BLACKSTONE'S COMMENTARIES:

WITH

NOTES OF REFERENCE,

TO

THE CONSTITUTION AND LAWS,

OF THE

FEDERAL GOVERNMENT OF THE UNITED STATES;

AND OF THE

COMMONWEALTH OF VIRGINIA.

IN FIVE VOLUMES.

WITH AN APPENDIX TO EACH VOLUME,

CONTAINING

SHORT TRACTS UPON SUCH SUBJECTS AS APPEARED NECESSARY TO FORM A CONNECTED

VIEW OF THE LAWS OF VIRGINIA,

AS A MEMBER OF THE FEDERAL UNION.

BY ST. GEORGE TUCKER,

PROFESSOR OF LAW, IN THE UNIVERSITY OF WILLIAM AND MARY, AND ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.

PHILADELPHIA:

PUBLISHED BY WILLIAM YOUNG BIRCH, AND ABRAHAM SMALL,

NO. 17, SOUTH SECOND-STREET,

ROBERT CARR, PRINTER.

1803.

District of Pennsylvania: to wit.

BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit: "Blackstone's Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected View of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia." In Conformity to the Act of the Congress of the United States, intituled, "An Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned," and also, to an Act entituled, "An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits thereof to the Arts of designing, engraving, and etching historical, and other Prints." ( L. S.) D. CALDWELL,

Clerk of the District of Pennsylvania.

COMMENTARIES

ON THE

LAWS OF ENGLAND,

IN FOUR BOOKS.

BY SIR WILLIAM BLACKSTONE, knt.

ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON FLEAS.

WITH THE LAST CORRECTIONS OF THE AUTHOR,

TO THE READER.

Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the laws of virginia, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period ; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection ; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.

TABLE.

N. B. The chapters in Pleasant's and Pace's collection correspond with the chapters, as numbered in the edition of 1794, from chap. 1, to chap. 181, inclusive: the correspondence between the succeeding chapters and the Sessions acts, as published annually, will appear below.
Sessions Acts. Pace's Edi. Sessions Acts Pace's Edi. Sessions Acts. Pace's Edi. Sessions Acts. Pace's Edi.
1795 c. 1 c. 182 C. 25 c. 216 c. 14 c. 250 c. 71 c. 284
c. 2 c. 183 c. 27 c. 217 c. 15 c. 251 1801 c. 1 c. 285
c. 3 c. 184 c. 28 c. 216 c. 19 c. 252 c. 2 c. 286
c. 5 c. 185 c. 42 c. 219 c. 23 c. 253 c. 3 c. 287
c. 8 c. 186 c. 45 c. 220 1799 c. 1 c. 254 c. 4 c. 288
c 9 c. 187 1797 c. 2 c. 221 c. 2 C. 255 c. 5 c. 289
c. 10 c. 188 c. 4 c. 222 c. 3 c. 256 c. 7 c. 290
c. 11 c. 189 c. 5 c. 223 c. 8 c. 257 c. 8 c. 291
c. 13 c. 190 c. 6 c. 224 c. 11 c. 258 c. 9 c. 292
c. 14 c. 191 c. 7 c. 225 c. 17 c. 258 c. 10 c. 293
c. 15 c. 192 c. 8 c. 226 c. 23 c. 260 c. 11 c. 294
C. 16 c. 193 c 9 c. 227 c. 34 c. 261 c. 12 c. 295
c. 17 c. 194 c. 20 c. 228 c. 46 c. 262 c. 13 c. 296
c. 18 c. 195 c. 22 c. 22. c. 49 c. 263 c. 14 c. 297
c. 19 c. 196 c. 23 c. 230 c. 58 c. 264 c. 25 c. 298
c. 20 c. 197 c. 24 c. 231 c. 59 c. 265 c. 23 c. 299
c. 54 c. 198 c. 25 c. 232 c. 64 c. 266 c. 15 c. 300
1796 c. 1 c. 199 c. 26 c. 233 1800 c. 2 c. 267 c. 16 c. 301
c. 2 c. 200 c. 23 c. 234 c. 4 c. 268 c. 17 c. 302
c. 5 c. 201 c. 24 c. 236 c. 6 c. 269 c. 18 c. 303
c. 6 c. 202 c. 30 c. 236 c. 12 c. 270 c. 19 c. 304
c. 7 c. 203 c. 44 c. 237 C. 38 c. 271 c. 21 c. 305
c. 8 c. 204 c. 55 c. 238 c. 39 c. 272 c. 24 c. 304*
c. 9 c. 205 c. 65 c. 239 c. 40 c. 273 c. 28 c. 306*
c. 11 c. 206 c. 108 c. 240 c. 43 c. 274 c. 84 c. 307*
c. 12 c. 207 1798 c. 1 c. 241 c. 44 c. 275



c. 13 c. 208 c. 2 c. 242 c. 51 c. 276 October Appx.
c. 16 c. 209 c. 3 c. 243 c. 53 c. 277 1782 c 19 c. 1
c. 17 c. 210 c. 6 c. 244 c. 54 c. 278 1781. c. -- c. 2
c. 18 c. 211 c. 7 c. 245 c. 58 c. 279

c. 3
c. 19 c. 212 c. 9 c. 246 c. 59 c. 280

c. 4
c. 20 c. 213 c. 10 c. 247 c. 60 c. 281 1792 c. 20 c. 5
c. 23 c. 214 c. 11 c. 248 c. 61 c. 282 c. 27 c. 6
c. 24 c. 215 c. 13 c. 249 c. 70 c. 283 c. 27

* There is a small error in the numbering of these three chapters in Pleasant and Pace's Edition; they are here referred to as numbered.

ADVERTISEMENT.

The Editor having procured a copy of a late Edition of Blackstone's Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student...... In the Second Book, the selection has been more copious than in any of the others: they are distinguished, by his name being subjoined to the end of each Note.

MAY 12, 1803.

CONTENTS.

OF BOOK THIRD.

OF PRIVATE WRONGS.

CHAP. I.

Of the Redress of Private Wrongs by the mere Act of the fo. Parties ........................... 1

CHAP. II.

Of Redress by the mere Operation of Law .......... 18

CHAP. III. Of Courts in general ..................... 22

CHAP. IV

Of the Public Courts of Common Law and Equity ...... 30

CHAP. V.

Of Courts Ecclesiastical, Military, and Maritime ...... 61

CHAP. VI.

Of Courts of a Special Jurisdiction .............. 71

CHAP. VII. Of the Cognizance of Private Wrongs ............ 86

CHAP. VIII.

Of Wrongs, and their Remedies, respecting the Rights of Persons .......................... 115

CHAP. IX.

Of Injuries to Personal Property ............... 144

chap. x.

Of Injuries to Real Property, and, first, of Dispossession, or Ouster, of the Freehold ................. 167

CHAP. XI.

Of Dispossession, or Ouster, of Chattels Real ........ 198

CHAP. XII. Of Trespass .......................... 208

CHAP. XIII.

Of Nusance ........................ 216

chap. xiv. Of Waste ........................... 223

CHAP. XV. Of Subtraction ........................ 230

CHAP. XVI.

Of Disturbance ........................ 236

CHAP. XVII.

Of Injuries proceeding from, or affecting, the Crown ..... 254 CHAP. XVIII.

Of the Pursuit of Remedies by Action, and, first, of the Original Writ ......................... 270

CHAP. XIX.

Of Process ........................... 279

CHAP. XX.

Of Pleading .......................... 293

CHAP. XXI.

Of Issue and Demurrer .................... 314

CHAP. XXII.

Of the several Species of Trial ................ 325

CHAP. XXIII.

Of the Trial by Jury ..................... 349

CHAP. XXIV. Of Judgment, and it's Incidents ................ 386

chap. xxv. Of Proceedings in the Nature of Appeals ........... 402

CHAP. XXVI.

Of Execution .......................... 412

CHAP. XXVII.

Of Proceedings in the Courts of Equity ............ 426

APPENDIX.

FO.

No. I. Proceedings on a Writ of Right Patent ........ i

§. 1. Writ of Right Patent in the Court Baron . . . ibid. §. 2. Writ of Tolt, to remove it into the County

Court ................. ibid.

§. 3. Writ of Pone, to remove it into the Court of

Common Pleas ................ ii

?. 4. Writ of Right, quia Dominus remisit Curiam ibid. ?. 5. The Record, with award of Battel ...... iii

§. 6. Trial by the grand Assise .......... v

No. II. Proceedings on an Action of Trespass in Ejectment,

by Original, in the King's Bench ............ vii

§. 1. The Original Writ .............. ibid.

?. 2. Copy of the Declaration against the Casual Ejector, who gives Notice thereupon to the Tenant in Possession ............ ibid.

?. 3. The Rule of Court ............. viii

?. 4. The Record .................. ix

No. III. Proceedings on an Action of Debt, in the Court of Common Pleas, removed into the King's Bench by Writ of Error . ........................ xiii

§. 1. Original .................... ibid.

?. 2. Process .................... ibid.

?. 3. Bill of Middlesex, and Latitat thereupon, in

the Court of King's Bench ......... xviii

§. 4. Writ of Quo minus in the Exchequer ......... xix ?. 5. Special Bail; or the Arrest of the Defendant,

pursuant to the Testatum Capias, in page xiv ibid. ?. 6. The Record, as removed by Writ of Error . . . xxi ?. 7. Process of Execution ............. xxvi

THE EDITOR'S APPENDIX.

NOTE A.

Summary View of the Judicial Courts of the Commonwealth, fo. and of the United States, in Virginia ........... 3

note B.

Of the Proceedings upon Petitions for Lapsed Lands, under the former Government; and upon Caveats ......... 31

note C. Of the Commencement and Process, in Civil Suits at Common

Law, in the Judicial Courts of Virginia .......... 35

NOTE D.

Of Appearance and Pleading .................. 50

note E.

Of Proceedings upon Motions for Judgments in a Summary Way, in certain Civil Cases ................ 56

NOTE F. Of the Trial by Jury, in Virginia ................ 64

COMMENTARIES

ON THE

LAWS OF ENGLAND.

BOOK THE THIRD.

PART THE THIRD.

COMMENTARIES ON THE LAWS OF ENGLAND.

BOOK THE THIRD.

OF PRIVATE WRONGS.

CHAPTER THE FIRST.

OF THE REDRESS OF PRIVATE WRONGS,

BY THE MERE ACT OF THE PARTIES.

AT the opening of these commentariesa municipal law was in general defined to be, "a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrongb." From hence, therefore, it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned c the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redressed, by the laws of England.

In the prosecution of the first of those inquiries, we distinguished rights into two sorts: first, such as concern or are annexed to the persons of men, and are then called jura personarum or the rights of persons ; which, together with the means

a Introduction, Section 2.

b Sanctio justa, jubens honesta, et probibens contraria .... Cic. 11 Philipp. 13. Bract. l. 1. c. 3.

c. Book I. chap. 1.

of acquiring and losing them, composed the first book of these commentaries: and, secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things; and these, with the means of transferring them from man to man, were the subject of the second book. I am now, therefore, to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that, before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights : the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.

Wrongs are divisible into two sorts or species; private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals ; and are, thereupon, frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemesnors. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding volume.

The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined, ana wrongs prohibited. This remedy is, therefore, principally to be sought by application to these courts of justice ; that is, by civil suit or action. For which reason our chief employment in this volume will be to consider the redress of private wrongs, by suit or action in courts. But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy, than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat,

before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species ; first, that which is obtained by the mere act of the parties themselves: secondly, that which is affected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.

And, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts; first, that which arises from the act of the injured party only ; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.

Of the first sort, or that which arises from the sole act of the injured party, is,

I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these, his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only, who began the affray d. For the law, in this case, respects the passions of the human mind; and, (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him, to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers, that the future process of law, is by no means, an adequate remedy for injuries, accompanied with force; since it is impossible to say, to what wanton lengths of rapine or cruelty outrages of this sort, might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature so it is not, neither can it be, in fact, taken away by the law of society. In the English law particularly, it is held an excuse

d 2 Roll. Abr. 546. 1 Hawk. P. C. 131.

for breaches of the peace, nay even for homicide itself 1: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention ; for then the defender would himself, become an aggressor.

II. Recaption or reprisal, is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them ; so it be not in a riotous manner, or attended with a breach of the peace e. The reason for this is obvious ; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his reach ; if he had no speedier remedy than the ordinary process of law. If, therefore, he can so contrive it as to gain possession of his property again, without force or terror, the law favours and will justify his proceeding. But, as the public peace is a superior consideration to any one man's private property: and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature ; for these reasons it is provided, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seise him to my own use: but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen f; but must have recourse to an action at law.

III. As recaption is a remedy given to the party himself, for an injury to his personal property, so, thirdly, a remedy of

e 3 Inst. 134. Hal, Anal. Sect. 46. f 2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566.

1. V. L. 1794. c. 43, Accordant.

the same kind for injuries to real property, is by entry on lands and tenements, when another person without any right, has taken possession, thereof. This depends, in some measure, on like reasons with the former; and, like that too, must be peaceable and without force. There is some nicety required to define and distinguish the cases, in which such entry is lawful or otherwise: it will, therefore, be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.

IV. A fourth species of remedy by the mere act of the party injured, is the abatement, or removal of nusances. What nusances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nusance; and such nusance may be abated, that is, taken away, or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it g. If a house or wall is erected so near to mine that it stops my antient lights, which is a private nusance, I may enter my neighbour's land, and peaceably pull it down h. Or if a new gate be erected across the public highway, which is a common nusance, any of the king's subjects passing that way may cut it down, and destroy it i. And the reason why the law allows this private and summary method of doing one's-self justice, is, because injuries of this kind, which obstruct, or annoy such things, as are of daily convenience and use, require an immediate remedy ; and cannot wait for the slow progress of the ordinary forms of justice.

V. A fifth case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distreining cattle or goods, for nonpayment of rent, or other duties; or, distreining another's cattle damage-feasant, that is, doing damage, or trespassing, upon his land. The former, intended for the benefit of landlords, to prevent tenants from secreting, or withdrawing their effects to his prejudice; the latter, arising from the necessity of the thing itself, as it might otherwise be im-

£ 5 Rep. 101. 9 Rep. 55. h Salk. 459. i Cro. Car. 184.

possible at a future time to ascertain, whose cattle they were that committed the trespass or damage.

As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness : by inquiring, first, for what injuries a distress may be taken; secondly, what things may be distreined; and, thirdly, the manner of taking, disposing of, and avoiding distresses.

1. And, first, it is necessary to premise, that a distress j, districtio, is the taking of a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury, for which a distress may be taken, is that of nonpayment of rent. It was observed, in a former volume k, that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges, also; but not to rent-seck, till the statute 4 Geo. II, c. 28, extended the same remedy to all rents alike, and thereby, in effect, abolished all material distinction between them 2. So that now we may lay it down as an universal principle, that a distress may be taken

j The thing itself, taken by this process, as well as the process itself, is in our law-books, very frequently called a distress, k Book II, c. 3.

2. Although the statute of 4. Geo. 2. c. 28, was never in force in Virginia, nor has the substance of it been ingrafted upon any statute in our code, yet, it may be doubted whether any rent, at this day, can be regarded as a rent-seck, in Virginia; that is, without a remedy by distress, incident thereto as of common right, although there be no reversion in him, to whom the rent is payable, nor any clause of distress in the deed ; the grounds, upon which this question is made, having been fully explained in Vol. 2. p. 42. Notes 17, 18, 19, 20, 21, the student may consult them for further information.

It may perhaps be supposed that the act of 1794, c.89, ?. 11 & 12, extends so far as to give a remedy in this case; but as those sections are nearly transcripts from the statute of 8 Ann. c. 14, they will, on consideration, be found not to comprehend the case of rents-seck. If therefore, there be a remedy by distress for rent, where there is neither a reversion in him to whom the rent is payable, nor a clause of distress in the deed, it must be by the common law, for the reasons mentioned in the notes above referred to.

for any kind of rent in arrear; the detaining whereof, beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do suit to the lord's court l, or other certain personal service m, the lord may distrein, of common right3. 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it n 4. 4. Another injury, for which distresses may be taken, is where a man finds beasts of a stranger wandering in his grounds, damage-feasant; that is, doing him hurt or damage, by treading down his grass, or the like ; in which case, the owner of the soil may distrein them, till satisfaction be made him, for the injury he has thereby sustained5. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as for assessments made by commissioners of sewers o, or for the relief of the poor p) remedy by distress and sale is given 6; for the particulars of which we must have recourse to the statutes, themselves: remarking, only, that such distresses q, are partly analogous to the antient distress at common law, as being repleviable and the like ; but more resembling the common law process of execution, by seising and selling the goods of the debtor under a writ of fieri facias of which hereafter.

2. Secondly; as to the things which may be distreined, or taken in distress, we may lay it down as a general rule, that all

l Bro. Abr. tit. Distress. 15.

n Brownl. 36.

p Stat. 43 Eliz. c. 2.

m Co. Litt. 46.

o Stat. 7 Ann. c. 10.

q 4 Burr. 589.

3. Obsolete, in Virginia, I presume.

4. As there are neither court-leets, nor courts-baron in Virginia, the law in this case is also obsolete.

5. The act of 1794, c. 137, gives a special remedy for trespasses committed, in certain cases : but it would seem that that act does not take away the common law remedy by distress, if the party injured chuses to avail himself of it.

6. All public taxes, county levies, poor rates, register's, surveyor's, clerk's, sheriff's, coroner's, and constable's fees may be distreined for, by the proper officers and public collectors in Virginia, and are not repleviable. vi. Edi. 1794, c. 83, 102, 115, 134.

chattels personal are liable to be distreined, unless particularly protected or exempted. Instead therefore of mentioning what things are distreinable, it will be easier to recount those which are not so, with the reason of their particular exemptions r. And, 1. As every thing which is distreined is presumed to be the property of the wrongdoer, it will follow that such things, wherein no man can have an absolute and valuable property (as dogs, cats, rabbets, and all animals ferae naturae) cannot be distreined. Yet if deer, (which are ferae naturae) are kept in a private inclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandize, that they may be distreined for rent5. 2. Whatever is in the personal use or occupation of any man, is, for the time privileged, and protected from distress; as an ax with which a man is cutting wood, or a horse while a man is riding him. But horses drawing a cart, may (cart and all) be distreined for rent-arrere ; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another's grounds, the horse (notwithstanding his rider) may be distreined and led away to the pound t *. 3. Valuable things in the way of trade shall not be liable to distress. As a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a taylor's house; or corn sent to a mill, or a market. For all these are protected and privileged for the benefit of trade ; and are supposed in common presumption not to belong to the owner of the house, but to his customers. But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distreinable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord ; and the stranger has Aw remedy over by action on the case against the tenant, if by the tenant's default the chattels are distreined, so that he cannot render them when

r Co. Litt. 47.

s Davis v. Powel. C. B. Hill. 11 Geo. II.

t l Sid. 440.

* The contrary has lately been determined by the court of King's Bench, viz. that a horse cannot be distrained damage-feasant whilst any person is riding him, for it would perpetually lead to a beach of the peace. 6 T. R. 138..... Christian.

called upon. With regard to a stranger's beasts which are found on the tenant's land, the following distinctions are however taken. If they are put in by consent of the owner of the beasts, they are distreinable immediately afterwards for rent-arrere by the landlord v *. So also, if the stranger's cattle break the fences, and commit a trespass by coming on the land, they are distreinable immediately by the lessor for his tenant's rent, as a punishment to the owner of the beasts for the wrong committed through his negligence u. But if the lands were not sufficiently fenced, so as to keep out cattle, the landlord cannot distrein them, till they have been levant and couchant (levantes et cubantes) on the land; that is, having been long enough there to have laid down and rose up to feed ; which, in general, is held to be one night at least: and then the law presumes, that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet if the lessor or his tenant were bound to repair the fences, and did not, and thereby the cattle escaped into their grounds without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distreinable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them w: for the law will not suffer the landlord to take advantage of his own or his tenant's wrong. 4. There are also other things privileged by the antient common law; as a man's tools and utensils of his trade: the ax of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station. So, beasts of the plough, averia carucae, and sheep, are privileged from distresses at common law x; while dead goods, or other sort of beasts, which Bracton

v Cro. Eliz. 549. u Co, Litt. 47.

x Stat. 51 Hen. III. St. 4. districttione scaccarii.

w Lutw. 1580.

* As if horses or cattle are sent to agist, they may be immediately distrained by the landlord for rent in arrear, and the owner must seek his remedy by action against the farmer : the principle of this law extends to public livery stables, to which, if horses and carriages are sent to stand, it is determined that they are distreinable by the landlord, as if they were upon any other farm. 3 Burr. 1498 Christian.

calls catalla otiosa, may be distreined. But, as beasts of the plough may be taken in execution for debt, so they may be for distresses by statute, which partake of the nature of executions y. And perhaps the true reason, why these and the tools of a man's trade were previleged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for it's non-payment: and, therefore to deprive the party of the instruments and means of paying it, would counteract the very end of the distress z. 5. Nothing shall be distreined for rent, which may not be rendered again in as good plight as when it was distreined: for which reason milk, fruit, and the like, cannot be distreined; a distress at common law being only in the nature of a pledge or security, to be restored in the same plight when the debt is paid. So, antiently, sheaves or shocks of corn could not be distreined, because some danger must needs accrue in their removal: but a cart loaded with corn might; as that could be safely restored. But now by statute 2 W. and M. c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distreined as well as other chattels7. 6. Lastly, things fixed to the freehold may not be distreined; as caldrons, windows, doors, and chimney-pieces : for they savour of the realty. For this reason also corn growing could not be distreined; till the statute 11 Geo. II. c. 19, empowered landlords to distrein corn, grass, or other products of the earth, and to cut and gather them when ripe8.

Let us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And, first, I must premise, that the law of distresses is greatly altered within a few years last past. Formerly they were looked upon in no other light than as a mere pledge or security, for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with

y 4 Burr. 589.

2 Ibid. 588. 4. Term. Rep. 565.

7. The Stat. 2. W. and M. c. 5, here referred to, was never in force in Virginia, nor is there any similar provision in our law.

8. The Stat. 11 Geo. 2. c. 19, was never in force in Virginia; nor is there any similar provision in our code.

regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distreinor has no other power than to retain them till satisfaction is made. But distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century; which have much altered the common law, as laid down in our antient writers,

In pointing out, therefore, the methods of distreining, I shall in general, suppose the distress to be made for rent, and remark, where necessary, the differences between such distress, and one taken for other causes.

In the first place then, all distresses must be made by day, unless in the case of damage-feasant; an exception being there allowed, lest the beasts should escape before they are taken a. And, when a person intends to make a distress, he must, by himself, or his bailiff, enter on the demised premises ; formerly during the continuance of the lease, but now b, if the tenant holds over, the landlord may distrein within six months after the determination of the lease ; provided his own title or interest, as well as the tenant's possession, continue at the time of the distress 9. If the lessor does not find sufficient distress on the premises, formerly he could resort no where else; and therefore tenants, who were knavish, made a practice to convey away their goods and stock fraudulently from the house or lands demised, in order to cheat their landlords. But now c the landlord may distrein any goods of his tenant, carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bona fide sold for a valuable consideration10 : and all persons privy to, or assisting in, such fraudu-

a Co. Litt. 142.

c Stat. 8 Ann. c. 14. 11 Geo. II. c. 19.

b Stat. 8 Ann. c. 14.

9. V. L. 1794, c. 89, §. 13. Accordant.

10. The distress in this case must be made within ten days, in Virginia. Edi. 1794, c. 89, Sec. 9. And if the goods carried off be bona fide sold for a valuable consideration before seizure they are no longer liable to distress. Ibid. Sec. 10.

lent conveyance, forfeit double the value to the landlord 11. The landlord may also distrein the beasts of his tenant, feeding upon any commons or wastes, appendant or appurtenant to the demised premises. The landlord might not formerly break open a house, to make a distress, for that is a breach of the peace. But when he was in the house it was held that he might break open an inner doord: and nowe he may, by the assistance of the peace-officer of the parish, break open in the day-time any place, whither the goods have been fraudulently removed and locked up to prevent a distress ; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein12.

Where a man is entitled to distrein for an entire duty, he ought to distrein for the whole at once; and not for part at one time, and part at another f. But if he distreins for the whole, and there is not sufficient on the premises, or he happens to mistake in the value of the thing distreined, and so takes an insufficient distress, he may take a second distress to complete hi* remedy g.

Distresses must be proportioned to the thing distreined for. By the statute of Marlbridge, 52 Hen. III. c. 4, if any man takes a great or unreasonable distress, for rent-arrere, he shall be heavily amerced for the same 13. As if h the landlord distreins two oxen for twelvepence rent; the taking of both is an unreasonable distress ; but if there were no other distress nearer the value to be found, he might reasonably have distreined one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive j.

d Co. Litt. 161. Comberb. 17. e Stat. 11 Geo. II. c. 19.

f 2 Lutw. 1532.

g Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 4. Burr. 590.

h 2 Inst. 107.

j Bro. Abr. t. assise 291. prerogative 98.

11. There is no such provision in our law.

12. The stat. 11 Geo. II. c. 19, here referred to, was never in force in Virginia, nor is there any similar provision in our code.

13. V. L. 1794, c. 89, Sec. 24. Accordant.

For as these distresses cannot be sold, the owner, upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge ; for an action of trespass is not maintainable upon this account, it being no injury at the common law i

When the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distreined must in the first place be carried to some pound, and there impounded by the taker. But in their way thither, they may be rescued by the owner, in case the distress was taken without cause, or contrary to law: as if no rent be due ; if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue k. But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law l 14.

A pound (parcus, which signifies any inclosure) is either pound-overt, that is, open overhead ; or pound-covert, that is, close. By the statute 1 and 2 P. and M. c. 12, no distress of cattle can be driven out of the hundred where it is taken, unless to a pound-overt within the same shire ; and within three miles of the place where it was taken 15. This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19, which was made for the benefit of landlords, any person distreining for rent may turn any part of the premises, upon which a distress is taken, into a pound, pro hac vice, for securing of such distress 16. If a live

i 1 Ventr. 104. Fitzgibb. 85. 4 Burr 590.

k Co. Litt 160, 161. 1 Ibid. 47.

14. Upon any pound-breach, or rescous of a distress for rent, the party grieved shall, in a special action upon the case, recover treble damages, with costs of suit, against the offenders, or either of them, or the owner of the goods distreined, if the same be found to have come to his use, or possession. V. L. 1794, c. 89, Sec. 5.

15. No person taking any distress shall drive, or remove the same out of the county where such distress is taken. V. L. 1794, c. 89, Sec. 24.

16. This statute was never in force in Virginia, nor is there any similar provision in our code.

distress, of animals, be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distreinor must give notice to the owner: and in both these cases, the owner, and not the distreinor, is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, as in a stable, or the like, the landlord or distreinor must feed and sustain them m 17. A distress of household goods, or other dead chattels, which are liable to he stolen or damaged by weather, ought to be impounded in a pound-covert, else the distreinor must answer for the consequences.

When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held n, that the distreinor is not at liberty to work or use a distreined beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services ; which must remain impounded, till the owner makes satisfaction ; or contests the right of distreining, by replevying the chattels. To replevy (replegiare, that is to take back the pledge) is, when a person distreined applies to the sheriff or his officers, and has the distress returned into his own possession; upon giving good security to try the right of taking it in a suit at law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distreinor. This is called a replevin18, of which more will be said hereafter. At present I shall only observe, that, as a distress is at common law only in nature of a security for the rent or damages done, a replevin an-

m Co. Litt. 47.

n Cro. Jac. 148.

