza. 202. 752. A Constable may ex-officio apprehend fel- ons, and may call other persons to assist him. He may break open a house to take a felon. If he fly the Constable must make an inven- tory of his goods, make hue and cry after him, c. Dal. 289. 344. 27. Eliz. C 13. May stop persons who put the citizens in terror. May enter bawdy hou- ses and ar- rest per- sons com- mitting breaches of the peace. A constable permitting felon to es- cape, guil- ty of mis- demeanor when not in custody. If arrested felony. If involun- tary, mis- demeanor. Mav con fine a felon to prevent escape. May dis- charge W;v'; no felony com- mitted. May ex-of- ficio appre. head. Make an in ventory of estate. E 20 3 General Upon a general warrant without expres- warrant bad. sing a particular felony or treason, a Consta- ble cannot lawfully break open a house. Cannot In a civil suit, the officer cannot justify break oUt- the breaking open an outward door or win- side door ino civil case. dow in order to execute process; if he doth he is a trespasser-but if he findeth the outer MIay break door open and entereth that way, or if the door inner door. be opened to him from within and he entereth he may break open inward doors if he findeth that necessary, in order to execute his process. Fos. 319. In such case, if the officer broke open the Breadking outer door and entered in, it was -a trespass, but trespass. after he was in, if he took the goods or broke open. a trunk or inner door, the taking of the goods is good.-Cowper's Reports p. 1. See Lee vs. Gansell-Swain's case in 5 Co. That breaking open the outer door was a trespass, Taking the but taking away the goods was lawful. goods law- fui. The reason given by Lord Mansell in Gansell's case is this The law forbids the breaking the outer door or window of a man's house, because it would leave the family with- in exposed to thieves and robbers; and thus Leaves the produce fatal consequences, and it is much posed. better that you should wait for another oppor-. tunity than to do an act of violence which may probably be attended with such dangerous con- sequences. Cowper Re. p. 6. 21 ] Again Burn savs:-That a man's house Man's is his Castle for safety and repose, for himself hoste his and family; but if a stranger who is not of the but not for family upon pursuit, taketh refuge in the house a stranger. of another, this rule doth not extend to him. It is not his castle, he cannot claim the benefit tfa sanctuary therein. Fos. 319. And it is, also, to be remembered that this rule is to be confined to the case of arrest upon pro- confined to civil ca- cess in civil suits only. For where a felony hath ses. been committed, or a dangerous wound given, or even where a minister ofjustice cometh arm- Criminal cases, the ed with process, founded on a breach of the officer may peace, the party's own house is no sanctuary break tho for him in these cases. The justice which is due to the public must supersede every pre- tence of private inconvenience. Fos. 320. If an offi- Finally, in all cases, if an officer, to serve cer be con- fined, may a warrant, enters a house, the doors being break out. open, and then the doors are locked upon him, he may break them open, in order to regain his liberty. 2 Haw. 87. But if such person, either upon the attempt to arrest, or after the arrest, assault the officer, If one as- sault an of- to the intent to make his escape from him, and ficer, ai the officer, standing upon his guard, kills him, thie officer, in his owa this is no felony; for he is not bound to go defence, back to the wall, as in common cases of de- kill him, it is not fel. fence, for the law is his protection. 2 H. H. ony. 118. constables Constables are to apprehend persons en. to appre- hend gdam- gaged in unlawful gaming, and carry them blers. before a Justice of the Peace. And Consta- bles neglecting their duty herein, forfeit forty' shillings. 33 H. 8. C. 9. If Jailors refuse to receive a felon, the Con- Constable may secure stable may secure the prisoner in his house, felons. or carry him back to the place where appre- hended. 10 Hen. 4. Dal. 340. 3 Jr. 1 C. 12. constables Constables are to make hue and cry after to make hue and. offenders, where a felony has been committed. cry. 3 Edw. 2 Ch. 6 p. 27 Eliz. c. 13. constables A Constable is, on complaint, to cause an, to make in- indictment to be made against inn-keepers, for dictmnent. against inn refusing to lodge a traveller, or to provide hinix keepers.. victuals, c. who offers topay for thesame. Sta. tute I year. Ja. 1. c. 9. and Wood's In't. To whip Robbers of orchards to be whipped, by robbers of order of Justice, by the Constable of place9 orchards. May corn- See 43 Eliz. Ch. 7. 9.t pel persons Constables may command and compel infected with tCie persons infected with the plague to keep with. plague to in their houses. 1 Jas. 1 Ch. 31. stay in their hous- At the Grand Jury Court, they are to pre. es. sent all offences against the peace, c. be- all offen- longing to their offices. 43. Eliz. ch. 2. Ces- If a Constable doth not his duty, he may- constables liable to be be indicted and fined; and, on the other hand, lined. he is protected if lhe doth his dtity. Ba. Abr. Perhaps the penalty of 40 shillings may not be considered in force at this day. tThere is some doubt whether this remains in force. [23 ] It is the Constable's duty to prosecute all To prose- P cute offen- who buy and sell by false weights and measures. ders. 8. H. 6. C. 5. If a Constable is assaulted in the execu- Constable may kill tion of his office, he need not go back to the without wall, as a private person ought to do; and if tgoig btach in striving together, the Constable kills the as- sailant, it is no felony: but if the Constable is but ifhe be killed it is killed, it shall be construed pre-meditated felony. murder. Hae's Pleas Crown. 37. 1 H. H. 457. In moving against In removing Constables from office, he Constable, he must must have notice of the charge against him, have no- and of the time and place of trial.. See Dalton, tice. c. 28. Arrest in An arrest in the night is good, both- it the the night is suit of the king, (in this country the common- good. wealth) or of the subject, else the party may escape. Law process is not to be served on Sun- day, except in treason or felony, and escapes. Sund, Jacob's Law Dictionary. This is by a statute of Ch. and a similar statute was passed in Vir- ginia, which will appear hereafter. Jurymen are to be freemen, indiffirent, not outlawved, nor infamous-Aliens, and men at- Qualifica- taintcd of an) crime, ought not to serve oN tions ofju- rymen. juries-Infants, persons seventy years of age, As it com- clergymen, apothecaries, are exempted by law Smn statutw. from serving on juries. 3 Ju. 221. 2 Ju. 447. page. [- 24 ] General A gencral warrant to search all suspected warrant not good. places for felons or stolen gcods, is not good. H. PI. 93. Burn's Jus. A warrant M- Mr. Hawkins sa s, I do not find any good to search authority that a Justice can justify sending a 2.ll sus- ac l upce oie pected pla- general warrant to search all suspected houses ces no in general for stolen goods: because it seeni-i more or to be illegal in the very face of it, for it would better than a blank be extremely hard to leave it to the discretion warrant. of a common officer to arrest what persons and search what houses he may think fit: and if a Justice cannot legally grant a blank warrant for the arrest of a single person, leaving it to the party to fill up, surely he cannot grant such warrant, which might have the effect of a hun- dred blank warrants. 2 H. 82, 84. On corm- But, on complaint, and oath made of coods plaint Of b felony, and stolen, and that the party suspects the goods place nam- are in such a house, and shews the cause of ed, warrant grantable. his suspicion, the Justice may grant a warrant to search in those suspected places, mentioned tach the in his warrant, and to attach the goods and the goods and party in vhose custody they are found, and party. bring them before him or some other Justice, to give an account how he came by them, and, further, to abide such order as to law shall ap. pertain. 2 H. H. 113. 159. But in that case, lord Hale says, it is con- Search to venient that such warrant do require the search be made Min to be made in the day time. And, though I day time, n generally, will not affirm, says he, that. they arc unlawful [ 25 1 without such restriction, yet they are very in. convenient without it; for many times, under pretence of searches made in the night, rob. beries and burglaries have been committed, and, at best, it creates great disturbances. 2 H. H. 150. But in case not of probable suspicion only, baty onPof but of positive proof thereof, it is right to exe- the night. cute the warrant in the night time, lest the of. fenders and goods all be gone before morning. Burn's Justice. Furthermore, such warrant ought to be di.. rected to the Constable, or other public officer, served by and not to any private person, though it is fit Constable. the party complaining should be present and assisting, because he knows his goods. 2 H. H. 150. Whether the stolen goods be in the sus- pected house or not, the officer and his assist- justifiaersraent ants may enter in the day time, the doors being try. open, to make search; and it is justifiable by warrant. B. J. 132. 4 vol. If the door be shut, and, upon demand, it May break be refused to be opened by them within, if the door. stolen goods be in the house, the officer may break open the door. 2 H. H. 151. If the goods are not in the house, yet it seems the officer is excusable that breaks open the door to search; because he searched by Officer ex- cusable, warrant, and could not know whether the but party goods w-ere there till search made; but it seems not- 4 [ 26 X the party making the suggestion is punishable- in such case; for, as to him, the breaking of the door is eventu lawful, or unlawful: ta wit, lawful if the goods are there, unlawful if not there. Burn's Justice 132. On the return of the warrant executed, the Justice hath these things to do: As touching thethings brought before him, if it appear they are not stolen, they are to be restored to the proprietor: if it appear they were stolen, they are not to be delivered to the pro- prietor, but deposited in the hands of the Sher- iff or Constable, to the end that the party robbed may proceed, by indicting and con- victing the offender, to have restitution. 2 Ii. H. B. Jus. 132. RESCOUS. Rescue is the taking away, or selling at liberty, against law, a distress taken for rent, or services, or damage feasant. But the more general notion of rescues is, the forcibly free- ing another from an arrest, or some legal com- mitment, which, being a high offence, subjects the offender, not only to an action at the suit of the party injured, but, likewise, to fine and imprisonment at the suit of the king. If a man distain cattle, and, as he is dri- ving them to the pound, they go into the own- er's house, and he refuse to deliver them, this is a rescue in law. In this country, to the commonwealth. Duty of Justice in return of search war rant. [ 27 ] But here we must observe, there can be no Rescues but where the party has had the actual possession of the cattle, or other things, where- f the rescous is supposed to be made; for if ; man come to arrest another, or to distrain, -aad be disturbed regularly, his remedy is by action on the case. If, upon fieri facias, the Sheriff or other officer seizes goods which are taken away by a stranger, this is not properly a rescue; for, by the seizure of the goods, by virtue of a fieri facias, the officer has a property in them, and may maintain trespass or trover for them. Al- so, the party injured may have an action on the case against the wrong doer. If, upon a fieri facias, the officer return that he had seized the goods, but that they -were rescued by B and C, c. this is not a good return, but he shall be amerced. The party, also, at whose suit the execution issued, may charge him, by scire facias, for the value of the goods. It seems, that where the defendant, in any execution, endeavours to rescue his goods or person from the officer, that the officer has a right to maintain his possession thereof by force. The Author. This page in the original text is blank. CONSTABLES GUIDE. Clonstitutional and Statutary Pro'visions on the subject of the Constables Of- fice. IN the 9th Sect. of the third Article of the Constitution, it is provided as follows:- The county courts shall be authorised by County law to appoint inspectors, collectors, and their courts to appoint deputies, surveyors of high ways, constables, constables. jailors, and such other inferior officers, whose jurisdiction may be confined within the limits of a county. An act to amend and reduce into one the several acts concerning Constables, and author- ising Coroners to summon Jury, approved Dec. 23, 1805. 3 Little 126. 2 Bradford, 249. 1. Be it enacted by the General Assem- County bly, that the county courts of each county courts to shall lay off their respective counties into dis- lay off the county into tricts, and shall appoint a Constable in each districts, district, who shall execute the duties enjoined stapblpntcn them by law; and provided, that if any Con- therein. stable who is now in office shall not come for- ward on or before the third county court which shall be holden within each county in this comnmonwealth, after the passage of this [ 30 ] Those in act, and give security according to its provis- Ofice secu- ions, if the court should deem it proper to ap- rits. point them, the office of such Constable or Constables are hereby declared to be vacated. b 2. Every person, being appointed a Con- stable, and accepting the appointment, shall, Co stables in his county court, enter into bond with one must enter or more good and sufficient securities, to be into bond. appointed by the court, in the penalty of five hundred dollars (in 1812, an act passed, which Penaltv. -will be hereafter noticed, increasing the pen- alty to 1000 dollars)-with the following con- dition; viz. The condition of the above obli- gation is such, that if the above nanmed A. B. as Constable of the county of C, shall, by him- Forbids a self, well and truly, collect all officers fees and deputy to dues put into his hands to collect, and account collect fees for and pay the same at such timne and in such Execute manner as is directed by law, and shall, well prturss and truiv, execute, and due return make of, all process and precepts to him directed, and Pay money to him delivered, and pay and satisfy all collected; sums of money and tobacco by him received, and per- upon any such process or precepts, to the per- form all son or persons entitled thereto, or to their or- otWer dIi- der; and, in all other things, faithfully and tru- tiesi of Con- stable. ly, execute and perform the said office of a Constable, according to law, during the time of his continuance therein, then the above ob- ligation to be void; otherwise, to remain in [ 31 1 full force, c. which bond shall be payable to Bind paya- the governor for the time being, and his suc- ble to gor. cessors, and in his name and that of his suc- cessors. Any person or persons, injured by a Any one breach of the condition, may, at his costs, pros- injauyrosed ecute a suit thereon, and recover damages: but cute suit. such person shall be liable to pay costs to the defendant, if a verdict and judgment pass in his favour, or the suit be discontinued; and such bond shall not become void upon the first recovery, or dismission upon a first or oth- When void er suit, but may be put in suit from time to time, by, and at the cost of, any other person injured, until the whole penalty be recovered in such damages. 