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Sheriff to execute judgments in criminal cases.

47. To prevent misconstruction, it is hereby declared, that the sheriff of the county in which any circuit superior court shall sit, shall execute all judgments rendered by such court in any criminal case: Provided, Such judgments are by law to be executed in the To act as sheriff said county; and shall in all respects, act as sheriff of the said court.(o)

of court.

Compensation for

48. The circuit superior court of each county and corporation public services of shall make such allowance to the clerk thereof for his services in

clerks.

Proviso.

Of sheriffs and jailors. Proviso.

When such allowances may be made.

Habeas corpus how granted.

remove prisoner to

behalf of the commonwealth, as may be deemed reasonable: Provided, The same shall not exceed thirty dollars for any one year. An allowance or compensation shall be made, in like manner to the sheriffs and jailors for their services for the commonwealth, in the circuit superior courts: Provided, No sheriff for services in any one of the said courts shall be allowed a sum exceeding twenty dollars, and no jailor thereof, a sum exceeding thirty dollars per year.(p)

49. If the court fail to make such allowances, during the term next succeeding the performance of such services, or during which they are performed; in such case, the court at a subsequent term, shall and may proceed, in like manner, to make such allowances.(g) 50. Writs of habeas corpus may be granted by the said circuit superior courts in term, or in vacation by any judge of the circuit In civil actions, to superior court, in manner prescribed by law. And where any percircuit court jail. son shall be committed in any civil action to the jail of any county or corporation, for any cause or matter cognizable in the said courts, it shall be lawful for the clerk of the circuit superior court of the county wherein such commitment shall be, and he is hereby required, upon the application of such person, and a certificate of his or her being actually in jail, to issue a writ of habeas corpus cum causa, to remove the body of such prisoner into the circuit court jail, and When returnable. the cause of his commitment into such circuit superior court, returnable on the first day of the succeeding court, if issued in vacation, and on the last day of the term, if sued out whilst the court is Not to be awarded sitting: Provided, however, That such writ of habeas corpus cum causa, shall not be awarded, after issue or demurrer joined in the cause.(r)

after issue joined.

Suit removed by habeas corpus or certiorari, how proceeded in.

Where the venue may be changed.

51. When any suit or action shall hereafter be removed, from any county or corporation court, to any circuit superior court, by writ of habeas corpus or certiorari, such cause shall be placed in the same situation in such circuit superior court, as it stood in the inferior court when such writ of habeas corpus or certiorari was delivered. And it shall be the duty of every such circuit superior court to proceed to final judgment in the manner such inferior court ought to have done, without any new pleadings, unless the same would have been proper if such suit had remained in the inferior court.(s)

52. The said circuit superior courts shall have power on motion made in term, for good cause shewn, to change the venue in any suit at law depending in any such circuit superior court, to any other circuit superior court within the same circuit, or to the most convenient circuit superior court within an adjoining circuit, as When in vacation. shall seem most conducive to a fair and impartial trial; or, in vaca

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tion, upon petition preferred to any judge of the circuit in which suit shall be depending, setting forth good and sufficient reasons for such change of venue, such petition being verified by the oath of the party, and the allegations thereof being satisfactorily proved by affidavits, or the change of venue being consented to by the adverse party, such judge of the circuit, may order a change of venue to any circuit superior court in the same circuit, or to the most convenient circuit superior court in an adjoining circuit: Provided, That such Proviso. order for a change of venue, in vacation, shall be made only by consent of the parties, or upon reasonable notice in writing, given by the party making the application, to the adverse party, of the time and place of making the same: And provided, That the gene- Where change of ral court shall have power to change the venue, as heretofore, from made by general circuit to circuit.(t)

venue may be

court.

courts.

writ of error, &c.

cases of appeal

when to be de

livered to clerks of circuit courts.