17. But if cattle, horses, or slaves, be taken in execution, or by virtue of a writ of attachment, the sheriff taking the same is bound to provide sustenance for them. V. L. 1794, c. 151, 176.

18. This is a replevin at common law. The word replevy is used in another sense in our law ; and signifies the giving security to pay the rent distreined for, with interest, and all costs attending the distress, at the end of three months : which security the sheriff or officer levying any distress for rent, is authorised to take at any time within ten days after the distress made. V. L. 1794, c. 89, Sec. 1.

swers the same end to the distreinor as the distress itself; since the party replevying give security to return the distress, if the right be determined against him19.

This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet, if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distreinor. But for a debt due to the crown, unless paid within forty days, the distress was always saleable at the common law o. And for an amercement imposed at a court-leet, the lord may also sell the distress p: partly because, being the king's court of record, it's process partakes of the royal prerogative q; but principally because it is in the nature of an execution to levy a legal debt. And, so in the several statute-distresses, before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And, in like manner, by several acts of parliament r, in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken, and notice of the cause thereof given him, replevy the same with sufficient security; the distreinor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges ; rendering the overplus, if any, to the owner himself. And, by this means, a full and entire satisfaction may now be had for rent in arrere, by the mere act of the party himself, viz. by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament 20.

o Bro. Abr. t. distress. 71. p 8 Rep. 41.

q Bro. Ibid. 12 Mod. 330.

r 2 W. and M. c. 5. 8 Ann, c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19.

19. Before any writ of replevin shall be sued out to try the right of taking the goods distreined for rent, the party praying such writ shall enter into bond with one or more securities in the clerk's office, in the penalty of at least double the value of the rent distreined for, and costs of suit, to satisfy the judgment of the court: and in case the party suing out the same shall be cast in such suit, judgment shall be given against him for double the value of the rent distreined for, with full cost of suit. V. L. 1794, c. 89. Sec. 15, 16.

20. The remedy given by the laws of Virginia is somewhat different. For, where any goods or chattels are distreined for rent arrear, if the

Before I quit this article, I must observe, that the many particulars which attend the taking of a distress, used formerly to make it a hazardous kind of proceeding : for, if any one irregularity was committed, it vitiated the whole, and made the distreinors trespassers ab initio s. But now by the statute 11 Geo. II. c. 19, it is provided, that, for any unlawful act done, the whole shall not be unlawful, or the parties trespassors ab initio 21: but that the party grieved shall only have an action for the real damage sustained; and not even that, if tender of amends is made before any action is brought*.

s 1 Ventr. 37.

* The statute directs that the action shall be an action of trespass or upon the case, and therefore an action of trovor cannot be brought to recover goods taken under an irregular distress. 1 H. B1, 13. To an action under this statute the defendant may plead the general issue. But if a party pay money to redeem his goods from a wrongful distress for rent, he may afterwards maintain trovor against the person who distreined them. 6 T. R. 298 .... Christian.

tenant, or owner of the goods so distreined, shall not within ten days after notice thereof, and the cause of such taking, left at the chief mansion house, or other most notorious place on the premises, replevy the same, by giving sufficient security to the sheriff or officer serving such distress, to pay the rent, and all costs, with lawful interest at the end of three months, the sheriff may sell the goods distreined, at public auction, for money or tobacco according to the nature of the rent, to be paid at the end of three months ; and shall take bond and security from the buyer for the same, payable to the landlord. And if the party replevying the distress, or the buyer of the goods, shall fail to make payment according to the condition of the bond, the county court, upon motion, after ten days previous notice, may award execution against the obligors, and thereupon the sheriff shall levy the same immediately, and no further security shall be allowed. V. L. 1794, c. 89.

21. The stat. 11 Geo. II. c. 19, here referred to was never in force in Virginia, nor is there any similar provision in our code; in which respect the law of this country seems defective.

And here it will be proper to notice, that if any distress and sale be made under colour of the act concerning rents, for rent pretended to be in arrear and due, where in truth no rent is in arrear, or due, the owner of the goods distreined, his executors or administrators, may in an action of trespass, or upon the case, recover double damages, with costs of suit, against the persons so wrongfully distreining, or either of them, their executors and administrators. V. L. 1794, c, 89. ?. 4.

VI. The seising of heriots, when due on the death of a tenant, is also another species of self-remedy : not much unlike that of taking cattle or goods in distress. As for that division of heriots, which is called heriot-service, and is only a species of rent, the lord may distrein for this, as well as seise: but for heriot custom (which sir Edward Coke says t, lies only in prender, and not in render) the lord may seise the identical thing itself, but cannot distrein any other chattel for it u. The like speedy and effectual remedy, of seising is given with regard to many things that are said to lie in franchise ; as waifs, wrecks, estrays, deodans, and the like: all which the person entitled thereto may seise, without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other, and more speedy one, for the better asserting their property ; the thing to be claimed being frequently of such a nature, as might be out of the reach of the law before any action could be brought 22.

These are the several species of remedies, which may be had by the mere act of the party injured. I shall, next, briefly mention such as arise from the joint act of all the parties together .... And these are only two, accord, and arbitration.

I. Accord is a satisfaction agreed upon between the party injuring and the party injured, which, when performed, is a bar of all actions upon this account. As if a man contract to build a house or deliver a horse, and fail in it; this is an injury, for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money, or other thing, as a satisfaction, this is a redress of that injury, and entirely takes away the action w. By several late statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distreining; and 24 Geo. II. c. 24, in case of mistakes committed by justices of the peace) even tender of sufficient amends to the party injured

t Cop. §. 25. w 9 Rep. 79.

u Cro. Eliz. 590. Cro. Car. 260.

32. This branch of the laws of England is obsolete in Virginia.

is a bar of all actions, whether he thinks proper to accept such amends or no 23.

II. Arbitration is where the parties, injuring and injured, submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators ; who are to decide the controversy: and if they do not agree, it is usual to add, that another person be called in as umpire (imperator or impar x) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice y. But the right of real property cannot thus pass by a mere award z: which subtility in point of form (for it is now reduced to nothing else) had it's rise from feodal principles; for, if this had been permitted, the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release of land ; and it will be a breach of the arbitration-bond to refuse compliance. For, though originally the submission to arbitration used to be by word, or by deed, yet both of these being revocable in their nature, it is now become the practice to enter into mutual bonds, with condition to stand to the award or arbitration of the arbitrators or umpire therein named a. And experience having shewn the great use of these peaceable and domestic tribunals, especially in settling matters

x Whart. Angl. sacr. i. 772. Nicols. Scot. hist. libr. ch. 1. propefinem.

y Brownl. 55. 1 Freem. 410.

z 1 Roll. Abr. 242. 1 Lord Raym. 115.

a Appendix, No. III. Sec 6.

23. Neither of the statutes here referred to were ever in force in Virginia, nor is there any similar provision in our code; in both respects the law of Virginia seems defective.

In actions of trespass quare clausum fregit, if the defendant pleads a disclaimer, and involuntary trespass, with a tender of amends, if it be found for the defendant, or the plaintiff be nonsuited, he shall be barred. V. L. 1794, c. 76. ?. 19.

of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law; the legislature has now established the use of them, as well in controversies where causes are depending, as in those where no action is brought: enacting, by statute 9 and 10 W. III. c. 15, that all merchants and others, who desire to end any controversy, suit, or quarrel, (for which there is no other remedy but by personal action or suit in equity) may agree, that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king's courts of record, and may insert such agreement in their submission, or promise, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be conclusive: and, after such rule made, the parties disobeying the award shall be liable to be punished, as for a contempt of the court; unless such award shall be set aside, for corruption or other misbehavior in the arbitrators or umpire, proved on oath to the court, within one term after the award is made*. And, in consequence of this statute, it is now become

* A motion to set aside an award under a submission by an obligation, must be made before the last day of the next term after the award is made. 9 and 10 W. III, c, 15. s. 2. 2 T. R. 781. But this does not extend to an award made in pursuance of an order of nisi prius. Str. 301. If a motion be made to set aside an award under the statute, because it has been procured by corruption or undue means, or for any matter extrinsic the award, it must be made before the end of the next term; but an application for an attachment for not performing an award, may be resisted at any time for defects appearing on the face of the award itself; for such an award, after that time, might be pleaded in bar to any action brought upon it. Pedley v. Goddard, 7 T. R. 78.

Submissions to arbitration were entered into by a rule of the court at the common law when a cause was depending, and the statute of king William was intended to give the same efficacy to awards where no suit or action was instituted. 2 Burr. 701. A verbal agreement to abide by an award cannot be made a rule of court. 7 T. R. 1.

Where a cause is referred by an order of nisi prius, and it is agreed that the costs shall abide the event of the award, this signifies the legal event; and if the arbitrator awards such damages for a trespass or an assault as would not, if given in a verdict, carry costs to the plaintiff, he cannot recover them under this reference, the award in such instances being not equivalent to the certificate of a judge. 3 T. R. 138. But arbitrators may award costs at their dis-

a considerable part of the business of the superior courts, to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of con-

cretion, unless there is an express provision in the rule, that the costs shall abide the event of the award. 2 T. R. 644. If it is awarded that one of the parties shall pay the costs of the action, the costs of the award are not included. H. Bl. Rep. 223.

When arbitrators have the power of electing an umpire, they may chuse him and call in his assistance as soon as they begin to take the subject into consideration. And this is the more convenient practice, as it secures a decision upon a single investigation of the controversy. 2 T. R. 644. The agreement to a reference must be expressed with great caution and accuracy, for if it is agreed to refer all matters in difference between the parties in the cause; the arbitrators are not confined to the subject of the cause alone, as they are when it is agreed to refer all matters in difference in the cause between the parties. 3 T. R. 645. Yet after an award under a reference in the first case, either party may maintain an action for a right or demand subsisting at the time of the reference, but not disputed or referred to the arbitrators. 4 T. R. 146.

The court will not grant an attachment against a member of parliament for non-payment of money according to an award. 7 T. R. 448. If an arbitrator award that an administrator, who has submitted to the award, shall pay a certain sum, he is precluded afterwards from objecting that be has no assets to satisfy the demand, 7 T. R. 453.

Courts of equity exercise a jurisdiction in setting aside awards, particularly if a discovery or an account is prayed; but an arbitrator cannot be made a party, if it is agreed by the submission bond that no bill in equity shall be filed against him. 2 Atk. 395. Where it was one of the articles of co-partnership that all differences should be referred to arbitration, it was decided that a court of equity could entertain no jurisdiction of the subject until the parties had referred their disputes to the consideration of arbitrators. 2 Bro. 336. But it has since been determined that an agreement or covenant to refer all differences to arbitration, and not to file any bill in equity, or bring any action at law cannot take away the jurisdiction of any court in Westminster Hall. But an action might be brought for the breach of this covenant. 2 Ves. jun. 129. And where a submission to an award is made a rule of court, and it is part of the rule that the parlies shall file no bill in equity, it is in the discretion of the court of law, whether they will enforce that part of the rule by attachment or not. Ib. 451.

Arbitrations being unattended by the inevitable delay and expence of public litigation, are of such infinite importance to the community, that it is rather surprising that the legislature has not yet given to arbitrators a power of compelling the attendance of witnesses, or of administering an oath to them. For until they possess this authority, like courts of justice, however wise and righteous their awards may be, it cannot be expected that they can give the same satisfaction to those who are interested in the event of the controversy.

Christian.

tempt, as is awarded for disobedience to those rules and orders which are issued by the courts themselves24.

24. Our act concerning awards is nearly a transcript from the British statute here referred to, except, that the award made in pursuance of such submission is to be made the judgment or decree of the court; and the court instead of punishing the parties for a contempt in case of disobedience to the award, as in England, may issue the same execution or process, as on other judgments or decrees. V. L. 1794, c. 52.

It has been doubted whether this act applies to orders of reference made in any suit depending in a court; but it seems now to be agreed that such submissions made pendente lite are not within the act. 1 Call's Rep. 379. Mitchel v. Kelly. 2 Call's Rep. 443. Halcombe v, Fleurnoy.

It also seems to be settled, that although the act allows two terms for setting aside an award, yet the privilege of time may be waved, by the objections to the award being sooner brought forward. 1 Call. 381.

An award that the defendant shall pay the costs of the suit, without ascertaining them, is good. 1 Call. 475. And the court may give costs, though the award does not mention them. 2 Call. 106.

If one of two executors refer a matter in his own right, and one in right of his testator, and the referees thereon award a sum of money to himself, and another to him and his co-executor, the award is good. 1 Call. 575. And in such case he may sue upon the covenant of submission in his own name, and no variance. Ibidem.

If there be a reference by rule of court in a suit depending to four arbitrators, or any three, and afterwards two others are added, if two of those first named, and one of the latter make an award, it hath been, held, that it is sufficient. 2 Call. 106. Coupland vs. Anderson. Quere, if there should be two awards so made, (which in this case was very possible) which of them would be entitled to the preference ? Such a dilemma could not happen if any one of the six should die, or refuse to act; but unless such death or refusal be made to appear, I should apprehend a court, notwithstanding the authority of this case, might hesitate to enter and award so made, as its judgment.

It seems probable that witnesses summoned to attend the arbitrators to whom any matter may be referred by rule of court, are subject to a fine in case of non-attendance. See V. L. 1794, c. 141. §. 4, &c.

CHAPTER THE SECOND.

OF REDRESS BY THE MERE OPERATION OF LAW.

THE remedies for private wrongs, which are effected by the mere operation of the law, will fall within a very narrow compass : there being only two instances of this sort that at! present occur to my recollection; the one that of retainer, where a creditor is made executor or administrator to his debtor; the other, in the case of what the law calls a remitter.

I. If a person indebted to another makes his creditor or debtee his executor, or if such creditor obtains letters of administration to his debtor ; in these cases the law gives him a remedy for his debt, by allowing him to retain so much as will pay himself, before any other creditors whose debts are of equal degree*. This is a remedy by the mere act of law, and grounded upon this reason ; that the executor cannot, without an apparent absurdity, commence a suit against himself as representative of the deceased, to recover that which is due to him in his own private capacity : but having the whole personal estate in his hands, so much as is sufficient to answer his own demand is, by operation of law, applied to that particular purpose. Else, by being made executor, he would be put in a worse condition than all the rest of the world besides. For, though a rateable payment of all the debts of the deceased, in equal degree, is clearly the most equitable method, yet as every scheme for a proportionable distribution of the assets among all the creditors hath

a 1 Uol! Abr. 9^2. Plowd. 543. See Vol. U- page 511.

been hitherto found to be impracticable, and productive of more mischiefs than it would remedy; so that the creditor who first commences his suit is entitled to a preference in payment; it follows, that as the executor can commence no suit, he must be paid the last of any, and of course must lose his debt, in case the estate of his testator should prove insolvent, unless he be allowed to retain it. The doctrine of retainer is therefore the necessary consequence of that other doctrine of the law, the priority of such creditor who first commences his action. But the executor shall not retain his own debt, in prejudice to those of a higher degree ; for the law only puts him in the same situation, as if he had sued himself as executor, and recovered his debt; which he never could be supposed to have done, while debts of a higher nature subsisted. Neither shall one executor be allowed to retain his own debt, in prejudice to that of his co-executor in equal degree ; but both shall be discharged in proportion1*. Nor shall an executor of his own wrong be in any case permitted to retain0.

II. Remitter is where he, who hath the true property at jus proprietatis in lands, but is out of possession thereof, and hath no right to enter without recovering possession in an action, hath afterwards the freehold cast upon him by some subsequent, and of course defective, title : in this case he is remitted, or sent back, by operation of law, to his antient and more certain titled. The right of entry, which he hath gained by a bad title shall be ipso facto annexed to his own inherent good one ; and his defeasible estate shall be utterly defeated and annulled, by the instantaneous act of law, without his participation or consent". As if A disseises B, that is, turns him out of possession, and dies leaving a son C ; hereby the estate descends to C, the son of A, and B is barred from entering thereon, until he proves his right in an action : now, if afterwards C, the heir of the disseissor makes a lease for life to D, with a remainder to B the disseisee for life,«nd D dies ; hereby the remainder accrues to B, the disseisee : who thus gaining a new freehold, by virtue of

b.Viner. Abr. t. executors. D. 2. d Litt. §. 659.

cSUep.30.

e Co. Litt. 358. Cro Jac.489.

the remainder, which is a bad title, is, by act of law, remitted, or in, of his former and surer estatef. For he hath thereby gained a new right of possession, to which the law immediately annexes his antient right of property.

If the subsequent estate, or right of possession, be gained by a man's own act or consent, as by immediate purchase, being of full age, he shall not be remitted. For the taking such subsequent estate was his own folly, and shall be looked upon as a waiver of his prior rights. Therefore it is to be observed, that to every remitter there are regularly these incidents; an antient right, and a new defeasible estate of freehold, uniting in one and the same person : which defeasible estate must be cast upon the tenant, not gained by his own act or folly. The reason given by Littleton11, why this remedy, which operates silently and by the mere act of law, was allowed, is somewhat similar to that given in the preceding article ; because otherwise he who hath right would be deprived of all remedy. For as he himself is the person in possesion of the freehold, there is no other person against whom he can bring an action, to establish his prior right. And for this cause the law doth adjudge him in by remitter; that is, in such plight as if he had lawfully recovered the same land by suit. For, as lord Bacon observes', the benignity of the law is such, as when, to preserve the principles and grounds of law, it depriveth a man of his remedy without his own fault, it will rather put him in a better degree and condition than in a worse. Nam quod remedio destitnitur, ipso re valet, si culpa absit. But there shall be no remitter to a right, for which the party has no remedy by actionk ; as if the issue in tail be barred by the fine or warranty of his ancestor, and the freehold is afterwards cast upon him : he shall not be remitted to his estate tail : for the operation of the remitter is exactly the same, after the union of the two rights, as that of a real action would have been before it. As, therefore the issue in tail could not by any action have recovered his antient estate, he shall not recover it by remitter.

f Finch. L. 194. Litt. Sec. 683.

h Sec. 661.

k Co. Litt. 349.

g Co. Litt. 348,350,

i Elem. c. 9.

1 Moor. 115. 1 Ann, 286.

And thus much for these extrajudicial remedies, as well for real as personal injuries, which are furnished or permitted by the law, where the parties are so peculiarly circumstanced, as not to make it eligible, or in some cases even possible, to apply for redress in the usual and ordinary methods to the courts of public justice.

CHAPTER THE THI11D.

OF COURTS IN GENERAL.

THE next, and principal, object of our inquiries is the redress of injuries by suit in courts: wherein the act of the parties and the act of law co-operate; the act of the parties being necessary to set the law in motion, and the process of the law being in general the only instrument, by which the parties are enabled to procure a certain and adequate redress.

And here it will not be improper to observe, that although, in the several cases of redress by the act of the parties mentioned in a former chapter*, the law allows an extrajudicial remedy, yet that does not exclude the ordinary course of justice: but it is only an additional weapon put into the hands of certain persons in particular instances, where natural equity or the peculiar circumstances of their situation required a more expeditious remedy, than the formal process of any court of judicature can furnish. Therefore, though I may defend myself, or relations, from external violence, I yet am afterwards entitled to an action of assault and battery: though I may retake my goods, if I have a fair and peaceable opportunity, this power of recaption does not debar me from my action of trover or detinue : I may either enter on the lands, on which I have a right of entry, or may demand possession by a real action: I may either abate a nusance by my own authority, or call upon the law to do itfor me: I may distrein for rent, or have an action of debt, at my own option : If I do not distrein my neighbour's cattle damage-feasant, I may compel him by action of trespass to make me a fair satisfaction: if a heriot, or a deodand, be withheld from me by fraud or force,

a cli. 1.

I may recover it though I never seised it. And with regard to accords and arbitrations, these, in their nature being merely an agreement or compromise, most indisputably suppose a previous right of obtaining redress some other way, which is given up by such agreement. But as to remedies by the mere operation of law, those are indeed given, because no remedy can be 'ministered by suit or action, without running into the palpable absurdity of a man's bringing an action against himself: the two cases wherein they happen being such, wherein the only possible legal remedy would be directed against the very person himself who seeks relief.

In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded. And in treating of these remedies by suits in courts, I shall pursue the following method: first, I shall consider the nature and several species of courts of justice: and, secondly, I shall point out in which of these courts, and in what manner, the proper remedy may be had for any private injury ; or, in other words, what injuries are cognizable, and how redressed, in each respective species of courts.

First, then, of courts of justice. And herein we will consider, first, their nature and incidents in general; and, then, the several species of them, erected and acknowleged by the laws of England.

A court is defined to be a place wherein justice is judicially administered11. And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown0 >. For, whether created by act of parliament, or

b Co. Litt. 58. c See book I. c. 7.

1. There is a fundamental distinction between the British constitution and ours in this respect. The courts of the United States, and of the state of Virginia, do not derive their authority from the executive authority, but from the people as granted by their respective constitutions. See C. U. S. Art. 3. C. V. Art. 3,14, and 15.

letters patent, or subsisting by prescription, (the only methods by which any court of judicature"1 can exist) the king's consent in the two former is expressly, and in the latter impliedly, given. In all these courts the king is supposed in contemplation of law to be always present; but as that is in fact impossible, he is there represented by his judges, whose power is only an emanation of the royal prerogative".

For the more speedy, universal, and impartial administration of justice between subject and subject, the law hath appointed a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction: some constituted to inquire only, others to hear and determine: some to determine in the first instance, others upon appeal and by way of review. All these in their turns will be taken notice of in their respective places: and I shall therefore here only mention one distinction, that runs throughout them all; viz. that some of them are courts of record, others not of record. A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary'. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there would be no end of disputes3. But, if there appear any mistake of the clerk in making up such record, the court will direct him to amend it. All courts of record are the king's courts, in right of his crown and royal dignity*, and therefore no other court

d Co. Litt. 260.

e Ibid.

{ Finch. L. 231.

2. The judiciary power, far from being an emanation from the executive, is intended by the American constitutions as a counterpoise, or check to it's excesses, and those of the legislature. See the Federalist, No. 78.

3. See L. V. Edi. 1794, c. 32, and 33, as to certain records; and Burk -vs. Trigg, 2 Wash. 217.

hath authority to fine or imprison ; so that the very erection of anew jurisdiction with power of fine or imprisonment makes it instantly a court of records. A court not of record is the court of a private man ; whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow-subjects. ' Such are the courts-baron incident to ever}' manor, and other inferior jurisdictions: where the proceedings are not enrolled or recorded ; but as well their existence, as the truth of the matters therein contained shall, if disputed, be tried and determined by a jury. These courts can hold no plea of matters cognizable by the common law, unless under the value of 40*. nor of any forcible injury whatsoever, not having any process to arrest the person of the defendant11.

In every court there must be at least three constituent parts, the actor, reus, aadjttdex; the actor, or plaintiff, who complains of an injury done ; the reus, or defendant, who is called upon to make satisfaction for it ^ and the judex, or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain and by it's officers to apply the remedy. It is also usual in the superior courts to have attorneys, and advocates or counsel, as assistants.

An attorney at law answers to the procurator, or proctor, of the civilians and canonists '. And he is one who is put in the place, stead, or turn of another, to manage his matters of law. Formerly every suitor was obliged to appear in person, to prosecute or defend his suit, (according to the old Gothic constitution k) unless by special licence under the king's letters patent'. This is still the law in criminal cases. And an idiot cannot to this day appear by attorney, but in person m ; for he hath not discretion to enable him to appoint a proper substitute : and upon his being brought before the court in so defenceless a condition, the judges are bound to take care of his interests, and

g Salk. 200. 12 Mod. 388. h 2 Inst. 311. i Pope Boniface VIII, in 6 Decretal. 1. 3. t. 16. §. 3. speaks of " procuratoribia, quiin aliquibus partibus atornati nuncupantur." k Stiernhook dejur Goth. 1. 1. c 6. 1 F. N. B 25. ra Ibid. 27.

they shall admit the best plea in his behalf that any one present can suggest". But, as in the Roman law " cum olim in itsufuisset, alterius nomine agi non posse, sed, quia hoc non minimam incommoditatem habcbat, coepenmt homines per procurators litigare0" so with us, upon the same principle of convenience, it is now permitted in general, by divers antient statutes, whereof the first is statute Westm. 2, c. 10, that attorneys may be made to prosecute or defend any action in the absence of the parties to the suit. These attorneys are now formed into a regular corps; they are admitted to the execution of their office by the superior courts of Westminster-hall: and are in all points officers of the respective courts in which they are admitted : and, as they have many privileges on account of their attendance there, so they are peculiarly subject to the censure and animadversion of the judges. No man can practise as an attorney in any of those courts, but such as is admitted and sworn an attorney of that particular court: an attorney of the court of king's bench cannot practise in the court of common pleas; nor vice versa. To practice in the court of chancery it is also necessary to be admitted a solicitor therein: and by the statute 22 Geo. II, c. 46, no person shall act as an attorney at the court of quarter sessions, but such as has been regularly admitted in some superior court of record. So early as the statute 4 Hen. IV, c. 18, it was enacted, that attorneys should be examined by the judges*, and none admitted but such as were virtuous, learned, and sworn to do their duty. And'many subsequent statutes? have laid them under farther regulations.

Of advocates, or (as we generally call them) counsel, there are two species of degrees; barristers, and serjeants. The former are admitted after a considerable period of study, or at least standing, in the inns of courts; and are in our old books stiled apprentices, apprenticii ad legcm, being looked upon as merely

n Bro. Abr. t. iileot. 1. o Inst. 4. tit. 10. p 3 Jac. I, c. 7. 12 Geo. 1. c. 29, 2 Geo. II, c. 23. 22 Geo. II, c. 46. 23 Geo. II, c. 26.

ij See Vol. I. introcl. Sec. 1.

4. L. V. Edi. 1724, c. 71. Accordant.

learners, and not qualified to execute the full office of an advocate, till they were sixteen years standing; at which time, according to Fortescuer, they might be called to the state and degree of serjeants, or servientis ad legem. How antient and honourable, this state and degree is, with the form, splendor, and profits, attending it, hath been so fully displayed by many learned writers', that it need not be here enlarged on. I shall only observe, that serjeants at law are bound by a solemn oath *• to do their duty to their clients: and that by custom u, the judges of the courts of Westminster are always admitted into this venerable order, before they are advanced to the bench j the original of which was, probably, to qualify the puhne barons of the exchequer to become justices of assise, according to the exigence of the statute of 14 Edw. III, c. 16. From both these degrees some are usually selected to be his majesty's counsel learned in the law; the two principal of whom are called his attorney, and solicitor general *. The first king's counsel, under the degree of serjeant, was Sir Francis Bacon, who was made so honoris causa, without either patent or feew; so that the first of the modern order (who are now the sworn servants of the crown, with a standing salary) seems to have been Sir Francis North, afterwards lord keeper of the great seal to king Charles II. x.... These king's counsel answers, in some measure, to the advocates of the revenue,advocatifoci, among the Romans. For they must not be employed in any cause against the crowm, without special licence; in which restriction they agree with the advocates of the fisc t : but in the imperial law, the prohibition was carried still farther, and, perhaps, was more for the dignity of the soye-

r de LL. c. 50.

s Fortesc. ibid. 10 Rep. Pref. Dugdal. Orig. Jurid. To which may be added a tract by the late serjeant Wynne, printed in 1765, entitled, " Observations Touching the Antiquity and Dignity of the Degree of Serjeant at Law. "

t 2 Inst. 214.

w See his letters, 256.

y Cod. 2,9,1.

u Fortesc. c. 50.

x See his life, by Roger North, 37.

