USA > Vermont > Vermont state papers; being a collection of records and documents, connected with the assumption and establishment of government by the people of Vermont; together with the first constitution, and the laws from the year 1779 to 1786, etc > Part 45
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That if any poor person or persons, who have had, or shall have, relief or supplies from any town, shall suffer their children to live idly, or mis- spend their time in loitering, and neglect to bring them. up or employ them in some honest calling, which may be profitable to themselves and the public ; or if there shall be, at any time, any family that cannot, or do not, provide competently for their children, whereby they are exposed to want, or extremity ; or if there be any poor children in any town, be- longing to such town, that live idly, or are exposed to want and distress, and there are none to take care of them, it shall and may be lawful for the select-men, or overseers of the poor, in each town, and they are hereby impowered and directed, with the assent of the next assistant or justice of the peace, to bind out any and every such poor child or children, belong- ing to such town, to be apprentices, or servants, where they shall see convenient, a male child, till he comes to twenty-one years of age, and a female, till she comes to the age of eighteen years : which binding shall be as effectual, to all intents and purposes, as if any such child were of full age, and by indenture of covenant had bound him or herself.
And that if any person or persons shall come to live in any town in this State, and be there received and entertained, by the space of twelve months ; and if, by sickness, lameness, or the like, he or they come to want relief, every such person or persons shall be provided for by that town wherein he or they were so long entertained, at said town's own proper cost and charge, unless such person or persons by law are to be provided for by some particular person or persons; or unless such person or per- sons wanting relief, have, within the said twelve months, been warned as the law directs, to depart and leave the place : and if such warning be given, and the same be certified to the next superior court to be held in the same county, the said court shall and may otherwise order the defray- ing the charge arising about such indigent person or persons.
AN ACT relating to Witnesses, and taking Affidavits out of Court.
Forasmuch as it is often necessary that witnesses in civil causes, be sworn out of court, when, by reason of living more than twenty miles
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distant from the place where the cause is to be tried, age, sickness, or other bodily infirmity, they are rendered uncapable of travel, and ap- pearing at court.
To the intent, therefore, that all witnesses may indifferently testify their certain knowledge, and the whole truth in the cause they are to tes- tify unto, .
Be it enacted, &c. that, for either of the reasons before mentioned, every assistant or justice of the peace, may take affidavits out of court, so as a notification, with reasonable time, be first made out, and delivered to the adverse party (if within twenty miles of the place) or left at the place of his dwelling, or usual abode, to be present at the time of taking such affidavit, if he think fit.
And every such witness shall be carefully examined, and cautioned to testify the whole truth; and being sworn, the assistant or justice shall attest the same, with the day, month, and year of the taking thereof, and that the adverse party was present, (if so) or that a notification was sent him ; and shall seal up the testimony, and deliver it to the party (if de- sired) at whose request it was taken.
And no person interested shall write, or draw up, the testimony of any witness in such case, nor any attorney in his client's cause : and if it manifestly appear any testimony to be written or drawn up by any inter- ested, or the attorney in the cause ; or be returned from any assistant or justice of the peace, by other hand than his own, into the court where the same is to be used, unsealed, or the seal having been broken up ; all such testimonies shall be rejected by the court, and be utterly void, and of none effect in law.
That every assistant or justice of the peace, shall be, and are hereby impowered, upon request to him made, to grant summons for the appear- ance of any witness before him, in any civil or criminal cause, where the witness is travelling out of the State before the time of trial, and to take his deposition in such case, the adverse party being present, or notifica- tion sent him, as aforesaid.
Provided nevertheless, that witnesses to bonds, specialties, letters of attorney, and other instruments in writing, under the hand of the party executing the same; or to accounts, or testimonies relating to persons out of this State, may be sworn without such notification as aforesaid.