53. If the record upon any appeal from any county or corpora- Record on appeal as of right, when tion court, to any circuit superior court of law and chancery, in such to be delivered to clerks of circuit cases wherein, according to the provisions of this act, appeals may be taken as of right, shall not be delivered to the clerk of the circuit superior court, within sixty days after the same was granted, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dismission, no writ of error After dismission, or supersedeas shall be allowed. And, in case of any appeal allowed not allowable. from, or writ of error or supersedeas allowed to, any decree, judg. Record in other ment, proceeding, sentence or order of any inferior court, to or from any circuit superior court, if the party praying such appeal, writ of error or supersedeas, shall not deliver the record, with the order allowing such appeal, writ of error or supersedeas, to the clerk of the circuit court, within fifteen days after the appeal, writ of error or supersedeas allowed, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dis- Not to be allowed mission, no appeal, writ of error or supersedeas shall be allowed. And in case of any appeal allowed from, or writ of error or super- Record on appeals sedeas allowed to, any decree, judgment, proceeding, sentence or livered to clerk of order of any circuit superior court of law and chancery, to or from court of appeals. the court of appeals, if the party praying such appeal, writ of error or supersedeas, shall not deliver the record, with the order allowing such appeal, writ of error or supersedeas, to the clerk of the court of appeals, within thirty days after such appeal, writ of error or supersedeas allowed, the same shall not be received thereafter, unless good cause be shewn to the contrary; and after such dismission, no Not allowed aftor appeal, writ of error or supersedeas shall be allowed. (u)

after dismission.

when to be de

dismission.

of circuit courts.

received in vaca

tion.

54. The clerk of the court of appeals shall, as now by law di- Decisions of court of appeals, to be rected, certify and transmit to the respective clerks of the circuit certified to clerks superior courts of law and chancery, whence the causes were brought to the court of appeals, copies of the judgments, decrees and decisions of the court of appeals in the same; which, if re- Their duty, when ceived by the clerk of a circuit superior court, in vacation of such court, shall be entered by him of record at the end of the proceedings of the preceding term of that court; and thereupon the said clerk shall, upon application, issue execution thereon, if, by the decision of the court of appeals, it be proper to do so; and in all other respects shall proceed according to the directions of such judgments and decisions, in the same manner as if they had been (t) 1 Rev. Code 1819, ch. 69, § 51, 52.

(u) Ibid. § 63.

sion of court.

Proceedings if re-entered during the session of such circuit superior court. When ceived during ses- such copies shall be received by the clerk of a circuit superior court during the session thereof, the same proceedings shall be had thereon, as have heretofore been had in such cases. (v)

Judgments, de

crees and orders of

how executed.

To what courts,

tified.

When decree or

order of court of

55. All judgments, decrees or orders rendered in the former disformer courts of trict courts, or in the former superior courts of law, or in the former law and chancery, superior courts of chancery, which may remain wholly or in part unexecuted, shall be executed by the respective circuit superior courts of those counties, wherein the court was held by which the same shall have been rendered. And every judgment, decree or judgments of court of appeals thereorder rendered by the court of appeals, touching judgments, decrees upon, shall be cer- or orders of the former district courts, or former superior courts of law, or former superior courts of chancery, upon any appeal, writ of error or supersedeas, shall be certified to the circuit superior court of that county or corporation, in which the first judgment, decree or order shall have been rendered, or wherein the district court of chancery from which the appeal was taken or allowed, was held and if, in such case, the decree or order of the court of appeals be not final, the circuit superior court to which the same shall be certified, may retain and proceed to final decision of the cause, or may transfer it to any other circuit superior court, in like manner as any other unfinished cause in chancery, which shall be transferred from the former district courts of chancery to the circuit superior courts of the respective counties wherein the former district courts of chancery were held, may be transferred to any other circuit superior court, according to the provisions herein after How, when final. contained: and if the judgment or decree of the court of appeals be final, such proceedings shall be had thereupon, in the court to which the same shall be certified, as are by the next preceding section authorized and directed, in the case of judgments, decrees or ore ders, of the 'court of appeals, upon writs of error or supersedeas, or on appeals to and from the judgments, decrees or orders of the circuit superior courts hereby ordained and established.(w)

appeals not final. Cause, how pro

ceeded in.