3. And be it further enacted, That any caSta'r officer or creditor, upon such bond, may, by to be mir- application to a magistrate, who is hereby au- ed agwinst, thorised to give judgment therein, recover the amount of any fees, put into the said Consta- bles hands, or the amount of any money, put Constables into the hands of such Constable to collect, on account executions or fines, either for the common- hlow, to bE proc eedcil wealth, or for any individual; and the said , gaist. magistrate shall, on sufficient proof being made to him that such such Constable has neglect- Single JUstict ed to account to such officer, commonwealth, mIay givle or individual, for such money or fines, agree- -l nl t - -'It 10 PC,: able to law, enter up judginrnt for the amount Ceil. daw- thereof, together with ten per cent. damages ag( and costs, and issue execution therefor, which L 32 execution shall be acted on by some other No securi- Constable of the county, and on such execuJ ty to be - tion such magistrate shall endorse "no sacuri- ken. ty of any kind to be taken;"' and the Combtao ble to whom such execution shall be given, shall proceed to collect the same from the for- mer Constable and his security or securities, as executions or replevin bonds are collected, notice dne ten days previous notice, in writing, being giv- cessary. en to such Constable by the party, of the time and place that such application to a magistrate will be made. 4. That any person, before he enters on the office of Cotstable, shall, in open court, Cngtaable giveassuranceof fidelity to the commonwealth, oath. and take the oath of office prescribed by the constitution and law. (The first section of the 5th article of the constitution contains this provision: "Members of the General Assem- bly, and all officers, executive and judicial, be- The oatht, fore they enter on the execution of their res- pective offices, shall take the following oath or affirmation: 'I do solemnly swear, (or affirm, as the case may be,) that I will be faithful and true to the commonwealth of Kentucky so long as I continue a citizen thereof, and that I Constablethbetomyai- must go to wvill faithfully execute, to the best of my abil- the resi- ities, the office of dence of the party according to law.' ") No Constable shall before he return, in any precept to him directed, that returns not found. the defendant is not found within his bailiwick, [ 33 ] unless such Constable shall have actually been at the place of residence of such defendant, and, not finding him, shall have left a true copy of the precept, or unless such defendant's place of residenceis unknown to such Constable; and no Constable shall be compelled to receive a precept or fees of any kind, against any de- fendantwho is known to be out of hisbailiwick; (except it be for the commonwealth) but if any Constable shall voluntarily receive such precept or fees, he shall be accountable for the same, in the same manner as if within his bail- iwick. 5. And be it further enacted, That, when any warrant, attachment or sub-poena shall be put into the hands of any Constable, and such Constable shall not return it to the magistrate who'issued the same, or to some otherpmagistrate of his county (as the case may require), within thirty days from the day of issuing the same, such Constable shall forfeit and pay to the par- ty injured thereby, the sum of five dollars, re- coverable by motion before a magistrate, in the same manner that money may be recover- ed, under this act, from a Constable, for fail- ing to pay money made on executions. When any magistrate shall vacate his office, by death or otherwise, it shall be the duty of the Con- stable, in whose hands any process, of any na- ture whatsoever, issued by such magistrate 5 Not com- pelled to receive fee bills agai'st persons out of his bounds; but if he does, liable there for. Failing to return pro- cess in SO days, shall pay A5 to the party injured. Recovera- ble by mo- tion before a magis- trate. i 34 ] may be, to return the same to any other Jus- tice of the Peace for his count!, within the time prescribed by law, under the same pen- alties for failing to return as if no such vaca- County tion had taken place. courit, a ia 6. The county court, a majority of all jority of its members its members being present, shall have power, present, on complaint being made, to dismiss any Con- may re- move Con- stable from office for failing to do his duty, or stables from office. for malfeasance in office, having, by their clerk (on application of any person who may think himself injured), given ten days notice to such Constable to appear and make his defence. It shall, nevertheless, be the duty of such Con- Though stable to return and account for all papers, of removed hv i i must ere- every kind, that he may have officially in his turn papers hands at the time of his dismission, in the same as a Con- manner as if he were in office; and the person stable. who may apply to the court for the dismission Prosecutor of any Constable, shall pay all legal costs, in liable f1o` case he shall fail in his prosecution either by costs, if he fail. discontinuance, or judgment in favour of the The Con- Constable; and if the Constable shall be cast, stable lia- he shall pay the costs. ble, if re 7. In all cases where the party arrested moved.prt or apprehended by a Constable, for riot or Justices to breach of the peace, and, on trial, shall be futvc exfo found guilty, the Justice or Justices before acts in ca- whom such offenders shall be tried, shall enter inso wichtn up judgment for the costs, agreeable to the replevin. fees herein after allowed, and issuc execution [ 35 ] for the same immediately, and deliver it to the Constable, on which there shall be no replevin. 8. When any property shall be taken by the Constable by virtue of his office, he shall (on the person or persons from whom such May re- ceive a property may be taken, giving bond with suf- forth com- ficient security for the forthcoming of such ing bond. property at the day of sale) suffer the property to remain in the hands of the debtor: but when such person or persons shall not be able, or shall refuse to give such security in either case, and the property shall consist of live to keep live stock,the Constable shall take care of the same, stock, and and allowance shall be made him out of the tofixtheral money arising from the sale of such property, lthwanfce to be judged of by the Justice to whom the execution is returned. There shall not be more than fifteen days between the time of ex- ecuting and selling any property taken, by vir- tue of an execution, by a Constable; ten Ten days days previous notice shall be given of the time notice to be given in a and place of sale, by advertising the property, sate of ex- specifying each article, at the most public place ecuted or places in the neignbourhood, where the ppy persons from whom such property was taken resides. 9. Where bond shall be given for the de- livery of property, and shall not be complied If property with at the day of sale, the Constable shall re- not deliver- ed, bond to turn the bond to the Justice who issued the be return'd execution, if such Justice be still in office; if to Justice, : 36 ] and cxccu- not, to the most convenient Justice; and it tion taken out there- shall be the duty of such Justice to whom it oil: is returned, on application of the plaintiff or no security to be taken his or her agent, to issue a new execution, in- cluding all costs, in which no security shall be taken. 10. Constablesshall,at orbefore the day of sale, suffer a debtor to replevin the debt and May suffer costs for three months, by his giving bond and debtors to sufficientsecurity,payable to the party at whose replevin for three suit the execution issued. The condition of months. a replevin or forth coming bond, shall specify, separately, the debt, interest, and costs, and Constables fees; and when execution shall is- sue thereon, the Justice of the Peace shall en- Nature of dorse "no security of any kind to be taken;" the replev- and no execution put into the hands of a Con- in or forth coming stable, shall be made returnable in more than bond. ninety, nor less than thirty days. 11. The Constables in this common- wealth shall receive for their services, the sev- eral fees annexed to their several services here- in after mentioned; to wit: for taking a replev- FCCs. in or forth coming bond, 25 cents; for levying an execution, 25 cents, and a commission of six per cent. in all sums above three dollars, which may be contained in the said execution; for serving a warrant for debt, 25 cents; sum- moning witnesses in any case, each 12 1-2 cents; serving a peace or search warrant, 100 cents; levying an attachment, 37 1-2 cents; C 37 ] bummoning a garnisher, 25 cents; carrying a crininal to jail, each mile in going and return- ing, 4 cents; taking up a vagrant, 50 cents; for apprehending a person, on a charge of felony, S2. 12. Any Constable who shall receive or charge any more or greater fees than is herein expressed, shall forfeit and pay to the party so charged, the sum of 2 dollars for every false chlarge, to be recovered by a motion, before a Justice of the Peace, in the same manner that money collected on execution under this act is to be recovered. 13. That it shall be lawful for any Con- stable to levy an attachment on the personal property of any person who is about to absent himself or conceal himself so that the ordinary process of law cannot be executed on such person, and the property so attached shall be delivered by the Constable as soon as may be, with his return upon the attachment to the Sheriff of his county, whose duty it shall be to act with the same in every respect as if it had been attached by himself-and the Constable shall be entitled to the fee for levying the at- tachment-and where attachments are levied by any Constable, the Justice before whom such attachment shall be tried, shall give judg- ment and award execution, on sufficient proof of the truth of the claim, or for any part there- Penaly of 2 for re- ceiving greater fees. Recovera- ble by mo- tion before a Justice. may serve an attach- ment; in certain ca- ses, return them to Sheriff. In certain cases, ma- gistrate may give judgment. c. [ 38 ] of, subject to appeals, as other cases tried on a warrant. 14. It shall, and may be lawful, for the respective officers of this commonwealth, to put Constables theirfees into the hands ofany Constable for col- fo takoflees lection, and for each Constable to collect the tion. same; and it shall be the duty of the Constable to use due diligence in collecting, and shall have the same power to enforce payment as is now given to Sheriffs by law in similar cases. Such Constable shall account for, and train for pay to the persons entitled to receive the same, them. the money by them collected, within six months after such fees are put into their hands for collection, and shall be entitled to receive six per cent. on the money by them collected: Provided, that nothing herein contained shall prevent Sheriffs from being compelled to re- ceive and account for fees, as heretofore pre- scribed by law. 15. All Constables in this commonwealth Constables shall hereafter give bond and sufficient securi- bond once ty once in every two years; or forfeit their of- in two years. fice. By an act passed 1798, regulating officers fees, It is provided, that no fees shall be paya- ble by any person whatsoever, until there shall be produced, or ready to be produced, unto Must l; the person owing or chargeable with the same, out fee bill, a bill or account in writing, containing the par- and how. ticulars of such fees, signed by the clerk or [ 39 ] officer to whom such fees shall be due, or by Fee for replevin whom the same shall be chargeable, respect- delivery ively; in which said bill or account, shall be bonds- expressed in words at length, and in the samle manner as the fees aforesaid are allowed by this act, every fee for which any money shall be demanded. See 1 Bradford 450. 