5, The attorney general of Virginia is an officer under the constitution; he is elected by joint ballot of both houses of assembly, and holds his office during good behaviour. C. V. Art. 14.

reign; for, excepting some peculiar causes, the fiscal advocates were not permitted to be at all concerned in private suits between subject and subject *. A custom has, of late years, prevailed of granting letters patent of precedence to such barristers as the crown thinks proper to honour with that mark of distinction : whereby they are entitled to such rank and pre-audiance* as are signed in their respective patents; sometimes next after the king's attorney general, but usually next after his majesty's counsel then being. These (as well as the queen's attorney and solicitor generalb) rank promiscuously with the king's counsel, and together with them sit within the bar of the, respective courts : but receive no salaries, and are not sworn ; and, therefore, are at liberty to be retained in causes against the crown. Andall other serjeants and barristers indiscriminately (except in the court of common pleas, where only serjeants are admitted) may take upon them the protection and defence of any suitors, whether plaintiff or defendant: who are, therefore, called their clients, like the dependants upon the antient Roman orators. Those, indeed, practised gratis, for honour merely, or at most, for the sake of gaining influence: and so, likewise, it is established with usc, that a counsel can maintain no action for his fees; which are given, not as localio vel conductio, but as quiddam honorarium; not as a salary or hire, but as a mere gratuity, which a counce'llor cannot demand, without doing wrong to his reputation d: as is also laid down with regard to advocates in the civil z Cot!. 2, 7,13

a Pie-audiance in the courts, is reckoned of so much consequence, that it may not be amiss to subjoin a short table of the precedence, which usually obtains among the practisers

1 The king's premier serjeant, (so constituted by special patent)

2 The King's antient serjeant, or the eldest among the king's serjeants. J. The king's advocate general.

4 The king's attorne) general

5 The king's solicitor general. |

6 The king's serjeants

7- The king's counsel, with the cjueen's attorney and solicitor.

8 Serjeants at law

9 The recorder of London

10 Advoca'es of the civil law.

11. Banisters .In the court of exchequer, two of the most experienced banisters, called fasi-mzn and the tub-man (from the places m which they sit,) have also a pieccdenie in motions b Seld, tit hon 1,6,7. c Davis Pref. 22. 1 Chan. Uep 38. d Davis. 23.

law« to whose honorarium wa° directed by a decree of the senate not to exceed, in nny case, ten thousand sesterces, or about 80l. of English moneyf. And, in order to encourage due freedom of speech in the lawful defence of their clients, and at the same time to eive a (.heck to the unseemly licentiousness of prostitute and illiberal men (a few of whom may sometimes insinuate themselves even into the most honorable professions) it hath been holden that a counsel is not answerable for any matter by him spoken, relative to the cause in hand, and suggested in his clients instructions ; although it should reflect upon the reputation of another, and even prove absolutely groundless: but if he mentions an untruth of his oh n invention.or even upon instructions if it be iiripertinent to the cause in hand,he is then liable to an action from the party injured^. And counsel guilty of deceit, or collusion, are punishable by the statute Westm. 1, 3 Edw. I, c. 28, with imprisonment for a year and a day, and perpetual silence in the courts; a punishment still sometimes inflicted for gross misdemesnors in practice h «. e*yil. 61. fTacawtl.ll. g Cro Jac.90. h Raym 376

6 See the act concerning counsel and attorneys V L l794, c 71....An attorney neglecting to conduct a suit properly, or to sign judgment in the due course of proceeding, or to charge a person in execution w ho is surrendered b; hisba.l.is liable to the action of his client. Finch, 188. 2 Wilson, 325 4 Burrow, StXJO 1 Term rep 656 Sec also 2 Wash rep 103

Consent of an attornney binds his client (in the ordinary course of his suit) though con'rary to his instructions Salk, 86, 88, 89 But this must^be understood as to such matters only as arc w ithin the line of Ins duty. Herbert w. Alcxardcr. 2 Call, 4P8

The name of an a'torno, in every suit, ought to be set to all the proceedings in the cause, and for want of it, the proceedings nnj be set aside. 1 Burrow, 20

If nionej recovered by judgment, be paid to to the | Hnviif 's attorney on record, the e.xecn ion is thercb) discharged 2 Smnsei, 139 2 Ba Abr 355.

Ami, i a late caie, it hath been decided, that, in this countr), the receipt of an attorne), under the customof the country, discharges the judgment, although (he }i ar and day be passed, if execution on that judgment hath been issued and » rrplr\ in-bond taken. 1 Call, 147.

An a-torney, in Virginia, who receives money foi his client and refuse! to pay the sane « hen demanded, is liable to a juJjmtnt on motion, in a summary » aj, in the same manner as sheriffs L V. 1H-4, c 71, Sic 7-

An attorney, taking a gratuitv, more than his just fees, pending the suit, is ju.lt) of misbehaviour, but not afier the cause is ended, 1 Wilson, 291. 2Atk. 2i to 31 2 Vcz 138,259, 260 And, by oui law, any la:uyer exacting, or receiving a greater fi.e, than the law allows, before he has pei formed the services «r the suit be ended, is liable to foifeit one hundred and iiltv dollars, *. V Jrtl, c 71, Sec 12.

CHAPTER THE FOURTH

OF THE PUBLIC COURTS OF COMMON LAW AND EQUITY.

WE are next to consider the several species and distinctions of courts of justicej which are acknowleged and used in this kingdom. And these are either such as are of public and general jurisdiction' throughoutthe whole realm: or such as are only of a private and special jurisdiction in some particular parts of it. Of the former, there are four sorts; the universally established courts of common law and equity; the ecclesiastical courts; the courts military ; and courts maritime.' And, first, of such public courts, as are courts of common law and equity.

The policy of our antient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and townships in the kingdom ; wherein injuries were redressed in an easy and expeditious raannt., by the ' suffrage of neighbours and friends. These little courts, however, communicated with others of a larger jurisdiction, and those, with others of a still greater power; ascending gradually from the lowest, to the supreme courts, which were, respectively, constituted to correct the errors of the inferior ones, and to determine such causes as by reason of thvir weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into small-

er channels, till the whole, and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy; being equally similar to that which prevailed in Mexico and Peru, before they were discovered by the Spaniards, and to that which was established in the Jewish republic by Moses. In Mexico, each town and province had it's proper judges, who heard and decided causes, except when the point in litigation was too intricate for their determination ; and then it was remitted to the supreme court of the empire, established in the capital, and consisting of twelve judges3.... Peru, according to Garcilasso de Vega, (an historian descended from the antient Incas of that country) was divided into small districts containing ten families each, all registered, and under one magistrate ; who had authority to decide little differences and punish petty crimes. Five of these, composed a higher class oijifty families ; and two of these last, composed another, called a hundred. Ten hundreds, constituted the largest division, consisting of a thousand families : and each division had it's separate judge or magistrate, with a proper degree of subordination b. In like manner we read of Moses, that, finding the sole administration of justice too heavy for him, " he chose able men out of all Israel, such as feared God, men of truth, hating covetousness; and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens: and they judged the people at all seasons: the hard causes they brought unto Moses, but every small matter they judged themselvesc." These inferior courts, at least the name and form of them, still continue in our legal constitution: but as the superior courts of record have in practice obtained a concurrent original jurisdiction with these ; and as there is, besides a power of removing plaints or actions thither from all the inferior jurisdictions; upon diese accounts (among others) it has happened that these petty tribunals have fallen into decay and almost into oblivion: whether for the better or the worse, may be matter of some speculation; when we consider on the one hand, the increase of expence and delay, and on the other, the more able and impartial decision, that follow from this change of jurisdiction.

a Mod. Un. Hist, xxxviii.' 469. b Ibid, xxxix. 14. c Exod. c. 18.

The order I shall observe, in discoursing on these several courts, constituted for the redress of civil injuries (for with those of a jurisdiction merely criminal I shall not at present concern myself) will be by beginning with the lowest, and those whose jurisdiction, though public, and generally dispersed throughout the kingdom, is yet (with regard to each particular court) confined to very narrow limits ; and so ascending gradually to those of the most extensive and transcendant power.

I. The lowest, and at the same time, the most expeditious, court of justice, known to the law of England, is the court of piepoitdre, curia pedis pulverizati: so called from the dusty feet of the suitors ; or according to Sir Edward Coke d, because justice, is there done as speedily as dust can fall from the foot. Upon the same principle, that justice among the Jews, was administered in the gate of the city ', that the proceedings might be the more speedy as well as public. But the etymology given us, by a learned modern writerf, is much more ingenious and satisfactory ; it being derived, according to him, from pied puldreaux (a pedlar, in old French) and, therefore) signifying the court of such petty chapmen as resort to fairs or markets.... It is a court of record, incident to every fair and market; of which the steward of him, who owns, or has the toll of the market, is the judge : and it's jurisdiction extends to administer justice for all commercial injuries done in that very fair or market, and not in any preceding one. So that the injury must be done, complained of, heard, and determined, within the compass of one, and the same day, unless the fair continues longer. The court hath cognizance of all matters of contract that can possibly arise within the precinct of that fair or market; and the plaintiff must make oath that the cause of an action arose there s. From this court a writ of error lies, in the nature of an appeal, to the courts at Westminster11; which are now also bound by the statute 19 Geo. III, c. TO, to issue writs of execution, in aid of it's process, after judgment, where the person or effects of the defendant are not within the limits of this inferior jurisdiction; which may

d4 Iiibt.2r2. elluth. c.4.

f Barrington's Observations on the Statute, 3?.r.

y Stat. 17Edw. IV. c. 2. h Cro. Elix. 1T7.

possibly occasion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reason of their original institution seems to have been, to do justice, expeditiously among the variety of persons, that resort from distant places to a fair or market: since it is probable that no other inferior court might be able to serve it's process, or execute it's judgments, on both, or perhaps either of the parties ; and, therefore, unless this court had been erected, the complaint must necessarily have resorted, even in the first instance, to some superior judicature'.

II. The court-baron is ^ court incident to every manor in the kingdom, to be holden by the steward within the said manor. This court-baron is of two natures ': the one is a customary-court, of which we formerly spoke k, appertaining entirely to the copyholders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is. the court of the barons, by which name the freeholders were sometimes antiently called: for that it is held before the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge.... These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz. the freeholder's court, was composed of the lord's tenants, who were the pares of each other, and were bound by their feodal tenure, to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks ; and it's most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the case, or the like, where the debt or damages do not amount to forty shillings1 ; which is the same sum, or three marks, that bounded the

i Co. Litt. 58. 1 Finch, 248.

k Book II, c. 4, 6, and 22.

1. Although the court of fiiefioudre is here said to be incident to every fair and market, and to be a court of record, yet there is certainly no similar institution that I have ever heard of in Virginia.

jurisdiction of the antient Gothic courts in their lowest instance, or far'ding-courts, so called, because four were instituted within every superior district or hundred m. But the proceedings on a writ of right, may be removed in the county court by a precept from the sheriff called a toltn, " quia tollit atque eximit causam e curia baronum0." And the proceedings in all other actions may be removed into the superior courts by the king's writs of pone i', or accedas ad curiam, according to the nature of the suit'. After judgment given, a writ also of false judgmentr, lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and, therefore, in some of these writs of removal, the first direction given is, to cause the plaint to be recorded, recordari facias loquelam *.

III. A hundred-court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges^nd the steward the registrar, as in the case of a court-baron. It is like* wise no court of record ; resembling the former in all points, except that in point of territory it is of a greater jurisdiction'. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time *; but it's institution was probably co-eval with that of hundreds themselves, which were formerly observed" to have been introduced though not invented by Alfred, being derived from the polity of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number an hundred, but after-

m Stiernh, de jure Gotb. 1. 1, c. 2.

n F. N. B. 3, 4. See Appendix, No. J, Sec. 2.

q 3 Hep. Pref. p See Appx. No. 1, Sec. 3.

q F. N. B. 4,70. Finch,L. 444,445.

r Ibid. 18. s Finch, L. 248. 4 Inst, 267.

t 2 Inst. 71. v Vol. I, page 116.

2. The proprietors of the Northern-Neck in Virginia were by the royal charters granted to them, authorised to establish courts-baron within the limits of their proprietary. But I believe that none of them availed themselves of their authority, See V. L. 1794, c. 3.

•wards only called by that name" ; and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively ot the judicial power exercised in their hundred courts and courts-baron. " Principes regionum,

atque pagorum" (which we may fairly construe, the lords of hundreds and manors) " inter suos jus dicimt, controversiaiqitc

minuunt w." And Tacitus, who had examined their conslitution still more attentively, informs us not only of the authority of the lords, but of that of the centeni, the hundredors, or jury ; who were taken out of the common freeholders, and had them, selves a share in the determination. " Eliguntur in conciliis et

principes, qui jumper pagos vkosqite reddunt: centeni singulis

ex plebe comites, consilium sinnil et auctoritas, admiti*" This hundi ed-court was denominated haerada in the Gothic constitution >. But this court, as causes are equally liable to removal from hence, as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions3.

IV. The county court is a court incident to the jurisdiction of thf sheriff'4. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings1. Over some of which causes these inferior courts have, by the express words of the statute of Gloucester3, a jurisdiction totally exclusive of the king's superior courts. For in order to be entitled to sue an action of trespass for goods before the king's justiciars,

u Centeni ex singvlis fifigls stint, idrqve ipsum inter mot vxantui; et, quoa primo nitinefisjitit,jfiiii tionien et honor est. 1 ac. de ttwi. Genn. c. 6. w de iell. Gal1.1.6.c 22. x ae M'»ib. German, c. 13. y Sticrtihoolc, l. 1, c. 2. z 4 lust. 266. a 6 Edw. l,c 8.

3. There are no hundred-courts in Virginia.

4. The sheriff is not judge of the county-court, in Virginia: the county-courts ave, moreover, courts of record. Their constitution and jurisdiction, will be particularly explained in the Appendix to this Volume, Note A.

the plaintiff is directed to make affidavit that the cause of action does really and bonajide amount to 40* : which affidavit is now unaccountably disused b, except in the court of exchequer. The statute also 43 Eliz. c. 6, which gives the judges in many personal actions, where the jury assess less damages than 4Qs, a power to certify the same and abridge the plaintiff of his full costs, was also meant to prevent vexation by litigious plaintiffs ; who, for purposes of mere oppression, might be inclinable to institute suits in the superior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called njusticics; which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county court, as might otherwise be had at Westminster'. The freeholders of the county are the real judges of this court, and the sheriff is the ministerial officer. The great conflux of freeholders, which are supposed always to attend at the county court, (which Spelman calls forum plebeiae justitiae et theatrum comiti* vae potestatisd) is the reason why all acts of parliament at the end of every session were wont to be there published by the sheriff; why all outlawries of absconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of sheriffs and conservators of the peace, and still of coroners, verderors, and knights of the shire, must ever be made in plena comitatu, or, in full county court..... By the statute 2 Edw. VI. c. 25, no county court shall be adjourned longer than for one month, consisting of twenty-eight days. And this was also the antient usage, as appears from the laws of king Edward the elder': " praepositus (that is, the sheriff ) ad quartam circiter septimanamfre qucntem populi concionem celebrato : cuique jus dicito ; litesque singulas dirimito." In those times the county court was a court of great dignity and splendor, the bishop and ealdorman (or earl) with the principal men of the shire sitting therein to administer justice both in lay and ecclesiastical causes f But it's dignity was much impaired, when the bishop was prohibited, and the earl neglected to attend

b 2 Inst. 391.

<1 Gloss. V' comitatus.

f LL. En(dga>i. c. 5.

cFincli. 318.F.N. B. 152. ec.ll.

it. And, in modern times, as proceedings are removeable from hence into the king's superior courts, by writ of pone or rccordari g, in the same manner as from hundred-courts, and courts-baron ; and as the same writ of false judgment may be had, in nature of a writ of error; this has occasioned the same disuse of bringing actions therein. '

These are the several species of common law courts, which though dispersed universally throughout the realm, a.re nevertheless of a partial jurisdiction, and confined to particular districts : yet communicating with, and as it were members of, the superior courts of a more extended and general nature ; which are calculated for the administration of redress not in any onq lordship, hundred, or county only, but throughout the whole kingdom at large. Of which sort is,

V. The court of common pleas, or, as it is frequently termed in law, the court of common bench.

By the antient Saxon constitution there was only one superior court of justice in the kingdom; and that court had cognizance both of civil and spiritual causes: viz. the wittenagemote, or general council, which assembled annually or oftener, whereever the king kept his Christmas, Easter, or Whitsontide, as well to do private justice as to consult upon public business. At the conquest the ecclesiastical jurisdiction was diverted into another channel: and the conqueror, fearing danger from these annual parliaments, contrived also to separate their ministerial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a constant court in his own hall, thence called by Bracton11 and other antient authors aula regia or aula regis. This court was composed of the king's great officers of state resident in his palace, and usually attendant on his person: such as the lord high constable and lord mareschal, who chiefly presided in matters of honour and of arms; determining according to the law military and the law of nations. Besides these, there were the lord high steward, and lord great chamberlain; the steward of the household j the lord chancellor, whose pecu-

gF.N.B.rO. Finch. 445.

h l.3. ti. 1. c. 7.

liar business it was to keep the king's seal and examine all such writs, grants, and letters, as were to pass under that authority; and the lord high treasurer, who was the principal adviser in all matters relating to the revenue. These high officers were assisted by certain persons learned in the laws, who were called the king's justiciars or justices ; and by the greater barons of parliament, all of whom had a seat in the aula regia, and formed a kind of court of appeal, or rather of advice, in matters of great moment and difficulty. All these in their several departments transacted all secular business both criminal and civil, and likewise the matters of the revenue: and over all presided one special magistrate, called the chief justiciar or capitalis justiciar ius totius Angliae; who was also the principal minister of state, the second man in the kingdom, and by virtue of his office guardian of the realm in the king's absence. And this officer it was, who principally determined all the vast variety of causes that arose in this extensive jurisdiction; and from the plenitude of his power grew at length both obnoxious to the people, and dangerous to the government which employed him^.

This great universal court being bound to follow the king's household in all his progresses and expeditions, the trial of common causes therein was found very burthensome to the subject. Wherefore king John, who dreaded also the power of the justiciar, very readily consented to that article which now forms the eleventh chapter of magna carta, and enacts, " that communia flacita nan sequantur curiam regis, zed teneantur in aliquo loco certo." This certain place was established in Westminster-hall, the'place where the aula regis originally sate, when the king resided in that city; and there it hath ever since continued. And the court being thus rendered fixed and stationary, the judge became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land, and injuries merely civil between subject and subject. Which critical establishment of this principal court of common law, -at that particular juncture and that particular .phice, gave rise to the inns of court in its neighbourhood; and, th'ereby collecting together the whole body of the common law-

j Spelm. Gl. 331, 2, 3. Gilb. Hut. C. P. Introd. 17.

yers, enabled the law itself to withstand the attacks of the canonists and civilians, who laboured to extirpate and destroy it'......

This precedent was soon after copied by king Philip the fair in France, who about the year 13O2 fixed the parliament of Paris to abide constantly in that metropolis; which before used to follow the person of the king, wherever he went, and in which he himself used frequently to decide the causes that were there depending: but all were then referred to the sole cognizance of the parliament and it's learned judges k. And thus also, in 1495 the emperor Maximilian I. fixed the imperial chamber (which before always travelled with the court and household) to be constantly held at Worms, from whence it was afterwards translated to Spire'.

The aula regis being thus stripped of so considerable a branch of it's jurisdiction, and the power of the chief justiciar being also considerably curbed by many articles in the great charter, the authority of both began to decline apace under the long and troublesome reign of king Henry III. And, in farther pursuance of this example, the other several offices of the chief justiciar were under Edward the first (who new modelled the whole frame of our judicial polity) subdivided and broken into distinct courts of judicature. A court of chivalry was erected, over which the constable and mareschal presided; as did the steward of the household over another, constituted to regulate the king's domestic servants. The high steward, with the barons of parliament, formed an august tribunal for the trial of delinquent peers ; and the barons reserved to themselves in parliament the right of reviewing the sentences of other courts in the last resort. The distribution of common justice between man and man was thrown into so provident an order, that the great judicial officers were made to form a checque upon each other : the court of chancery issuing all original writs under the great seal to the other courts ; the common pleas being allowed to determine all causes between private subjects; the exchequer managing the king's revenue; and the court of king's bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by

i See Vol. I Introd. §. 1. I Ibid. xxix. 467.

k Mod. Un. Hist, xxiii. 396.

way of appeal; and the sole cognizance of pleas of the crown or criminal causes. For pleas or suits are regularly divided into two sorts,- pleas of the crown, which comprehend all crimes and misdemesnors, wherein the king (on behalf of the public) is the plaintiff"; and common pleas, which include all civil actions, depending between subject and subject. The former of these were the proper object of the jurisdiction of the court of king's bench ; the latter of the court of common pleas : which is a court of record, and is stiled by sir Edward Cokem, the lock and key of the common law ; for herein only can real actions, that is, actions which concern the right of freehold or the realty, be originally brought: and all other, or personal, pleas between man and man, are likewise here determined; though in most of them, the king'b bench has also a concurrent authority.

The judges of this court are at present" four in number, one chief and three puisne justices, created by the king's letters patent, who sit every da} in the four terms to hear and determine all matters of law arising in civil causes, whether real, personal, or mixed and compounded of both. These it takes cognizance of, as well originally, as upon removal from the inferior courts before-mentioned. But a writ of error, in the nature of an appeal, lies from this court into the court of king's bench'.

VI. The court of king's bench (so called because the king vised formerly to sit there in person °, the stile of the court still being coram ipso regej is the supreme court of common law in

m 4 Inst. 99.

nKmgJames I, during the greater part of his reign, appointed five judges in the courts of king's bench and common pleas, for the benefit of a casting voice, in case of a difference in opinion, and that the circuits might at all times be fully supplied with judges of the superior courts. And, in subsequeiitreigns, upon the permanent indisposition of a judge, a fifth hath been sometimes appointed llaym. 475.

o 4 Inst. 73.

5. Thei'e is no court of common fileas, so called in Virginia. The county courts and district courts possess a jurisdiction analogous thereto in man) cases ; but their jurisdiction extends, also, to a variety of cases, of which the court of common jilcas in England hath not cognizance.

the kingdom ; consisting of a chief justice and three puisne justices, who are, by their office, the sovereign conservators of the peace, and supreme coroners of the land. Yet, though the king himself used to sit in this court, and still is supposed so to do; he did not, neither by law is he empowered v to, determine any cause or motion, but by the mouth of his judges, to \\hom be hath committed his whole judicial authority 1.

This court (which as we have said) is the remnant ol the aula regia, is not, nor can be, from the very nature and constitution of it, fixed to any certain place, but may follow the king's person wherever he goes j for which reason all process issuing out of this court, in the king's name, is returnable " ubicunquefucrimits in Anglia." It hath indeed, for some centuries past, usually sate at Westminster, being an antient palace of the crown j but might remove with the king to York or Exeter, if he thought proper to command it. And we find that, after Edward I. had conquered Scotland, it actually sate at Roxburgh r. And this moveable quality, as well as it's dignity and power, are fully expressed by Bracton, when he says that the justices of this couit are " capitales, generales, perpelui, et majores; a laterc regis residentes; qui omnium allorum corrigere tcnentur injurias et crrores s." And it is, moreover, especially provided in the articuli super cartas(, that the king's chancellor, and the justices of his bench, shall follow him, so that he may have at all limes near unto him some that be learned in the laws.

The jurisdiction of this court is very high and transcendent. It keeps all inferior jurisdictions within the bounds of their authority, and may either remove their proceedings to be determined here, or prohibit their progress below. It superintends

p See book I. ch. 7 The kingused todecide causes in person m the aula ifgia. " In curia ilomtm regis ipse inpropria persona jura decerntt.'. (Dial de i,caccb. 1.1. § 4.) After it's dissolution, king Edward I, frequently sat in the courtof king's bench. (See the records cited 4 Burr. 851 ) And, in later turns, James I, is said to have sat there in person, but was informed b} his judges that lie could not deliver an opinion.

<j 4 Inst. 71.

r M 20,21 Edw. I. Hale Hist. C. L. 200.

>, I. 3. c. 10 128 Edw. I. c. 5.

all civil corporations in the kingdom. It commands magistrates and others to do what their duty requires, in eveiy case -whcie there is no other specific remedy. It protects the lihei t\ of the subject, by speed\ and summary intei position. It takes cognisance both of cuminal and civil causes , the formei in whi» is tailed the crown-side or crown-office ; the latter in the plea-side of the couit. The jui isdiciion of the crown-side is not oui prefaent business to consider, that \\ ill be more properly discussed in the ensuing volume. But on the plea-side, or civil blanch, it hath an original jui isdiction and cognizance of all ai tions of trespass, or otliei injury alleged to be committed vi et armis ; of actions for forgeiy of deeds, maintenance, conspiracy, deceit, and actions on the case which allege any falsity or fiaud: all of which savour of a criminal natuie, although the action is brought for a civil remedy , andmaVe the defendant liable in stiictness to pay a fine to the king, as well as damages to the injured part) u. The same doctrine is also now extended to all actions on the case whatsoever w : but no action of debt or detinue, or other mei e civil action, can, by the common law, be prosecuted by anv subject in this court, by original vi rit out of chancery x , though an action of debt, giv en by statute, may be brought in the king's bench as wt 11 as in the common pleas y. And yet this court might alwa\s have held plea of any civil action (other than actions i eal) provided the defendant \\ as an officer ot the coui t, or in the custodj of the marshal, or prison-keeper of this court, for a breach of the peace or any othei offence *. And, in process of time, it began by a fiction to hold plea of all personal actions whatsoever, and has contin led to do so for agesa : it being surmised, that the defendant is iriested for a supposed trespass, which he nevei has in rcalitj committed , and, being thus in the custody of tht marshal of this court, the plaintiff is at liberty to proceed against him for anj other personal injury: which sui mise, of being in the marshal's custodj, the defendant is not at hbei ty to dispute b. And these fictions of law, though at first they may

u Finch L 1 8 2 In<u 23 J)iver<,ite 'e courtes c bank hroy

•* F N JL, rfu, 92 ILill) P.act Keg 503

x 4 Inst 76 i rye's Jus Filazar 101 y Carth .234

z 4 Ins- 71 a laid 72

b Thus too in the ci\ il law contra Jictionem non admittitnr piobatio quid cnin ejficent prcbatw icntatis, ubijictio adveisus 'uiritat&ttjiiigit ^ Nam fctto nihil aliud est, qi am le&is adiersus lentatem '' re posabilt exjusta causa dispov titto (Gotbofred in If I 22 t 3 )

startle the student, he will find upon faither consideration, to be highly beneficial and useful: especially as this maxim is ever invariablv observed, that no fiction shall extend to woiL an injury; it's proper operation being to pi event a mischief, 01 remedy an inconvenience, that might icsult from the general uile of law0. So true it is, that in ftttione juris temper subttstit aeqmtas d. In the present case, it gives the suitor his choice of more than one tribunal, before which he may institute his action ; and pi events the circuity and delay ot justice, by allowing that suit to be originally, and in the first instance, commenced in this comt, which after a determination in anothei, might ultimately be bi ought before it on a writ of error.