Fees and allowances to clerks;

To sheriffs, sergeants and other officers.

56. The fees of and allowances to the clerks of the said circuit superior courts, shall be the same for like services, as those allowed by the laws now in force, to the clerks of the former superior courts of law, and to the clerks of the former district courts of chancery, respectively; and the fees of and allowances to the sheriffs, sergeants or other officers, who may be charged with the service or execution of the process, judgments, decrees or orders of the said circuit superior courts, shall be the same as those allowed them by the laws now in force for the like services in executing the process, judgments, decrees or orders of the former superior courts of law, and the former district courts of chancery, respectively; except only in such particulars, wherein such fees to clerks, sheriffs, sergeants or other officers, shall or may be altered by law at the preFees, how collect- sent or any future session of the general assembly. And the said clerks of the said circuit superior courts, and the said sheriffs, sergeants or other officers, shall have like means and remedy in all respects, for the collection of the fees to them accruing, as are provided by the laws now in force relative to the collection of fees of such officers.(x)

Exception.

able.

(v) 1 Rev. Code 1819, ch. 69, § 64.

(2) Ibid. § 65.

(x) For fees of clerks, see acts 1831-2, ch. 68, pp. 49-56. Fees of sheriffs and sergeants, 1 Rev. Code 1819, ch. 85, pp. 314-316.

commonwealth.

tion.

57. The said circuit superior courts of law and chancery shall, Judges may aprespectively, have power to appoint attornies to prosecute for the point attornies for commonwealth in their courts, and to allow them such compensation for their services, as they shall deem reasonable; not exceeding, Their compensahowever, in any case, the sum of one hundred dollars per annum for the court of one county, except that of the county of Henrico; and the allowance so made shall be certified by the court, and paid How certified and out of the public treasury. And the attorney for the common- Salary of attorney wealth for the circuit superior court of the county of Henrico, shall for Henrico counbe allowed a salary of three hundred dollars, as heretofore.(y)

paid.

ty.

prosecutions for

costs,

58. Whenever judgment shall be rendered for the commonwealth, Attorney's fee in in any circuit superior court of law, upon a prosecution for a mis- misdemeanor, demeanor, the penalty whereof is not ascertained by law to be less taxable in bill of than thirty dollars, there shall be taxed in the bill of costs a fee for the commonwealth's attorney of ten dollars, instead of the fee heretofore taxed. And when judgment shall be rendered for the And in other procommonwealth in such court, in any other case, wherein it hath secutions for combeen heretofore used to tax an attorney's fee, there shall be taxed hereafter a fee of five dollars: Provided, however, That this section Proviso. shall not be construed to extend to those cases in which a higher fee is allowed by law, than those hereby directed to be taxed.(z)

monwealth.

commonwealth

may resign.

59. No attorney for the commonwealth in any circuit superior How attornies for court of law and chancery, shall be at liberty to resign his appointment, without the leave of the court, unless he shall have given to the judge of the court, in which he shall be attorney, at least thirty days notice of his intention to resign.(a)

quired to hold in

tinue.

60. The judges of any circuit superior court, at the end of any When judge reterm, when the same may be necessary, may, and they are hereby termediate terms. authorized and required to adjourn said court to such day in the recess as to them may seem most convenient to the suitors in said court; and agreeably to such adjournment, an intermediate term, How long to connot exceeding twelve juridical days, shall be held by the judge of the circuit, for the trial of all causes, civil and criminal, which were depending, and could lawfully have been tried, but had not been tried at the term from which such intermediate term had been adjourned: Provided, That such intermediate term shall not in any Proviso. wise interfere with the quarterly court of the county for which such intermediate court is to be held.(b)

mediate terms.

61. The circuit superior courts, at their intermediate terms, may All motions may hear and determine all motions cognizable by them, whether the he heard at intersame were depending, and could have been tried at the preceding term, or not.(c)

Special pleas in

bar may be filed, whether contract

rol.