3 Littell 328. By an act passed Nov. 15th, 1806, it is provided, "That no Constable shall be entitled to more than half commissions in any execu. Replevin tion where the property is replevied, or deliv- for one ery bond given, and not complied with at the month in twenty-five day of sale; but shall be entitled to the com- shillings. mission heretofore allowed by law in cases where the money is collected. No person or persons shall be allowed to replevy for more than one month, 'where the amount of the ex- execution issued by the Justice shall be less than twenty-five shillings, exclusive of costs. A Constable shall have power to collect Constables his own fees bv distress, in the same manner may issue fee bills, as Sheriffs are allowed to do by law, or he may put them in issue his fee bills, and put them into the hands other offi- cers hands of the Sheriff, or some other Constable, Wvho for collec- shall be compelled to receive, collect, and ac- tion. count for the same, and shall have the samc power to compel the payment by distress, that Distress Sheriffs now possess in casc of other officers fees. C 40 ] Fees. By an act passed Dec. '27th, 1803 (See Littell 144), it is provided, That, for serving an execution, if the property be actua iy sold, or the debt paid, or where the Sheriff shall Deliveryhave taken bond for the delivery of property, bond. which is not complied with at the day of sale, the Sheriff shall be entitled to five per cent. on the first hundred pounds, and two per cent. on all sums above that; and where he shall have levied an execution, and the defendant shall re- Replevin. plevy, the onehalfof the above commission to be charged to the plaintiff and put into the replevin bond against the defendant: and for taking a replevin or forth coming bond, fifty cents; for summoning and attending a jury to try the Jurytotryf right of property, one dollar and fifty cents, the right of of property. and no more, to be paid by the party cast by the inquest of the jury; and when a Sheriff or other officer shall summon a jury to try the right of property, he shall give ten days pre- vious notice of the day of sale to the party claiming the property, if in the county; if not, then to his agent or attorney, if any such there be; and should the claimant not succeed in es- tablishing the property to be his, the Sheriff, Alay sell, or other officer, as the case may be, shall sell if the Jury the property, and not be liable to any suit on do not find a for the account of such sale; but if the parts for whom claimant. the property shall be so seized, do, in opposi- tion to the finding of such Jury, insist that the C 41 ] Sheriff, or other officer, shall sell the property, the officer shall not be compelled to make sale of the property, until the party demanding the same shall enter into bond, with sufficient security, to indemnify such Sheriff against all To indoor consequences that may arise from such sale. DXCy. And the Sheriff or Collector shall receive, for seizing and selling any property, in collecting the public revenue or county levy, for all sums under one dollar, twenty-five cents; and for al Fee for sums above one dollar, six per cent in addi- seizing and tion thereto; and such sums to be detained out selling. of the money arising from the sales of such property; and the same for collecting clerks, or other officers fees, as for public taxes and county levies. By an act passed Dec. 22d, 1802 (Littell Riotsrouts 3. 57), to suppress riots, routs, and unlawful c. how to assemblies of the people, it is provided, That I Csuppres- if any riot, rout, unlawful assembly of the peo- ple, or breach of the peace, be made or com- mitted in any part of this commonweaith, a Justice of the Peace, together with the Sheriff or under Sheriff of the counwy, or the Consta- Justice, Shieriff and ble, where such riot, rout, unlawful assenblyl, Conristable, or breach of the peace, shail be made, shall to go with come with the power of the count-, if need be, thle pouwer to arrest him or thenm, and shallarrest them, and ty to com- put him or them in the jail of the county, un- mit to jail, put muless they less they give brail, with sufficient security, for give bodl. their appearance at the the time aud place fix- 6 [ 42 ] ed on for their appearance by said Justice; and it shall be the duty of the Sheriff, or under Jury. Sheriff, or Constable, to summon Jurors to at- tend at the time and place directed by the Jus- tice, as aforesaid, - ho, after being sworn by Offenders the said Justice, shall proceed to punish each fined. offender by a fine mot exceeding twenty dol- Offenders lars; and, in default of the payment thereof, may be im- shall be imprisoned, not exceeding ten days. prisoned. And if it happens that such trespassers and offenders, or either of them, be departed before ings where- the coming of said Justice and Sheriff, or un- offenders der Sheriff, or Constable, the same Justice shall have de- parted. diligently inquire, within one month after such riot, rout, unlawful assembly, or breach of the peace, so made, and thereof shallhear and deter- mine accordingto law. And for this purpose the Sheriff, or under Sheriff, or Constable, having a precept to him directed by said Justice, shall summon the offender or offenders, and return twelve fit persons as Jurors, who, having been sworn, or, in case of their non attendance, the deficiency being supplied by bsbtandcrs, shall inquire of said riot, rout, unlawful assembly, or breach of the peace, and award against him or them whom they shall find guilty thereof due pains by imprisonment or ancrecement, as is before directed; and if so many of thenm Penalty YTI should not appear, those who shall make de- Jti-ors f(, making de- fault shah bc fined by said Justice, not ex- ttIllt. ceeding five dollars each: And if detfault be in [ 43 ] the Sheriff, or under Sheriff, or Constable, he OnShertv so in default shall forfeit to the commonwealth c. twenty pounds, to be recovered by action of debt in any court having cognizance thereof, to be applied towards lessening the county levy: and, moreover, the Justices of the Peace Duty of in every county where such riot, rout, unlaw. Justices, ful assembly of the people, or breach of the C. peace, shall not be made in their presence, having information thereof, upon oath or affi- davit, together with the Sheriff, or under Sher- if, or Constable, of the same county, shall ex- ecute this act by summoning a Jury, and pro- ceeding as before directed, every one on pain of twenty pounds, to be recovered by action of debt or information in any court having cog- Penalty for nizance thereof, to be applied towards lessen- failure. ing the county levy, as often as they shall be found in default, in the due execution of this act; and on such default of the Justices and Sheriff, or under Sheriff, the same offence or offences shall be punished as heretofore. The whole of the 22d Sect. in the act entitled an act to amend an act, entitled an act to amend the personal laws of this commonwealth, is hereby repealed. 20. That the Sheriff, under Sheriff, or Constable, shall be entitled to one dollar and fifty cents, and no more, for summoning each Jury under this act, and attending upon the to Sheriffs, trial, and conducting to jail any offender against c. E 44 ) the same; and such officer shall be entitled to the same fee for serving any warrant or pre- cept under this act, and summoning witnesses, as are allowed by law to Constables for similar Offenders services; and the defendant shall, in every subjected case he is found guilty under this act, pay the to casts. costs of the prosecution, which the Justice be- fore whom he is convicted, shall award against him, upon the verdict of the jury being against him: and the prosecutor shall, in every case When a where the defendant is acquitted, pay the costs prosecutor of the prosecution, for which judgment shall be shall pay costs. entered against him by the Justice before whom the defendant is tried, as before directed. By an act passed Dec. 19th, 1796 (1 Brad- ibrd 257), on the subject of executions, it is provided, That writs of execution, after being issued, shall be executed by the Sheriff, or oth- er officer, to whom the same shall be directed, and shall return according to the respective forms hereafter mentioned; to wit: The return Form of re- of a fieri facias is as followeth: "By virtue of this writ to me directed, I have caused to be made the within mentioned sum of Fieri facias ', of the estate of the within A. B. which executed. said sum of , before the Judges or Justices within mentioned, at the day and place within contained, I have ready as that writ re- not execu- quires; or, "The within named A. B. hath no tcd. Fieri facias is an execution against the estat. C 45 3 estate within my bailiwick, whereby I can Executed make the sum within mentioned;" or, "By p virtue, c. I have caused to be made of the estate of the within named A. B. the sum of , which I have ready to render to the within named C. D. in part of the dcbt and damages within mentioned; and I do further certify, that the said A. B. hath no more estate within my bailiwick, whereof at present I can make the residue of the said debt and dama- ges, as by the said writ is required." Return of a capiasad satisfaciendum: "By a Return of a ca. sa. virtue of this writ to me directed, I have taken the within named A. B. whose body, before bodytaken. the Judges or Justices within named, at the day and place within contained, I have ready to satisfy C. D. of the debt and damages within mentioned, as within to me is commanded;" or, "The within named A. B. is not found Notfound. within my bailiwick." By an act passed Dec. 17th, 1792, it is provided, that all officers who are about to Tie order in whilch levy executions, shall make the debt or dama- estate is to ges and costs recovered, first of the goods and be taken by cxecutioii; chattels (exclusive of slaves), and if there be first goods, no goods and chattels, or not sufficient found next, ne groes, and in his bailiwick, then of the slaves; and if there last, land. be none, or not sufficient found in his baili- Capi as ad satisfaciendum is an execution on the body. f 46 1 wick, lastly of the lands, tenements, and he- reditaments, in possession, reversion, or re- mainder, or so much thereof, in one or more entire parcels, as shall be sufficient, and such part as the owner shall direct, if he thinks proper. By the 4th Sect. of the act subjecting lands to the payment of debts, approved Dec. lands made 17th, 1792, it is provided by the ist Section, deblse That lands, -tenements, and hereditaments, shall, and may, by virtue of a writ of fieri facias, be taken and sold in satisfaction of all judgments, in a manner herein after prescrib- ed. Lands 4. Every writ of fieri facias, shall bind beu encdby the property of the lands. tenements, and he- tihe rfom redita ents, from the time it shall be deliver- tihe ntihe oit ed to the officer, who shall, without fee, en- ficershands dorse on every such writ the day and time of Officer to day when he received the same. When the temnrsethe goods-and chattles taken in execution, by vir- tue of a fieri facias, shall not be sufficient to satisfy the debt, damages, and costs, the Sher- Notice to iff, oi other officer, shall give public notice at public: the court house of his county, on the next court to party. day after the seizure; and, moreover, shall give notice to the owner, if he be in the coun- Day of sale ty; or, otherwise, to his agent, if any such be not less known; and at some term appointed in the no- than twenty tice, not less than ten, nor more than twenty (lay s. days, from the court day on which the notice t 47] was first given, the said lands, tenements, and hereditaments, shall be exposed to sale by Sold at auction, on the premises, if in a settled part of auction. the county, or at such other place in the set- As direct- tied parts of the county, as the owner shall, by ed by par- writing, under his hand, delivered to the ofli- ty- cer, direct. By 5th . But if the owner shall refuse or If owner neglect to point out some place, within the neglect to fix place, settlement, at which the same may be made, Sheriff then the Sheriff shall proceed to make sale of may sell at the land at the court house of the county wherein the land shall lie. By 6. If the party against whom a judg- ment shall be entered, have several parcels of land which lie in one and the same county, he party may or his agent may, by writing, under his hand, cause the Sheriff to at any time before the day of sale, require the sell such Sheriff or officer, to whom a writ of fieri facias lands as he upon the judgment shall be directed, to make proyper. the debt or damages and costs of such of the said parcels as the owner or his agent shall think proper; and if the parcels be in different COUnl- ties, the clerk shall, and may, at the like re- quest in writing, direct the fieri facias to the Clerk niay dircct fieri Sheriff, or other officer, of any county which facias to a- the party or his agent (making oath, or solemn Y countY. affirmation, that he hath land there) shall par- Oath of ticularly mention, at any time before the writ party that lie I-as land shall be delivered to the officer; and if the debt or damages and costs be made of any oti. i 48 3 Sales, in er parcel of land, or of land lying in any other certain c a- ses, void. county than that mentioned in such written re- quisition, the sale of such other parcel, or of the land in such other county, shall be void. If the owner shall not pay the money, or dama- ges and costs, before, or at the day of sale, the Money not Sheriff or officer shall proceed to sell the lands, paid, sale tenements, and hereditaments, or such estate to be made. and interest therein as the party convicted shall have, or so much thereof as shall be sufficient, to be laid laid off in one or more entire parcels, if it may off. be done in such place and manner as the own- er or his agent, if he thinks proper, shall di- Fees. rect for ready money, or tobacco, as the de- mand shall be, and the fees. 24. B.- an act passed Dec. 21st, 1799, it is pro. AUed, That when lands shall be taken in Lands, o execution, the Sheriff shall sell so much there- first execu- of as will satisfy the execution, at three months tion, to be credit, for whatever sum the same will bring; sold at three and he shall take bond, with sufficient security, cremdotbond from the purchaser, which bond shall be return- erfu I to re- ed to the clerks' office, whence the execution plevin bond issued, within twenty days thereafter, and shall have the force of a replevin bond: Provided, always, that if the defendant or defendants, in any execution, shall, at or before the day of sale, tender sufficient security, to be bFund May re- with him, to pay the amount, and, also, all costs, with lawful interest, for the same, to the creditor or creditors, on such execution, within L 49 ] three months; then the Sheriff, or other officer, Release chall immediately release the estate or body (as p-o6rt the case may be) of such defendant or defend- Rewrn ants from such execution: which bond shall bond to tue be returned and proceeded on, as heretofore office. has been directed in respect to replevin bonds. By the 6th SectL of the act of Assembly, No -act of passed Dec. 19, 1804, to amend the penal limitations laws, it is provided, That no act of limitations apply to flony. shall apply to any felony, or other crime, pun- ishable by confinement in the penitentiary here- No appeal after committed: and no appeal or writ of er- from judg- es under ror shall be had in any case prosecuted under riot act, or the act respecting riots, routs, and unlawful the act re- lativ-e -to re assemblies of the people, or under the act res- iigious as- pecting the distarbancc of religious societies. semuilies By a Statute of Virginia of 1751, it is pro- vided in the 6th Sect- That it shall not be lawful for any Sheriff, or other officer, to exes cute any writ or process upon the Lord's Day, Sunday. commonly called Sunday, nor upon any per- son attending his duty at any muster of mili- tia, or any election of a burgess or burgesses; Persons at and that all process so executed shall be ille- tobstearrest gal and void; unless the same be issued against ed, nor at elections, any person or persons for treason, felony, riot, unless fcr breach of the peace, or upon an escape out of felony, or