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Colonial and State Records of North Carolina
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Acts of the North Carolina General Assembly, 1762
North Carolina. General Assembly
November 03, 1762 - December 11, 1762
Volume 25, Pages 523-525

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(The following supplies Sections XVI to XXVIII in the “Court Act” of 1762, which sections were lost and not obtainable, when Vol. 23 was printed. See Vol. 23, p. 553.—ED.)

XVI. (Following word “defendant” last word on p. 553 of Vol. 23), live in the same District, shall be brought to the Superior Court of such District, and not to any other, except in the Cases aforementioned: And where any such Action or Suit shall be brought to the Court of any other District than that in which both Parties live, such Action or Suit may be abated by the Plea of the Defendant, unless on sufficient Reasons shown, on Oath, and approved, for bringing such Suit in some other District, Leave be granted to the Plaintiff by the Chief Justice, or some one of the Associate Justices of the Courts, and by him certified previous to the Commencement of such Suit; in which Case it may be lawful to prosecute any of the said Actions or Suits in the Court of any District adjacent to that in which the Parties reside; any Thing herein contained to the contrary notwithstanding.

XVII. And be it further Enacted, by the Authority aforesaid, That the said Courts shall not be discontinued, nor any of the Proceedings in them depending, by Reason of the Death of the Chief Justice, or any of the Associate Justices, or any other Lett or Hindrance their not attending at any Term; but in such Case, all Pleas, Causes, Matters and Things, therein depending, shall stand continued in the same Condition in which they then shall be, to the next succeeding Term.

XVIII. And be it further Enacted by the Authority aforesaid, That every Summons, Writ, and other legal Process, to compel any Person to appear in any of the Superior Courts of Justice, shall bear Test of the Chief Justice, and be signed by the Clerk of the Court from whence such Process shall issue, and be made returnable to the same Court; and the Sheriff shall return the said Writ or Process to such Court accordingly.

XIX. And be it further Enacted, by the Authority aforesaid, That until the Commencement of the First Term of each of the said Superior Courts respectively, Writs and other Process may bear Test at the Time of issuing the same, and such Writs and Process so tested before such Term shall be valid in Law; any Usage or Practise of the Court to the contrary notwithstanding.

XX. And be it further Enacted, by the Authority aforesaid, That all such Writs or Process, except Subpoenas for Witnesses returnable immediately, shall be returnable the first Day of the Term to which the same is returnable, and shall be executed at least Ten Days before the Beginning of such Term: And if any original or mesne Process shall be taken out in Term Time, or within Ten Days before the Beginning of any Term, such Process shall be made returnable to the Term next succeeding, or the Term succeeding that which shall commence within Ten Days after taking out such Process, and not otherwise; and all Process made returnable or executed at any other Time, or in any other Manner than directed by this Act shall be void.

XXI. Provided always, That nothing herein contained shall be construed to invalidate or vacate any Process, Warrant, or Precept, issued by

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the Chief Justice, or either of the Associate Justices of the said Courts, or any Justice of the Peace, or the Clerk of the Crown, on any Criminal Prosecution, or in his Majesty's Behalf, but that the same may be returnable at any Day in the Term, to which the same is returnable; and the Proceedings in Criminal Suits and Prosecutions shall be had according to the Laws and Statutes of Great Britain, and of this Province; any Thing herein contained to the contrary notwithstanding.

XXII. And be it further Enacted, by the Authority aforesaid, That when any Writ shall issue from any of the said Courts, whereby the Sheriff shall be commanded to take the Body of any Person or Persons to answer in any Action in either of the said Courts, such Sheriff shall take Bond, with Two sufficient Securities, for double the Sum for which such Person or Persons shall be held in Arrest; except where the Defendants are Executors or Administrators, or sued on penal Statutes, and shall return such Bond with the Writ; And in Case the Sheriff shall fail or neglect to take such Bail, or the Bail returned be held insufficient, on Exception taken, the Sheriff, in either of the said Cases, shall be deemed and stand as special Bail, and the Plaintiff may proceed to Judgment according to the Rules herein after mentioned; and shall and may take out Execution against the Defendant or Sheriff, or both; any Usage or Custom to the contrary notwithstanding.

XXIII. Provided always, That if the Defendant shall be admitted to enter his Appearance without Bail, and shall put in Bail before the Rules to plead shall expire, then the said Sheriff shall be discharged. Provided also, That the Defendant may be surrendered at any Time before final Judgment be entered against him.

XXIV. And be it further Enacted, That when any Sheriff shall return, that he have taken the Body of any Defendant and committed him to the Prison of his County, (which is hereby declared to be the proper Prison for such Commitment), for Want of Bail, the Plaintiff may enter the Defendant's Appearance, and he shall be at Liberty to plead as if such Appearance had been entered by himself, and the Plaintiff may proceed to Judgment as in other Cases in this Act directed; nevertheless, the Defendant shall not be discharged out of Custody but by putting in Bail, or Rule of Court.

XXV. And be it further Enacted, by the Authority aforesaid, That if the Sheriff shall neglect to return any Writ or Writs issuing out of any of the said Courts, which shall be delivered to him Twenty Days before the sitting of the Court to which such Writ or Writs shall be returnable, the Sheriff, for every such Neglect, on Motion of the Plaintiff, and Proof of such Delivery, shall be ordered and obliged to pay the Party aggrieved the Sum of Five Pounds, Proclamation Money, and be further liable to the Action of the Party injured; unless the Sheriff can show sufficient Cause to the court from whence such Process issued, at the next succeeding Court after such Order.

XXVI. And be it further Enacted, That all Bail taken according to the Directions of this Act, shall be deemed, held, and taken to be special Bail, and as such liable to the Recovery of the Plaintiff; but the Plaintiff, after final Judgment, shall not take out Execution against such Bail, until an Execution be first returned, that the Defendant is not to be found; and also, shall take out a Scire Facias, returnable to the said Court, which shall be made known to the Bail; and that after the return of such execution against the Principal, and Scire Facias aforesaid, against the Bail, Execution may issue against the Principal, and Securities, or either of them, or either of their Estates; unless the bail shall surrender the Principal at or before

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the Return of the first Scire Facias; any Law, Usage or Custom to the contrary notwithstanding.

XXVII. Provided nevertheless, If any Sheriff shall return on a Scire Facias to him directed, that the principal is imprisoned in the Prison of his County, or any other, by Virtue of any Process, in any Civil Action, the court to which such Scire Facias is returnable, shall, on Motion of the Plaintiff or Bail, order and direct that such Principal be retained in the Gaol where he or she shall be a Prisoner, until he or she shall have paid the Plaintiff's Judgment, and Costs, or be otherwise discharged by due Course of Law; a Copy of which Order being served on the Gaolor of such Prison, before such Prisoner's Releasement, shall be sufficient Authority for him to retain such Prisoner until such Order shall be complied with; and also shall be deemed a Surrender of such Principal, and as such discharge the Bail.