That if any person or persons, upon whom any lawful process shall be served, to testify or give evidence concerning any cause or matter depend- ing in any court in this State, and having tendered unto him, her, or them, such reasonable sum or sums of money for his, her, or their costs and charges, as, having regard to the distance of the place, is necessary to be allowed, as the law requires in that behalf, do not appear according to the tenor of the process or summons, having no lawful or reasonable let or impediment to the contrary, that then the party so making default, shall. for every such offence, lose and forfeit the sum of three pounds, and shall yield such further recompense to the party damaged, according to the loss and hindrance he shall sustain, by reason of the non-appear- ance of the said witness or witnesses : the said several sums to be recoy-
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ered by the party so grieved, against the offender or offenders, by action of debt, bill, plaint, or information, in any court of record.
Be it enacted, that no person shall be put to death for any crime com- mitted, but by the testimony of two or three witnesses, or that which is equivalent.
. And that all witnesses upon criminal cases, shall have their expenses borne and paid out of the county treasury, where the case is tried in the county courts.
And such witnesses that attend the superior courts, in criminal and capital cases, shall have their necessary expenses borne and paid out of the State treasury.
And be it further enacted, that all executors of wills, within this State, shall have liberty to have the witnesses to such wills examinedand sworn in the usual form, before the next assistant or justice of the peace ; which assistant or justice shall enter the oath of the witnesses on the backside of the will, and attest the same ; and the oaths of the witnesses so taken, shall be accepted by the court of probate, as if they had been taken be- fore the said court.
AN ACT for preventing stallions, or stone-horses, running at large in this State.
Whereas, it has been found by experience to be dangerous for stallions to run at large, and a ready way of spoiling a good breed of horses.
Which evils to prevent,
Be it enacted, &c. that if any person or persons, shall suffer any of his, her, or their stallions (of one year old and upward) to run at large, on any of the commons or highways in this State, (whether fettered, hop- pled, or not,) it shall and may be lawful for any person or persons, to take up, castrate, and impound, every such horse, horses, colt, or colts ; which castration shall be at the risque and charge of the owner or owners.
And if the owner or owners are known, the impounder shall forthwith inform him or them thereof; and the owner or owners being so informed, and shall neglect or refuse to redeem such horse, horses, colt, or colts, (within twenty-four hours after such notice given,) by paying all cost and charge that hath arisen, by reason of said stallion or stallions being taken up, castrated, impounded, and trouble of giving information, it shall and may be lawful for the constable of the town where such horse, horses, colt, or colts are impounded, to sell said horse, horses, colt, or colts, at an outcry, after posting them, ten days before such sale; and the monies that shall be collected by such sale, after paying all necessary charges, costs, and damages, (if any there be) shall be paid to the owner or owners of such horse, horses, colt, or colts.
And if the owner is not known, the constable of such town shall cry such stallions in the three next adjoining towns, by posting their natural and artificial marks; and likewise in the town or towns where such horse or horses were branded, (provided the brand belongs to any town
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in this State) twenty days; and if no owner or owners appear within twenty days, to dispose of such horse, horses, colt, or colts, as directed in cases where the owner or owners were known, and neglected or refus- ed to redeem them ; and the monies arising from such sale or sales, (if any be) over and above all cost, charges, and damages, shall be put into the treasury of such town where such horse or horses were impounded, there to be kept for the owner : and if the owner of such stallions doth not appear within one year after such impounding, the money shall be- long, and be appropriated to the use of the town were such stallions were impounded.
AN ACT to prevent the selling or transporting raw, or untanned Hides or Skins out of this State.
Be it enacted, &c. that no person or persons shall, directly or indirect- ly, sell, or transport, or send away out of this State, (except it be to ex- change for leather) any raw or untanned hides, or skins of any neat cat- tle, (continental property excepted) upon pain of forfeiting the sum of thirty shillings lawful money, for every such hide or skin so sold, trans- ported, or sent away ; one half thereof to the complainer who shall pros- ecute the same to effect, and the other half to the treasury of the county where the offence is committed.
AN ACT for the punishment of Defamation.
Whereas defamation and slander is a growing evil, and tends much to the disturbance of the peace :
Be it enacted, &c. that whosoever shall defame or slander any person or persons whatsoever, and be thereof legally convicted before any court in this State, shall pay a fine, not exceeding thirty pounds, to the public treasury of the county in which such offence is committed ; and the per- son or persons slandered, shall have such costs and damages as the court and jury that have cognizance of the said case, shall judge to be reason- able and just.