breach of prison or custody; and such process shall, and the peace, mat, be executed at any time cr place. c, 7 [ 50 Witnesses By an act of Assembly, Feb. 6, 1798, it is privileged froin arrest provided, Witnesses shak be privileged from ar- whilst at rest in all cases, except treason, felony, and court, andl going and breach of the peace, during their attendance at returning. any court, or other place, where their attend- ance shall, by subpoena, first duly executed by a sworn officer, or by some indifferent person who shall have made oath to the due execution One day thereof, have been required; and in coming to for every and returning thence, allowing one day for ev- 20 miles. ery twenty miles from their places of abode: Attending Provided, always, that no person whatsoever, on county attending any of the courts in this common- refeurvey, oealth, or upon any reference or survey, by order of any such court, in virtue of any sub- poena, shall be privileged from an arrest by original, or other process, unless such person shall be actually a witness in the matter in such subpoena expressed. As a Constable has sometimes to summon Juries, I here insert the qualifications of a lawful Juryman. Qualifica- By a law passed 24th Feb. 1797, Sect. t'i0os of J u- 51, it is provided, That no person shall be ca- rors. pable of being of a pettit Jury for the trial of treason, felony, breach of the peace, misprison of treason, breach of the penal law, or any otb- er plea of the commonwealth, or of any estate or title in or to lands, tenements or heredita- ments, in any court of record within this com- monweatth, or to be a Juror in any case what E 51 ] soever, depending in the superior courts with- in this commonwealth, unless such person be a house-keeper, and possessed of a visible es- tate, real or personal, of the value of twenty pounds at lcast. By an act passed Dec. 19th, 1804, Sect. Attach- 1st, it is provided, That it shall and may be ment. lawful for any creditor, where his debt doth not exceed five pounds, to go before any Jus- tice of the peace of the county where his debt- cr resides, and make oath how much is justly due him, and that he has grounds to suspect, complaint. and leerily believes, that such debtor intends to remove his effects, or so to dispose of them as to evade the payment of the debt he owes him; and, thereupon, such Justice shall issue an at- Issue war- tachment against the estate of such debtor, re- rant. turnable before himself, or some other Justice of the Peace, directed to all Constables and Sheriffs in the commonwealth of Kentucky. And, by virtue thereof, it shall be lawful, as well for the Sheriff, or any Constable of the coun- May pur- sua seize ty where such attachment shall be obtained, as property. for the Sheriff, or any Constable of other coun- ties, to pursue and seize such effects, and make return of such attachment to some Justice of the Peace of the county where such attachment shall be levied: and, thereupon, such proceed- ings shall be had as in other cases of attach. ruent. [ 52 1 Must givc. ( 2d. Be it further enacted, that any per- son obtaining an attachment as aforesaid, shall give bond and security with the Justice from whom it may be obtained, as in other cases of attachments. And in all cases, the property Property so attached may be replevied by the debtor or may be re- agent, by giving bond and sufficient security p ev i e d. to the officer attaching the same. In an act before recited in this book, it is mentioned, that the Constable shall have power to distrain for fees, in the sane manner that the May dis- Sheriff is empowered to do-which is as fol- train for loweth: "And the Sheriff of any county, for fCCs. all fees which shall remain due and unpaid af- ter the tenth day of April, in any year, either to himself or the Sheriff of another county, which shall be put into his hands to collect, as To sell in aforesaid, is hereby authorised and empowered the saine to make distress, and sale of the goods and cmecutirg. chattels ofothe prty refusing or delaying pay- ment, in the same manner as for other fees due to any of the officers herein before men- tioned." 1 Brad. p. 351. By the 8th Section of the execution law of Dec. 19, 1796, it is provided, That a writ of fieri falcias, or other writ of execution, shall bind the property of the goods, lands, tene- ments, or hereditaments, against which such writ issued forth; but from the time such writ shall be delivered to the Sheriff, or other offi- (cer, to be executed; and for the better mani. i 53 I festation of the said time, such SherifT or oth- cr officer, his deputy or agent, shall, upon the recipt of any such writ, without a fee for do- iug the same, endorse upon the back thereof, the day of the month and year when he receiv- ed the same. And if two or more writs shall bc delivered against the same person, on the scirne day, that which was first delivered shall be first satisfied. Where the defendant holds real estate, but has no title that is not the legal title, it cannot bc taken in execution. In Act dleclaring the law concerning the Es- CAPE of DEBTORS, and other PRISONERS. Approved January 16, 1798. (See 1 Bradford, page 32.) Section 1. FOR the more effectual reta- Process a- king and securing prisoners who escape out ganerst epsca- of prison: Be it enacted, That if any per- ped. son committed, rendered or charged in cus- tody, in execution,, or upon mesne process to any county prison, or to the jail of any district, :hail thence escape, it shall and may be lawful for any justice of the peace, in the county where such prisoner was in custody, upon oath of such escape before him made, by the sheriff, under sheriff, jailor or other creditable person, to grant unto any person demanding escape ivar the same, one or more warnts, tinder his rants. [ 54 J hand and seal, directed to all sheriffs and con- stables within this commonwealth, reciting the cause of such prisoners commitment and time of his or her escape, and commanding them and every of them, in their respective counties, and precincts, to seize and retake such prison- er so escaped or going at large, and being so retaken, forthwith to convey and commit to the prison where debtors are usually kept; in the county where such retaking shall be, there to be kept in safe custody, until he or she be thence discharged by due course of law: which warrant the sheriff is hereby required to obey, and to receive the prisoner into his safe custo- dy, and to give a notice to the person or per- solls delivering him or her, testifying his re Return ceipt of such prisoner, and shall also make re- thcrceof up- turn of the execution of such warrant, to the on retaking Cie prison- court of that county or district from whence er and pro- the prisoner escaped; and if he or she was there ccedings thereon. in custody charged in execution, then the sheriff shall safely keep himn or her, without bail or mainprise, until he or she shall make full payment and satisfaction to the plaintiff or plaintiffs, creditor or creditors in whose name such execution was sued out, or until the judgment or judgments obtained against him, or her, shall be reversed or discharged by due course of law; and if such prisoner shall have been in custody upon mesne process in any ac- tion of debt or upon the case, the sheriff to [ 55 ] whom he or she shall be recommitted, shall in like manner keep such prisoner in safe custo- dy, and make return of the execution of the warrant by which he or she was retaken, to the court of that county or district wherein he or she was first arrested, and thereupon it shall be lawful for such court, upon the plaintiff's or creditor's filing his declaration, to proceed and give judgment thereon, according as the truth of the case shall appear to them, in the same manner as if the defendant had appeared in the said court, and refused to plead, unless such dekndant shall cause special bail to be entered in the said court, and shall immediately plead to issue, and then upon certificate under the hand of the clerk of the said court, that such bail is given, delivered to the sheriff in whose custody such defendant then shall be, it shall be lawful for the sheriff to set at large such prisoner, and not otherwise; but where any prisoner escaped and retaken upon such warrant as aforesaid, shall thereafter be charged with treason, felony, or other crime or cause 'in behalf of the commonwealth, for which he .or she ought to be tried in the district court, and shall be for such cause removed to the jail of this coinmonwealth, such prisoner shall be charged in the said public jail, with all the causes he or she stood charged, in the prison from whence he or she was so removed, until C 56 J he or she be thence delivered by due cQ;-.:irse of law, in like manner as is herein directed. Mode of 2. When any person in execution Wv o proceeding shall have obtained the liberty of the prison against pri- soners esca rules, by giving bond and security Ibr tire sime, ping from shall hereafter escape and go otit of the salxe, the prison rules. the sheriff of the county where such prisoner was in custody, shall and is hereby required, immediately to apply to a justice of the peace for an escape warrant, to retake such prisoner, according to the directions of this act; and such sheriff shall, and is hereby required, im- nvediately to give notice thereof to the creditor at whose suit he was in custody, or to his at- torney, or agent, and shall assign over and de- liver to such creditor or his attorney, the bond by him taken, for the liberty of the prison rules, who shall be obliged to receive the same, and thereupon it shall and may be lawful, for such creditor or his attorney, to pursue the method directed by this act, for retaking such debtor, upon the escape warrant aforesaid; and if he be retaken thereon, and be recommnittd to jail, the securities for his keeping the prison rules shall be discharged from their bornd, or such creditor, or his attorney, shall, and may, at their election, commence and prosecute an action or suit at law against the security or sc- curities, named in such bond for the recovery of his debt, notwithstanding hec shall havc ap- plied for and obtained an escape warrant,1 a1gainst L 57 ] his debtor as aforesaid; if such debtor is not retaken and committed to jail thereupon, the sheriff shall not be liable or answerable for the payment of the debt, for which such prisoner was in custody, unless the security or securities named in the bond by him taken of such pris- oner for the liberty of the prison rules, shall af- terwards be found to have been insufficient for the payment of such debt, at the time such bond was taken. 3. And whereas the situation of most Recital prisons in this commonwealth, hath given op- portunities to evil disposed persons to break open the same, and turn out debtors and oth- ers in custody, to the hindrance of justice, prejudice of creditors, and ruin of sheriffs, who have been compelled to pay the debts with which such prisoner stood charged: Forrelr- edy whereof, 4. Be it further enacted, That no judg- W ment shall be entered against any sheriff; or how a she- other officer, upon any suit brought upon the riff s made liable for escape of any debtor in his or their custody, escapes. unless the jury who shall try the issue, shall expressly find, that such debtor or prisoner, did escape with the consent, or through the negligence of such sheriff or his officer or offl- cers, or that such prisoner might have been retaken, and that the sheriff and his officers neglected to make immediate pursuit. 8 [ 58 3 An action i 5. Provided always, That whcrc any of debt may sheriff shall have taken the body of any debtor be main - in execution, and shall wilfully and nealigently taimed a- gainst a suffer such debtor to escape, and such sheriff, shrf or the person sueing out such execution, shall die before a recovery can be had against such sheriff for such escape, the person sueing out such execution, his executors or administra- tors, shall and may, have and maintain, an ac- tion of debt against such sheriff, his executors, or administrators, for the recovery of all such sums of money and tobacco, as are mentioned in such execution, and damages for detaining the same; any law, custom or usage to the con- trary notwithstanding. 6. If any private person have any prison- penalty er in his keeping, arrested for suspicion of fel- on private ony, treason or murder, and the person that is persons suf so arrested escape by negligent keeping, be- fering pris- oners in fore that he be brought to jail, then the person their custo- from whom such prisoner so escaped, shall be dy to 'es- cape. liable to a fine, on being found guilty on an indictment, in the court of that district in which such escape was made. [ 59 ] .a:I Act to reduce into one the severa acts res- pecting SLAVES, FREE NEGROES, MULAT- TrOEs and INDIANS. Approved February 8, 1798. (1 Bradford, page 107.) Punish- 10. If any white person, free negro, mu- ment of persons latto, or Indian, shall at any time be found in present at company with slaves at any untlawful meeting, uelatifugl Of or shall harbor or entertain any slave without slaves, or the consent of his or her owner, such person the slaveg being thereof convicted before any justice of of others. the peace, shall forfeit and pay fifteen shillings for every such offence, to the informer, recov- erable with costs before such justice, or on failure of present payment, shall receive on his or her bare back, twenty lashes, well laid on, by order of the justice before whom such con- viction shall be. 11. And every justice of peace uponhis Duty of own knowledge of such unlawful meeting, or justices information thereof to him made within ten other offi- days after, shall issue his warrant to apprehend cers in sup- pressing the persons so met or assembled, and cause unlawful them to be brought before himself or any oth- meetings er justice of his county, to be dealt with as this act directs; and every justice failing herein, shall forfeit and pay fifty shillings for every such failure. And every sheriff who shall fail upon knowledge or information of such meet- ing, to endeavour to suppress the same, and bring the offenders before some justice of the [ 60 3 peace to receive due punishment, shall be lia- ble to the like penalty of fifty shillings, both which penalties shall be to the informer and recoverable with costs before any justice of the peace. And every under sheriff or constable who upon knowledge or information of such meeting, shall fail to perform his duty in sup- pressing the same, and apprehending the per- sons so assembled, shall forfeit and pay three dollars for every such failure to the informer, recoverable with costs before