62. In all actions at law, founded on contract, whether such contract be by deed or by parol, brought either in the said circuit superior courts of law and chancery, as courts of common law, or in be by deed or pathe county and corporation courts, the defendant may file a special plea in bar, in the nature of a plea of set-off, alleging any such What to be almatter of fraud in the consideration, or in the procurement of the leged in the plea. contract, or any such failure in the consideration thereof, or any

(y) 1 Rev. Code 1819, ch. 69, § 66, p. 241; also acts 1822-3, ch. 19, § 3,

p. 19.

(z) Ibid. § 67, p. 241.

(a) Ibid. § 68. (b) Ibid. § 73. (c) Ibid. § 74.

affidavit.

Damages assessed

to be allowed as a set-off.

bar allowed,

where contract by deed.

affidavit.

claim, judgment to be given for

excess.

such breach of any warranty to him, of the title or the soundness of personal property, or any parcel of such property, for the price or value whereof he entered into the contract, whereon the action may be founded, as would entitle such defendant, either to recover damages at law, in any form of action, from the plaintiff, or the party to the contract, under whom the plaintiff claims, or to relief in equity, in whole or in part, against the obligation of the contract upon him; alleging also, in such special plea, the damages by him To be verified by sustained, by reason of the matter so specially pleaded, and verifying such special plea by affidavit in like manner as pleas of non est factum are verified: and such damages being proved and found by the jury, or so much as the jury may assess, shall be allowed Special pleas in and applied as a set-off against the plaintiff's demand. And in all actions founded on any contract by deed, the defendant may file a special plea in bar, in the nature of a plea of set-off, alleging any such matters existing before the execution of the deed, or any such mistake therein, or in the execution thereof, as would entitle him to relief in equity, in whole or in part, against the obligation of the contract upon him: and alleging also, in such special plea, the amount to which he is entitled by reason of such pre-existing matTo be verified by ters or mistakes, and verifying such special plea, by affidavit in like manner; and such matters or mistakes being proved, and such amount being ascertained by the jury, the amount so ascertained Where demand of shall be set-off against the plaintiff's demand. And in all cases defendant exceed wherein the defendant, being allowed to file such special pleas as in this section mentioned and allowed, shall establish a just and legal demand against the plaintiff, greater in amount than the demand which the plaintiff shall establish against him, the same being found and ascertained by the verdict of a jury, it shall and may be lawful for the court to give judgment for the defendant against the plaintiff for the excess, with continuing interest thereon, or on so much thereof as may lawfully bear interest, to be computed from New trials may be the date, which shall be fixed by the verdict of the jury: Provided, That the court may grant new trials in such cases, as in all other cases: Provided always, That nothing in this section contained or deeds not to be shall be construed to impair or any wise affect the obligation of any bond or other deed deemed voluntary in law, upon the party or parties thereto, his, her or their heirs, executors or administrators; and such voluntary bonds or deeds shall have the same force and effect, as if the provisions in this section contained had never been enacted. 63. In case of any such special pleas in bar, as in the next preceding section are mentioned and allowed, being pleaded by the defendant, the plaintiff, as he shall be advised, may take issue thereon, or may demur thereto, specially or generally, so as to submit the merits of such pleas, either as to the form or substance thereof, to the judgment of the court, in like manner as a plaintiff may demur Court may allow to any other special pleas. And if any such special plea in bar as or reject pleas in aforesaid, be tendered in court, the court may allow the same as good, or reject it as naught, or as not having been offered in due time, in like manner as the court may allow or reject any other special pleas in bar. And, if the plaintiff, upon any such special plea as aforesaid being tendered and allowed, be advised to make an issue upon the facts therein set forth, he shall reply, generally, that he ought not to be precluded from his action by reason of the matters in the plea set forth, in manner and form as they are there

granted.

Voluntary bonds

affected.

Plaintiff may take issue or demur to such pleas.

bar.

Upon plea allow

ed, replication

may be filed, and

thereupon issue joined.

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