What to be evi

dence of receipt of

&c.

74. In all proceedings against any sheriff, sergeant or other offiprocess by sheriff's, cer, for failing to return any process, order or decree, proof that such process, order or decree, was put into the post-office, duly addressed to him, and that the postage thereon was paid, shall be sufficient evidence of the receipt thereof by the sheriff, sergeant or other officer, unless he make oath or affirmation, that he did not himself receive it, and that he verily believes it was not received by any of his deputies.(g)

Court to appoint commissioners to make sales.

75. Whensoever any sale of property, shall be directed to be made by any decree or order of a circuit superior court of law and chancery, the court may appoint a commissioner or commissioners Commissions al- to make such sale, and may allow them such commissions for their trouble as to the court shall seem reasonable. Provided, That if all parties interested in such sale, or their attorneys or counsel in court, shall concur in naming such commissioners, the court shall appoint the commissioners so named for such purpose.(h)

lowed them.

Proviso.

Court to appoint commissioners in chancery.

76. The said circuit superior courts of law and chancery, respectively, shall have power to appoint commissioners in chancery not exceeding two for each court, for taking and reporting such accounts or other matters as such courts shall commit to them to be examined, stated and reported. And if any such commissioner shall die or resign in vacation, the judge of the circuit, may, if he see cause so to do, appoint some fit person to supply his place. Their duties, fees The duties of such commissioners in chancery, and the manner of and compensation. taking, stating and reporting accounts by them, and their fees and compensation for the same, shall be regulated by the laws now in force regulating the proceedings, and ascertaining the fees and compensation of the commissioners of the former superior courts of chancery.(i)

Orders of account may be made in vacation.

vacation.

77. The judges of each of the said circuits, may in vacation, direct an account to be taken in any cause depending in any of the courts of their respective circuits whenever such account would be Commissioners directed by the court if in session. Whenever a commissioner, enmay submit questions to judge in gaged in taking an account in vacation, shall doubt as to the principles on which the account should be taken, and shall doubt of the propriety of admitting any item of debit or credit, contended for by a party, such commissioner may state in writing the points on which he shall doubt, and submit the same to the judge of the circuit in vacation, who may thereupon decide the question or questions so submitted to him, and the commissioner shall govern himself accordingly: but on such points submitted, no judge shall hear any arguments of counsel, except by consent of parties.(k)

Commissioners

may administer

False swearing, perjury.

78. The said commissioners in chancery shall be, and they are oaths to witnesses. hereby empowered to administer an oath or aflirmation, in all cases to them referred by their respective courts, wherein it shall be necessary to examine witnesses on oath or affirmation; and if any person sworn or affirmed by any of the said commissioners, by virtue of this act, shall give any evidence under such circumstances, as would have constituted the same to be perjury if given in the presence of a court of record, the same shall be deemed perjury to all intents and purposes.(1)

nesses may be is

against witnesses

79. And the commissioners in chancery shall and may issue sub- Subpoenas for witpanas for witnesses to attend before them, to be executed and re-sued by commisturned in like manner as subpœnas issued by the clerks of such sioners. courts; and if a subpæna be issued by a commissioner in chancery, Proceeding and served upon the witness or witnesses named therein, and he, not attending. she or they shall fail to attend, according to the requisition of such subpana, such commissioner shall report such default; and thereupon such proceedings shall be had before the court, to which such report shall be made, as would be had if such witness or witnesses had been summoned to such court to give evidence on a trial therein depending, and had made default: and moreover such witness or Action allowed witnesses shall be liable to such action for damages, at the suit of party aggrieved. the party aggrieved, as he, she or they would have been liable to for

a default in court as aforesaid. (m)

commissioners to

80. The said circuit superior courts of law and chancery may Courts to appoint authorize and empower any one or more persons in each county take depositions. and corporation within their respective circuits, to take the depositions of witnesses in any cause or causes depending in their courts; who shall for such service be allowed such compensation as shall be Their fees. fixed upon by the said courts respectively; and the said commis- How collectable. sioners may issue their tickets for the sums allowed by said courts for such service, and deliver them to the sheriffs and sergeants of the several counties and corporations wherein the party or parties live, for whom they are rendered, at the same time that the clerks of the courts thereof are directed by law to deliver their tickets; and the several sheriffs and sergeants shall collect and account for them in the same manner, and under the like penalties, and shall have the same allowance for collecting and insolvencies, as are prescribed in the case of the clerks of the said county and corporation courts.(n)

ers may adminis

fore them, perjury.