any justice of the county wherein such failure shall be. An Act concerning BOAT -ME N. Approved December 20, 1794. (lBradford, page 178) Where Section 1. BE it enacted by the Gener- anlypersonu enter intos al Assembly, That when any owner or su- coiitract to percargo of a boat or vessel lying within serve on board of any port or place within this state, and destin- any boat or ed to any port or place either within or with- vessel, and fails to per- out this commonwealth, shall enter into any fork, bargain or contract in writing, with any person to serve such owner or supercargo, on board any such boat or vessel, and shall receive any part of the consideration, to be expressed in such writing for such service, and shall after- wards fail or refuse to perform such bargain or How pro- contract, it shall be lawful for such owner or ceeded a- supercargo, to apply to any justice of the gainst. peace, and upon shewing to such justice such. [ 61 ] bargain and contract as aforesaid, it shall be lawful for such justice, and he is required to issue his warrant, specially describing therein the person named in such bargain or contract, and intended to be apprehended by such war- nant, commanding the sheriff or any constable to apprehend such person and deliver him to such owner or supercargo, on board any such boat or vessel; and the sheriff or constable into whose hands such warrant may come, shall immediately proceed to execute the same, un- der the directions of such owner or supercar- go, and for so doing such sheriff or constable Fee to she- riff or con- shall receive the sum of fourpence for every stable. mile he shall travel in the execution of his of- fice, to be paid by the person employing him, whether owner or supercargo, to be deducted from such person's wages; and should anv sheriff or constable refuse or fail to execute Penalty on such warrant without good cause for so doing sheriff or he shall forfeit and pay to the person obtaining the same, the sum of five dollars. Powerof f 2. And be itfurther enacted, That such thre owner owner or supercargo shall have power and au- over such Person so thority to detain any person so delivered him contracting, as aforesaid, on board such boat or vessel, and to compel him to perform his contract or ser- vicc. CODfliCi.2a 3. This act to be in force from the pas- sage thereof. [ 62 ] An Act to amend and reduce into one act, the severat acts CONCERNING BASTARDY. Approved December 14, 1795. (See 1 Bradford, page 182.) Proceed- 2 2. And be it further enacted, That when ings a- the sheriff of any county within this common- gainst she- wealth, shall be charged with being the father riff. of any bastard child, the warrant for apprehen- ding him shall be directed to, and executed by the coroner of such countv, and the same pro- ceedings shall be had thereon as before direct- ed by this act, as in other cases. And when ad cronrsta the coroner or constable of any county shall bles. be charged with being the father of any bas- tard child, the warrant shall be directed to, and executed by the sheriff, and the same proceed- ings had thereon as before directed. And in all other cases the warrant for apprehending a person charged with being the father of any bastard child, shall be directed to the consta- ble, and by him executed. 3. If any sheriff, coroner, or constable Penalty shall refuse or neglect to execute any warrant failing to execute to him directed, in any case specified in this v';arrants. act, he shall forfeit and pay ten pounds, by action of debt, in any court of record, one half to the person sueing for the same, and the oth- er half to the use of the commonwealth. [ 63 ] In Act to reduce into one the several acts es. tablishing C O U N T Y C O U R T s, and regulating the proceedings therein, and concerning the appointment of JUSTICES of the PEACE and their jurisdiction. Approved December 17, 1796. (See 1 Bradford, page 211.) 1. Be it enacted by the General Assem- bly, That there shall be a competent number Justices to of justices of the peace appointed in the sever- ea i al counties within this commonwealth. 2. Every person so appointed a justice of the peace, before he enters on the execution To take an of his office, shall take the oath prescribed by oath. the constitution of this state; and if any person whatsoever, shall presume to execute the office of a justice of the peace, without first qualify- ing himself in the manner by this act required, he shall for every such offence forfeit and pay Penalty on the sum of fifty pounds; one moiety to the failure. commonwealth, and the other moiety to the informer, to be recovered by an action of debt, in any court of record within the state; which oath may be administered by any one justice of the peace to another, and a certificate of which shall be recorded in the court of the county to which the justice taking the same shall belong. . 3. In every county of this state, a month- ly court shall be held by the Justices thercof, coa1rt3 to at the several respective places that. have been bec held lik C 64 ] each coun- or may be assigned for that purpose, upon the ty. days which are or may be limited by law for holding courts for each county respectively, and at no other time and place: which courts shall be called county courts, and shiall consist of the justices appointed for each county, as above directed, and three of them shall be suf- ficient to hear and determine all causes de- pending in the said county courts: Provided May ad- nevertheless, that if the business of any of the journ from said courts cannot be determined on the court day to day. .day, the justices may adjourn front day to day, until all causes and controversies then depend- ing before them shall be heard and determined, or otherwise continued until the next court: Proviso. Provided also, that no monthly court shall be held for any county, in any month, in which a court of quarter sessions is directed by law to be held for the same county. 4. The county courts shall and may have Their ju- cognizance, and shall have jurisdiction of all risdiction. causes respecting wills, letters of administra- tion, mills, roads, the appointment of guar- dians, and settling of their accounts, and of admitting of deeds and other writings to record: they shall superintend the public inspections, grant ordinary license, and regulate and res- train ordinaries and tippling houses, and ap- point processioners: they shall hear and deter- mine according to law, the complaints of ap- prentices and hired servants, being citizens of [ 65 ] any one of the United States, against their mas- ters or mistresses, or of the masters or mistres- ses against their apprentices or hired servants: they shall have power to establish ferries and regulate the same, and to provide for the poor within their counties. 5. From time to time for ever hereafter, the court of every county of this common- wealth, shall cause to be erected and kept in To crect good repair, (or where the same shall be al- dicugs. ready built, shall maintain and keep in good repair) within each respective county, and at the charge of such county, one good and con- venient court house of stone, brick or timber, and one common jail and county prisons well secured with iron bars, bolts and locks; and also one pillory, whipping post and stocks: and where land shall not be already provided and appropriated for that purpose, such court To pur- may purchase two acres, whereonto erect the chase two acres of public buildings for the use of their county, land there- and for no other use whatsoever: and to every for. court-house already erected and established, two acres of land built upon and adjacent thereto, not having any house, orchard, or o- ther immediate conveniencies thereon, shall be, and remain appropriated to such court-house; awid the fee-simple thereof is hereby declared to bc in the court of the same county and their sl1(icessors, to the use of such county as afore. 9 [ 66 J said: but where a court house is already buit in any town, the land so laid off for the same and the other public buildings, shall bc judged and held sufficient; and if the justices Penalty on of any county court shall, at any time hereaf- keep a suf- ter, fail to keep and maintain a good and suffi- ficient jail cient prison, pillory and stocks, every mem- ber of the court so failing, shall forfeit and pay five hundred pounds of tobacco; one moi- ety to the commonwealth, and the other moi- ety to the informer, to be recovered with costs by action of debt or information, in any court of record in this commonwealth: and moreo- ver, the court so failing shall be liable to the action of the sheriff from time to tinme, for all damages recovered against him upon any es- cape, for the want of a sufficient prison; and such sheriff, or his executors, or administra- tors, shall, and may sue for the same by ac- tion of debt or information, brought in the district court against the justices so failing, or the survivors of them; and upon recovery in such suit, the judges of the said court arc hereby empowered and required to proportion howv much every particular justice of the court so failing, who shall be then living, and the executors or administrators of such as shall be deceased, shall pay respectively, and to en- ter up judgment accordingly, whereupon onz2 or more executions shall or may be issued. P 67 3 g 6. And the justices of every county To lay off prison shall, and they are hereby empowered and re- rules quired to mark and lay out the bounds and rules of their respective county prisons, not exceeding ten acres of land, adjoining such prison; which marks and bounds shall be re- corded, and renewed from time to time as oc- casion shall require; and every prisoner not committed for treason or felony, giving good security to keep within the said rules, shall has-e liberty to walk therein, out of the prison, for the preservation of his or her health, and keeping continually within the said bounds, shall be judged in law a true prisoner. And if the court of any county shall at any time To erect think fit, they are hereby authorised and em- too, king powered, at the charge of their county, to cause a ducking stool to be built in such con- venient place as they shall direct. 7. The justices so appointed, and each of them shall be conservators of the peace The justi- -ithin their respective counties, and shall have ces to be cognizance of all causess of less value than tors of the five pounds, current money, or one thousand peace. pounds of tobacco; in which said causes they may give judgment, and thereupon award ex- ecution; and in all such cases discount shall be allowed, and the justices shall give judg- TIheir pow- ment either for the plaintiff or defendant, as er and ju- the case may be, provided the plaintiff had risdiction. reasonable notice of such discount. Protided [ 68 ] always, that no execution shall be issued a- gainst the body of any defendant, unless the judgment exceed the sum of twenty-five shil- libgs; which execution shall be executed and returned by the sheriff or constable to whom directed, in the same manner as other execu- tions are to be executed and returned. 8. All judgments given by any such jus- tice or justices, when the amount thereof shall not exceed twenty five shillings, shall be final: in all judgments where the amount thereof shall exceed twenty five shillings, the party a- gainst whom such judgment shall be given shall have a right to appeal from the same to the next county court, to be held for the coun- ty wherein the judgment was rendered, provi- ded there be ten days between granting the judgment from which the appeal is made, and the sitting of the court: whereupon the justice or justices who gave such judgment, shall suspend all further proceedings thereon, and shall return the papers, and the judgment he had given, to the clerk of the said court; and the said court shall, thereupon, at their next ses- sion, hear and determine the same in a summa- ry way, without pleading in writing, according to the justice of the case, unless the said court, for good cause to them shewvn, shall continue the same to the next court, beyond which second court, such appeal on no pretence shall be continued: and execution may be taken out what judg- ments final. For what sums ap- peal may be granted. Proceed- ing on ap- peals. [ 69 J on a judgment given by the said court on such appeal, in the same manner as if the cause had been originally instituted in the said court. In all cases where any party may desire to appeal from a judgment of a justice, pursuant to this act, he shall receive from the justice a copy of such judgment, and produce the same to the clerk of the county court, and shall enter into bond in the office of such clerk, in a penalty double the sum of such judgment with secu- rity, who shall be approved of by the justice, from whose judgment the appeal is made; such bond shall be conditioned for the pay- ment of the debt and costs in case the judg- ment shall be confirmed on the trial of the up- peal. Upontheexecutionof suchbond, the clerk shall certify the same to the magistrate and con- stable, enjoining further proceedings, and is- sue a summons to the appellee to appear at the court to which the appeal is returned, no- ting the day the same shall be set for trial by the clerk. The constable shall summons the appellee, his agent or attorney, if within the county; which summons shall be executed ten days before the court where the same shall be tried. 9. Where the appellee shall reside in a- nother county, the clerk of the court to which regulations the appeal is made, shall have powNer and au- as to ap- thority to issue a summons to cause such ap- Peals. pellee to appear before the court; which sum- [ 70 ] mons shall be executed by the appellant, or some other person for him, on the appellee, and satisfactory proof of such service shall be made to the court to which the summons shall be returned; and if the appellant shall neglect to execute or cause to be executed such sum- mons on the appellee, before the second court after praying an appeal, the judgment of the justice shall stand confirmed. Papers and 5 10. It shall be the duty of the justice certified. who gave the judgment, to lodge With the clerk, at or before the next court, any papers produced and read on the trial before him; and if no papers, to certify the same to the clerk, noting therein all the costs, the clerk shall docket the same in order. The court shall proceed and determine the appeal in a summa- ry way at their next court, and give such judgment as to them shall seem just, with res- pect to the costs as well as the debt; but may grant a continuance if they deem it right, to Parties the next term, but not longer. And in all ap- may pro- peals from the judgment of a single justice, duce test'- duocney testthe parties shall have the benefit of all legal testimony that can be produced. 