For this court is likewise a court of appeal, into which may be removed, by writ of error, all determinations of the court of common pleas, and of all inferior courts of record in England ; and to which a writ of error lies also from the court of king's bench in Ireland. Yet even this so high and honourable court is not the derniet resort of the subject: for, if he be not satisfied with the determination here, he may remove it by writ of error into the house of lords, or the court of exchequei chamber, as the case may happen, according to the nature of the suit, and the manner in which it has been prosecuted 6.

VII. The court of exchequer is inferior in rank not only to the court of king's bench, but to the common pleas also; but I have chosen to consider it in this order, on account of it's double capacity, as a court of law and a court of equity also. It is a very antient court of iccord, set up by William the conqueror", as a part of the aitla i egia f, though regulated and reduced to it's present 01 der by king Ed ward I b ; and intended pi incipally to order

c3 Rep 30 2 Roll Rep 502 d 11 Rep 51. Co Litt 150 el.anib Archeion 24 fMado\ Hist Exch 109 g Spelm Gml I incog leg vet. apiid Wilkms

6. Thegeneial court of Virginia, foimcily, and now the district couits, in conjunction with the general couit, of which they aic in stiictness only blanches, aie invested with neatly the same jmisdiction andpowcis as the couit of king's bench in England j,osbcsses.

the revenues of the crown, and to recover the king's debts and duties'1. It is culled the exchequer, scaccharium, from the chequed clothe, resembling a chess-board, which covers the table there ; and on which, when certain of the king's accounts are made up, the sums are marked and scored with counters. It consists of two divisions : the receipt of the exchequer, which manages the royal revenue, and with which these commentaries have no concern ; and the court or judicial part of it, which is again subdivided into a court of equity, and a court of common law.

The court of equity is held in the exchequer chamber before the lord treasurer, the chancellor of the exchequer, the chief baron, and three puisne ones. These Mr. Selden conjectures l to have been antiently made out of such as were barons of the kingdom, or parliamentary barons ; and thence to have derived their name ; which conjecture receives great strength from Bracton's explanation of magna carta, c. 14, which directs that the earls and barons be amerced by their peers; that is, says he, by the barons of the exchequer k. The primary and original business of this court is to call the king's debtors to account, by bill filed by the attorney-general; and to recover any lands, tenements, or hereditaments, any goods, chattels, or other profits or benefits belonging to the crown. So that, by their original constitution, the jurisdiction of the courts of common pleas, king's bench, and exchequer, was entirely separate and distinct: the common pleas being intended to decide all controversies between subject and subject; the king's bench to correct all crimes and misdemesnors that amount to a breach of the peace, the king being then plaintiff, as such offences are in open derogation of thejura regalia of his crown : and the exchequer to adjust and recover his re venue, wherein the king also is plaintiff, as the withholding and non-payment thereof is an injury to his jura Jiscalia, But, as by a fiction almost all sorts of civil actions are now allowed to be brought in the king's bench, in like manner by another fiction all kinds of personal suits may be prosecuted at the court of exchequer. For as all the officers and ministers of this court have, like those

h 4 Inst. 103. ..116. k l.3. t>. 2.c. l.Scc. 3.

i Tit. hon. 2, 5, 16.

IY.

of other superior courts, the privilege of suing and being sued only in their own court; so also the king's debtors and farmers, and all accomptants of the exchequer, are privileged to sue and implead all manner of persons in the same court of equity, that they themselves are called into. They have likewise privilege to sue and implead one another, or any stranger, in the same kind of common law actions (where the personalty only is concerned) as are prosecuted in the court of common pleas.

This gives original to the common law part of their jurisdiction, which was established merely for the benefit of the king's accomptants, and is exercised by the barons only of the exchequer, and not the treasurer or chancellor7. The writ upon which all proceedings here are grounded is called a quo minus: in which the plaintiff suggests that he is the king's farmer or debtor, and that the defendant hath done him the injury or damage complained of; quo minus sufficiens existit, by which he is the less able, to pay the king his debt or rent. And these suits are expressly directed, by what is called the statute of Rutland', to be confined to such matters only, as specially concern the king or his ministers of the exchequer. And, by the articuli super carta*m, it is enacted, that no common pleas be thenceforth holden in the exchequer, contrary to the form of the great charter. But now, by the suggestion of privilege, any person may be admitted to sue in the exchequer as well as the king's accomptant. The surmise, of being debtor to the king, is therefore become matter of form and mere words of course, and the court is open to all the nation equally. The same holds with regard to the equity side of the court: for there any person may file a bill against another upon a bare suggestion that he is the king's ac-

l 10 Edw. c. 1.11.

m 28 Edw. 1. c. 4.

7. The general court of Virginia has jurisdiction in cases of a fiscal nature, where the state is concerned: and the circuit courts of the United States, in the like cases, where the federal government is concerned. In some few instances, the district courts of the commonwealth have cognizance of the breaches of th^ revenue laws of the United States. See V. L. 1794, c. 65. L. U. S. 1 Cong. 1 Sess. c. 20. §. 11. 3 Cong. c. 49 and 65.

comptant j but whether he is so, or not, is never controverted. In this court, on the equity side, the clergy have long used to exhibit their bills for the non-payment of tithes ; in which case the surmise of being the king's debtor is no fiction, they being bound to pay him their first fruits, and annual tenths. But the chancery has of late years obtained a large share in this business.

An appeal from the equity side of this court lies immediately to the house of peers ; but from the common law side, in pursuance of the statute 31 Edw. III. c. 12, a writ of error must be first brought into the court of exchequer chamber. And from the determination there had, there lies, in the dernier resort, a writ of error to the house of lords.

VIII. The high court of chancery is the only remaining, and in matters of civil property by much the most important of any, of the king's superior and original courts of justice. It has it's name of chancery, cancelliiria, from the judge who presides here, the lord chancellor or cancellarhm; who, sir Edward Coke tells us, is so termed a cancellando, from cancelling the king's letters patent when granted contrary to law, which is the highest point of his jurisdiction". But the office and name of chancellor (however derived) was certainly known to the courts of the Roman emperors : where it originally seems to have signified a chief scribe or secretary, who was afterwards invested with several judicial powers, and a general superintendency over the rest of the officers of the prince. From the Roman empire it passed to the Roman church, ever emulous of imperial state; and hence every bishop has to this day his chancellor, the principal judge of his consistory. And when the modern kingdoms of Europe were established upon the ruins of the empire, almost every state preserved it's chancellor, with different jurisdictions and dignities, according to their different constitutions. But in all of them he seems to have had the supervision of all charters, letters, and such other public instruments of the crown, as were authenticated in the most solemn manner: and therefore when seals came in use, he had always the custody of the king's great

n 4 Inst 88.

seal. So that the office of chancellor, or lord keeper, (whose authority by statute 5 Eliz. c. 18, is declared to be exactly the same) is with us at this day created by the mere delivery of the king's great seal into his custody0 : whereby he becomes, without writ or patent, an officer of the greatest weight and power of any now subsisting in the kingdom ; and superior in point of precedency to every temporal lord?. He is a privy counsellor by his office's, and, according to lord chancellor Ellesmere1", prolocutor, of the house of lords by prescription. To him belongs the appointment of all justices of the peace throughout the kingdom8..... • Being formerly usually an ecclesiastic, (for none else were then capable of an office so conversant in writings) and presiding over the royal chapel*, he became keeper of the king's conscience; visitor, in right of the king, of all hospitals and colleges of the king's foundation: and patron of all the king's livings under the value of twenty marks" per annum in the king's books. He is the general guardian of all infants, idiots, and lunatics ; and has the general superintendance of all charitable uses in the kingdom.... And all this, over and above the vast and extensive jurisdiction which he exercises in his judicial capacity in the court of chancery ; wherein, as in the exchequer, there are two distinct tribunals : the one ordinary, being a court of common law j the other extraordinary, being a court of equity.

The ordinary legal court is much more antient than the court of equity. It's jurisdiction is to hold plea upon a scirefacias to repeal and cancel the king's letters patent, when made against law,

o Lamb. Arckeion. 65. 1 Roll. Abr. 385.

p Stat. 31 Hen. VIII. c. 10. q Selden, office of loid Chan. §. 3.

r Of the office of lord chancellor eJtt. 1651.

s Madox. hist of Exch. 42.

ss 38 Edw. III. 3. F. N. B. 35, though Hob.irt (214 ) extends this value to twenty pounds.

8. The appointment of justices of the peace in Virginia is not vested in the chancellor, but in the governor by and with the advice of the council of state, on recommendation from the county courts. C. V. Art. 15.

or upon untrue suggestions9; and to hold plea of petitions, man* strans de droit, traverses of offices, and the like; when the king hath been advised to do any act, or is put in possession of any lands or goods, in prejudice of a subject's right1. On proof of which, as the king can never be supposed intentionally to do any wrong, the law questions not but he will immediately redress the injury; and refers that conscientious task to the chancellor, the keeper of his conscience. It also appertains to this court to hold plea of all personal actions, where any officer or minister of the court is a party". It might likewise hold plea (by scire facias) of partitions of lands in coparcenary", and of dower*, where any ward of the crown was concerned in interest, so long as the military tenures subsisted: as it now may also do of the tithes of forest land, where granted by the king and claimed by a stranger against the grantee of the crown*; and of executions on statutes, or recognizances in nature thereof by the statute 23 Hen. VIII. c. 6*. But if any cause comes to issue in this court, that is, if any fact be disputed between the parties, the chancellor cannot try it, having no power to summon a jury : but must deliver the record propria manu into the court of king's bench, where it shall be tried by the country, and judgment shall be there given thereon*10. And when judgment is given in chancery upon demurrer or the like, a writ of error, in nature of an appeal, lies out of this ordinary court into the court of king's benchb : though so little is usually done on the common law side of the court, that I have met with no traces of any writ of error0 being

t 4 Rep. 54

w Co. Litt. 171. F. N. B. 62.

y Bro. Ahr. t. dismes. 10.

u 4 Inst. 80.

x Bro. Abr. tit. dower. 66. Moor. 565,

z2 Roll. Abr. 469.

a Cro. Jac 12. Latch. 112.

b Yearbook, 18 Edw. III. 25. 1? am. 24. 29 J«. 47- Dyer. 315. Ifcoll. Rep. 287. 4 Inst. 80.

c The opinion of lord keeper North in 1682 (1 Vern. 131. 1 Equ. Cas. abr. 129.) that no such writ of error lay, and that an injunction might be issued against it, seems not to have been well considered.

9. The like remedy in similar cases, is properly obtainable in the high court of chancery, in Virginia. See Wash. Rep. Vol. I. p. 40.

10. The high court of chancery in Virginia may direct an issue to be tried either in that court, or in any other court whatsoever, as justice, or convenience to the parties may require. L. V. 1794,. c. 64.

actually brought, since the fourteenth year of queen Elizabeth, A.D. 1572.

In this ordinary, or legal, court is also kept the ajjic'nw jus' titiae: out of which all original writs that passes under the great seal, all commissions of charitable uses, sewers, bankruptcy, idiotcy, lunacy, and the like, do issue ; and for which it is always open to the subject, who may there at any time demand and have, ex debito justitiae, any writ that his occasions may call for. These writs (relating to the business of the subject) and the returns to them were, according to the simplicity of antient times, originally kept in a hamper, in hanaferio; and the others (relating to such matters wherein the crown ib immediately or mediately concerned) were preserved in a little sack or bag, inparva baga; and thence hath arisen the distinction of the hanaper, and betty bag office, which both belong to the common law court in chancery.

But the extraordinary court, or court of equity, is now become the court of the greatest judicial consequence. This distinction between law and equity, as administered in different courts, is not at present known, nor seems to have ever been known, in any other country at any timed: and yet the difference of one from the other, when administered by the same tribunal, was perfectly familiar to the Romans"; thcjuspmetorium, or discretion of the praetor, being distinct from the leges or standing laws f: but the power of both centered in one and the same magistrate, who was equally intrusrtcJ to pronounce the rule of law, and to apply it to particular cases by the principles

d The council ofcoiscience, ins'it'.ited by John III, king of Portugal, to review the sentences of all inferior courts, and moderate them by equity, (Mod. Ua. Hist. xxii. 237.) seems rather to have been a court of appeal.

e Thus too the parliament of Paris, the court of session in Scotland, r.r,d every other jurisdiction in Europe of which we have any tolerable account, found all their decisions as well upon principles of equity as those of positive law. (Lord Kayms. hist, law tracts, I. 325, 3.30, princ. ofequit. 44 )

f Thus Cicero; "jam illit promissis non csse itamlum, <7»'« "on viikt, qi'oe coactus qnis tnftu et tteceptits <lolo proaniserit ? quae qitidnnplcneninue jureprattariolibeiantiir, nonnnlla (egitus." Offic l.I.

of equity. With us too, the aula regia, which was the supreme court of judicature, undoubtedly administered equal justice according to the rules of both or either, as the case might chance to require: and, when that was broken to pieces, the idea of a court of equity,as distinguished from a court of law,did not subsist in the original plan of partition.For though equity is mentioned by Bractons, as a thing contrasted to strict law, yet neither in that writer, nor in Glanvil or Fleta, nor yet in Britton, (composed under the auspices and in the name of Edward I, and treating particularly of courts and their several jurisdictions,) is there a syllable to be found relating to the equitable jurisdiction of the court of chancery. It seems therefore probable, that when the courts of law, proceeding merely upon the ground of the king's original writs, and confining themselves strictly to that bottom, gave a harsh or imperfect judgment, the application for redress used to be to the king in person assisted by his privy council, (from whence also arose the jurisdiction of the court of requests h, which was virtually abolished by the statute 16 Car. I. c. 10.) and they were wont to refer the matter either to the chancellor and a select committee, or by degrees to the chancellor only, who mitigated the severity, or supplied the defects of the judgments pronounced in the couits of law, upon weighing the circumstances of the case. This was the custom not only among our Saxon ancestors, before the institution of the aula regia ', but also after it's dissolution, in the reign of king Edward Ik ; and, perhaps, during it's continuance, in that of Henry II'.

gl. 2.C.7 fol. 23.

h The matters cognizable in th.s coin t, im mediately before il'o dissolution, wcie " almost all su'.'.t, that b coloui of cquin, 01 v.ijplication n.-idc to the piincc, might be biought befoie har.: but ongi.iall) and piopcily all poor men's su'.'s, >. h:cn\< e> >n> ide tohionnj -sti b\ supplication , and upon vh'ch they mcic euti '.J to Jr.vc i'!j,ht, without pajmcnt of ail) mciuj fox ihe i.\me " (Smuh'hCr>n,iVion>\calth b. 3. c. T.)

i Ar<.wo in' ic'ji Jii ttpff (Vi't pro filtditd litv, nisi jus domi consfnn t;on pvssi'. &ij.'timni»st".vi:iiintif,fil.ii>iaiiu itantlf f,uacratiu ajntd regem. LL Jir'£. c. 0 k I.ambaid, Anl.<i<, ; 59

I Johannes Sdiib'n'i vnsi-. (who cl-od A.D, 1182, 36 Henry II,) spcal.ni;> of ilieelianccl'or'boiliLi. n. the verses pu.i\x*d to liispK)licr<i(;co'i,hU!>tUc!iv.lUiVb:

If'C esl, ri'i li^es tcgni i. nice lint mi' tins, ia i it1 ('i '.i p ywl'.uylo at ,iur jfi'Ctt.

In these early times the chief judicial employment of the chancellor must have been in devising new writs, directed to the courts of common law, to give-remedy in cases where none was before administered. And, to quicken the dilligence of the clerks in the chancery, who were too much attached to antient precedents, it is provided by statute Westm. 2. 13 Edw. I. c. 24, that, "whensoever from thenceforth in one case a writ shall be found in the chancery, and in a like case falling under the same right and requiring like remedy no precedent of a writ can be produced, the clerks in chancery shall agree in forming a new one: and, if they cannot agree, it shall be adjourned to the next parliament, where a writ shall be framed by consent of the learned in the law1", lest ithappen for the future that the court of our lord the king be deficient in doing justice to the suitors11." And this accounts for the very great variety of writs of trespass on the case, to be met with in the register ; whereby the suitor had ready relief, according to the exigency of his business, and adapted to the specialty, reason, and equity of his very case" IS. Which provision (with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending, rather than narrowing the remedial effects of the writ) might have effectually answered all the purposes of a court of equity0; except that of obtaining a discovery by the oath of the defendant.

m A great variety of new precedents of writs, in cases before unprovided for, are given by this very statute of Westm. 2.

n Lamb. Arcbeion. 61.

o This was the opinion of Fairfax, a very learned judge in the time of Edward the fourth. " Le subpoena (sajs he) ne serroit my cy soventement use ." come it est re, si nous attendvmiis tiels actions stir ies cases, et mainteinomus Ic "jurisdiction de Ceo court, et d' outer courts." (Yearb. 21 Eud. IV. 23.)

11. Thebenefit of this statute is expressly preserved in Virginia, by the proviso contained in the act repealing all British statutes. Edi. 1794, c. 147.

12. The judges of the court of appeals shall from time to time direct the form of writs in such manner as shall seem advisable. L. V. 1794,c. 63.

But when, about the end of the reign of king Edward III, uses of land were introduced?, and, though totally discountenanced by the courts of commoa law, were considered as fiduciary deposits and binding in conscience by the clergy, the separate jurisdiction of the chancery as a court of equity began to be established1!; and John Waltham, who was bishop of Salisbury and chancellor to king Richard II, by a strained interpretation of the above-mentioned statute of Westm. 2, devised the writ of subpoena, returnable in the court of chancery only, to make the feoffee to uses accountable to his cestuy que use: which process was afterwards extended to other matters wholly determinable at the common law, upon false and fictitious suggestions ; for which, therefore, the chancellor himself is by statute 17 Ric. II. 6,directed to give damages to the party unjustly aggrieved. But as the clergy, so early as the reign of king Stephen, had attempted to turn their ecclesiastical courts into courts of equity, by entertaining suits pro laesione jidei, as a spiritual offence against conscience, in case of non-payment of debts or any breach of civil contracts'1; till checked by the constitutions of Clarendon8, which declared that "placita de debitis, que fide interfosita debentur, vel absque interpoxitione fdeiy sint in justicia regis:" therefore probably the ecclesiastical chancellors, who then held the seal, were remiss in abridging their own new-acquired jurisdiction; especially as the spiritual courts continued1 to grasp at the same authority as before, in suits pro laesionejfidei, so late as the fifteenth century", till finally prohibited by the unanimous concurrence of all the judges.

p See book II. c. 20- q Spelm.. Gloss. 106. 1 Lev. 242.

r Lord !.)«. Hen. II, b. 3. p. 361, not,

8 10 Hen. II. c. 15. Speed. 45&

t In 4 Hen. III. suits in court Christian fro laesione fidei upon temporal contracts were adjudged to be contrary to law. (Fitzh. Abr. t. Prohibition* 15,) But in the statute or writ of circumspecte agatis supposed by some to have issued 13 Ewd. I but more probably (3 Pryn. Rec.336.) 9 Edw, II. suits pro laesione Jidei were allowed to the ecclesiastical courts ; according to some antient copies, (Berthelet stat, antiqu. Lond, 1531. 90. l>, 3 Pryn. Kec. 336.) and the common English translation, of that statute; though in Lyndewode's copy, (Prm. 1. 2. t. 2.) and in the Cotton MS. (Ctawl* D. 2.) that clause is omitted.

u Yearb. 2 Hen. V. 10. 11 Hen. IV. 88. 38 Hm. VI 29. 20 Jtfw.

IV 10.

However, it appears from the parliament rollsw, that in the reigns of Henry IV and V, the commons were repeatedly urgent to have the writ of subpoena entirely suppressed, as being a novelty devised by the subtilty of chancellor Waltham, against the form of the common law; whereby no plea could be determined, unless by examination and oath of the parties, according to the form of the law civil, and the law of holy church, in subversion of the common law. But though Henry VI, being then hardly warm in his throne, gave a palliating answer to their pe* titions and actually passed the statute 4 Hen, IV. c. 23, whereby judgments at law are declared irrevocable unless by attaint or writ of error, yet his son put a negative at once upon the whole application: and in Edward IV's time, the process by bill and subpoena was become the daily practice of the court".

But this did not extend very far: for in the antient treatise, entitled diversite des courtes*, supposed to be written very early in the sixteenth century, we have a catalogue of the matters of conscience then cognizable by subpoena in chancery, which fall •within a very narrow compass. No regular judicial system at that time prevailed in the court} but the suitor, when he thought himself aggrieved, found a desultory and uncertain remedy according to the private opinion of the chancellor, who was generally an ecclesiastic, or sometimes (though rarely) a statesman : no lawyer having sate in the court of chancery from the times of the chief justices Thorpe and Knyvet, successively chancellors to king Edward III, in 1372 and 1373X, to the promotion of sir Thomas More by king Henry VIII, in 1530. Afterwhich the great seal was indiscriminately committed to the custody of lawyers, or courtiers3, or churchmen1", according as the convenience of the times and the disposition of the prince required, till serjeant Puckering was made lord keeper in 1592: from which time

w Rot. Parl. 4 Hen. IV. No. 78, and 110. 3 Hen. V. No. 46, cited in Prynnc's Abr. of Cotton's Records. 410, 422, 424,548.4 Inst. 83. 1 Roll. Abr. 370, 371, 3?2.

x Rot. Parl. 14 Edw. IV. No. 33. (not 14 Edw. III. as cited 1 Roll. Abr. S70, 13-c.)

y tit Chancery, fol. 296. Rastell's edit. A. D. 1534.

z Spelm. Gloss. 111. Dugd. chron. Ser. 50.

ft Wriothesly, St. John and Hatton, b Goodrick, Gardiner, and Heathi

to the present the court of chancery has always been filled by a lawyer, excepting the interval from 1621 to 1625, when the seal was intrusted to Dr. Williams, then dean of Westminster, but afterwaids bishop of Lincoln: who had been chaplain to lord Ellesmere, when chancellor0.

In the time of lord Ellesmere (A. D. 1616,) arose that notable dispute between the courts of law and equity, set on foot by sir Edward Coke, then chief justice of the court of king's bench; whether a court of equity could give relief after or against a judgment at the common law. This contest was so warmly can ied on, that indictments were preferred against the suitors, the solicitors, the council, and even a master in chancery, for having incurred a praemunire^ questioning in a court of equity a judgment in the court of king's bench, obtained by gross fraud and imposition"1. This matter being brought before the king, was by him referred to his learned counsel for their advice and opinion ; who reported so strongly in favour of the courts of equity', that his majesty gave judgment on their behalf: but, not contented with the irrefragable reasons and precedents produced by his counsel, (for the chief justice was clearly in the wrong) he chose rather to decide the question by referring it to the plenitude of his royal prerogative*. Sir Edward Coke submitted to the decisions, and thereby made atonement for his error: but this struggle, together with the business of commendams (in which he acted a very noble parth) and his

c Biogr But 4278 d Bacon's Work's IV. 611,612,632. e Whitelocke of parl. n 390. 1 Chan Uep Append 11. f " Fei that it apperumeth to our princely office onlj to judge over all judges, and to discern and determine such differences, as at any time may and shall arise between our several courts touching their jurisdictions, and the same to settle and determine, as we in our princely wisdom shall find to stand mos,t with our honour, tfc " (1 Chanc Rep Append 26 )

g See the entry in the council book, 26 July, 1616 ( Biogr. Bnt. 1390 ) h In a cause ol the bishop of Winchester, touching a wmmetidam. King James concei\ ing that the mattei affected his prerogative, sent letters to the judges not to pioceed in it, till himself had been first consulted The twelve judges joined in a memorial to Ins majesty, declaring that then compliance v,ould be conti?ij to tneir oaths and the law but upon being brought before ihe king and council, the\ all retracted and promised obedience m every such case foi the future, except sir Edward Coke, \\l\o said " that when the case " kappcned he \\ ould do his duty " ( Biogt. Bnt 1388 )

controlling the commissioners of sewers1, were the open and avowed causes1, first of his suspension, and soon after of his removal, from his office.

Lord Bacon, who succeeded lord Ellesmere, reduced the practice of the court into a more regular system; but did not sit long enough to effect any considerable revolution in the science itself: and few of his decrees which have reached us are of any great consequence to posterity. His successors, in the reign of Charles I, did little to improve upon his plan: and even after the restoration the seal was committed to the eail of Clarendon, who had withdi awn from practice as a lawj er near twenty j ears; and afterwards to the earl of Shaftesbury, who (though a lawyer by education) had never practised at all. Sir Hencage Finch, who succeeded in 1673, and became afterwaids eail of Nottingham, was a person of the greatest abilities and most uncorrupted integrity; a thorough master and zealous defender of the laws and constitution of his country ; and endued with a pervading genius that enabled him to discover and to pursue the true spirit of justice, notwithstanding the embarrassments raised by the narrow and technical notions which then prevailed in the courts of law, and the imperfect ideas of redress which had possessed the courts of equity. The reason and necessities of mankind, arising from the great change in property by the extension of trade and the abolition of military tenures, co-operated in establishing his plan, and enabled him in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundations; which have also been extended, and impioved by many great men, who have since presided in chancery. And from that time to this, the power and business of the court have increased to an amazing degreel3.

i See that article in chap 6.

k See lord Ellesmcre's speech to sn Henry Montague, the n«w chief justice, 15 Nov 1616 (Moor s Reports. 828.) Though sir Edward might probably have retained his se.it, if, during his suspension, he would have complimented loid Vilhers(the new favouiite) with the disposal of t'.ie most lucrative office in his court (Bi g Enl 1351 )

13. The constitution of Virginia requires that judges in chancery, who shall hold their office during good behavior, shall be appoint-

From this court of equity in chancery, as from the other superior courts, an appeal lies to the house of peers. But there are these differences between appeals from a court of equity, and writs of error from a court of law: 1. That the former may be brought upon any interlocutory matter, the latter upon nothing but only a definitive judgment: 2. That no writs of error the house of lords pronounces the judgment on apppealsit gives direction to the court below to rectify it's own decree ".

IX. The next court that I shall mention is one that hath no original jurisdiction, but is only a court of appeal, to correct the errors of other jurisdictions. This is the court of exchequer chamber; which was first erected by statute 31 Edw. III, c. 12, to determine causes upon writs of error from the common law side of the court of exchequer. And to that end it consists of the lord chancellor and lord treasurer, taking unto them the justices of the king's bench and common pleas. In imitation of which, a second court of exchequer chamber was erected by statute 27 Eliz. c. 8, consisting of the justices of the common pleas, and the barons of the exchequer; before whom writs of

ed by joint ballot of both houses of assembly, and commissioned by the governor. The jurisdiction of the high court of chancery, which until lately new organized, consisted of a single judge, depends altogether upon the import of the word chancery ; the act declaring that the couvt shall have general jurisdiction over all persons, and in all causes in chancery ; but no original suit can be commenced therein for any matter under the value often pounds. V. L. 1794. c. 64.

Suits in equity can not be sustained in either of the courts of the United Slates, in any case where plain, adequate and complete remedy mjy be had at law. L. U. S. 1 Cong. 1 Sess. c. 20. §. 16. The district con-ts of the United States have not jurisdiction of any suit in equity. Ibid. ft. 9.