81. The said commissioners for taking depositions are hereby Such commissionempowered to administer an oath or affirmation in all such cases ter oaths, &c. wherein it shall be necessary to examine and take the depositions of witnesses on oath or affirmation; and if any person sworn or False swearing beaffirmed by any of the said commissioners by virtue of this act, shall give any evidence under such circumstances as would have constituted the same to be perjury, if given in the presence of a court of record, the same shall be deemed perjury to all intents and purposes; and the said commissioners shall and may issue subpænas for wit- May issue subpœnesses to attend before them, to be executed and returned in like nas for witnesses. manner as subpœnas issued by clerks of such courts; and if a sub- Proceeding pana be issued by commissioners under authority of this act, and served upon the witness or witnesses named therein, and he, she or they shall fail to attend according to the requisition of such subpoena, such commissioner shall report such default; and thereupon such proceedings shall be had before the court to which such report shall be made, as would be had if such witness or witnesses had been summoned to such court to give evidence on a trial therein depending and had made default: and moreover such witness or Action allowed witnesses shall be liable to such action for damages, at the suit of party aggrieved. the party aggrieved, as he or they would have been liable to, for a

against witness not attending.

default in court as aforesaid: Provided, That no witness shall be Witness not com

(m) 1 Rev. Code 1819, ch. 66, § 25.

(n) Ibid. § 39, p. 203.

pellable to go out of county.

Judges to hold special terms,

ed to circuits.

When special

term to be held.

Clerk to be appointed.

clerks.

compelled by any subpæna from such commissioner to go out of the county in which he resides.(0)

82. One of the twenty judges of the superior courts shall by how to be assign- joint resolution of the two houses of the general assembly, be assigned to each of the circuits hereby established, for the purpose of holding a special term of the circuit superior courts hereby ordained and established, in each and every county and corporation of the circuit to which such judge shall be so assigned: and the judge so assigned to each circuit, shall at some time between the first day of May, and the fifteenth day of June next, after the passing of this act, hold a special term of each circuit superior court within such circuit, for the purpose of appointing some fit and competent person to be clerk thereof, to enter upon the duties of his Oaths of office of office on the said fifteenth day of June next. The clerks so appointed, respectively, shall in open court, in addition to the oath of fidelity to the commonwealth, the oath to support the constitution of the United States, and any other oath or oaths which are or may be required by law to be taken by such public officers, take an oath of office well and truly to exercise the office of clerk of the circuit superior court of law and chancery of the county or corporation for which he shall be so appointed, in the form of the oath now preBond and security scribed by law to be taken by a clerk of a county court. And the said clerks shall also severally enter into bond with one or more sufficient sureties to be approved by the court, in the penalty of ten thousand dollars, conditioned for the faithful performance of all the duties of the office during their continuance therein; which bonds being acknowledged by the said clerks respectively, and their respective sureties, in open court, or proved by two witnesses, shall, together with a certificate of such acknowledgment or proof, be entered of record in the order-book of the said court.(p)

to be given.

Condition.

Where to be ac knowledged and recorded.

Clerks to procure and keep two sets of books for law and chancery.

83. The clerks so to be appointed, shall, as soon as they can after their appointment, procure the necessary books for their respective courts, that is to say; two sets of books, one for the court as a court of chancery, and the other for the court as a court of common law, Expense, how de- and for other matters; and their accounts of the expense thereof, being produced to the respective courts, at the first term thereof, examined, corrected and allowed by them, shall be certified to the auditor of public accounts, and paid out of any money in the treasury not otherwise appropriated.

frayed.

Vacancy in office

how supplied.

84. Whenever, after the first appointment made in manner aforeof clerk, in term, said, any vacancy shall occur in the office of any clerk of any of the said circuit superior courts, by the death, resignation, ouster from office, or expiration of the term of office of the clerk, if such vacancy shall occur in term, the court shall proceed forthwith to appoint another fit and competent person to the office, who shall Bond and security thereupon take such oaths and give such official bond with surety, required. as are herein above required to be taken and given by the clerks first appointed in manner before provided; and if such vacancy shall occur in vacation, the judge of the circuit shall, by commission under his hand and seal, appoint some fit and competent person to

Vacancy occur.

ring in vacation,

clerk pro tempore,

to be appointed.

(0)1 Rev. Code 1819, ch. 66, § 40, pp. 203, 204.

(p) See journal of the house of delegates for 1830-31, pp. 313 to 319, 328 to 331, 332 to 333. Former laws for appointment of clerks and their oaths, 1 Rev. Code 1819, ch. 66, § 20, p. 199; ch. 69, § 16 to 21. For the present mode of appointment and tenure of office, see acts 1830-31, ch. 19, 20, pp. 78, 79.

be clerk pro tempore, until the next term of the court shall be held; at which term, the court shall appoint some fit and competent person to be clerk of the said court, who shall thereupon take such oaths, and give such official bond with surety, as are herein above required to be taken and given by the clerks first appointed in manner before provided.

sion no discontinuance.

85. In case of any clerk of any of the said circuit superior courts Vacancy in office dying, resigning or being ousted of his office, or of the term of such of clerk, to occaclerk expiring, and a rule-day, or rule-days having passed by before the appointment and qualification of a successor, no discontinuance shall take place; but all the causes on the rule-docket, shall stand continued, until the rule-day after the new clerk shall be appointed; and all process issued before but not returnable till after Process, how resuch vacancy, shall be returnable to the said rule-day.(q)

turnable.