11. Any justice of the county court shall Witnesses have power to issue a summons to cause any living in person as a witness, living in another county, anothe r aontymay to appear and give evidence in any matter that be sum- may be depending before him, at the request moned. of either party: and such witness shall be en- [ 71 ] titled to two pence per mile for travelling to Their al- and from, and ferriages, to be taxed in the bill lowance. of costs. 12. The monthly county courts, or any Justices justice thereof, when acting in their judicial power to justice thereof, punish cu capacity, shall have the same power to punish tempts. contempts of their authority, as is given the courts of quarter sessions. An Act to reduce into one, the several acts and parts of acts concerning Ex E C UTIO N s, and for the relief of INSOLVENT DEBTORS. Approved December 19, 1796. (1 Bradford, page 266) Section 20. No sheriff or other officer to Officers whom a writ of fieri facias shall be directed, not to exe- cute slaves shall take in execution any slave or slaves, if other provided there be shown to such sheriff or oth- property er officer by the defendant, or any other person in his behalf, sufficient, either lands, goods or chattels, of such defendant, within the settled part of the country, upon which he may levy the debt and costs mentioned in such fieri facias; and no collector of any officer's fees, or of the public revenue or county levies, shall seize or make distress upon the slaves of any per- son for such fees, taxes or levies, if other suffi- cient distress can be had: and no sheriff or other Nor naLe! officer, or collector of taxes, fees or levies, shall unreasor- make or take unreasonable seizures or distress zure'. ses: and if any sheriff or other officer or col. [ 72 ] lector as aforesaid, shall act contrary hereunto, such sheriff, officer or collec lcr, shall be liable to the action of the party grieved, grounded upon this act, wherein the plaintiff shall recov- er his full costs, although the damage given do not exceed forty shillings. Officer to i 24. Where upoii a sale under any exe- pay sur- cution, the amount of such sale shall exceed Pl"s of sale to the debt- the principal, interest and costs, the sheriff or or. officer shall pay such excess or surplus to the debtor, his executors, administrators or a- gent; and if any sheriff shall fail or refuse to pay such surplus or excess when required, such sheriff or officer, his or their security or against of- securities, his or their executors or adminis- ficer fail- trators, shall every and each of them be liable ing. to the like penalty and judgment in favour of the debtor as is herein directed in favor of the plaintiff against a sheriff for money levied on an execution. On injunc- 25. When a sheriff, or other officer, un- tion money der any execution, shall receive the whole or turbnede any part of the money or tobacco for which the said execution issued, and the person a- gainst whom such execution may have issued, his executors or administrators shall obtain an injunction of such execution, or for any part of the money or tobacco mentioned therein, before the money or tobacco so received by such sheriff or officer is paid to the plaintiff, his agent or attorney, or his executors or ad- L 73 3 ministrators in any such case the sheriff or o. ther officer, his executors or administrators, shallrepaytothepersonor persons against whom such execution issued, his executors, admin- istrators or agent; the money or tobacco so re- ceived, or such part thereof as may be enjoin- ed; and if any sheriff or other officer, his or their executors or administrators, shall fail or refuse when required to pay such money or tobacco so received, or such part thereof as may be enjoined to the person having a right to demand and receive the same: such sheriff or other officer, and their securities, his and their executors and administrators, and every of them, shall be liable to the like penalty and judgment in favour of the person, his execu- tors or administrators, by whom the said in- junction is obtained as is herein directed in fa- vour of the plaintiff against the sheriff, for not paying the money or tobacco levied on an ex- ecution. An Act to increase the jurisdiction of Magis- trates. Approved January 30th, 1812. (See Acts of 1811, page 112.) Section 1. Be it enacted by the general Jurisdic- assembly of the commonwealth of Ken- tion of jus- tucky, That hereafter justices of the peace il ti""s "I- creased. the several counties in this commonwealth, J1 [ 74 ] shall have original jurisdiction of all debts and accounts not exceeding fifty dollars. May re- 2. Be it further enacted, That quire bail when a justice shall issue his warrant for to be taken in certain any sum within his jurisdiction, and over cases. the sum of twenty dollars, founded on a note, or other instrument of writing, for the di- rect payment of money; it shall be his duty to endorse on said warrant, that "Special bail is required:" and the officer upon executing the same, shall take bail endorsed upon the war- rant, in the following words, to wit: "I, A. B. Form. do hereby agree to be special bail for the with- in named C. D. Witness my hand and seal, Persons this - day of :" And on the defend- failing to ant's failing or refusing to give such give bail, committed bail, the officer is hereby directed to commit to jail. him, her or them, to the jail of his county, until he, she or they, shall give such bail, or shall be otherwise discharged by due course of law. Officer's And the officer for taking the bail aforesaid, fee for ex- ecuting shall be entitled to twenty-five cents, to be process. taxed and collected as other costs. 3. Be it further enacted, That the justi- Certain ces of the peace in this commonwealth, shall fees allow- hereafter, in addition to the fees now allowed ed to ma- gistrates- by law, be entitled to the following fees for the trial of all sums over five pounds,- to wit: For issuing a warrant, twelve and one half cents-Giving judgment, twelve and one half cents-Issuing execution, twelve and one half E 75 ] cents. And he shall keep a book in which he Their du- shall record all his proceedings; and shall be ty- entitled to twelve and one half cents, for each case tried and recorded as aforesaid. 4. .Aid he it further enacted, That in all Party ag- cases tried and determined before a single jus- grieved may appeal tice, where the matter in controversy shall be to circuit abovc five pounds, either party shall have a court. right to appeal from the judgment of such jus- tice, to the circuit court of the county in which the judgment shall have been given. Which There to appeal shall be docketted by the clerk of said be tried 8 determin'd court as other causes; and shall be tried and as other ca- determined in all respects, as it would or might ses origin- ating there have been, had it originally been instituted in in. said court; said court making such order therein, as to its preparation for trial, as they may deem right and equitable. Provided, however, that nothing in this act contained, shall Proviso. be so construed, as to repeal the law now al- lowing appeals from the judgment of a single justice. 6 5. Be it further enacted, That on the On appeals granting of all appeals from judgments of ma- the justice gistrates for sums exceeding five pounds, it to thrclerk shall be the duty of the magistrate before whom of circuit court a co- the trial was had, to transmit all papers had py of re- before him on such trial, to the clerk of the cord and certificate circuit to which the appeal is taken, at or be- of costs. fore the court next succeeding the granting such appeal-together with a certificate of the r 76 ] Costs- costs on the trial before him: which costs shall how col- lucted. be taxed by the clerk as the other costs, and collected accordingly. Party ap- 6. Be it further enacted, That the per- pea lirng, son praying an appeal shall, in the clerk's office enter into o hlofc bond- of the circuit court, to which the appeal is re- turnable, enter into bond and security, to be Condition. approved by said clerk, in a sum not less than double the original debt and costs, with con- No 2 ppcal ditin to pay the same, provided he gets cast. dis,-niss-'d dtinopa for lIregu- And no appcal shall be dismissed for any ir- larity. reoularity ils the proceedings had before the. inajgisrate; bUL the same shall be tried on its 'wicrc crc- merits, as though no trial had been previously (lit: are el had thereon. dorsec! so as to re- 7. Be it further enacted, That in all ca- curtait to a ses where the sum due, or secured by any in- sum-jus- strument of writing, shall be reduced by cre- hic.s tex- dits endorsed thereon, to a sum not exceeding ciusive ju- fifty dollars, in all such cases, justices of the risdiction. peace shall have exclusive jurisdiction, for the recovery of such balance. Parties 8. Be it further enacted, That in all ca- twaye their ses of trial before a magistrate, the parties liti- differences gant shall have the same right to settle their difference by arbitration, as is allowed by law Subjectao in causes pending in the circuit court; and the award returned by the arbitrators may be made the judgment of the justice; subject, however, to an appeal under the same rules and regula- [ 77 3 tions, 4s other cases of appeal from the judg- ment of a justice. 9. Be it further enacted, That an appeal Time in may be taken from the judgment of any jus- which an may appeal may tice of the peace, at any time within twenty be taken. days after the time of granting the judgment, and at no time thereafter. 10. Bc it further enacted, That hereaf- Duty of justices in ter, when any justice of the peace may resign case of re- or remove out of the county, it shall be his moval or express duty to return all the papers and his resignation record book, to the clerk of his county in all their repre cases of judgments over five pounds: or in in case of case of the death of such justice, the clerk of death- the county court shall demand and receive from the representatives of such justice, such Dluty of the papers and record book, to be by such clerk county filed and preserved in his office; from which court, in certain ca- copies may be given to any person requesting ses. the same; and when certified by the clerk, shall be evidence as other records are at present under the existing laws of this state. 11 Be it further enacted, That within six months after the passage of this act, each con- constables to give stable in this commonwealth shall, in the court bond. of his county, enter into bond, with good secu- rity, in the penalty of one thousand dollars, The a- mount, con conditioned as the law directs, for the faithful dition. performance of the duties enjoined on him by law; and, on anv constable failing or refusing gOn failing or refusing to pay over to the plaintiff or his attorney, any to pay over [ 78 ] mrollies col- money by him collected, where the sunm ex. heocto l ceeds five pounds, he shall be liable to a motion proceeded in the circuit court, under the same rules and against, regulations which now govern motions against sheriffs. On failing 12. Be it further enacted That, when- txrecutuinn ever an execution is put into the hands of him his any constable in this commonwealth, and tobe liable he fails or refuses to return the same with- for the a- in twenty days from the return day of said ex- mount and .. ten per ecution, he and his securities, or any of centum them, shall be liable for the amount thereof to damages. the person in whose name the execution issu- How to be ed, with ten per cent. damages thereon, to be recovered, recovered in like manner upon motion, as oth- cr monies are to be recovered of constables. Person or 13. And be it further enacted, That it wlritten ap- shall not be lawful for a justice of the peace, -plication to be made to issue any warrant in any civil case, except for a war- on personal or written application of the plain- rant in all cases. tiff to him, or the filing with him the bond, note, or some other written specialty, as evi. dence of the debt. On an ap- 14. Be it further enacted, That the par- peal a sum- ty praying an appeal from the judgment of a nions shall ' be issued single justice, where the amount in dispute against the shall be above five pounds, shall have a sum- appeice. mons executed on the appellee at least ten days before the court, at which the appeal shall be sct for trial; which summons shall be issued [ 79 ] by the clerk, and executed by the sheriff or constable, at the request of the appellant. 15. This act shall commence and be in Commen- force, from and after the first day of June cing clause next. 16. Be it enacted, That in cases of ap- peal to the circuit court, when the appellant executes bond with approved security in the In cases of clerk's office, it shall be the duty of the clerk appeal the to issue a supersedeas staying all further pro- clerka su- ceedings until the trial in the circuit court; persedeas. and upon the receipt of such process, the offi, cer having any execution, shall stay all fur- ther proceedings. An act allowing compensation to the Justices of the County Courts within this Common- wealth for their services. Approved December 20th, 1802. (2 Bradford, page 200.) . 2. And be it further enacted, That anv justice who shall sign any blank warrant, or permit his name to be put thereto, shall for every such offence forfeit and pay the suim of ser ten dollars, to be recovered with costs, on mo- blank warr- tion in the courtof quarter-sessions in the coun- rant. ty where the offence may be committed, by any person suing for the same, one half to the informer, and the other half to be ap- plied towards lessening the county levy, pro vided the opposite party have ten days previous [ 80 ] notice of such motion; or on the presentment of the grand jury, in which case the whole shall be applied to the benefit of the county. An act more effectually to suppress the practice of Gaming. Approved December 10, 1804. (2 Bradford, page 326.) Tax on Section 1. BE it enacted by the general blesa ta- assembly, That there shall be annually levied and collected a tax of one hundred dollars on each billiard table wvithin this commonwealth, in the same manner, and under the same rules and regulations as other taxes are. Table 2. And be it further enacted, That every kedt UP billuard table which shall be kept up and used liable to be for the purpose of playing thereon, at any one taxed. time within the year, shall be considered as though it had been continued for the purpose of playing thereon for the whole year. 3. And be it further enacted, That this Lien on state shall have a perpetual lien on every bil- the table. liard table for the amount of the tax, interest, and cost due thereon; and the owner, possessor and occupier of any billiard table, shall more- over be subject to the payment of any deficien- Who are cy which may remain due, and which shall liable fo r the tax. not be made by the sale of any such table, in the same manner as for other taxes. 