And whereas defaning the civil authority of the State, greatly tends to bring the same into contempt, and thereby to weaken the hands of those by whom justice is to be administered.
Which great evil to prevent,
Be it enacted, that whosoever shall defame any court of justice, or the sentence or proceedings of the same; or any of the magistrates, judges, or justices of any such court, in respect of any act or sentence therein passed, and be thereof legally convicted before any of the general courts, or superior courts in this State, shall be punished for the same by fine, imprisonment, disfranchisement, or banishment, as the quality and meas- ure of the offence, in the opinion of the court before whom the trial is had, shall deserve.
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AN ACT for the directing and regulating of civil Actions.
Be it enacted, &c. that the ordinary process in civil actions in this State, shall be a summons, or attachment, fairly written, signed by a ma- gistrate, justice of the peace, or clerk of the court, mentioning the court, the time and place of appearance ; therein also containing a declaration of the substance of the action : which attachments may be granted against the goods or chattels of the defendant; and for want of them, the lands or person of the defendant may be attached ;- provided, the plaintiff, when he prays out an attachment, satisfies the said authority, by oath, or sufficient evidence, that he is in danger of losing his just dues, unless attachment be granted; and also give sufficient security to prosecute his action to effect, and answer all damages in case he make not his plea good.
And all writs and processes shall be directed to the sheriff, his deputy, or some constable, if such officer can be had without great charge or in- convenience : and in every case wherein the authority signing a writ shall find it necessary to direct the same to an indifferent person, such authority shall insert the name of the indifferent person in the direction of the writ, and the reason of such direction; and if any writ be other- wise directed, it shall abate.
Provided nevertheless, that nothing herein shall extend to effect sum- monses for witnesses, warrants to collectors of rates, or warrants granted by military officers.
And that no person shall be required to make answer, in any civil ac- tion, real, personal, or mixt, except the process, if returnable to the supc- rior or county court, hath been served upon the defendant at least twelve days inclusive, before the day of the court's sitting; or if returnable to an assistant or justice of the peace, that the same hath been served six days inclusive, as aforesaid ; which service shall be, if a summons, by reading the same in the hearing of the defendant or defendants, or leav- ing an attested copy thereof at the place or places of his or their nsual abode ; but if an attachment, the service shall be the attaching of the defendant's estate or person, and giving him notice by reading the writ to him, or in his hearing; or by leaving an attested copy thereof at the place of his usual abode, if that be within this State : and that all such writs as are made returnable to the county courts, shall be returned to the clerks of said courts, on the day before the sitting of such county courts, and not afterwards.
That in case any process be duly served on any defendant or defend- ants, and return thereof made to the court to which the same is made returnable; then, if such defendant or defendants do not appear, his or their default shall be recorded, and judgment entered up against him thereupon ;- unless, before the jury be dismissed, he or they shall come into court and move for a trial; in which case he or they shall be ad- mitted thereto, upon paying down to the adverse party, the costs to that time ; and the plaintiff shall pay for entering the action a-now.
But when it shall so happen that the party against whom snit is brought, is not an inhabitant, or sojourner in this State, or is absent out of the
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same, at the time of commencing such suit, and doth not return before the time for trial, the judges of the court before whom such suit is brought, shall continue the action to the next court ; and if the defendant do not then appear, (by himself or attorney,) and be so remote that the notice of such suit depending could not probably be conveyed to him during the vacancy, the judges, at such next court, may further continue the action to the court "thence next following, and no longer; but may enter up judgment on default, after such continuance or continuances : and in such cases, where judgment shall be entered up by default, after such continu- ance as aforesaid, execution shall be stayed, and not issue forth thereon, until the plaintiff shall have given, or lodged with the clerk of said court, a bond, witli one or more sufficient sureties to the adverse party, in double the value of the estate or sum recovered by such judgment, to make restitution, and to refund and pay back such sum as shall be given in debt or damage, or so much as shall be recovered upon a suit therefor, to be brought within twelve months next after the entering np of the first judgment, if upon such suit the judgment shall be reversed, annulled, or altered ; the security to be no further answerable +han for the recovery that shall be made upon such suit to be had within twelve months, as aforesaid.