86. The clerks of the said circuit superior courts, shall have Deputy clerks, how appointed and power to appoint deputies, with the approbation of their several qualified. courts, who shall be qualified as the deputies of the county court clerks are usually qualified: and thereupon, such deputies shall have full power and authority to do and perform all the several acts and duties enjoined upon their principals.(r)

reside, and offices

87. The clerks of the said circuit superior courts, shall reside Clerks where to within the respective counties or corporations, in and for which the where to be kept. courts are respectively held, and shall keep their offices at the courthouse of the respective counties and corporations wherein they shall

or may be clerks: Provided, That any clerk may be allowed, with Proviso.

the approbation of such courts, entered of record, to reside at some convenient place out of their respective counties or corporations:

And provided, That in all cases where offices have not been, or shall Further proviso. not be provided for the clerks of the said courts, such clerk may keep the records and papers thereof, at such places as the said courts shall think fit and convenient, and so enter of record, and that the clerk's office of the circuit superior court of the county of Clerk's office of James City, shall, unless the court shall otherwise direct, be kept where. in the former capitol in the city of Williamsburg.(s)

James City,

Clerk pro tempore,

88. During the unavoidable absence of the principal clerk and when and how aphis deputies, if any he have, the court may appoint a clerk pro pointed. tempore, who, after taking the necessary oaths of his office, shall

fees.

be competent and authorized to perform the office of a clerk, and His duties and during his continuance therein, shall be entitled to all the fees thereof.(t)

Expenses, how

89. The executive shall procure a seal for each of the said cir- Executive required to procure cuit superior courts of law and chancery, the expense whereof shall seals. be paid by order of the executive, and upon warrant of the auditor, Expe out of any money in the treasury not otherwise appropriated.(u) 90. Whenever hereafter any new county shall be formed of one New counties to or more existing counties, such new county shall compose a part of of county from the judicial circuit to which the county it shall be taken from, or whence taken. the county from which the greater part of such new county shall be taken, may belong; and the time of holding the circuit superior Times of holding courts throughout the whole of such circuit, shall, if necessary, be courts, how ar

belong to circuits

ranged.

Superior courts of

law and district

arranged anew, so as to provide for the due administration of justice in such new county.

91. The superior courts of law, and the district superior courts courts of chancery of chancery, heretofore existing, shall be, from and after the fifteenth day of June next, and the same are hereby discontinued and abolished.

abolished.

Commissions of

court, and courts

vacated.

Judges to hold

superior courts of

law, how to be assigned.

of chancery, how.

92. The commissions of the present judges of the general court, judges of general and of the present judges of the district courts of chancery, shall of chancery, when be vacated at the end of the present session of the general assembly; and all the terms of the superior courts of law, which by the terms of existing laws respecting the same, are appointed to be held in the interval between the fifteenth day after the termination of the present session of assembly, and the said fifteenth day of June next, shall be held by such one of the judges of the circuit superior courts hereby ordained and established, as shall by joint resolution of the two houses of assembly, hereafter to be passed for the purpose, be Of district courts designated to perform such duty: so likewise all the terms of the said district courts of chancery, which by the laws respecting the same, are appointed to be held in the interval between the termination of the present session of assembly, and the said fifteenth day of June next, shall be held by such one of the judges of the circuit superior courts hereby ordained and established, as shall be Circuit superior designated by joint resolution of the two houses. And in the same powered to igne interval, the said judges of the said circuit superior courts, each process and orders and every of them, in vacation of the said superior courts of law in vacation of for- and district courts of chancery, shall be competent to allow and direct any process, or make any order which it would have been lawful and proper for the present judges of those courts respectively to have made in vacation, if this act had never been passed.

court judges em

mer courts.

office.

lection of their fees.

Clerks of superior 93. The clerks of the said superior courts of law, and of the said courts of law and district courts of chancery, respectively, shall remain in office till chancery, how long to remain in the said fifteenth day of June next, and no longer; and the said Remedies for col- clerks, respectively, shall have the same power to make out and issue tickets for fees to them accrued or to accrue, before the termination of their offices, and the same right and means of collecting such fees, and the same remedy against officers for failing to collect and account for the same, as if this act had never been To have access to made: and such of the said clerks as shall not be appointed clerks books and papers. of the circuit superior courts hereby ordained and established, shall be allowed free access to the books and papers which shall be thereto transferred, respectively, in pursuance of the provisions herein after contained, for the purpose of making out accounts of fees to them due and unpaid.

Where papers and records of supe

to remain.

94. The papers and records of all causes in the said superior rior courts of law courts of law, ended before the said fifteenth day of June next, and all the books of records thereof, shall remain in the clerks' offices, and in the care and safe keeping of the respective clerks of the circuit superior courts of law and chancery hereby ordained and established in and for the respective counties and corporations wherein the said superior courts of law were held.

Where papers and

courts of chancery to remain.

95. The papers and records of all causes in the district court of records of district chancery held at Williamsburg, ended before the said fifteenth day of June next, and all the books of the records thereof, shall remain in the clerk's office of the circuit superior court of law and chancery of the county of James City; those of the district court of