4. Be it further enacted, That it shall be the duty of every justice of the peace, upon [ 81 ] his own view, or who shall receive information A B C and of the exhibition of any A B C or E 0 table, blls, thair or other table, bank, wheel, machine, or use 'low other contrivance whatsoever, used for the suPPtCss(! purpose of betting or winning money, lands, tenements, goods or chattels, where it shall Justice come or be within his own knowledge or view, mav 'ro- immediately to proceed lby himself, or when cced upon he shall receive information thereof, to issue sue bis his warrant, directed to the sheriff or any con- warrant. stable of the county for that purpose, and in every case, such justice, sheriff or constable Sho-riff or coo stable shall, and they are hereby authorised to call may exe- upon any number of persons which he or they cute it, c. may think proper to assist in seizing and des- troying, by burning or otherwise, every sbch be s6ized, table, bank, wheel, machine or other contriv- and burat. ance, used for the purpose aforesaid; and for which purpose the said justice is authorised and directed, and every sheriff or constable having a warrant issued as aforesaid, which Shcriff, shall set forth therein such authority, shall and may break may proceed to break open any hiouse or doors ope hous- thereof, in which such table, wheel, bahk, ma- chine or other contrivance as aforesaid, may have been exhibited or lodged for safe keep- ing. And it shall also be the duty of such justice to commit to the jail of his countv, or The owner cause to be apprehended by his warrantafore- cr exhibit- or may be said, the owner or exhibitor of such table, arppreliend bank, wheel, machine, or other contrivance as ed I [ 82 ] aforesaid, to be dealt with according to law. Penalty for And any person called upon as aforesaid, and oefusing to refusing to obey the said justice, sheriff, or tice, sher- constable, shall for every offence, forfeit and iff, C. pay ten dollars on complaint before any justice of the peace; and every justice, sheriff or con- stable failing to perform any of the duties re- .quired by this act, shall forfeit and pay one Penalty o hundred dollars, one half to the informer, and justice, c the other to the use of the commonwealth, before any court having competent jurisdic- tion. This act shall commence and be in force .from and after the passage thereof. .An act authorising sheriffs anwd constables offi- cially to give certain notices. Approved, February 12th, 1808. (See Acts of 1808, page 23.) 1. Be it enacted by the general asent- bly, That it shall be lawful for any sheriff or constable to serve notices aind make return thereof officially, in cases of application for obtaining and dissolving injunctions, taking depositions, making surveys under an order of court, the service of a declaration in eject- ment, and every other notice which is required by law to be given, and such officer shall en- dorse thereon the time when any notice was given. [ 83 3 2. There shall by the party requiring a- ny notice to be given, be paid to the officer serving the same and taxed in the suit as oth- er costs, the following fees: for serving a dec- laration in ejectment the same fee as hereto. fore allowcd by law, and for serving any other notice twenty-five cents: Provided, however, that nothing in this act shall be so construed as to prevent any declaration in ejectment or notice from being served or given as hereto- fore. This act shall be in force from the passage thereof. An Act to amend the Penal Laws of this Com- monwealth. Approved February 1, 1813. (See Acts of 1812, page 71.) Section 1. BE it enacted by the General Interrup. .Assembly of the Commonwealth of Kentucky, tion of per- . . , .,,, ,, ,. . , sons assem That if any person shall wilfully, maliciously, bled for re- or contemptuously interrupt, or disturb any ligious congregation assembled in any church, chapel, worship. meeting house, or other place of religious wor- ship, or misuse any person being there; a jus- tice of the peace, together with the sheriff, or under sheriff of the county, or constable, where such interruption or disturbance shall have been committed, shall come with the power of the county, (if need be) to arrest him or them, so disturbing the congregation, and shall ar- [ 84 ] Offenders rest such person or persons, and put him or mn"V be corimitted them in the jail of the county; unless he or to Jail by a they shall give bail with sufficient security for justice of the peace. his or their appearance, at such time and place as may be fixed on by the justice aforesaid; Duty of and it shall be the duty of the sheriff, or under the O1Th;I' she-iff, or constable, to summon twelve quali- ati ciding si-ch jut;- fied jurors to attend at the time and place di- tice. rected by the justice aforesaid; who, after be- ing sworn by any justice of the peace for said county, shall proceed to punish each offender Pcnaltv on by a fine, not exceeding thirty dollars, and in fender. default of the payment thereof, the person or persons so offending, shall be imprisoned, not Duty of the exceeding fifteen days. And if the offender justice in case tie or offenders depart before the coming of such offender justice and sheriff, or under sheriff, or consta- departs. ble, the justice as aforesaid shall diligently in- quire after such offender or offenders, by a pre- cept to the said sheriff or under sheriff, or con- stable directed; and for this purpose the sher- Jury to ti iff or under sheriff, or constable, having a pre- surnluloficd cept to him directed by said justice, shall sum- mon the oftender or offenders, and return twelve proper persons for jurors-who having been sworn as aforesaid, or in case of their non-attendance, the deficiency being supplied l)y by-standers, shall inquire into such disturb- ance or interruption, and shall award against him or them, whom they shall find guilty thereof, due pains by imprisonment or ainerce- r 85 3 meat, as is before directed. And if any off Penalty on the jury shouldto as the jurors the jury should fail to attend as aforesaid, he failing to or they may be fined at the discretion of the attend. said ju -tice, not exceeding five dollars each; and should the sheriff, under sheriff or consta- Penalty on L )U - the officer ble, fail to do the duty assigned him by this failing to act, he shall forfeit to the commonwealth twen- do his duty; how col- ty pounds, to be recovered by action of debt lected and in any court lhaving cognizance thereof, to be applied. applied towards lessening the county levy; and moreover the justices of the peace in every county, where such disturbance or interruption shall not be made in their presence, having in- Penalty on formation upon oath or affidavit, together with the justice: the sheriff, under sheriff, or constable of the same county, shall execute this act by sum- moning of a jury, and proceeding as before di- rected; and on default thereof, shall forfeit to the commonwealth thirty pounds, to be recov. ered by action of debt, iII any court having cognizance of the like sums, to go towards lessening the county levy. 2. and be it further enacted, That so much of the thirty-sixth section of an act, en- titled "an act to amend the penal laws of this commonwealth," as comes within the purview of this act, shall be, and the same is hereby repealed. 3. And be it further enacted, That the compensa- sheriff, under sheriff, or constable, shall be en- tion to the tided to one dollar and fifty cents, for sum- [ 86 :J moning each jury under this act, and attending on the trial, and conducting to jail any offend- er against the same; the officer shall be allow- ed the sum of one dollar, for arresting each how and by person, and for summoning each witness, whom paid twenty-one cents. And the defendant shall, in every case in which he is found guilty un- der this act, pay the cost of the prosecution; aind the prosecutor shall, in every case where the defendant is acquitted, pay the cost of the prosecution, for which judgment shall be ren- Persons dered, and execution issued as in other cases. commit- 4. Be it further enacted, That if any per- ting a rape son shall hereafter be convicted of a rape upon to suffer death il the body of an infant under the age of twelve certain ca- years, he shall suffer death. All fines collected under this act, shall go to lessen the county levies, to be accounted for as other sums are for lessening the county levies. An Act to amend the act to increase the juris- diction of Magistrates. Approved the 30th of January, 1813. (See Acts of 1812, page 42.) 1. Be it enacted by the General assem- ay dirt bly of the Commonwealth of Kentucky, That a jury to be whensoever hereafter a justice of the peace summoned shall issue his warrant, and thereon bring any in certain cases. cause to trial before him, for any sum to the value of five pounds, and not exceeding fifty dollars, pursuant to an act of assembly, entm [ 87 ] tied "an act to increase the jurisdiction of ma- gistrates," if either party shall require a jury, the justice so trying the cause, shall by wvar- rant, authorise the constable, or other officer who acts before such justice, to summon a jury, possessing the same qualifications as ju- Subject ta rors in the circuit courts, and subject to the certain rules re- same exceptions or challenge, to appear be- gulations: fore said justice, at the time and place in such warrant directed; and if a sufficient number of those summoned shall not appear, or any of those appearing shall be challcinged,and set aside, the deficit shall be supplied by the by-stand- ers, or such others as the officer can procure. Duty of tOa The justice of the peace shall proceed to justice, charge such jury on oath, well and truly to try the cause to them submitted, and to de- termine such facts as may be submitted to them by the parties, and a true verdict to render a- grecably to the evidence. And said justice shall r his Po` i er. preside over said trial, preserve order and de- corum, and determine questions of law arising .out of the cause, submitted to him by either party; and shall render judgment agreeably to the verdict when returned to him by the said jury. 2. And be it further enacted, That said justice of the peace shall further have power hay finl to fine the constable, or other officer, in any bte CfortI- sum not exceeding 1Q dolls. for failing to Cum- neglect fit mon said jury agreeably to the warrant issued (tity; [ 88 J or delin- for that purpose; and shall also impose -a fine on quent or disorderly delinquent or disorderly jurors, in any sum jurors. not exceeding five dollars, having previously summoned such offender to shew cause to the contrary, or give him an opportunity of making his excuse. constables 3. And be it further enacted, That the fees. constable, or other officer summoning said jury, shall be entitled to, and receive a fee of 75 cents, for summoning a jury pursuant to this act, to be collected and payable as his other fees are by law. 4. Be it further enacted, That where the appellee, in an appeal from the judgment of a single justice, shall by his own act prevent the execution of the process before the second court, the court shall have power to continue the cause until such summons can be execu- ted. Jurisdic- 5. And be it further enacted That the tion of jufuthe tices of justices of the peace in this commonwealth the peace. shall have exclusive original jurisdiction of all sums not exceeding fifty dollars, founded on any speciality, bill, ornote in writing,or account. 6. Where any appellee shall reside out Appellant of this commonwealth, so that a subpena can- may adver- not be served upon him, it may be lawful for tise against the appellant to proceed to advertise in some appellee inh roedinsm certain ca- newspaper authorized by law to publish ad- sea, and be equivalent vertisements, under the same rules and regu- lations as are directed in suits in chancery; [ 89 ] which shall be equivalent to a service of a to service of subpoe- subpoena. and the court shall proceed to hear na. and determine the same, in the same manner as if the subpoena had been returned executed. 4 7. Be it further enacted, That it shall be the duty of the constable to endorse on the warrant the day that it was executed, the jus. Dutyof the tice before whom it is tried, the place that the constable. trial is to be at, and the day on which the trial is to be; and no justice shall proceed to try any suit, except by consent of the parties, un- less it shall appear by the return of the consta- ble, that the summons had been executed a reasonable time before the trial. Provided, Proviso. that in causes tried before a justice of the peace under the provisions of this act, no fee shall be taxed in the bill of costs against the defendant for summoning a jury, unless he shall have controverted the plaintiff's right to recover. 4 8. And be it further enacted, That it shall not be necessary for the person appeal- not neces- ing from the judgment of a justice of the sary to file a declara- peace under the provisions of this act, or the tion. act passed at the last session of the general as- sembly, entitled "an act to increase the juris- diction of Magistrates," to file a declaration; nor shall either of the parties be bound to any particular formalities in pleading or otherwise: Provided, however, that the court may make Proviso. 1 [ 90 1 such order as they shall deem necessary for a fair and speedy trial of the cause on its merits. 