Provided also, that no real estate, taken in execution granted upon such first judgment, shall be alienated or passed away, until after the ex- piration of the said twelve months, or after a new trial had on a suit brought within the space of twelve months, for the obtaining restitution as aforesaid.
Be it further enacted, that ifany person who hatlı entered an action to be tried in any court, being called three times (after twelve of the clock on the first day of the court's sitting) shall not appear, either by himself or his attorney, to prosecute his action, he shall be non-suited, and pay all cost and charges to the defendant, and for the entry of the action, as if the same had been prosecuted in such court. And that the plaintiff, in all actions brought to any court, shall have liberty to withdraw his action, or to nonsuit himself, before the jury have given in their verdict; in which case he shall pay full costs to the defendant; and may afterwards renew his suit at another court, the former withdraw or nonsuit being first recorded.
Be it further enacted, that there shall be free liberty of process, and the same is hereby granted, in all civil actions, according to law, at any adjourned county court, as well as at the stated county courts.
And be it further enacted, that all suits brought for the trial of the ' title of lands, or wherein the title of lands is concerned, shall be tried in the same county where the land lies, or facts are done, concerning which the title of land may be in question. And that all other actions that may be brought before the county courts, shall be brought and tried in the county where the plaintiff or defendant dwells, if they or either of them are inhabitants within this State. And that all suits and prosecutions cognizable before an assistant or justice of the peace, shall be made and prosecuted before such authority, in those towns only, where the plaintiff or defendant dwells; unless there be no authority which may lawfully
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try the cause in either of the said towns ; in which case the plaintiff may bring his suit before an assistant or justice of the peace in one of the next adjoining towns to the place of his abode.
Andbe it further enacted, that all causes wherein the title of land is not concerned, and wherein the debt, trespass, damage, or other matter in demand, doth not exceed ten pounds, shall and may be heard, tried, and determined, by any one assistant or justice of the peace; who are hereby impowered to hear and determine the same by jury or otherwise, according to law, and award execution on their judgment given in such cases; and that either plaintiff or defendant shall have a right to demand a jury of six men to try such causes.
Be it further enacted, that the judges of the superior or inferior courts, assistants, and justices of the peace, shall determine matters of law, sta- ted and referred to them by the jury in their special verdicts ; which ver- dicts the jury in all cases wherein matters of law are to them so obscure, that they cannot clearly and safely give a positive verdict, shall have lib- erty to give a special verdict therein, finding and presenting the facts, and thereon stating and putting the question in law, viz :- if the law be so, then we find for the plaintiff ; but if the law be otherwise, then we find for the defendant.
Be it further enacted, that the judges of the court, assistants, and jus- tices of the peace, shall have liberty, if they judge that the jury that at- tend their respective courts have not attended to the evidence given in, and the true issue of the the case, in their verdicts, to cause them to return to a second consideration of the case ; and shall, for the like reason, have power to return them to a third consideration, and no more. And when the court have committed any case to the consideration of the jury, the jury shall be confined under the custody of an officer appointed by said court, until they are agreed on a verdict : and the court may set a suita- ble fine, not exceeding forty shillings, upon such officer or juryman as shall be disorderly, or neglect or refuse a due attendance of their duties respectively, during their attending the court.
And that when the parties have made their pleas in any court, and giv- en their evidence, and the case be committed to the jury, there shall be no after-pleas, arguments, evidences, or testimonies, heard or received in such case.