14. Formerly no appeal was allowed from any interlocutory decree made in the hic,li court of chancery ; but the law is now other* v.isc. V. L. 1797, c. 5.

The court of appeals, whether it affirms, or reverses, any decree ot'lhe high. com\ ' f chancery, or judgment of the general court, or district courts, certifies its opinion to the court from which the matter was remoi ed, who arc to enter it as their own, and award execution ihiivupoii accordingly. V". L. 1794, c. 63.

error may be brought to reverse judgments in certain suits' originally begun in the court of king's bench. Into the court also of exchequer chamber, (which then consists of all the judges of the three superior courts, and now and then the lord chancellor also) are sometimes adjourned from the other courts such causes, as the judges upon argument find to be of great weight and difficulty, before any judgment is given upon them in the court belowin ".

From all the branches of this court of exchequer chamber a writ of error lies to

X. The house of peers; which is the supreme court of judicature in the kingdom, having at present no original jurisdiction over causes, but only upon appeals and writs of error, to rectify any injustice or mistake of the law, committed by the courts below. To this authority this august tribunal succeeded of course upon the dissolution of the aitla rcgia. For, as the barons of parliament were constituent members of that couit; and the rest of it's jurisdiction was dealt out to other tribunals, over which the great officers who accompanied those barons were respectively delegated to preside ; it followed, that tln: right of receiving appeals, and superintending all other jurisdictions, still remained in the residue of that noble assembly, from which every other great court was derived. They are therefore in all causes the last resort from whose judgment no farther appeal is permitted; but every subordinate tiunmal mubt con -

1 Seech.25. pag. 411.

m4Inst. 119. 2 Bubti. 1-16.

15. The court of appeals in Virginia formerly bore a very strong resemblance to this court of exchequer chamber. It consisted of the judges of the high court of chancery, general court, and court of admiralty. Thither an appeal lay to correct the errors of either of those courts. Thither also, cases, as well criminal as civil, were occasionally adjourned from the high court of chancery and the general court, for discussion and decision, previous to any judgment in the court below. (See L. V. May 1779, c. 22. Edi. 1785.) But as this system did not appear to accord perfectly with the constitution, the court was new modelled by an act passed in 1788, c. 68. 1794, c. 63.

form to their determinations : the law reposing an entire confidence in the honour and conscience of the noble persons who compose this important assembly, that (if possible) they will make themselves masters of those questions upon which they undertake to decide, and in all dubious cases refer themselves to the opinions of the judges, who are summoned by writ to advise them ; since upon their decision all property must finally depend16.

Hithereto may also be referred the tribunal established by statute 14 Edw. III. c. 5, consisting (though now out of use) of one prelate, two earls, and two barons, who are to be chosen at every new parliament, to hear complaints of grievances and delays of justice in. the king's courts, and (with the advice of the chancellor, treasurer, and justices of both benches) to give directions for remedying these inconveniencies in the courts below. This committee seems to have been established, lest there should be a defect of justice for want of a supreme court of appeal, during any long intermission or recess of parliament; for the statute farther directs, that if the difficulty be so great, that it may not well be determined without assent of parliament, it shall be brought by the said prelate, earls, and barons unto the next parliament, who shall finally determine the sameir.

XI. Before I conclude this chapter, I must also mention an eleventh species of courts, of general jurisdiction and use, which.

16. The constitution of Virginia requires that judges of the supreme court of appeals should be appointed by joint ballot of both houses, and commissioned by the governor, and hold their office during good behavior. The court of appeals was established as mentioned in the preceding note, by two acts, passed in October 1778, c. 12, and May 1779, c. 22, and was afterwards new modelled in 1788. It now consists of five judges, and, as it's name imports, was the highest court of judicature in the state, for all causes whatsoever. But since the adoption of the federal constitution, a writ of error lies thereto, in home few cases, from the supreme court of the United States. See L. U. S. 1 Cong. 1 Sess. c. 20. §. 25. L. V. Edi. 1794, c. 63.

17. There is no similar institution either in the federal or state government.

are derived out of, and act as collateral auxiliaries to, the foregoing ; I mean the courts of assise and nisiprhis.

These are composed of two or more commissioners, who are twice in every year sent by the king's special commission all round the kingdom, (except London and Middlesex, where courts of nisi prhis are holden in and after every term, before the chief or other judge of the several superior courts; and except the four northern counties, where the assises are holden only once a year) to try by a jury of the respective counties the truth of such matters of fact, as are then under dispute hi the courts of Westminster-hall. These judges of assise came into use in the room of the antient justices in eyre, justiciarii in itinere; who were regularly established, if not first appointed, by the parliament of Northampton, A. D. 1176,22 Hen. II", with a delegated power from the king's great court or aula regia, being looked upon as members thereof: and they afterwards made their circuit round the kingdom once in seven years for the purpose of trying causes °. They were afterwards directed by magna carta, c. 12, to be sent into every county once a year, to take (or receive the verdict of the jurors or recognitors in certain actions, then called) recognitions or assises ; the most difficult of which they are directed to adjourn into the court of common pleas to be there determined. T'he itinerant justices were sometimes mere justices of assise, or of dower, or of gaol-delivery, and the like ; and they had sometimes a more general commission, to determine all manner of causes, being constituted justiciarii adomnia placita f: but the present justices of assise and nisi prius are more immediately derived from the statute Westm. 2. 13 Edw. I, c. 30, which directs them to be assigned out of the king's sworn justices, associating to themselves one or two discreet knights of each county. By statute 27 Edw. I, c. 4, (explained by 12 Edw. II, c. 3,) assises and inquests were

n Seld. yan. I. 2. See. 5. Spelm. Cod. 329.

oCo. Litt. CS3....4u;io 1261 justiciarii itineraries venerunt apud ll'igirniatn in actavis S. yohannis baptistae; et totut conimitatus eos admittere >c;:isavit, 7«orfseptem antri noiulum erant elapii, postquam, justiciarii ibidem ultimo selcrunt. (Anna!. Eccl. Wigom. in Whan. Av.gl. sacr. 1,495 }

p Bract. 1. 3. tr. 1. c. 11.

allowed to be taken before any one justice of the court in which the plea was brought; associating to him one knight or other approved man of the county. And, lastly, by statute 14 Edw. III, c. 16, inquests of nisi prius may be taken before any justice of either bench (though the plea be not depending in his own court) or before the chief baron of the exchequer, if he be a man of the law ; or otherwise before the justice of asise, so that one of such j ustices be a j udge of the king's bench or common pleas,or the king's serjeant sworn. They usually make their circuits in the respective vacations after Hilary and Trinity terms ; assises being allowed to be taken in the holy time of lent by consent of the bishops at the king's request, as expressed in statute Westm. I, 3 Edw. I, c. 51. And it was also usual, during the times of popery, for the prelates to grant annual licences to the justices of assise to administer oaths in holy times : for oaths being of a sacred nature, the logic of those deluded ages concluded that they must be of ecclesiastical cognizance •>. The prudent jealousy of our ancestors ordainedr, that no man of law should be judge of assise in his own county T wherein he was born, or doth inhabit: and a similar prohibition is found in the civil law % which has carried this principle so far, that it is equivalent to the crime of sacrilege, for a man to be governor of the province in which he was born, or has any civil connexione.

The judges upon their circuits now sit by virtue of five several authorities. 1. The commission of the peace. 2. A commission of oyer and terminer. 3. A commission of general gaol delivery. The consideration of all which belongs properly to the subsequent book of these commentaries. But the fourth commission is, 4. A commission ofasisse, directed to the justices and serjeants therein named, to take (together with their associates) assises in the several counties; that is, to take the verdict of a peculiar species of jury, called an assise, and summoned for the trial of landed disputes, of which hereafter. The other authority is, 5. That of nisi prius, which is a consequence of the commission of assise u, being annexed to the offices of those jus-

q Instances hereof may be met with in the Appendix to Spelman's Original of the Terms and in Mr. Parker's Antiquities. 209.

r Stat. 4 Edw. III, c. 2, 8 Rich. II c. 2. 33 Hen. VIII, c. 24.

a ff. 1,22, 3. tC.9,29, 4. u Salk. 454.

tices by the statute of Westm. 2. 13 Edw. I. c. 30, and it empowers them to try all questions of fact issuing out of the courts at Westminster, that are then ripe for trial by jury. These, by the course of the courts w, are usually appointed to be tried at Westminster in some Easter or Michaelmas term, by a jury returned from the county wherein the cause of action arises ; but with this proviso, nisi prius', unless before the day prefixed, the judges of assise come into the county in question. This they are sure to do in the vacations preceding each Easter and Michaelmas term, which saves much expense and trouble. These commissions are constantly accompanied by writs of association, in pursuance of the statutes of Edward I and II before mentioned ; whereby certain persons (usually the clerk of assise and his subordinate officers) are directed to associate themselves with the justices and serjeants, and they are required to admit the said persons into their society, in order to take the assises, Sec; that a sufficient supply of commissioners may never be wanting. But,.to prevent the delay of justice by the absence of any of them, there is also issued of course a writ of si non omnes; directing, that if all cannot be present, any two of them (a justice or serjeant being one) may proceed to execute the commission ".

These are the several courts of common law and equity, which are of public and general jurisdiction throughout the kingdom. And, upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors, in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man's own county, hundred, or perhaps parish. Pleas of freehold, and

' w Seech.23,p. 353.

18. An act passed in 1784, c. 40, for establishing courts of assise In Virginia; it was suspended the next year, and repealed two years after, and'district courts were then established in their stead. These, though in some instances materially differing from courts of assise and nisi firius, have been found to answer almost all the purposes of the latter, to the execution of which some inconveniencies were strongly opposed.

more important disputes of property, were adjourned to the king's court of common pleas, which was fixed in one place for the benefit of the whole kingdom. Crimes and misdemesnors were to be examined in a court by themselves ; and matters of the revenue in another distinct jurisdiction. Now, indeed, for the ease of the subject and greater dispatch of causes, methods have been found to open all the three superior courts for the redress of private wrongs ; which have remedied many inconveniences, and yet preserved the forms and boundaries handed down to us from high antiquity. If facts are disputed, they are sent down to be tried in the country by the neighbours ; but the law, arising upon those facts, is determined by the judges above: and, if they are mistaken in point of law, there remain in both cases two successive courts of appeal, to rectify such their mistakes. If the rigour of general rules does, in any case, bear hard upon individuals, courts of equity are open to supply the defects, but not sap the fundamentals, of the law. Lastly, there presides over all one great court of appeal, which is the last resort in matters both of law and equity ; and which will, therefore, take care to preserve an uniformity and aequilibrium among all the inferior jurisdictions : a court composed of prelates selected for their piety, and of nobles advanced to that honour for their personal merit, or deriving both honour and merit from an illustrious train of ancestors; who are formed by their education, interested by their property, and bound upon their conscience and honour, to be skilled in the laws of their country. This is a faithful sketch of the English juridical constitution, as designed by the masterly hands of our forefathers. Of which the great original lines are still strong and visible; and, if any of its minuter strokes are, by the length of time, at all obscured or decayed, they may still be with ease restored to their pristine vigour: and that not so much by fanciful alterations and wild experiments (so frequent in this fertile age) as by closely adhering to the wisdom of the antient plan, concerted by Alfred, and perfected by Edward I; and by attending to the spirit, without neglecting the forms of their excellent and venerable institutions ".

19. The student will have a move systematic view of the several courts of Virginia, than could be conveniently given in the notes on the preceding chapter, by referring to the appendix to this volume, note A.

CHAPTER THE FIFTH.

OF COURTS ECCLESIASTICAL, MILITARY, AND MARITIME.

BESIDES the several courts, which were treated of in the preceding chapter, and in which all injuries are redressed that fall under the cognizance of the common law of England, or that spirit of equity which ought to be it's constant attendant, there still remains some other courts of a jurisdiction equally puhlic and general: which take cognizance of other species of injuries, of an ecclesiastical, military, and maritime nature ; and therefore are properly distinguished by the title of ecclesiastical courts, courts military, and courts maritime.

I. Before I descend to consider particular ecclesiastical courts, I must first of all in general premise, that in the time of our Saxon ancestors, there was no sort of distinction between the lay and the ecclesiastical jurisdiction: the county court was as much a spiritual as a temporal tribunal: the rights of the church were ascertained and asserted at the same time, and by the same judges, as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county, used to sit together in the county court, and had there the cognizance of all causes as well ecclesiastical as civil: a superior deference being paid to the bishop's opinion in spiritual matters, and to that of the lay judges in temporal». This union of power was very advantageous to them both: the pre-

a C&leberrimo huic convtntu! episcoputet aldtrmanmu intermntoi quorum alttrjuradmina,alterbumaiiapoputumedoceto, LL. Eadgar. c.S.

sence of the bishop added weight and reverence to the sheriff's proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decree in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures.

But so moderate and rational a plan was wholly inconsistent with those views of ambition, that were then forming by the court of Rome. It soon became an established maxim in the papal system of policy, that all ecclesiastical persons, and all ecclesiastical causes, should be solely and entirely subject to ecclesiastical j urisdiction only: which j urisdiction was supposed to be lodged in the first place and immediately in the pope, by divine indefeasible right and investiture from Christ himself; and derived from the pope to all inferior tribunals. Hence the canon law lays it down as a rule, that" sacerdotes a regibus honorandi sunt, nonjudkandi*;'1 and places an emphatical reliance on a fabulous tale which it tells of the emperor Constantine : that when some petitions were brought to him, imploring the aid of his authority against certain of his bishops, accused of oppression and injustice, he caused (says the holy canon) the petitions to be burnt in their presence, dismissing them with this valediction; " ite

et inter vos causas vestras discutite, quia dignum mm est ut nos

judicemus Deosc"

It was not, however, till after the Norman conquest, that this doctrine was received in England; when William I, (whose title was warmly espoused by the monasteries which he liberally endowed, and by the foreign clergy, whom he brought over in shoals from France and Italy, and planted in the best preferments of the English church) was at length prevailed upon to establish this fatal incroachment, and separate the ecclesiastical court from the civil: whether actuated by principles of bigotry, or by those of a more refined policy, in order to discountenance the laws of king Edward, abounding with the spirit of Saxon liberty, is not altogether certain. But the latter, if not the cause, was undoubtedly the consequence of this separation: for the Saxon laws were

b Decret. part. 2. caw*. 11. qu. 1, c. 41. c Ibid-

goon overborne by the Norman justiciaries, when the county court fell into disregard by the bishop's withdrawing his presence, in obedience to the charter of the conqueror d ; which prohibited any spiritual cause from being tried in the secular courts, and commanded the suitors to appear before the bishop only, whose decisions were directed to conform to the canon lawe.

King Henry the first, at his accession, among other restorations of the laws of king Edward the confessor, revived this of the union of the civil and ecclesiastical courts f. Which was, according to Sir Edward Coke s, after the great heat of the conquest was past, only a restitution of the antient law of England, This however was ill relished by the popish clergy, who, under the guidance of that arragant prelate archbishop Anselm, very early disapproved of a measure that put them on a level with the profane laity, and subjected spiritual men and causes to the inspection of the secular magistrates: and therefore in their synod at Westminster, 3 Hen. I, they ordained that no bishop should attend the discussion of temporal causes h ; which soon dissolved this newly effected union. And when, upon the death of king Henry the first, the usurper Stephen was brought in and supported by the clergy, we find one article of the oath which they imposed upon him was, that ecclesiastical persons and ec-

d Hale. Hist. C. L. 102. Selden, in Eadm. p. 6. l. 24. 4 Inst. 259. Wilk. LL. Angl. Sax. 292.

e Nullus episcopui vel arcbidiaconus de legibui episcopatibus ampliut in hun(fiet placita teneant, nee causam y«ae ad regimen animarumpertinet adjudiciitni seadarium baininum adducant: se.l quicunquc secundum episcopates leges, de tjuacuntjue causa velculpa interpellates Juerit, ad locum, quern ad hoc episcopus elegerit et nmninaverit, veniat; ibiquc de causa sua respondeat; et lion secundum hwulret, ltd secundum canonesel episcopates leges, rectum Deoet episcopo suofaciat.

t Volo et praecipio, ut omnes de comitatu eant ad comitatus et bundreda, sicut fecerint tempore regis Edwardi. (Cart. Hen. I. in Spelm. cod. vet. legum. 305.) And what is here obscurely hinted at, is fully explained by his code of laws extant in the red book of the exchequer, though in general but of doubtful authority, cap. 8. Generalia camitatuum placita certis locis et vicibus tencantur. Intersint atitem epitcopi, comitei,l!fc; etagantur primodebitaveraecbristianitatisjura, secuiuto regis placita, postremo causae singularum dignis satisfactionibus expleantur.

g 2 Inst. 70.

h Ne episcopi saecularium placitorum offidum suscipiant. Spelm. Cod. 301.

clesiastical causes should be subject only to the bishop's jurisdic, lion'. And as it was about that time that the contest and emulation began between the laws of England and those of Rome k, the temporal courts adhering to the former, and the spiritual adopting the latter as their rule of proceeding, this widened the breach between them, and made a coalition afterwards impracticable ; which probably would else have been effected at the general reformation of the church.

In briefly recounting the various species of ecclesiastical courts, or, as they are often stiled, courts Christian, (curias christianitatisj I shall begin with the lowest, and so ascend gradually to the supreme court of appeal1.

1. The archdeacon's court is the most inferior court in the whole ecclesiastical polity. It is held in the archdeacon's absence before a judge appointed by himself, and called his official : and it's jurisdiction is sometimes in concurrence with, sometimes in exclusion of, the bishop's court of the diocese. From hence however by statute 24 Hen, VIII, c. 12, an appeal lies to that of the bishop.

2. The consistory court of every diocesan bishop is held in their several cathedrals, for the trial of all ecclesiastical causes arising within their respective dioceses. The bishop's chancellor, or his commissary, is the judge ; and from his sentence an appeal lies, by virtue of the same statute, to the archbishop of each province respectively.

3. The court of arches is a court of appeal belonging to the archbishop of Canterbury ; whereof the judge is called the dean of the arches; because he antiently held his court in the church of St. Mary le bow, (sancta Maria de arcubws) though all the principal spiritual courts are now holden at doctors' commons. His proper jurisdiction is only over the thirteen peculiar parishes belonging to the archbishop in London ; but the office of

i Ibid. 310. k See Vol. I. ihtrod. §. 1.. 1 For farther particulars see Burn's Ecclesiastical Law, Wood's Institute of the Common Lain, and Oughton's Orde yudiciorum.

dean of the arches having been for a long time united with that of the archbishop's principal official, he now, in right of the last irentioned office, (as doth also the official principal of the archbishop of York) receives and determines appeals from the sentences of all inferior ecclesiastical courts within the province. And from him an appeal lies to the king in chancery (that is, to a court of delegates appointed under the king's great seal) by statute 25 Hen. VIII, c. 19, as supreme head of the English church, in the place of the bishop of Rome, who formerly exercised this jurisdiction; which circumstance alone will furnish the reason why the popish clergy were so anxious to separate the spiritual court from the temporal,

4. The court of peculiars is a branch of and annexed to the court of arches. It has a jurisdiction over all those parishes dispersed through the province of Canterbury in the midst of other dioceses, which are exempt from the ordinary's jurisdiction, and subject to the metropolitan only. All ecclesiastical causes, arising within these peculiar or exempt jurisdictions, are, originally, cognizable by this cqurt; from which an appeal lay formerly to the pope, but now by the statute 25 Hen. VIII, c. 19, to the king in chancery.

5. The prerogative court is established for the trial of all testamentary causes, where the deceased hath left bona notabilia within two different diocesses. In which case the probate of wills belongs, as we have formerly seen m, to the archbishop of the province, by way of special prerogative. And all causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court; from whom an appeallies by statute 25 Hen. VIII, c. 19, to the king in chancery, instead of the pope, as formerly '.

m Book II, ch. 52.

1. The several district, county, and corporation courts, in Virginia, have power to hear, and determine all causes testamentary, and to examine and take the proof of wills, and grant certificates, and to hear, and determine the right of administration of the estate

I pass by such ecclesiastical courts, as have only what is called a vii>mtt,ry, and not a contentious, jurisdiction; which are meresv -oncernecl in doing, or bailing, what no one opposes, and v. hicii keep an open office Tor th.it purpose, (as granting dispensations, licences, faculties, and other remnants oi the papal extortions) but do not concern themselves with administering redress to any injury: and shall proceed to

6. The great court of appeal in all ecclesiastical causes, viz. the court of delegates, jud,ces dflcgati, appointed by the king's commission under his great seal, and issuing out of chancery, to represent his ro\ al person, and hear all appeals to him made by virtue of the before-mentioned statute of Henry VIII. This commission is frequently filled with lords, spiritual and temporal, and always with judges of the courts at Westminster, and doctors of the civil law. Appeals to Rome were always looked upon by the English nation, even in the times of popery, with an evil eye ; as being contrary to the liberty of the bubject, the honour of the crown, and the independence of the whole realm ; and were first introduced in very turbulent times in the sixteenth year of king Stephen (A.D. 1151,) at the same period (Sir Henry Spelman observes) that the civil and canon laws were first imported into England ". But, in a few \ ears after, to obviate this growing practice, the constitutions made at Clarendon, 11 Hen. II, on account of the disturbances, raised by archbishop Becket, and other zealots of the holy see, expressly declare0, that appeals in causes ecclesiastical ought to lie, from the archdeacon to the diocesan ; from the diocesan to the archbishop of the province ; and from the archbishop to the king; and are not to proceed an} farther without special licence from the crown. But the un-

« Cat. -xt lc^. 315.

o Chantei 8

of persons deceased, and intestate, within their respective jurisdictions. An iippcal, lies from the county and coiporation courts to the diitrict courts; and from the latter to the court of appeals, as in other c-.scs. The general coin t hath juri' diction of the like cases, throughout the stale, concurrent with the f' imcr, within their icspccthe jurisdictions. From this court an appeal also lies, 10 the court of appeals. V. L. 1794, c. 92.

happy advantage that was given in the reigns of king John, and his son Henrv the third, to the encroaching power of the pope, who was ever vigilant to improve all opportunities of extending his jurisdiction hither, at length riveted the custom of appealing to Rome, in causes ecclesiastical, so strongly, that it never could be thoroughly broken off, till the grand rupture happened in the reign of Henry the eighth ; when all the jurisdiction usurped by the pope, in matters ecclesiastical was restored to the crown, to which it originally belonged: so that the statute 25 Hen. VIII, was but declaratory of the antient law of the realm n. But in case the king, himself, be party in any of these suits, the appeal does not then lie to him in chancery, which would be absui d ; but, by the statute 24 Hen. VIII, c. 12, to all the bishops of the realm, assembled in the upper-house of convocation. '

7. A commission of review is a commission sometimes granted, in extraordinary cases, to revise the sentence of the court of delegates; when it is apprehended they have been led into a material error. This commission the king may grant, although the statutes 24 & 25 Hen. VIII, before cited declare the sentence of the delegates definitive : because the pope as supreme head, by the canon law used to grant such commission of review; and such authority as the pope heretofore exerted, is now annexed to the crown 1 by statutes 26 Hen. VIII, e. 1, and 1 Eliz. c. 1. But it is not matter of right, which the subject may demand ex debito jwtitiae ; but merely a matter of favour, and which, therefore, is often denied.

These are now the principal courts of ecclesiastical jurisdiction 2; none of which, are allowed to be courts of record: no

p 4 Inst. 341.

q Ibid.

2. The general court of Virginia, (before the revolution), had jurisdiction in all causes, matters and things whatsoever relating to, or concerning any person or persons, ecclesiastical, or civil, or to any person or things, of what nature soever the same might be, whether brought before them by original process, appeal from any inferior court, or by any other ways and means whatsoever. V. L. Edi.

more than was another much more formidable jurisdiction, but now deservedly annihilated, viz. the court of the king's high commission, in causes ecclesiastical. The court was erected and united to the regal power r, by virtue of the statute 1 Eliz. c. 1, instead of a larger jurisdiction which had before been exercised under the pope's authority. It was intended to vindicate the dignity and peace of the church, by reforming, ordering, and correcting the ecclesiastical state and persons, and all manner of errors, heresies, schisms, abuses, offences, contempts, and enormities. Under the shelter of which very general words, means were found in that, and the two succeeding reigns, to vest in the high-commissioners extraordinary and almost despotic powers, of fining and imprisoning; which they exerted much beyond the degree of the offence, itself, and frequently over offences by no means of spiritual cognizance. For these reasons this court was justly abolished by statute 16 Car. I, c. 11. And the weak and illegal attempt that was made to revive it, during the reign of king James the second, served only to hasten that infatuated prince's ruin 3.

II. Next, as to the courts military. The only court of this kind known to, and established by, the permanent laws of the land, is the court of chivalry > formerly held before the lord high constable and earl marshal of England jointly: but since the attainder of Stafford duke of Buckingham under Henry VIII, and the consequent extinguishment of the office of lord high constable, it hath usually with respect to civil matters been held before the earl marshal only5. This court by statute 13 Ric. II. c. 2, hath cognizance of contracts and other matters touching deeds of arms and war, as well out of the realm as within it.....

r 4 Inst. 324.

s 1 Lev. 230, Show. Parl. Cas. 60.

irc>9, 17J3, c. 1. But since the revolution there has been no court established in Virginia, possessing general jurisdiction in cases of an ecclesiastical nature. The high court of chancery hath jurisdiction in cases of incestuous marriages, which it may annul, but it does not appear to possess jurisdiction in any other matrimonial, or other ecclesiastical case whatsoever. V. L. 1794, c. 104.

3. There sre no traces of any similar institution in Virginia.

And from its sentences an appeal lies immediately to the king in person*. This court was in great reputation in the times of pure chivalry, and afterwards during our connexions with the continent, by the territories which our princes held in France : but is now grown almost entirely out of use, on account of the feeblenes of it's jurisdiction, and want of power to enforce it's judgments; as it can neither fine nor imprison, not being a court of record"4.

III. The maritime courts, or such as have power and jurisdiction to determine all maritime injuries, arising upon the seas, or in parts out of the reach of the common law, are only the court of admiralty, and it's courts of appeal. The court of admiralty is held before the lord high admiral of England, or his deputy, who is called the judge of the court. According to sir Henry Spelman w, and Lambard x, it was first of all erected by king Edward the third. It's proceedings are according to the method of the civil law, like those of the* ecclesiastical courts ; upon which account it is usually held at the same place with^he superior ecclesiastical courts, at doctor's commons in London. It is no court of record, any more than the spiritual courts..... From the sentences of the admiralty judge an appeal always lay, in ordinary course, to the king in chancery, as may be collected from statute 25. Hen. VIII. c. 19, which directs the appeal from the arch-bishop's courts to be determined by persons named in the king's commission, " like as in case of appeal from the admiral-court." But this is also expressly declared by statute 8 Eliz. c. 5, which enacts, that upon appeal made to the chancery, the sentence definitive of the delegates appointed by commission shall be final.

Appeals from the vice-admiralty courts in America, and our other plantations and settlements, may be brought before the

t 4 Inst. 12J. w Gloss. 13.

u 7 Mod. 127. x Archeion. 41.