9. And be it further enacted, That the justices of the peace in this commonwealth, Justiees shall be entitled to the same fees for their ser- fees. vices in the prosecution and trial of cases un- der five pounds, as they fare entitled to receive for similar services in the prosecution and tri- al of cases above five pounds. Constables are not permitted by law, either directly or indirectly, to purchase property which they sell under execution. r 91 I TABILE OF MAGISTRATES' FEES. D. C. For copy of judgment and certifying papers on an appeal 50 For certificate of an oath where it shall be re- quired 121 For posting a stray, or strays where one or more of the same species are included in the same post note, for the whole service 17 For issuing an attachment and taking bond 50 For issuing summons for gurnishee or gumni- shees and taking schedule of effects 12' For an order of sale 122 For attending to take depositions in any case, per day 1 00 For taking a recognizance of special bail 25 For certifyiuig a power of attorney or deed of conveyance 12A For issuing warrant in civil cases 12-t Fr giving judgment 1251 Fu;r zrying and recording each case 12-1 For attending to swear appraisers to the estates of deceased persons, per day 50 For issuing an execution 125 [ 92 ] TABLE OF CONSTABLES' FEES. D. C. For taking a replevin or forth.coming bond 25 For levying an execution 25 and a commission of six per cent on all sums above three dollars which may be contained in said execution. For execution when debt replevied or delivery bond taken, half commission allowed. For serving a warrant for debt 25 For summoning witnesses in any case, each 121 For serving a peace or search warrant 1 00 For levying an attachment 371 For summoning gurnishee 25 For carrying a criminal to jail, each mile in go- ing and returning 4 For taking up a vagrant 50 For apprehending a person on a charge of felony 2 00 For pursuing and taking runaway boat-men four-pence for each mile the constable may travel in the execution of his office. For summoning jury to try the right of pioper- ty, to be paid by the party cast by the in- quest of the jury, 1 50 For seizing and selling property in collecting the revenue or county levy, and clerks' and other officers' fees, for all sums, under one dollar, 25 [ 93 ] D. C. For all sums above one dollar, six per cent. in addition thereto. For summoning a jury under the riot act, at- tending on the trial, and conducting the of- fender to jail, 1 50 For the same under the act to prevent distur- bances of religious worship 1 50 For taking special bail 25 For serving a notice 25 For summoning a jury pursuant to the act of 1813 to amend the act to increase the juris- diction of magistrates 75 For pillorying a person 41- For putting into the stocks 21 For whipping a slave by order of court, to be paid by the public 41! For whipping a free person, to be paid by such person, 41- Penalties to which Constables are liable. Generally for breaches of duty, Constables are liable to be indicted and fined. See page 22. Penalty of Constable's bond 1000. For a neglect of duty or a breach of duty may be fined on his bond by the party injured. When Constable fails to account for executions, fines, or fee bills put into his hands to collect, the justice on L 94 ] motion to give judgment for the amount, and 10 per cent. damages. On judgments against Constables for breach of duty not allowed to replevy. Failing to return a warrant, att h. mnent or subpena ill 30 days, to pay five dollars to the party injured. Liable to be removed by county court for breach of duty, and if removed to pay costs. For charging more than lawfvll fees Constables liable to pay two dollars, besides paying back the over charge. For failing to discharge duty under the riot act, liable to pay 20 pounds. For permitting debtors to escape out of their custody; liable to pay the debt. For neglecting to suppress unlawful gathering of slaves, liable to pay a penalty of fifty shillings. For failing to pursue runaway boat-men when requir. ed liable to pay 5 dollars. For failing to execute the law concerning bastardy li- able to pay 10 pounds. For making unreasonablc seizures liable to an action by the party aggrieved. For failing to execute the law against A B C and E 0 tables, gambling and gamblers, liable to pay 100 dol- lars. For failing to execute the law relative to the distur- bance of religious worship, liable to pay 30 pounds. For failing to summon jury in civil cases, liable to be fined by justice 10 dollars. INDEX. Arrests, power and duty of constables in relation thereto 10, 12, 15, 17, 19, 24, 49, 51, 61, Arrest, what amounts to an when unlawful in the night . Airav . . Affrayers, concerning arresting relative to presenting . Assaulting an officer, consequences thereof Appointmeint of constables Attachments Act of assembly relative to constables' general o riots escapes boat-men concerning bastardy county courts increasing the jurisdiction of magistrates concerning gambling worship Auction, sales at Appeal, none allowed in riots from justices 68, -Arbitration A B C tables, how suppressed Advertisement against absent defendant Breaking open doors, when it may be lawfully 19, 20, 24. Bastards, mothers of . Bakers who sell under weight Page. 81, 84 14 15,49 25 10 13 17 21,23 29 37, 51 duties 29 41 53 60 62 63 73, 86 80 84 47 49 69, 75, 78 76 81 88 done 13, 16 16 [ 96 ] Breach of the peace, for which constables ought to take the offender before a justice in all cases committed in bawdy houses Burglary . . Bond, constables to enter into be renewed payable to governor ws hen void forth-coming in cases of attachment appeal . Boat-men, act concerning Bastardy, act concerning Bail, special Blank warrants not allowed Conservators of the peace, constables Constables, qualification thereof not doing their duty duty in seizing gaming table when assaulted how proceeded against fee bill County courts to appoint constable remove constable Constitution, clause relative to constables Costs, prosecutor liable for constablesliable for on failure in cases of riots Ca. sa. return thereof definition Complaint on attachment Contempts, how punished Costs on appeal to county courts Clerk's duty in certain cases Drunkards Discharge, constables may in certain cases Duty of justice on return of search warrant 17 19 - 11 30,77 38 . 31 31 35 52 68, 76 60 62 . 74 79 16 22 82 21, 23 31, 33, 37, 78 92, 93, 34 29 g99 34 34 34 44 45 51 71 76 77 . 16 19 26 [ 97 3 Districts to be laid off by county courts Deputy, none allowed Damages against constable Delivery bond Distrain for fees . Exposing infants in the streets Escape . constables aiding Execution for costs . and sale of property on forth-coming bond return day thereof return thereon the order in which estate taken when it binds the estate when slaves cannot be taken with Escapes . . 54, 55, Felons . Felony, where none committed not in certain cases Force to repel . Fee bills 'P--rIh or I-r r A'JL A-IWZ AJL.I. UVIJLA . Fees, constables 36 to 41, 43. may distrain for them Fieri facias, when property rescued Fieri facias, return therein definition to any county Fees, Magistrates Fines, how appropriated Yee bill, constables magistrates Gamblers, constables to apprehend General warrant . 13 11, . 61, 74, . , 14, 29 30 31, 32 35 52 13 19 34 35 36 36 44 45 46, 52 71 56, 57, 58 16, 17, 22 19 22, 24 27 33, 38 35 83, 85, 88 37, 52 27 45 45 74 43, 86 92 91 22, 82 15, 20, U4 r 9 HIistory of constables office . 9, l High ways, when out of repair, overseer to be present- ed by constable 16 Hugh and cry to be made 22 Imprisonment 12, 19, 42 Ingrossers and forestallers - - 16 Justices, jurisdiction of - - - 18 Inn-keepers in certain cases to be indicted - 22 Indemnification of constable - 41 Infants, exposing them in the street - - 13 cannot be constables . 1 Jurisdiction of justices 15, 67, 74, 88 Jailors refusing to receive felons 22 Jurymen, qualifications of 23, 50 Justices of peace try motion against constable . 31 jurisdiction of attachment 37 Jury to try right to property 40 rioters . . 42, 84 default of - 42 in civil cases - - - 87 Justices duty under riot act _ 42, 43 Judgments, what penal - - 68 Injunction on money to be returned - - 72 Justices to keep a record - - - 75 Justices' fees - - - 74 Justice's duty and power in fining - 42, 85, 87 Killing, by an officer in discharge of his duty, justifiable 23 Live stock, how kept : - 35 Lands made liable to debts - - 46 party may cause constable to sell such as he may think fit . 47 form to be laid off when sold - 48 sold at three months credit - 48 Limitation, none in felony - - 49 Measures, false - 23 r 99 Murder, not for an officer to kill when acting in his own defence Money collected by constables Motion against constables Magistrate's resignation Magistrate's fee bill - Night walkers presented arrest therein Notice on motion of trial by jury of sale of property to be given by constable Overseers of roads to be presented I Offenders, where to be carried Officers when assaulted Orchards, robbers thereof Office, in removing constable fiom Oath, constables of party - Offenders under riot act pay costs Officer to endorse on execution 23 30 - - 31, 33, 37 77 - 91 . - - 16 23 32 49 - 46 - - 82 by constable 16 - s18 . 21 -- 22 23 -- 32 - - - 37 - - 44 - - 46 Power and duty of constables in making arrests 10,13, i 14, 16, 17, 19, 20, 24 in executing warrants 13 in making presentments 11,22 in making pursuit after felons i L parting affiayers - 12, 13 in relation to imprisonment 12 Plague, persons inflicted therewith - - 22 Per cent, relative to - - 14, 18, 33 Pursuit into another county - - 17 Persons going unlwfully armed - - 19 o100 Peace, breach thereof - constables conservators of Process, constable to execute fiiiing to return return not found Papers, constable to return them Prosecutor li2.ie for costs Penalty for taking fees on constables under the riot act under boatmen's act 19 - 11 33 32 34 34,44 37 43 61 Parsons at muster V sr.uit of property under attachment Property, when bound by execution A i Penalty on constables under the act concerning bastar concerning gaming tables concerning disturbers of religious worship Qualification of constables , . Quatlifi ations of jurors R rA,,evng constable from office Et ous, what the law thereon R-.sidence, constables must go to Riots, justices to give execution how to be suppressed Replevin, none in cases of riots allowed in certain cases . 36, in cases of attachment R-turn of attachments - RWturn day of execution . Release of property when replevied Sureties, constable cannot make a man find sureties Shewing warrant . Sunday, serving process thereon . Search warrant who to be served by I6, dy 49 51 52 62 82 85 11 23, 50 23, 34 26 33 34 41, 84 34 39, 48 52 37 36, 72 49 13 114 23 24 25 C10117 Search, when to be made - Stolen goods - - Search warrant, magistrate's duty thereon Security to be given by constable Stock, allowance for keeping Sales, ten days notice - when mrade - where made . Security, none taken, Seizing and selling for fees Sales in certain cases void how made surplus of, paid to debtor 24,25 25 27 3s 35 35 46 47 36 41 47 52 72 Sunday Slaves, unlawful gatherings, duty of constable thereon when liable to execution Supercedeas, when appeal to be Taverns and tippling houses Terror, those who put the people in terror may be stopped Trial of the right of property Time in which an appeal may be taken Unreasonable seizures not to be made under'execu- tions Vagrants Warrants, constable to execute all issued by nagis- 49 59 71 79 16 19 40 77 71 16 trates generally 13, lS general . 14, 20 relative to shewing it 14 that shew the want of jurisdiction is generally to apprehend all felons, void 15, 20 mode of executing . 17 to whom to be returned 18, 19 to search ' . 0 24 ( 102 J Warrants to search, when magistrae's duty under attachment how granted Words, those who barely contend with Weights, false - Whores, to be presented to the grand jury Witnesses, privileged Worship, interruptico of 24, 25 26 51 78 11 22 16 50 83 APPENDIX. 4n act directing the county courts to appoint Patrolers. Approved Noveinber 29th, 1799 Sec. 1. Be it enacted by the General Assem- bly, That the several county courts within this Cotr commonwealth, shall from time to time lay Off courts to their respective counties into as many districts, appoint pa not exceeding five, as to them shall be deemed troicrs-, necessary; andappoint in each district a company of patrolers, to continue inofficefortwelve months, consisting of one discreet person, to be called the captain of the patrol, and as many others under his direction as they may deem necessary, not ex- ceeding four, who shall severally take an oath to perform the duties assigned them by this act; and Patrolere' the said company so appointed, shall patrole duty. as many hours in each month, asthe court appoin- ting the same may direct, but not to be less than twelve hours in each month, within theirrespect ! ive bounds to them assigned, and visit negroquar- ters and other suspected places of unlawful as- pUnjsh_ semblies of slaves. Andany slave found at such mennt of assembly, or who shall be found strolling about slave strol- from one plantation to another, without a passling with- from his or her master, mistress, oroverseer, shall out.a ' pass . receive any number of lashes on his or her bare back, at the discretion of the captain of the pa- trol, not exceeding ten, and if taken before a ma- gistrate, he or she shall receive any number of lashes at the discretionof suchmagistrate, notcx- Or ffund inx ceedingthirty-nine, on his orher bare back. And ps't s io slave shall be suffered to buy or sell any arti- of pro-tA cle of property whatever, unless such slave shall '" ' ' have ill writing particularly specify ing, in his or [104 J her pass, such article or articles; and any sAhvm found in the possession of any article of property, without such writing as aforesaid, shall be subject. to suffer any number of lashes at the discr-tion oi' the captain of the patrol, not c::cceding ten, ,nd if taken before a magistrate, he or she shall re- ceive any number of lashes at the discretion of such magistrate, not exceeding thirty- nine, on his or her bare back. And the captain of the pa- trol shall receive as a compensation for his servi- attiomn ces, the sum of four shillings for every twelve the Capt.of hours he may be employed in the duties hereby patrol, and enjoined him, and the assistaitpatrolers, sha 1ll his asso- receive for their services each of them, three rlates. shillings for every twelve hours they may be employed in the duties hereby enjoined them, to be paid out of the county levy, and moreovcr be exempt from militia service, for and during the Their Pri- term such person may continue in appointnint vileges. as aforesaid. And the clerk of the said county, shall furnish the commanding officer of the re- giment or judge advocate with the namesof such ar patrolers and the time of their service. And the torheytrnon said patrolers shall make return upon oath of the oath the time they have respectively been employed as time of aforesaid, before some justice of the peace, and their ser- such justice shall certify the same; which certifi- lCC. cate shall be laid before the court of claims in each county, to be levied accordingly. Repealing Sec. 2. And be itf rther enacted, That all 'Iallsc. and every act or acts or parts of acts that come within the purview of this act, shall be and the same are hereby repealed. This act shall commence and be in force from rand after the passage thereof.