And be it further enacted, that if any person shall be aggrieved with the sentence or determination of any assistant or justice of the peace, he may remove his case, by appeal to the next county court, in that county where the case was first tried ; the person appealing, giving bond, as is hereafter provided. And if any person or persons shall be aggrieved with the sentence or determination of any county court, the party aggriev- ed may appeal therefrom to the next superior court, to be held in the same county ; or by a new process, once, and no more, may review his cause in the next session of the same county court where it was before tried. And if either party be aggrieved with the judgment or determina- tion of the county court, upon trial of the cause by review, he may appeal to the next superior court, in the same county. And if either party be aggrieved with the issue and determination of the, superior court, upon
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the first trial of the cause, then he may, by a new process, once, and no more, review his case in the next session of the same court, there to be tried to a final issue; provided the case be brought directly to the supe- rior court, by appeal from the first judgment of the county court : bnt if the case be brought to the superior court, by appeal from the judgment of the county court given on a review, it shall have a final issue by the judgment and determination of the saperior court, upon the first trial there. .
Always provided, that all appeals and reviews shall be entered during the time of the sitting of the court from whose judgment such appeals and reviews shall be made, and within twenty-four hours after judgment be given : and sufficient bond, with sureties, shall be given in to the said court, by the person appealing or reviewing, to prosecute his appeal or review to effect, and answer all damages in case he make not his plea good : in all which cases, execution shall be stayed until there shall be an issue of the case ; and the party who shall recover his action, shall have all his just damages and cost allowed him.
Provided nevertheless, that from a judgment given by an assistant, or justice of the peace, in a case wherein the debt, damage, or other matter in demand, doth not exceed the sur . of six pounds, or if the debt be due by bond, bill, or note, for the payment of money or grain, avouched by one or two witnesses, and doth not exceed the sum of ten pounds, no appeal shall be allowed.
Also, that when judgment shall be given in the county court, in any case brought there by an appeal, wherein the title of land is not concern- ed, no appeal or review to be allowed.
And that upon a judgment or determination of the county court. in suits brought directly there, upon bonds, bills or notes for the payment of money or grain, avouched by one or two witnesses, no review nor appeal shall be allowed.
Also, that from a judgment of the county court, in any action wherein the title of Jaud is not concerned, and where the debt, damage, or other matter doth not exceed the sum of sixty pounds, no appeal shall be allowed.
And also, when either plaintiff or defendant shall, in any action, re- cover judgment upon the first and second trial, by the court and jury, the judgment on sach second trial shall be a final issue, and no appeal or review shall be allowed from the same; any thing in this act before to the contrary in any wise notwithstanding.
And be it further enacted, that all appeals to any of the superior or county courts in this State, shall be entered in such courts respectively, before the second opening of such court, and not after ; unless the appel- lant shall pay to the appellee all his cost in such case arisen to that time, to be taxed by the court; which being done, the action may be entered by the appellant, before the jury attending such court are dismissed, and not after: which costs, so taxed and paid, shall not be considered nor allowed in making up the bill of cost in the final determination of the case.
And be it further enacted, that any one assistant or justice of the
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peace, shall have full power, and are hereby authorised and impowered, to take, and accept a confession and acknowledgment of any debt, from a debtor to his creditor, either upon, or without an antecedent process, as the parties shall agree; which confession shall be made only by the per- son of the debtor himself: and, on such confession so made, the assistant . or justice shall make a record thereof, and thereon grant out execution in due form of law. And if it so happen that such execution shall be levied on the lands of any such person, confessing as aforesaid, according to the laws directing the levying executions on lands, it shall be returned to, and recorded in the office of the clerk of the county court in the same county where such land lieth ; provided such land lieth within a town where there is no town clerk, qualified by law to record deeds ; but if such land lieth in any town where there is a town clerk, qualified as aforesaid, in such case, every such execution shall be returned to, and recorded in the town clerk's office where such lands lie; and being so done and record- ed, shall be good evidence of a title to such creditor for whom it shall be taken as aforesaid, their heirs and assigns, provided no confession shall be made or taken in the manner aforesaid, for more than the value of two hundred pounds debt, together with cost. "And n &. debtor shall ten- der such confession to a creditor, and the creditor shall refus. it, he shall lose any cost that he shall, after such tender, be at, in procuring judgment for liis debt afterwards, unless it appear that such tender was not for the whole sum due.
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