4. Of this court, as well as of the preceding, there is no vestige, or resemblance in the institutions of this commonwealth.

courts of admiralty in England, as being a branch of the admiral's jurisdiction, though they may also be brought before the king in council. But in case of prize vessels, taken in time of war, in any part of the world, and condemned in any courts of admiralty or vice-admiralty as lawful prize, the appeal lii-s to certain commissioners of appeals consisting chiefly of the privy council, and not to judges delegates. And this by virtue of divers treaties with foreign nations ; by which particular courts are established in all the maritime countries of Europe for the decision of this question, whether lawful prize or not: for this being a question between subjects of different states, it bt longs entirely to the law of nations, and not to the municipal laws of either country, to determine it. The original court, to which this question is permitted in England, is the court of admiralty; and the court of appeal is in effect the king's privy council, the members of which are, in consequence of treaties, commissioned under the great seal for this purpose. In 1748, for the more speedy determination of appeals, the judges of the courts of Westminster-hall, though not privy counsellors, were added to the commission then in being. But doubts being conceived concerning the validity of that commission, on account of such addition, the same was confirmed by statute 22 Geo. II. c. 3, with a proviso, that no sentence given under it should be valid, unless a majority of the commissioners present were actually privy counsellors. But this did not, I apprehend, extend to any future commissions: and such an addition became indeed totally unnecessary in the course of the war which commenced in 175G ; since, during the whole of that war, the commission of appeals was regularly attended and all it's decisions conducted by a judge, whose masterly acquaintance with the law of nations was known and revered by every state in Europe s v.

) See the sentiments of the president Montesquieu, and M. Vattel, (a subject of the king of Prussia) on the answer transmitted by the English court to his Prutiian majesty's Exposition rles motifs, tsfc. A. D 1753. (Montesquieu's Letters, 5Mai. 1753. Vatttl's thoitaegens. I- 2. c.7. Sec. 84.

5. When the revolution took place a court of admiralty and maritime jurisdiction was established in Virginia; by the articles of confederation and perpetual union, afterwards agreed on, between the

United States, congress was authorised to appoint ccui ts for the trial of piracies and felonies, committed on the high-seas, and to establish courts for receiving, and determining finally, appeals in all cases of captures. C. V. Art. 14. L. V. Octo. 1776, c. 15. May 1779, r. 26. Articles of Confederation, Sec. Art. 9. By the constitution of the United States, Art. 3, it is provided, That the judicial power of the United States shall extend to all cases of admiralty, and maritime jurisdiction: the court of admiralty, in Virginia, was thereupon discontinued by law.' V. L. 1788, c. 71. The cognizance of all cases of admiralty and maritime jurisdiction, including cases of captures made within the waters of the United States, or within a marine league of the coasts, or shores thereof, is now vested in the district-courts of the United States. From these courts an appeal lies to the circuit-courts, and from thence to the sujireme-court of the United States. C. U. S. Art. 3. L. U. S. 1 Cong. 1 Sess. c. 20. 3 Com;. c. 50.

CHAPTER THE SIXTH.

OF COURTS OF A SPECIAL JURISDICTION *.

IN the two preceding chapters we have considered the several courts, whose jurisdiction is public and general; and which are so contrived that some or other of them may administer redress to every possible injury that can arise in the kingdom at large. There yet remain certain others, whose jurisdiction is private and special, confined to particular spots, or instituted only to redress particular injuries. These are,

1. The forest courts, instituted for the government of the king's forests in different parts of the kingdom, and for the punishment of all injuries done to the king's deer or venison, to the vert or greensvverd, and to the covert in which such deer are lodged. These are the courts of attachment of regard, oftwein-mote, and of justice-seat. The court of attachments, wood-mote, or forty days court, is to be held before the verderors of the forest once in every forty days a; and is instituted to inquire into all offenders against vert and venisonb: who may be attached by their bodies, if taken with the mainour, (or mainoeuvre, a manuj that is, in the very act of killing venison or stealing wood, or preparing so to do, or by fresh and immediate pursuit after the

a Cart, deforest. 9 Hen. III. c. 8.

b 4 Inst. 289.

1. Although the subject of the following chapter cannot be expected to have any immediate connection with the laws of Virginia, the student, who means to aspire to the honour of a seat in the legislature, •will find many things in it worthy of his attention.

act is donee; else, they must be attached by their goods. And in this forty days court the foresters or keepers are to bring in their attachments, or presentments de viridi et venatione; and the verdciois arc toivreive the same, and to enroll them, and to certify them under their seals to the court of justice-seat, or swein-moted: for this court can only inquire of, but not convict offenders. 2. The court of regard, or survey of dogs, js to be holden every third year for the lawing or expeditation of mastiffs, which is done by cutting off the claws and ball (or pelote) of the forefeet, to prevent them from running after deere. No other dogs but mastiffs are to be thus lawed or expeditated, for none other were permitted to be kept within the precincts of the forest; it being supposed that the keeping of these, and these only, was necessary for the defence of a man's house f. 3. The court of erveinmotc is to be holden before the verderors, as judges, by the steward of the sweinmote thrice in every years, the sweins, or freeholders within the forest composing the jury. The principal jurisdiction of this court is, first, to inquire into the oppressions and grievances committed by the officers of the forest; de

super-onerationeforestaricrum, et aliorum ministrorumforestac;

etde eorum oppressiombus populo regis illatis;" and, secondly, to receive and try presentments certified from the court of attachments against offences in vert and venison h. And this court may not only inquire, but convict also, which conviction shall be certified to the court of justice-seat under the seals of the jury; for this court cannot proceed to judgment'. But the principal court is, 4. The court of justice-seat, which is held before the chief justice in eyre, or chief itinerant judge, capitalisjustitiarius in itinere, or his deputy: to hear and determine all trespasses within the forest, and all claims of franchises, liberties, and privileges, and all pleas and causes whatsoever therein arising1. It may also proceed to try presentments in the inferior courts of the forests, and to give judgment upon, conviction of the sweinmote. And the chief justice may therefore after presentment made or indictment found, but not before', issue his warrant to

c Carth. 79. d Cart, deforest, c. 16.

e Cart, deforest, e. 6. f 4 Inst. 308.

g Cart, defirest. c. 8. h Stat. 34 Edw. I. c. 1.

i 4 .pst. 289. k 4 Inst. 291,

1 Stat. lEdw. III. c. S. 7 Kic. II. c. 4.

the officers of the forest to apprehend the offenders. It may be held every third year; and forty days' notice ought to be given of it's sitting. This court may fine and imprison for offences within the forest™, it being a court of record: and therefore a. writ of error lies from hence to the court of king's bench, to rectify and redress any mal-administrations of justice"; or the chief justice in eyre may adjourn any matter of law into the court of king's bench0. These justices in eyre were instituted by king Henry II, A. D. 1184-p; and their courts were formerly very regularly held: but the last court of justice-seat of any note was that holden in the reign of Charles I, before the earl of Holland; the rigorous proceedings at which are reported by sir William Jones. After the restoration another was held, pro forma only, before the earl of Oxford*; but since the aera of the revolution iu 1688, the forest laws have fallen into total disuse, to the great advantage of the subject.

II. A second species of restricted courts is that of commissioners of sewers. This is a temporary tribunal erected by virtue of a commission under the great seal; which formerly used to be granted pro re nata at the pleasure of the crownr, but now at the discretion and nomination of the lord chancellor, lord treasurer, and chief justices, pursuant to the statute 23 Hen. VIII. c. 5. Their jurisdiction is to overlook the repairs of sea banks and sea walls: and the cleansing of rivers, public streams, ditches and other conduits, whereby any waters are carried off: and is confined to such county or particular district as the commission shall expressly name. The commissioners are a court of record, and may fine and imprison for contempts *; and in the execution of their duty may proceed by jury, or upon their own view, and may take order for the removal of any annoyances, or the safeguard and conservation of the sewers within their com-i mission, either according to the laws and customs of Romney-marsh *, or otherwise at their own discretion. They may also

m 4 Inst. 313. n Ibid. 297. o 4 Inst. 295. p Hoveden. q Noi th's Life of lord Giiiklford. 45. rF N. B. 113. si Sid. 145.

t RoRiney-marsh in the county of Kent, a tract containing 2400u acres, is governed by certain antient and equitable laws of »ewe'.i., composed by Henry de

assess such rates, or scots, upon the owners of lands within their district, as they shall judge necessary: and, if any person refuses to pay them, the commissioners may levy the same by distress of his goods and chattels; or they may, by statute 23 Hen. VIII. c. 5, sell his freehold lands (and by the 7 Ann. c. lO, his copyhold also) in order to pay such scots or assessments. But their conduct is under the control of the court of king's bench, which will prevent or punish any illegal or tyrannical proceedings". And yet in the reign of king James I, (8 Nov. 1616) the privy council took upon them to order, that no action or complaint should be prosecuted against the commissioners, unless before that board; and committed several to prison who had brought such actions at common law, till they should release the same: and one of the reasons for discharging sir Edward Coke from his office of lord chief justice was for countenancing those legal proceedings''. The pretence for which arbitrary measures was no other than the tyrant's pleaw, of the necessity of unlimited powers in works of evident utility to the public, " the supreme reason above all reasons, which is the salvation of the king's lands and people." But now it is clearly held, that this (as well as all other inferior jurisdictions is subject to the discretionary coercion of his majesty's court of king's bench*.

III. The court of policies of assurance, when subsisting, is erected in pursuance of the statute 43 Eliz. c. 12, which recites the immemorial usage of policies of assurance, " by means whereof it cometh to pass, upon the loss or perishing of any ship, there followeth not the undoing of any man, but the loss lighteth rather easily upon many than heavy upon few, and rather upon them that adventure not, than upon those that do adventure: whereby all merchants, especially- those of the younger sort, are allured to venture more willingly and more freely: and that heretofore such assurers had used to stand so justly and precisely upon the.ir credits, as few or no controver-

Bathe, a venerable judge in the reign of king Henry the third; from which 'aws all commissioners of sewers in England may receive light and dheciion. (4 Inst. 25-6.)

u Cro. Jac. 356. v Moor. 825, 826. See p. 55.

w Milt. Farad. Lost, iv. 393. x 1 Vcntr. 66. Salk. 146.

sies had arisen thereupon; and if any had grown, the same had from time to time been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of London ; as men by reason of their experience fittest to understand and speedily decide those causes :" but that of late years divers persons had withdrawn themselves from that course of arbitration, and had driven the assured to bring separate actions at law against each assurer: it therefore enables the lord chancellor yearly to grant a standing commission to the judge of the admiralty, the recorder of London, two doctors of the civil law, two common lawyers, and eight merchants; any three of which, one being a civilian or a barrister, are thereby and by the statute 13 and 14 Car. II. c. 23, empowered to determine in a summary way all causes concerning policies of assurance in London, with an appeal (by way of bill) to the court of chancery. But the jurisdiction being somewhat defective, as extending only to London, and to no other assurances but those on merchandize f, and to suits brought by the assured only, and , not by the insurers1, no such commission has of late years issued: but insurance causes are now usually determined by the verdict of a jury of merchants, and the opinion of the judges in case of any legal doubts; whereby the decision is more speedy, satisfactory, and final: though it is to be wished, that some of the parliamentary powers invested in these commissioners, especially for the examination of witnesses, either beyond the seas or speedily going out of the kingdom % could at present be adopted by the courts of Westminster-hall, without requiring the consent of parties2.

IV. The court of the warsAa&ea,andthe palace court at Westminster, though two distinct courts, are frequently confounded together. The former was originally holden before the steward and marshal of the king's house, and was instituted to admi-

y Styl. 166. z 1 Show. 396. a Stat. 13 and 14 Car. II, c. 22, S«c. 3, and 4.

2. All the courts in the state of Virginia, both of law and equity, are vested with similar powers. L. V. 1794, c. 141.

nister justice between the king's domestic servants, that they might not be drawn into other courts, and thereby the king lose their service b. It was formerly held in, though not a part of, the aula rfgise; and, when that was subdivided, remained a distinct jurisdiction : holding plea of all trespasses committed within the verge of the court, where only one of the parties is in the king's domestic service, (in which case the inquest shall be taken by a jury of the country) and of all debts, contracts and covenants, where both of the contracting parties belong to the royal housholcl; and then the inquest shall be composed of men of the houshold only d. By the statute of 13 Ric. II, st. 1. c. 3, (in affirmance of the common law e) the verge of the court in this respect extends for twelve miles round the king's place of residence f. And, as this tribunal was never subject to the jurisdiction of the chief justiciary, no writ of error lay from it (though a court of record) to the king's bench, but only to parliaments, till the statutes of 5 Edw. III, c. 2, and 1O Edw. III, st. 2. c. 3, which allowed such writ of error before the king in his place. But this court being ambulatory, &ad obliged to follow the king in all his progresses, so that by the removal of the houshold, actions were frequently discontinued h, and doubts having arisen as to the extent of it's jurisdiction *, king Charles I, in the sixth year of his reign by his letters patent erected a new court of record, call d the curia palatii or palace court, to be held before the steward of the houshold and knight marshal, and the steward of the court, or his deputy ; with jurisdiction to hold plea of all manner of personal actions whatsoever, which shall arise between any parties within twelve miles of his majesty's palace at Whitehallk. The court is now held once a week, together with the antient court of marshalsea, in the borough of

b 1 Bulstr. 211. c Flct. l. 2. c. 2 d Artic. mp. cart. 28 Edw. I, c. 3. Stat. 5 Edw. III, c. 2. 10 Edw. III, st. 2. c. 2. e 2 Inst. 548.

f By tlie anfient Saxon constitution the pax regia, or privilege of the < king's palace, extended from his palace gate to the distance of tnree miles, three fin longs, three acres, nine leet, nine palms, and nine barley corns ; as appears from a fragment of the texttit Roffcnsis cited in Dr. Hicke's Jistertat, epiitol. 114.

g 1 Buls-r- 211. 10 Rep. 79. h F. N. B. 241. 2 Inst. 54a i 1 liulstr. 2U8. k 1 Sid. 180. Sulk. 439.

Southwark: and a writ of error lies from thence to the court of king's bench. But if the cause is of any considerable consequence, it is usually removed on it's first commencement, together with the custody of the defendant, either into the king's bench or common pleas by a writ of habeas corpus cum causa : and the inferior business ofthe court hath of late years been much reduced, by the new courts of conscience erected in the environs of London; in consideration of which the four counsel belonging to these courts had salaries granted them for their lives by the statute 23 Geo. II, c. 27.

V. A fifth species of private courts of a limited, though extensive jurisdiction are those of the principality of Wales; which upon its thorough reduction, and the settling of it's polity in the reign of Henry the eighthJ, were erected all over the country; principally by the statute 34 and 35 Hen. VIII, c. 26, though much had before been done, and the way prepared by the statute of Wales, 12 Edw. I, and other statutes. By the statute of Henry the eighth before-mentioned, courts-baron, hundred, and county courts are there established as in England. A session is also to be held twice in every year in each county, by judgesm appointed by the king, to be called the great sessions of the several counties in Wales: in which all pleas of real and personal actions shall be held, with the same form of process and in as ample a manner as in the court of common pleas at Westminster ": and writs of error shall lie from judgments therein (it being a court of record) to the court of king's bench at Westminster. But the ordinary original writs of process of the king's courts at Westminster do not run into the principality of Wales ° : though process of execution does f: as do also prerogative writs, as writs of certiorari, quo minus, mandamus, and the like 1. And even in causes between subject and subject, to prevent injustice through family factions or prejudi-

1 See Vol. I. introd. Sec. 4. m Stat. 18 Eliz. c. 8.

n See, for farther regulation of the practice of these courts, stat. S Eliz. c. 25. 8 Eliz c. 20. 8 Geo. I, c. 25. Sec. 6. 6 Geo. 11, c 14. 13 Geo. JJI, e.51. o 2 Roll. Rep. 141.

p 2 Bulstr. 156. 2 Saund. 193. Raym. 206.

q Cro. Jac. 484.

ces, it is held lawful (in causes of freehold at least, and it is usual in all others) to bring an action in the English courts, and try the same in the next English county adjoining to that part of Wales where the cause arisesr, and wherein the venue is laid. But, on the other hand, to prevent trifling and frivolous suits it is enacted by statute 13 Geo. III, c. 51, that in personal actions, tried in any English county, where the cause of action arose, and the defendant resides in Wales, if the plaintiff shall not recover a verdict for ten pounds, he shall be nonsuited and pay the defendant's costs, unless it be certified by the judge that the freehold or title came principally in question, or that the cause was proper to be tried in such English county. And if any transitory action, the cause whereof arose and the defendant is resident in Wales, shall be brought in any English county, and the plaintiff shall not recover a verdict for ten pounds, the plaintiff shall be nonsuited, and shall pay the defendant's costs, deducting thereout the sum recovered by the verdict.

VI. The court of the duchy chamber of Lancaster is another special jurisdiction,held before the chancellor ofthe duchjr or his deputy concerning all matter of equity relating to lands holden of the king in right of the duchy of Lancaster •: which is a thing very distinct from the county palatine, (which hath also it's separate chancery, for sealing of writs, and the like ") and comprizes much territory which lies at a vast distance from it; as particularly a very large district surrounded by die city of Westminster. The proceedings in this court are the same as on the equity side in the courts of exchequer and chanceryl; so that it seems not to be a court of record : and indeed it has been holden that those courts have a concurrent jurisdiction with the duchy court, and may take cognizance of the same causes u.

VII. Another species of private courts, which are of alimked local jurisdiction, and have at the same time an exclusive cognizance of pleas, in matters both of law and equity v, are those

r Vaugh. 413. Hardr. 66. ss 1 Ventr. 257.

sHob. 77. 2 Lev. 24. t 4 Inst 206.

ul Chan. Rep. 55. Toth. 145. Hard. 171. v 4 Inst. 213,218 Finch. R. 452.

which appertain to the counties palatine of Chester, Lancaster, and Durham, and the royal franchise of Ely w. In all these, as in the principality of Wales, the king's ordinary writs issuing under the great seal out of chancery, do not run; that is, they are of no force. For, as originally alljwra regalia were granted to the lords of these counties palatine, they had of course the sole administration of justice, by their own judges appointed by themselves and not by the crown. It would therefore be incongruous for the king to send his writ to direct the judge of another's court in what manner to administer justice between the suitors. But when the privileges of these counties palatine and franchises were abridged by statute 27 Hen. VIII, c 24, it was also enacted, that all writs and process should be made in the king's name, but should be teste'd or witnessed in the name of the owner of the franchise. Wherefore all writs, whereon actions are founded, and which have current authority here, must be under the seal of the respective franchises; the two former of which are now united to the crown, and the two latter under the government of their several bishops. And the judges of assise, who sit therein, sit by virtue of a special commission from the owners of the several franchises, and under seal thereof; and not by the usual commission under the great seal of England. Hitherto also maybe referred the courts of the cinque forts, or five most important^ havens, as they formerly were esteemed, in the kingdom; viz. Dover, Sandwich, Romney, Hastnings, and Hythe; to which Winchelsey and Rye have been since added: which have also similar franchises in many respects x with the counties palatine, and particularly an exclusive jurisdiction (before the mayor and jurats of the ports) in which exclusive jurisdiction the king's ordinary writ does not run. A writ of error lies from a mayor and jurats of each port to the lord warden of the cinque ports, in his court of Shepway, and from the court of Shepway to the king's bench ?. So likewise a writ of error lies from all the other jurisdictions to the same supreme court of judicature *, as an ensign of superi-

w See Vol. I. introd. §.4- x 1 Sid. 166. yjenk. 71. Djvers^te (let courts, t. bant lei ay. 1 Sid. 356. 2 Bro. Abr. t. error. 74.101. Davis. 62. 4 Inst. 58,214, 218.

ority reserved to the crown at the original creation of the franchises. And all prerogative writs (as those of habeas corpus, prohibition, certiorari, and mandamus} may issue for the same reason to all these exempt jurisdictions a ; because the privilege, that the king's writ runs not, must be intended between party and party, for there can be no such privilege against the king b.

VIII. The stannary courts in Devonshire and Cornwall for the administration of justice among the tinners therein, are also courts of record, but of the same private and exclusive nature. They are held before the lord warden and his substitutes, in virtue of a privilege granted to the workers in the tin mines there, to sue and be sued only in their own courts, that they may not be drawn from their business which is highly profitable to the public, by attending their lawsuits in other courts0. The privileges of the tinners are confirmed by a charter, 33 Edw. I, and fully expounded by a private statute"1, 50 Edw. III, which has since been explained by a public act, 16 Car. I. c. 15. What relates to our present purpose is only this: that all tinners and labourers in and about the stannaries shall, during the time of their working -therein bona Jide, be privileged from suits of other courts, and be only impleaded in the stannary court in all matters, excepting pleas of land, life, and member. No writ of error lies from hence to any court in Westminster-hall; as was agreed by all the judges* in 4 Jac. I. But an appeal lies from the steward of the court to the under-warden: and from him to the lord-warden; and thence to the privy council of the prince of Wales, as duke of Cornwall*, when he hath had livery or investiture of the same*. And from thence the appeal lies to the king himself, in the last resort*1.

IX. The several courts within the city of London1, and other cities, boroughs, and corporations throughout the king-

a 1 Sid. 92. b Cro. Jac 543. c 4 Inst. 232. d See this at length in 4 Inst 232. e 4 Inst. 231. f Ibid. 230. g 3 Bulst. 183. h Dodendge Hist, of Comw. 94. i The chief of those in London are the sheriff's courts, holden before their steward or judge; from which a writ of error lies to the coint of huttings, before

dom, held by prescription, charter, or act of parliament, are also of the same private and limited species. It would exceed the design and compass of our present enquiries, if I were to enter into a particular detail of these, and to examine the nature and extentof their several jurisdictions. It may in general be sufficient to say, that they arose originally from the favour of the crown to those particular districts, wherein we find them erected, upon the same principle that hundred-courts, and the like were established; for the convenience of the inhabitants, that they may prosecute their suits, and receive justice at home: that, for the most part, the courts at Westminster-hall have a concurrent jurisdiction with these, or else a super-intendancy over themi; and are bound by the statute 19 Geo. III. c. 70, to give assistance to such of them as are courts of record, by issuing writs of executionj'where the person or effects of the defendant are not "within the inferior jurisdiction: and that the proceedings in these special courts ought to be according to the course of the common law, unless otherwise ordered by parliament; for though the king may erect new courts, yet he cannot alter the established course of law.

But there is one species of courts, constituted by act of parliament, in the city of London, and other trading and populous districts, which in their proceedings so vaiy from the course of common law, that they may deserve a more particular consideration. I mean the courts of requests, or courts of conscience, for the recovery of small debts. The first of these was established in London, so early as the reign of Henry the eighth, by an act of their common council; which however was certainly insufficient for that purpose and illegal, till confirmed by statute 3 Jac. I. c. 15. which has since been explained and amended by statute 14 Geo. II; c. 1O. The constitution is this: two aldermen and four commoners, sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they exa-

the mayor, recorder, and sheriff's; and from thence to justices appointed by the king's commission, who used to sit in the chuich of St. Martin le grand. (F. N. B. 32.) And from the judgment of those justices a writ of error lies immediately to the house of lords, j Salk. 144,263.

mine in a summary manner, by the oath of the parties or other witnesses, and make such order therein as is consonant to equity and good conscience. The time and expence of obtaining this summary redress are very inconsiderable, which make it a great benefit to trade ; and thereupon divers trading towns and other districts have -obtained acts of parliament, for establishing in them courts of conscience upon nearly the same plan as that in the city of London.

The anxious desire, that has been shewn to obtain these several acts, proves clearly that the nation in general is truly sensible of the great inconvenience, arising from the disuse of the antient county and hundred courts; wherein causes of this small value were always formerly decided, with very little trouble and expence to the parties. But it is to be feared, that the general remedy which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions) may itself be attended in time with very ill consequences: as the method of proceeding therein is entirely in derogation of the common law; as their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished, that the proceedings in the county and hundred courts could again be revived, without burthening the freeholders with too frequent and tedious attendances ; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party have of transferring at pleasure their suits to the courts at Westminster 1 And we may with satisfaction observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex ; which might serve as an example for others. For by statute 23 Geo. II. c. S3, it is enacted, 1. That a special county court shall be held, at least once a month, in every hundred of the county of Middlesex, by the county clerk. 2. That 12 freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation ; so as none shall be summoned oftener than once a year.

3. That in all causes, not exceeding the value of forty shillings, the county clerk and twelve suitors shall proceed in a summary way, examining the parties and witnesses on oath, without the formal process antiently used: and shall make such order therein as they shall judge agreeable to conscience. 4. That no plaints shall be removed out of this court, by any process whatsoever ; but the determination herein shall be final. 5. That if any action be brought in any of the superior courts against a person resident in Middlesex, for a debt or contract, upon the trial whereof the jury shall find less than 4O*. damages, the plaintiff shall recover no costs, but shall pay the defendant double costs; unless upon some special circumstances, to be certified by the judge who tried it. 6. Lastly, a table of very moderate fees is prescribed and set down in the act; which are not to be exceeded upon any account whatsoever. This is a plan entirely agreeable to the constitution and genius of the nation: calculated to prevent a multitude of vexatious actions in the superior courts, and at the same time to give honest creditors an opportunity of recovering small sums; which now they are frequently deterred from by the expence of a suit at law: a plan which, one would think, wants only to be generally known, in order to it's universal reception3.

X. There is yet another species of private courts, which I must not pass over in silence: viz, the chancellors courts in the two universities of England. Which two learned bodies enjoy the sole jurisdiction, in exclusion of the king's courts, overall civil actions and suits whatsoever, when a scholar or privileged person is one of the parties ; excepting in such cases where the right of freehold is concerned. And these by the university charter they are at liberty to try and determirie, either according to the common law of the land, or according to their own local customs, at their discretion : which has generally led them to carry on their process in a course much conformed to the civil law, for reasons sufficiently explained in a former volumek. k Vol. I. Imrcd. Sec. 1.

3. It may be worthy of consideration, whethev this plan may not (iftbrd some useful hints for the amendment of our system of jurisprudence.

These privileges were granted, that the students might not be distracted from their studies by legal process from distant courts, and other forensic avocations. And privileges of this kind are of very high antiquity, being generally enjoyed by all foreign universities as well as our own, in consequence (I apprehend) of a constitution of the emperor Frederick, A. D. 11581. But as to England in particular, the oldest charter that I have seen, containing this grant to the university of Oxford, was 28 Hen. III. A. D. 1244. And the same privileges were confirmed and enlarged by almost every succeeding prince, down to king Henry the eighth ; in the fourteenth year of whose reign the largest and most extensive charter of all was granted. One similar to which was afterwards granted to Cambridge in the third year of queen Elizabeth. But yet, notwithstanding these charters, the privileges granted therein, of proceeding in a course different from the law of the land, were of so high a nature, that they were held to be invalid; for though the king might erect new courts, yet he could not alter the course of law by his letters patent. Therefore in the reign of queen Elizabeth an act of parliament was obtained"1, confirming all the charters of the two universities, and those of 14 Hen. VIII, and 3 Eliz. by name. Which blessed act, as sir Edward Coke entitles it", established this high privilege without any doubt or opposition0 : or, as sir Matthew Hale? very fully expresses the sense of the common law, and the operation of the act of parliament, "although king Henry the eighth, 14 A. R. sui, granted to the university a liberal charter, to proceed according to the use of the university; viz. by a course much conformed to the civil law ; yet that charter had not been sufficient to have warranted such proceedings without the help of an act of parliament. And, therefore, in 13 Eliz. an act passed, whereby that charter was in effect enacted ; and it is thereby that at this day they have a kind of civil law procedure, even in matters that are of themselves of common law cognizance, where either of the parties is privileged."

1 Coil. 4 tit. 13. m 13 U\?.. c 23. n 4 Inst. 227.

o Jenk. Cent. 2 pi. 88. Cent 3. pi 33. Hardi-. 504. Godliolt. 201. p Hist. C. L. 33.

This privilege, so far as it relates to.civil causes, is exercised at Oxford in the chancellor's court; the judge of which is the vice-chancellor, his deputy, or assessor. From his sentence an appeal lies to delegates appointed by the congregation ; from thence to other delegates of the house of convocation ; and if they all three concur in the same sentence it is final, at least by the statutes of the university', according to the rule of the civil law1". But, if there be any discordance or variation in any of the three sentences, an appeal lies in the last resort to judges delegates appointed by the crown under the great seal in chancery.

I have now gone through the several species of private, or special courts, of the greatest note in the kingdom, instituted for the local redress of private wrongs; and must, in the close of all, make one general observation from sir Edward Coke': that these particular jurisdictions, derogating from the general jurisdiction of the courts of common law, are ever strictly restrained, and cannot be extended farther than the express letter of their privileges will most explicitly warrant.

tj fit. 21. Sec. 19.

iCod. 7,70,1.

3 2 Inst. 548.

CHAPTER THE SEVENTH.

OF THE COGNIZANCE OF PRIVATE WRONGS.

WE are now to proceed to the cognizance of private wrongs; that is, to consider in which of the vast variety of courts, mentioned in the three preceding chapters, every possible injury that can be offered to a man's person or property is certain of meeting with redress.

The authority of the several courts of private and special jurisdiction, or of what wrongs such courts have cognizance, was necessarily remarked as those respective tribunals were enumerated; and therefore need not be here again repeated: which will confine our present inquiry to the cognizance of civil injuries in the several courts of public or general jurisdiction. And the order, in which I shall pursue this inquiry, will be by shewing; 1. What actions may be brought, or what injuries remedied, in the ecclesiastical courts. 2. What in the military. 3. What in the maritime. And 4. What in the courts of common law.

And with regard to the three first of these particulars, I must beg leave not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction, by the officers and judges of those respective courts: but what the common law allows and permits to be so. For these eccentrical tribunals (which were principally guided by the rules of the imperial and canon laws) as they subsist and are admitted in Eng-

land, not by any right of their owna, but upon bare sufferance and toleration from the municipal laws, musthave recourse to the laws of that, country wherein they are thus adopted, to be informed how far their jurisdiction extends, or what causes are permitted, and what forbidden, to be discussed or drawn in question before them. ^It matters not therefore what the pandects of Justinian, or the decretals of Gregory have ordained. They are here of no more intrinsic authority than the laws of Solon and Lycurgus: curious perhaps for their antiquity, respectable for their equity, and frequently of admirable use in illustrating a point of history. No.r is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by it's own municipal laws ; which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance, which other nations have referred entirely to the temporal courts; as concerning wills and successions to intestates' chattels 11 and perhaps we may, in our turn, prohibit them from interfering in some controversies, which on the continent may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts: and, if any tribunals whatsoever attempt to exceed the limits so prescribed them, the king's courts of common law may and do prohibit them ; and in some cases punish their judges'".

Having premised this general caution, I proceed now to consider,

I. The wrongs or injuries cognizable by the ecclesiastical courts. I mean such as are offered to private persons or individuals ; which are cognizable by the ecclesiastical court, not for reformation of the offender himself or party injuring (pro salutae animae, as in the case with immoralities in general, when un-

a See Vol. I. Introd. Sec. 1.

b Hal. Hist. C. L. c.2.

1. These cases seem to have been always considered, in Virginia, as of a merely temporal nature.

connected with private injuries) but for the sake of the party injured, to make him a satisfaction and redress for the damage which he has sustained. And these I shall reduce under three general heads ; of causes pecuniary, causes matrimonial, and causes testamentary.

1. Pecuniary causes, cognizable in the ecclesiastical courts, are such as arise either from the withholding ecclesiastical dues, or the doing or neglecting some act relating to the church, whereby some damage accrues to the plaintiff;' towards obtaining a satisfaction for which, he is permitted to institute a suit in the spiritual court.

The principal of these is the subtraction or withholding of tithes from the parson or vicar, whether the former be a clergyman or a lay appropriator0. But herein a distinction must be taken: for the ecclesiastical courts have no jurisdiction to try the right of tithes unless between spiritual persons'1; but in ordinary cases, between spiritual men and lay men, are only to compel the payment of them, when the right is not disputede. By the statute or rather writf of circwnspecte agatis*, it is declared that the court Christian shall not be prohibited from holding plea, " si rector fetal versus farochianos oblationes et clecimas debitas et consuetas;" so that if any dispute arises whether such tithes be due and accustomed, this cannot be determined in the ecclesiastical court, but before the king's courts of the common law; as such question affects the temporal inheritance, and the determination must bind the real property. But where the right does not come into question, but only ihefact, whether or no the tithes allowed to be due are really substracted or withdrawn, this is a transient personal injury, for which the remedy may properly be had in the spiritual court; viz. the recovery of the tithes or their equivalent. By statute 2 8c 3 Edw. VI. c. 13, it is enacted, that if any person shall carry off his predial tithes (viz. of

c Stat. 53 Hen. VIII. c. 7.

d 2 Roll. Abr. 309, 310. Bro. Mr. c.jtrrit.lictlan. 81

e 2 Inst. 364, 489, 490

f See Barrington. 123. 3 Pryn. Rec. ""5.

g 13 Edw. I. st. 4, or rr.thrr, 9 Edw. II.

corn, hay, or the like) before the tenth part is-duly set forth, or agreement is made with the proprietor, or shall willingly withdraw his tithes of the same, or shall stop or hinder the proprietor of the tithes or his deputy from viewing or carrying th< m away; such offender shall pay double the value of the tithes, with costs, to be recovered before the ecclesiastical judge, according to the king's ecclesiastical laws. By a former clause of the same statute, the treble value of the tithes, so subtracted or withheld may be sued for in the temporal courts which is equivalent to the double value to be sued for in the ecclesiastical. For one may sue for and recover in the ecclesiastical courts the tithes themselves, or a recompense for them, by the antient law; to which the suit for the double value is superadded by the statute. But as no suit lay in the temporal courts for the subtraction of tithes themselves, therefore the statute gave a treble forfeiture, if sued for there ; in order to make the course of justice uniform, by giving the same reparation in one court as in the other"1. However it now seldom happens that tithes are sued for at all in the spiritual court; for if the defendant pleads any custom, modus, composition, or other matter whereby the right of tithing is called in question, this takes it out of the jurisdiction of the ecclesiastical judges ; for the law will not suffer the existence of such a right to be decided by the sentence of any single, much less an ecclesiastical judge ; without the verdict of a jury. But a more summary method than either of recovering small tithes under the value of 40,9. is given by statute 7 & 8 W. III. c. 6, by complaint to two justices of the peace: and by another statute of the same year, c. 34, the same remedy is extended to all tithes withheld by quakers under the value of ten pounds8.

Another pecuniary injury, cognizable in the spiritual courts, is the non-payment of other ecclesiastical dues to the clergy; as

h 2 Inst. 250.

2- Before the revolution, by the act for support of the clergy. V. L. 1748, c. 28. Edi. 1769, a clergyman might have maintained an action against the vestry of his parish for his salary ; but no particular court was assigned wherein the action was to have been brought. That act was repealed in October 1779, c. 36.

pensions, mortuaries, compositions, offerings, and whatsoever falls under the denomination of surplice-fees, for marriages or other ministerial offices of the church : all which injuries are redressed by a decree for their actual payment. Besides which all offerings, oblations, and obventions not exceeding the value of 40s, may be recovered in a summary way, before two justices of the peace'. But care must be taken that these are real and 1 not imaginary dues; for, if they be contrary to the common law, a prohibition will issue out of the temporal courts to stop all suits concerning them. As where a fee was demanded by the minister of the parish for the baptism of a child, which was administered in another placek ; this, however authorized by the canon, is contrary to common right: for of common right no fee is due to the minister even for performing such branches of his duty, and it can only be supported by a special custom1; but no custom can support the demand of a fee without performing them at all.

For fees also, settled and acknowleged to be due to 'the officers of the ecclesiastical courts, a suit will lie therein: but not if the right of the fees is at all disputable ; for then it must be decided by the common law™. It is also said, that if a curate be licenced, and his salary appointed by the bishop, and he be not paid, the curate has a remedy in the ecclesiastical couH" : but if he be not licenced, or hath no such salary appointed, or hath made a special agreement, with the rector, he must sue for a satisfaction at common law0 ; either by proving such special agreement, or else by leaving it to a jury to give damages upon a quantum mcruit, that is, in consideration of what he reasonably deserved in proportion to the service performed3.

i Stat.? & 8 W. III c. 6. k Salk 332.

1 Salk. 334. Lord Raym. 450, 1558. Fitzg. 55.

m 1 Ventr. 165. n 1 limn. EccI Law, 4j8.

o 1 Freem. 70.

3. The onlyjce to which clergymen of any denomination are expressly entitled by law, is the fee of one dollar for the celebration of every marriage. No special remedy for the recovery of it, if withheld, is pointed out; but it is presumed it may be recovered, as other small debts, before a justice of the peace, vi. V. L. 1794, c. 104. fy. !J.

Under this head of pecuniary injuries may also be reduced the several matters of spoliation, dilapidations, and neglect of repairing the church and things thereunto belonging; for which a satisfaction may be sued for in the ecclesiastical court.

Spoliation is an injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pretended title. It is remedied by a decree to account for the profits so taken. This injury, when the jus paironatus or right of advowson doth not come in debate, is cognizable in the spiritual court: as if a patron first presents A to a benefice, who is instituted and inducted thereto j and then, upon pretence of a vacancy, the same patron presents B to the same living, and he also obtains institution and induction. Now, if the fact of the vacancy be disputed, then that clerk who is kept out of the profits of the living, whichever it be, may sue the other iu the spiritual court for spoliation, or taking the profits of his benefice. And it shall there be tried, whether the living were, or were not, vacant; upon which the validity of the second clerk's pretensions must depend0. But if the right of patronage comes at all into dispute, as if one patron presented A, and another patron presented B, there the ecclesiastical court hath no cognizance, provided the tithes sued for amount to a fourth part of the value of the living, but may be prohibited at the instance of the patron by the king's writ of indicavitf. So also if a clerk, without any colour of title, ejects another from his parsonage, this injury must be redressed in the temporal courts: for it depends upon no question determinable by the spiritual law, (as plurality of benefices or no plurality, vacancy or no vacancy) but is merely a civil injury4.

o F. N. B. 36.

p Circumsfectengatist 13Edw. I, st. 4. Artic. Cleri. 9 Edw. II, c.2. F. N. B. 45.

4. It is difficult to say how far suits of this nature are cognizable in the courts of Virginia. In the case last supposed by Mr. Blackstone, it seems reasonable to presume, that the party injured would not be without redress in the courts of common law.

For dilapidations, which are a kind of ecclesiastical waste, either voluntary, by pulling down ; or permissive, by suffering the chancel, parsonage-house, and other buildings thereunto belonging, to decay; an action also lies, either in the spiritual court by the canon law, or in the courts of common law4), and it may be brought by the successor against the predecessor, if living, or, if dead, then against his executors. It is also said to be good cause of deprivation, if the bishop, parson, vicar, or other ecclesiastical person, dilapidates the buildings, or cuts down timber growing on the patrimony of the church, unless for necessary repairsr: and that a writ of prohibition will also lie against him in the courts of common law'. By statute 13 Eliz. c. 10, if any spiritual person makes over or alienates his goods with intent to defeat his successors of their remedy for dilapidations, the successor shall have such remedy against the alienee, in the ecclesiastical court, as if he were the executor of his predecessor. Anil by statute 14 Eliz. c. 11, all money recovered for dilapidations shall within two years be employed upon the buildings, in respect whereof it was recovered, on penalty of forfeiting double the value to the crown.

As to the neglect of reparations of the church, church-yard, and the like, the spiritual court has undoubted cognizance thereof " ; and a suit may be brought therein for non-payment of a ratf made by the church-wardens for that purpose. And these arc the principal pecuniary injuries, which are cognizable, or lot which suits may be instituted, in ecclesiastical courtss.

2. Matrimonial causes, or injuries respecting the rights of marriage, are another, and a much more undisturbed, branch of ecclesiastical jurisdiction. Though, if we consider marriages in the light of mere civil contracts, they do not seem to be pro-

q Cart. 224. 3 Lev. 268. r 1 Roll. Rep. 86.11 Hep. 93. Godb. 2J3. sSBuIstr. 158. 1 Roll. Uep. 335. ss Circumsfecte abatis. 5. Uep.66.

5. It is extremely doubtful whether any suit for dilapidations can be brought in Virginia ; nor is it less questionable to whom the right of action, in any such case, would now belong. Our law is at present perfectly silent upon the subject of ecclesiastical affairs.

perly of spiritual cognizance *. But the Romanists having very early converted this contract into a holy sacramental ordinance, the church of course took it under her protection, upon the division of the two jurisdictions. And, in the hands of such able politicians, it soon became an engine of great importance to the papal scheme of an universal monarchy over Christendom. The numberless canonical impediments that were invented, and occasionally dispensed with, by the holy see, not only enriched the coffers of the church, but gave it a vast ascendant over princes of all denominations ; whose marriages were sanctified or reprobated, their issue legitimated or bastardized, and the succession to their thrones established or rendered precarious, according to the humour or interest of the reigning pontiff: besides a thousand nice and difficult scruples, with which the clergy of those ages puzzled the understandings and loaded the consciences of the inferior orders of the laity; and which could only be unravelled and removed by these their spiritual guides. Yet, abstracted from this universal influence, which affords so good a reason for their conduct, one might otherwise be led to wonder that the same authority, which enjoined the strictest celibacy to the priesthood, should think them the proper judges in causes between man and wife. These causes indeed, partly from the nature of the injuries complained of, and partly from the clerical method of treating themv, soon became too gross for the modesty of a lay tribunal. And causes matrimonial are now so peculiarly ecclesiastical, that the temporal courts will never interfere in controversies of this kind, unless in some particular cases..... As if the spiritual court do proceed to call a marriage in question after the death of cither of the parties ; this the courts of common law will prohibit, because it tends to bastardize and disinherit the issue ; who cannot so well defend the marriage, as the parties themselves, when both of them living, might have done".

Of matrimonial causes, one of the first and principal is, t. Causajactitationis matrimonii; when one of the parties boasts

t Warb. Alliance, 173.

v Some of the impurest books, that are extant in any language, are those •written by the ]>opibh clergy on the subjects of matrimony and divorce, u 2 Inst. (il4.

or gives out that he or she is married to the other, whereby a common reputation of their matrimony may ensue. On this ground the party injured may libel the other in the spiritual court; and, unless the defendant undertakes and makes out a proof of the actual marriage, he or she is enjoined perpetual silence upon that head ; which is the only remedy the ecclesiastical courts can give for this injury. 2. Another species of matrimonial causes was, when a party contracted to another brought a suit in the ecclesiastical court to compel a celebration of the marriage in pursuance of such contract; but this branch of causes is now cut off entirely by the act for preventing clandestine marriages, 26 Geo. II. c. 33, which enacts, that for the future no suit shall be had in any ecclesiastical court, to compel a celebration of marriage in facie ccclcsiae, for, or because of any contract of matrimony whatsoever. 3. The suit for restitution of • conjugal rights is also another species of matrimonial causes : which is brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate, from the other without any sufficient reason ; in which case the ecclesiastical jurisdiction will compel them to come together again, if either party be weak enough to desire it, contrary to the inclination of the other. 4. Divorces also, of which and their several distinctions we treated at large in a former volume w>, are causes thoroughly matrimonial, and cognizable by the ecclesiastical judge. If it becomes improper, through some supervenient cause arising ex post .facto, that the parties should live together any longer; as through intolerable cruelty, adultery, a perpetual disease, and the like; this unfitness or inability for the marriage state may be looked upon as an injury to the suffering party; and for this the ecclesiastical law administers the remedy of separation, or a divorce a'mensa et thoro. But if the cause existed previous to the marriage, and was such a one as rendered the marriage unlawful ab initio, as consanguinity, corporal imbecility, or the like ; in this case the law looks upon the marriage to have been always null and void, being contracted hi fraudem legis, and decrees not only a separation from bed and board, but a vinculo matrimonii itself. 5. The lust species of ma-

w Book I, ch. 15.

trimonial causes is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit, the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court Christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce for adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be a partaker of his estate when living 6.

3. Testamentary causes are the only remaining species, belonging to the ecclesiastical jurisdiction; which, as they are certainly of a mere temporal nature *, may seem at first view a little oddly ranked among matters of a spiritual cognizance....

x Warburt. Alliance- 173.

6. It has, more than once, been remarked, that the high court of chancery in Virginia ; is the only court in the state that hath cognizance of any matrimonial causes ; and the jurisdiction of that court , seems to be confined to cases of incestuous marriages, which it may annul, and may, moreover, punish the parties by fine ; and, further, if the court see fit, it may cause them to give security not to cohabit, thereafter. V. L. 1794, c. 104.

In some few cases, divorces, where the marriages have not been incestuous, have, under the authority of special acts of assembly, passed for that express purpose, been prosecuted both in the general court, and in the high-court of chancery ; and in one instance the marriage was totally dissolved, and the petitioner, (at whose instance the act passed) was declared to every intent and purpose a. feme-sole. V. L. 1789, c. 79, This seems to have partaken of the nature of a divorce a vinculo matrimonii, in its consequences, rather than of one a. mensa et thoro, only. Two other acts may be found in our laws, similar in their nature....1790, c. 92. 1791, c. 58.

With respect to suits for alimony^ after a divorce a mensa et thoro ; as there is no court in Virginia which possesses jurisdiction in such cases, so, until there is such a court, there can be no room for suits of this nature ; unless, perhaps, the high-court of chancery should sustain them, as incidental to its equitable jurisdiction.

And, indeed, (as was in some degree observed in a former volume y) they were originally cognizable in the king's courts of common law, viz. the county courts * ; and afterwards transferred to the jurisdiction of the church by the favour of the crown, as a natural consequence of granting to the bishops ihe administration of intestates' tfl'ects.

This spiritual jurisdiction of testamentary causes is a peculiar constitution of this island; for in almost all other (even in popish) countries all matters testamentary are under the jurisdiction of the civil magistrate. And that this privilege is enjoyed by the clergy in England, not as a matter of ecclesiastical right, but by the special favour and indulgence of the municipal law, and as it should seem by some public act of the great council, is freely acknowleged by Lindewode, the ablest canonist of the fifteenth century. Testamentary causes, he observes, belong to the ecclesiastical courts " de consuetudine Angliae, et super consensu regio et suorum frocerum in talibus ab antique concesso'*." The same was, about a century before, very openly professed in a canon of archbishop Stratford, viz. that the administration of intestates' goods was, " ab olitri" granted to the ordinary, " consensu regio et magnatum regni Angliae b." The constitutions of cardinal Othobon also testifies, that this provision " olim a pratlatis cum approbatione regis et baronum dicitur emanasset.n And archbishop Parkerd, in queen Elizabeth's time, affirms in express words, that originally in matters testamentary "non ullum habebant episcopi authoritatem, praeter earn quam a rege acceptam referebant. Jus testamenta probandi nan habebant administrationis potestatem cuique delegare non potcrant."

At what period of time the ecclesiastical jurisdiction of testaments and intestacies began in England, is not ascertained, by any antient writer: and Lindowode* very fairly confesses, "cujus regis temporibus hoc ordinatum sit, non reperio." We find it indeed frequently asserted in our common law books, that

y Book II, ch. 32. z Hickes's Disser. Epistolar. fag. 8,58.

a Prdvincial. 1.3, t. 13,fol. 176. b Ibid. I. 3, t. 38. fol. 263.

c cap. 23. d See 9Uep. 38. efvl, 263

it is but of late years that the church hath had the probate of willsf. But this must only be understood to mean, that it hath not always had this prerogative: for certainly it is of very high antiquity. Lindewode, we have seen, declares that it was " ab

antiquo;" Stratford, in the reign of king Edward III, mentions it as " ab olim ordinatum „•" and cardinal Othobon, in the 52 Hen. III, speaks of it as an antient tradition. Bracton holds it for clear law in the same reign of Henry III, that matters testamentary belonged to the spiritual courts. And, yet earlier, the disposition of intestates' goods " per visum ecclesiae" was one of the articles confirmed to the prelates by king John's magna carta**. Matthew Paris also informs us, that king Richard I. ordained in Normandy, " quod distributio rerum quae in testa-

mento relinquuntur autoritate ecclesiae fet." And even this ordinance, of king Richard, was only an introduction of the same law into his ducal dominions, which before prevailed in this kingdom: for in the reign of his father Henry II. Glanvills express, that " si quis aliquid dixerit contra testamentum, placitum " illud in curia christianitatis audiri debet et terminarii." And the Scots book called regiam majestatem agrees verbatim with Glanvil in this point. k

It appears that the foreign clergy were pretty early ambitious of this branch of power: but their attempts to assume it on the continent were effectually curbed by the edict of the emperor Justin', which restrained the insinuation or probate of testaments (as formerly) to the office of the magister census: for which the emperor subjoins this reason; " absurdum etenim clericis cst, immo etiam opprobriosum^ si peritos se velint ostendere disceptationum esseforensium." But afterwards by the canon law m it was allowed, that the bishop might compel by ecclesiastical censures the performance of a bequest to pious uses. And therefore, as that was considered as a cause quae secundum •canones et episcopales leges ad regimen animarum pertinuit, it fell

f Fitz. Abr.tit. testament, pi A. 2 Hell. Abr.217. 91tep. 37. Vangh.207-

g l. 5, deexceptionibus. c. 10. h cap. 27, edit. Oxon.

i l. 7. c. 8. k l. 2, c. 38.

1 Cod. 1, 3, 41.

m Decretal. 3,26,17. Gilb. Rep. 204,205.

within the jurisdiction of the spiritual courts by the express words of the charter of king William I, which separated those courts from the temporal. And afterwards when king Henry I, by his coronation-charter directed, that the goods of an intestate should be divided for the good of his soul", this made all intestacies immediately spiritual causes, as much as a legacy to pious uses had been before. This, therefore, we may probably conjecture, was the aera referred to by Stratford and Othobon, when the king, by the advice of the prelates, and with the consent of his barons, invested the church with this privilege. And accordingly in king Stephen's charter it is provided, that the goods of an intestate ecclesiastic shall be distributed pro salute animae ejus, ecclesiae concilia °; which latter words are equivalent to per visum ecclesiae in the great charter of king John before mentioned. And the Danes and Swedes (who received the rudiments of Christianity and ecclesiastical discipline from England about the beginning of the twelfth century) have thence also adopted the spiritual cognizance of intestacies, testaments, and legacies p.

This jurisdiction, we have seen, is principally exercised with •us in the consistory courts of every diocesan bishop, and in the prerogative court of the metropolitan, originally; and in the arches court and court of delegates by way of appeal. It is divisible into three branches ; the probate of wills, the granting of administrations, and the suing for legacies. The two former of which, when no opposition is made, are granted merely ex officio et debito justitiae, and are then the object of what is called the voluntary, and not the contentious jurisdiction. But when a caveat is entered against proving the will, or granting administration, and a suit thereupon follows to determine either the validity of the testament, or who hath a right to administer; this claim and obstruction by the adverse party are an injury to the party

n Si yiiis bdranum seu hominum meorum....pecunium suam non dederlt vet dare disposuerit, uxor tua, sive Uteri, out parentet et legitimi homines ejus, earn pro anima ejus dividant, sicut eis meliut vimm ftierit. (Text. JRoffena. c. 34, p. 51J.

o Lord Lyttlet. Hen. II, Volume I, 536. Hearne ad Gul. Nntbr. 711. p Sticrnhook, de jure Sueon. I. 3, c. 8,

entitled, and as such are remedied by the sentence of the spiritual court, either by establishing the will or granting the administration. Subtraction, the withholding, or detaining, of legacies, is also still more apparently injurious, by depriving the legatees of that right, with which the laws of the land, and the will of the deceased, have invested them : and therefore, as a consequential part of testamentary jurisdiction, the spiritual court administers redress herein, by compelling the executor to pay them. But, in this last case, the courts of equity exercise a concurrent jurisdiction with the ecclesiastical courts, as incident to some other species of relief prayed by the complainant; as to compel the executor to account for the testator's effects, or assent to the legacy, or the like. For, as it is beneath the dignity of the king's courts to be merely ancillary to other inferior jurisdictions, the cause, when once brought there, receives there also it's full determination 7.

7. It hath been already remarked, that testamentary causes of every kind, appear to have been always regarded in Virginia as of a nature purely temporal, and as such cognizable in the ordinary courts. The several district, county, and corporation courts, have power to hear and determine all causes, matters, suits, and controversies testamentary, or which may regard the right of administration of the estates of persons dying intestate, arising within their respective jurisdictions, and to examine and take the proof of wills, according to the following rules. If the deceased hath a mansion house, or known place of residence, his will must be proved, or the administration granted, in the court of the district, county, or corporation, wherein such mansion-house, or known place of residence, is ; if he have no such place of residence, and lands be devised in the will, it shall be proved in the court of the district, county, or corporation wherein the lands lie, or in one of them, where there shall be lands in several districts or counties ; and if he hath no such known place of residence, and there be no lands devised, the will may be proved, or the administration granted, either in the court of the district, county, or corporation where the deceased die, or wherein his estate, or the greater part thereof may be ; or the will may be proved, or tha administration granted, in any case, in the general court. V. L, 1794, c. 92.

When any will is exhibited to be proved, the court may proceed immediately to receive proof thereof; but if any of the testator's land* were thereby devised from the heir at law, the court, formerly, were to cause him, if known, to be summoned to appear at the next court, to contest the validity of the will if he thought fit: if no heir was known

These are the principal injuries for which the party grieved either must, or may, seek his remedy in the spiritual courts. But before I entirely dismiss this head, it may not be improper to add a short word concerning the method of proceeding in these tribunals, with regard to the redress of injuries.

It must (in the first place) be acknowleged, to the honour of the spiritual courts, that though they continue to this day to decide many questions which are properly of temporal cognizance, yet justice is in general so ably and impartially administered in those tribunals, (especially of the superior kind) and the boundaries of their power are now so well known and established, that no material inconvenience at present arises from this jurisdiction still continuing in the antient channel. And, should an alteration be attempted, great confusion would probably arise, in overturning long established forms, and new-modelling a course of proceedings that has now prevailed for seven centuries.

The establishment of the civil law process in all the ecclesiastical courts, was indeed a masterpiece of papal discernment,

-to the court, proclamation was to be made by the sheriff at the courthouse on two successive court days, and he was also to publish a written notice at the door of every church in the county. Infants, femes covert^ persons non comfios mentis imprisoned, or out of the colony, were moreover allowed ten years after their disabilities removed, to contest the probat. V. L. 1748, c. 3. Edi. 1769. But now it is not necessary to summon the heir at law ; but if any person interested shall appear within seven years, and by his bill in chancery contest the validity of the will, an issue shall be made up thereupon, to be" tried by a jury, whose verdict shall be final between the parties. The like period is allowed to infants, and others as above mentioned, to proceed in like manner after their respective disabilities are removed. Where the witnesses to a will reside out of the commonwealth, a commission, with the' will annexed, may be awarded to take their attestations ; and authenticated copies of wills, proved in other states or countries, may be proved and recorded in the courts of Virginia ; but the validity thereof may be contested, as the originals might have been. During any contest about a will, or if the executor be an infant, or absent, or whenever the court from any other cause judge it convenient, administration fiendente lite, or durantc minor aetatc, ordurante absentia, may be granted, or a person ad colligendum t'ona defuncti appointed. V. L. 1794, c. 92.

as it made a coalition impracticable between them and the national tribunals, without manifest inconvenience and hazard. And this consideration had undoubtedly it's weight in causing this measure to be adopted, though many other causes concurred. The time when the pandects of Justinian were discovered afresh, and rescued from the dust of antiquity, the eagerness with which they were studied by the popish ecclesiastics, and the consequent dissentions between the clergy and the laity of England, have formerly 1 been spoken to at large. I shall only now remark upon those collections, that their being written in the Latin tongue, and referring so much to the will of the prince and his delegated officers of justice, sufficiently recommended them to the court of Rome, exclusive of their intrinsic merit. To keep the laity in the darkest ignorance, and to monopolize the little science, which then existed entirely among the monkish clergy, were deep-rooted principles of papal policy. And, as the bishope of Rome affected in all points to mimic the imperial grandeur, as the spiritual prerogatives were moulded on the pattern of the temporal, so the canon law process was formed on the model of the civil law: the prelates embracing, with the utmost ardour, a method of judicial proceedings, which was carried on in a language unknown to the bulk of the people, which banished the intervention of a jury, (that bulwark of Gothic liberty) and which placed an arbitrary power of decision in the breast of a single man.

The proceedings in the ecclesiastical courts are therefore regulated according to the practice of the civil and canon laws; or rather according to a mixture of both, corrected and new-modelled by their own particular usages, and the interposition of the courts of common law. For, if the proceedings in the spiritual court be ever so regularly consonant to the rules of the Roman law, yet if they be manifestly repugnant to the fundamental maxims of the municipal laws, to which upon principles of sound policy the ecclesiastical process ought in every state to conformr; (as if they require two witnesses to prove a fact, where one will suffice at common law) in such cases a prohibition will be award-

<j Vol I. Introd Sec.1.

r Warb. Alliance, 179.

ed against them '. But, under these restrictions, their ordinary course of proceeding is; first, by citation, to call the party injuring before them. Then by libel libellus, a little book, or by articles drawn out in a formal allegation, to set forth the complainant's ground of complaint. To this succeeds the defendant's answer upon oath, when, if he denies or extenuates the charge, they proceed to proofs by witnesses examined, and their depositions taken down in writing, by an officer of the court. If the defendant has any circumstances to offer in his defence, he must also propound them in what is called his defensive allegation, to which he is entitled in his turn to the plaintiff's answer upon oath, and may from thence proceed to proofs as well as his antagonist 8. The canonical doctrine of purgation, whereby the parties were obliged to answer upon oath to any matter, however criminal, that might be objected against them, (though long ago over-ruled in the court of chancery, the genius of the English law having broken through the bondage imposed on it by it's clerical chancellors, and asserted the doctrines of judicial as well as civil liberty) continued till the middle of the last century to be upheld by the spiritual courts: when the legislature was obliged to interpose, to teach them a lesson of similar moderation. By the statute of 13 Car. II. c. 12, it is enacted, that it shall not be lawful for any bishop or ecclesiastical judge, to tender or administer to any person whatsoever, the oath usually called the oath ex officio, or any other oath whereby he may be compelled to confess, accuse, or purge himself of any criminal matter or thing, whereby he may be liable to any censure or punishment. When all the pleadings and proofs are concluded, they are referred to the consideration, not of a jury, but of a single judge ; who takes information by hearing advocates on both sides, and thereupon forms his interlocutory decree or defnitive sentence at his own discretion : from which there generally lies an appeal, in the several stages mentioned in a former chapterl; though, if the

s2Roll.Abr.300, 302.

t Chap. 5.

8. The proceedings in our courts of chancery agree pretty generally herewith : the defensive allegation here mentioned, answers to a cross bill in chancery.

same be not appealed from* in fifteen days, it is final, by the statute 25 Hen. VIII. c. 19.

But the point in which these jurisdictions are the most defective, is that of enforcing their sentences when pronounced; for which they have no other process but that of excommunication : which is described u to be twofold; the less, and the greater excommunication. The less, is an ecclesiastical censure, excluding the party from the participation of the sacraments: the greater proceeds farther, and excludes him not only from these, but also from the company of all Christians. But, if the judge of any spiritual court excommunicates a man for a cause of which he hath not the legal cognizance, the party may have an action against him at common law, and he is also liable to be indicted at the suit of the king*.

Heavy as the penalty of excommunication is, considered in a serious light, there are, notwithstanding, many obstinate or profligate men, who would despise the brutum fulmen of mere ecclesiastical censures, especially when pronounced by a petty surrogate in the country, for railing or contumelious words, for non-payment of fees, or costs, or for other trivial causes. The common law, therefore, compassionately steps in to the aid of the ecclesiastical jurisdiction, and kindly lends a supporting hand to an otherwise tottering authority. Imitating herein the policy of our British ancestors, among whom, according to Caesar *, whoever were interdicted by the Druids from their sacrifices, in numero impiorum ac sceleratorum hubentur: ab its omnes de~ cedunt, aditum eorum sermonemque deftigiunt, ne quid ex contagions incommodi accipiant: neque Us petentibus jus redditur, neque honos ulltts communicator." And so with us, by the common law an excommunicated person is disabled to do any act, that is required to be done by one that is probus et legalis homo. He cannot serve upon juries, cannot be a witness in any court, and, which is the worst of all, cannot bring an action, either real or personal, to recover lands or money due to him >. Nor is this the whole: for if, within forty days after the sentence

u Co. Litt 133. x dt bella Gall. I. 6.

w 2 Inst 623. y Litt. Sec 201.

has been published in the church, the offender does not submit and abide by the sentence of the spiritual court, the bishop may certify such contempt to the king in chancery. Upon which there issues out a writ to the sheriff of the county, called, from the bishop's certificate, a significavit; or from it's effects a writ de excommunicate capiendo: and the sheriff shall thereupon take the offender, and imprison him in the county gaol, till he is reconciled to the church, and such reconciliation certified by the bishop ; upon which another writ, de excommunicato deltberando, issues out of chancery to deliver and release him *. This process seems founded on the charter of separation (so often referred to) of William the conqueror. " Si aliquis per mperbiam elalus adjustitiam episcopalem venire noluerit, vocetur semel,secundo, et tertio : quod si nee sic ad emendationem venerit, cxcommunicetur ; ett si of us Juerit, ad hoc vindicandum fortitude et justitia regis she vicecomitis adhibeatur.n And, in case of subtraction of tithes, a more summary and expeditious assistance is given by the statutes of 27 Hen. VIII. c. 20, and 62 Hen. VIII. c. 7, which enact, that upon complaint.of any contempt or misbehaviour, of the ecclesiastical judge by the defendant in any suit for tithes, any privy counsellor, or any two justices of the peace, (or, in case of disobedience to a definitive sentence, any two justices of the peace) may commit the party to prison without bail or mainprize, till he enters into a recognizance with sufficient sureties to give due obedience to the process and sentence of the court. These timely aids, which the common and statute laws have lent to the ecclesiastical jurisdiction, may serve to refute that groundless notion which some are too apt to entertain, that the courts of Westminster-hall are at open variance with those at doctors' commons. It is true that they are sometimes obliged to use a parental authority, in correcting the excesses of these inferior courts, and keeping them within their legal bounds; but, on the other hand, they afford them a parental assistance in repressing the insolence of contumacious delinquents, and rescuing their jurisdiction from that contempt, which for want of sufficient compulsive powers would otherwise be sure to attend it9. ______z F. N. B. 62__________________

9.- The punishment by excommunication, v ith all its train of incifieits, may be regarded as perfectly obsolete in Virginia.

II. I am next to consider the injuries cognizable in the court military, or court of chivalry. The jurisdiction of which is declared by statute 13 Ric. II, c. 2, to be this: " that it hath cognizance of contracts touching deeds of arms or of war, out of the realm, and also of things which touch war within the realm, which cannot be determined or discussed by the common law; together with other usages and customs to the same matters appertaining." So that wherever the common law can give redress, this court hath no jurisdiction: which has thrown it entirely out of use as to the matter of contracts, all such being usually cognizable in the courts of Westminster-hall, if pot directly, at least by fiction of law: as if a contract be made at Gibraltar, the plaintiff may suppose it made at Northampton; for the locality, or place of making it, is of no consequence with regard to the validity of the contract.

The words, " other usages and customs," support the claim of this court, 1. To give relief to such of the nobility and gentry as think themselves aggrieved in matters of honour; and 2. To keep up the distinction of degrees and quality. Whence it follows, that the civil jurisdiction of this court of chivalry is principally iu two points j the redressing injuries of honour, and correcting encroachments in matters of coat-armour, precedency, and other distinctions of families.

As a court of honour, it is to give satisfaction to all such as are aggrieved in that point; a point of a nature so nice and delicate, that it's wrongs and injuries escape the notice of the common law, and yet are fit to be redressed somewhere. Such, for instance, as calling a man coward, or giving him the lie ; for which, as they are productive of no immediate damage to his person or property, no action will lie in the- courts at Westminster : and yet they are such injuries as will prompt every man of spirit to demand some honourable amends, which by the antient law of the land was appointed to be given in the court of chivalry*. But modern resolutions have determined, that how much soever such a jurisdiction may be expedient, yet no action for

a Year book, 57 Hen. VI. 21. Selden of Duels, c. 10. Hal. Hist. C. L. 57.

words will at present lie therein b. And it hath always been most clearly holden c, that as this court cannot meddle with any thing determinable by the common law, it therefore can give no pecuniary satisfaction or damages ; inasmuch as the quantity and determination thereof is ever of common law cognizance. And therefore this court of chivalry can at most only order reparation in point of honour; as, to compel the defendant mendacium sill ipsi imponere, or to take the lie that he has given upon himself, or to make such other submission as the laws of honour may require d. Neither can this court, as to the point of reparation in honour, hold plea of any such word, or thing, wherein the party is relievable by the courts of common law. As if a man gives another a blow, or calls him thief or murderer; for in both these cases the common law has pointed out his proper remedy by action.

As to the other point of it's civil jurisdiction, the redressing of encroachments and usurpations in matters of heraldry and coat-armour: it is the business of this court, according to sir Mathew Hale, to adjust the right of armorial ensigns, bearings, crests, supporters, pennons, &?c ,• and also rights of place or precedence, where the king's patent or act of parliament (which cannot he overruled by this court) have not already determined it.

The proceedings in this court are by petition, in a summary way; and the trial not by a jury of twelve men, but by witnesses, or by combat6. But as it cannot imprison, not being a court of record, and as by the resolutions of the superior courts it is now confined to so narrow and restrained a jurisdiction, it has fallen into contempt and disuse. The marshalling of coat-armour, which was formerly the pride and study of all the best families in the kingdom, is now greatly disregarded ; and has fallen into the hands of certain officers and attendants upon this court, called heralds, who consider it only as a mutter of lucre and not of justice : whereby such falsity and confusion have crept

b Salk. 553. 7 Mod. 125. 2 Hawk. P. C. 11.

c Hal. hist. C. L 37. 'I 1 Jloll. Abi 128.

c Co. Litt.Sol.

into their records, (which ought to be the standing evidence of families, descents, and coat-armour) that, though formerly some credit has been paid to their testimony, now even their common seal will not be received as evidence in any court of justice in the kingdomf. But their original visitation-books, compiled when progresses were solemnly and regularly made into every part of the kingdom, to inquire into the state of families, and to register such marriages and descents as were verified to them upon oath, are allowed to be good evidence of pedigreess. And it is much to be wished, that this practice of visitation at certain periods were revived; for the failure of inquisitions post mortem, by the abolition of military tenures, combined with the negligence of the heralds in omitting their usual progresses, has rendered the proof of a modern descent, for the recovery of an estate or succession to a title of honour, more difficult than that of an antient. This will be indeed remedied for the future, with respect to claims of peerage, by( a late standing order h of the house of lords; directing the heralds to take exact accounts and pre* serve regular entries of all peers and peeresses of England, and their respective descendants; and that an exact pedigree of each peer and his family shall, on the day of his first admission, be delivered to the house by garter, the principal king at arms. But the general inconvenience affecting more private successions, still continues without a remedy10.

III. Injuries cognizable by the courts maritime, or admiralty courts, are the next object of our inquiries. These courts have jurisdiction and power to try and determine all maritime causes j or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be therefore causes arising wholly upon the sea, and not within the precincts of any county J. For the statute

f 2 Roll. Abr. 686. 2 Jon. 224. h 11 May, 1767.

g Comb. 63.

j Co. Litt. 260. Hob. 79.

10. This remnant of feudal pomp was never adopted in Virgirilav

13 Ric. II, c. 5, directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15 Ric. II, c. 3, declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or by water ; nor of any wreck of the sea: for that must be cast on land before it becomes a wreck1. But it is othewise of things^?ofca?«, jetsam^ and ligan ; for over them the admiral hath jurisdiction, as they are in and upon the seak. If part of anycontract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from it's jurisdiction; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the particular'. Therefore, though pure maritime acquisitions, which are earned and become due on the high seas., as seaman's wages, are one proper object of the admiralty jurisdiction u, even though the contract for them be made upon land™ ; yet in general, if there be a contract made in England and to be executed upon the seas, as a charter party or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day ; or a contract made upon the sea to be performed in England, as a bond made on shipboard to pay money in London or the like : these kinds of mixed contracts belonging not to the admiralty jurisdiction, but to the courts of common law.". And indeed it hath been farther holden, that the admiralty court cannot hold plea of any contract under seal °.

And also, as the courts of common law have obtained a concurrent jurisdiction with the court of chivalry with regard to foreign contracts, by supposing them made in England; so it is no uncommon thing for a plaintiff to feign that a contract, really made at sea, was made at the royal exchange, or other inland place, in order to draw the cognizance of the suit from the courts

i See book I, ch. 8 k 5 Rep. 106.

1 Co. Litt 261. • m 1 Ventr. 14G

n Hob. 12. Hal. Hist. C. L. 35. o Hob. 2 12.

11. L. U. S. 1 Cong. 2 Sess. c. 29. Acccordant.

of admiralty to those of Westminster-hall p. This the civilians exclaim against loudly, as inequitable and absurd; and sir Thomas Ridly « hath very gravely proved it to be impossible, for the ship in which such cause of action arises to be really at royal exchange in Cornhill. But our lawyers justify this fiction, by alleging; (as before) that the locality of such contracts is not at all essential to the merits of them ; and that learned civilian himself seems to have forgotten how much such fictions are adopted and encouraged in the Roman law: that a son killed in battle is supposed to live for ever for the benefit of his parentsr; and that, by the fiction of fiostillminium and the lex Cornelia, captives, when freed from bondage, were held to have never been prisoners % and such as died in captivity were supposed to have died in their own country'.

Where the admiral's court hath not original jurisdiction of the cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law v. And so, vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law u. Wherefore, among other reasons, a suit for beaconage of a beacon standing on a rock in the sea may be brought in the court of admiralty, the admiral having an original jurisdiction over beacons w. In case of prizrs also in time of war, between our own nation and another, or between two other nations, which are taken at sea, and brought into our ports, the courts of admiralty have anundistmbed and exclusive jurisdiction to determine the same according to the law of nations x 12.

p 4 Inst. 13<t-

<1 View of the Civil Law. b. 3. p. 1. Sec. 3.

i Litt. 1. tit. 2i. s Ff. 49, 15,12. Sec. 6.

t Ff. 49,15,IS. v Comb. 462.

u 13 Rep. 53 2 Lev. 25. Haulr. 183.

w 1 Sid. 158. x 2 Show. 233. Comb. 474.

12. All civil injuries cognizable in the court of admiralty, in England, are in like manner cognizable in the district courts of the

The proceedings of the courts of admiralty bear much resemblance to those of the civil law, but are not entirely founded thereon : and they likewise adopt and make use of other laws, as occasion requires ; such as the Rhodian laws and the laws of Oleron *. For the law of England, as has frequently been observed, doth not acknowlege or pay any deference to the civil law considered as such; but merely permits it's use in such cases where it judged it's determinations equitable, and therefore blends it, in the present instance, with other marine laws: the whole being corrected, altered, and amended by acts of parliament and common usage ; so that out of this composition a body of jurisprudence is extracted, which owes it's authority only to it's reception here by consent of the crown and people (")• The first process in these courts is frequently by arrest of the defendant's person * ; and they also take recognizances or stipulation of certain fidejussors in the nature of bail *, and in case of default may imprison both them and their principal b. They may also fine and imprison for a contempt in the face of the courtc. And all this is supported by immemorial

y Hale, Hist. C. L. 36. Co. Litt. 11. z Clerkeprax cur. adm. Sec. 13.

• a Ibid. Sec. 11. 1 Roll. Abr. 531. Raym. 78. Lord llaym. 1286. < b 1 Roll. Abr. 531. Godb. 193.2GO. c 1 Ventr. 1.

United States, which are "courts of admiralty, quoad Itoec. Captures within the waters of the United States, or within a marine league of the coasts, by whomsoever made, are likewise cognizable therein. Saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it. L. U. S. 1 Cong. 1 Sess. c. 20. 3 Cong. c. 50. Seaman's wages are there also recoverable, and a summary method of compelling payment, by application to the district judge, or in case of his residence being more than- three miles from the place, cr of his absence, to any judge, or justice of the peace, is given by the act for the government of seamen in the merchants service ; saving to them the right of maintaining an action at common law. 1 Cong. 2 Sess. c. 29.

(12.) By the act constituting the court of admiralty of this commonwealth, May 1779, c. 26. (Edi. 17«5, p. 104.) it is declared, that that court shall be governed in its proceedings by thote laws, and the imperial laws, when not contradictory to the regulation of Congveis, or of the general assembly.

usage, grounded on the necessity of supporting a jurisdiction so extensive d; though opposite to the usual doctrines of the common law: these being no courts of record, because in general their process is much conformed to that of the civil law'13.

IV. I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason within the cognizance of the common law courts of justice..... For it is a settled and invariable principle in the laws of England, that every right when withheld must have a remedy, and every injury it's proper redress14. The definition and explication of these numerous injuries, and their respective legal remedies, will employ our attention for many subsequent chapters. But, before we conclude the present,! shall just mention two species of injuries, which will properly fall now within our immediate consideration : and which are, either when justice is delayed by an inferior court that has proper cognizance of the cause; or when such inferior court takes upon itself to examine a cause and decide the merits without a legal authority.

d 1 Keb. 553.

e Bro. Abr. t. error. 177.

13. The state court of admiralty was governed in its proceeding* " and decisions by the regulations of the congress of the United States, the acts of the general assembly, the laws of Oleron, and the Rhodian and imperial laws, so far as they had been theretofore observed in the English courts of admiralty, and by the laws of nature and nations. L. V. May 1779, c. 26. The proceedings on the admiralty side of the district courts of the United States it is presumed are regulated in the like manner, there being no special directions concerning them in any of the acts of congress.

14. And this redress when it is no'where1 else to be found, is, in Virginia, to be sought in the general court ; whose jurisdiction begins wherever the jurisdiction of all other courts ceases ; and ct-ases, except in some particular cases, wherever that of others hath existence. L. V. Edi. 1794, c. 65.

1. The first of these injuries, refusal or neglect of justice, is remedied either by writ of procedendo or of mandamus. A writ ot procedendo ad judicium, issues out of the court of chancery, where judges of any subordinate court do delay the parties ; for that they will not give judgment, either on the one side or on the other, when they ought so to do. In this case a writ of procedendo shall be awarded, commanding them in the king's name to proceed to judgment; but without specifying any particular j udgcncnt, for that (if erroneous) may be set aside in the course of appeal, or by writ of error or false judgment: and, upon farther neglect or refusal, the judges of the inferior court may be punished for their contempt, by writ of attachment returnable in the king's bench or common pleas f15.

A writ of mandamus is, in general, a command issuing in the king's name from the court of king's bench, and directed to any person, corporation, or inferior court of judicature within the king's, dominions, requiring them to xlo some particular thing therein specified, which appertains to their office and duty, and which the court of king' bench has previously determined, or at least supposes, to be consonant to right and justice. It is a high prerogative writ, of a most extensive remedial nature: and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office: but it issues in all cases where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. A mandamus therefore lies to compel the admission or restoration of the party applying,

f F. N. B. 153,154,240.

15. The writ of firocedendo ad judicium here spoken of issues only, from the court of chancery ; there is another writ of procedendo, which lies from any superior court, when an action is removed from an inferior court, by habeas corpus, certiorari, or writ of privilege, to send back the cause to the court from whence removed. To proceed on it, it not appearing to the higher court that the suggestion is sufficiently proved. 5 Rep. 63, L. V. 1794, c. 67. §. 67. This writ of procedendo is called a firocedendo in loqwla.

to any office or franchise of a public nature, whether spiritual or temporal; to academical degrees ; to the use of a meetinghouse, &c. it lies for the production, inspection, or delivery, of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal: to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But at present we are more particularly to remark, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, whenever the same is delayed. For it is the peculiar business of the court of king's bench to superintend all inferior tribunals, and therein to inforce the due exercise of those judicial or ministerial powers, with which the crown or legislature have invested them : and this, not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London, to enter up judgment*; to the spiritual courts to grant an administration, to swear a church-warden, and the like. This writ is grounded on a suggestion, by the oath of the party injured, of his own right, and the denial of justice below : whereupon, in order more fully to satisfy the court that there is a probable ground for such interposition, a rule is made (except in some general cases, where the probable ground is manifest) directing the party complained of to shew cause why a writ of mandamus should not issue: and if he shews no sufficient cause, the writ itself is issued, at first in the alternative, either to do thus, or signify some reason to the contrary ; to which a return, or answer, must be made at a certain day. And, if the inferior judge or other person to whom the writ is directed, returns or signifies an insufficient reason, then there issues in the second place a peremptory mandamus, to do the thing absolutely; to which no other return will be admitted, but a certificate of perfect obedience and -due execution of the writ. If the inferior judge or other person makes no return, or fails in his respect and obedience, he is punishable for his contempt by attachment. But, if he, at the first, returns a sufficient cause, although it

g Raym. 214.

should be false in fact, the court of king's bench will not try the truth of the fact upon affidavits; but will for the present believe him, and proceed no farther on the mandamus. But thea the party injured may have an action against him for his false return, and (if found to be false by the jury) shall recover damages equivalent to the injury sustained ; together with a peremptory man" domus to the defendant to do his duty. Thus much for the in jury of neglect or refusal of justice16.

2. The other injury, which is that of encroachment of jurisdiction, or calling one coram non judice, to answer in a court that has no legal cognizance of the cause, is also a grievance, for which the common law has provided a remedy by the writ of prohibition.

A prohibition is a writ issuing properly only out of the court of king's bench, being the king's prerogative writ; but, for the furtherance of justice, it may now also be had in some cases out of the court of chancery h, common pleasJ, or exchequerk ; directed to the judge and parties of a suit in any inferior court, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally, or,some collateral matter arising therein, does not belong to that jurisdiction, but to the cognizance of some other court. This writ may issue either to inferior courts of commpn law ; as, to the courts of the counties palatine or principality of Wales, if they hold plea of land or other matters not lying within their respective franchises ' ; to the county-courts or courts-baron, where they attempt

h 1 P. Wms. 476. k Palmer, 523.

i Hob. 15.

1 Lord Raym, 1408.

16. A writ of mandamus lies from the general court, in Virginia, to the district courts ; and from these last, to the county and corporation courts. L. V. 1?94, c. 65, §. 4. c. 66. §. 6.

The supreme court of the United States hath power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 13.

The proceedings upon a writ of mandamus arc regulated by the act of 1798, c. 23, for which, see p. 265, ppst. n. 14.

to hold plea of any matter of the value of forty shillings m : or it may be directed to the courts Christian, the university courts, the court of chivalry, or the court of admiralty, where they concern themselves with any matter not within their jurisdiction; as if the first should attempt to try the validity of a custom pleaded, or the latter a contract made or to be executed within this kingdom. Or, if, in handling of matters clearly within their cognizance, they transgress the bounds prescribed to them by the laws of England; as where they require two witnesses to prove the payment of a legacy, a release of tithes n, or the like; in such cases also a prohibition will be awarded. For, as the fact of signing a release, or of actual payment, is not properly a spiritual question, but only allowed to be decided in those courts, because incident or accessory to some original question clearly within their jurisdiction; it ought, therefore, where the two laws differ, to be decided not according to the spiritual, but the temporal law ; else the same question might be determined different ways, according to the cpurt in which the suit is depending : an impropriety, which no wise government can or ought to endure, and which is, therefore, a ground of prohibition......

And if either the judge or the party shall proceed after such prohibition, an attachment may be had against them, to punish them for the contempt, at the discretion of the court that awarded it0; and an action will lie against them, to repair the party injured in damages.

So long as the idea continued among the clergy, that the ecclesiastical state was wholly independent of the civil, great struggles were constantly maintained between the temporal courts and the spiritual, concerning the writ of prohibition and the proper objects of it; even from the time of the constitutions of Clarendon, made in opposition to the claims of archbishop Becket in 1O Hen. II, to the exhibition of certain articles of complaint to the king by archbishop Bancroft in 3 Jac. I. on behali of the ecclesiastical courts : from which, and Irom the answers to them signed by all the Judges of Westminster-hall11, much may be collected concerning the reasons of granting and

m Finch, L. 451. o F. N. 13.40.

U Cro. Eliz. 666. Hob. 188. p 2 Inst. 601.......618.

methods of proceeding upon prohibitions. A short summary of the latter is as follows. The party aggrieved in the court below applies to the superior court, setting forth in a suggestion upon record the nature and cause of his complaint, in being drawn ad aliud examen, by a jurisdiction or manner of process disallowed by the laws of the kingdom: upon which, if the matter alleged appears to the court to be sufficient, the writ of prohibition immediately issues; commanding the judge not to hold, and the party not to prosecute, the plea. But sometimes the point may be too nice and doubtful to be decided merely upon a motion: and then, for the more solemn determination of the question, the party applying for the prohibition is directed by the court to declare in prohibition; that is, to prosecute an action, by filing a declaration, against the other, upon a supposition or fiction (which is not traversable i) that he has proceeded in the suit below, notwithstanding the writ of prohibition. And if, upon demurrer and argument, the court shall finally be of opinion, that the matter suggested is a good and sufficient ground of prohibition in point of law, then judgment with nominal damages shall be given for the party complaining, and the defendant, and also, the inferior court shall be prohibited from proceeding any farther. On the other hand, if the superior court shall think.it no competent ground for restraining.the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded; so called, because, upon deliberation and consultation had, the judges find the prohibition to be ill founded, and, therefore, by this writ they return the cause to it's original jurisdiction, to be there determined, in the inferior court. And, even in ordinary cases, the writ of prohibition is not absolutely final and conclusive. For, though the ground be a proper one in point of law, for granting the prohibition, yet, if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. If, for instance, a custom be pleaded in the spiritual court; a prohibition ought to go, because that court has no authority to try it: but, if the fact of such a custom be brought to a competent trial, and be there found false, a writ of consultation will be granted. For this purpose the party pro-

<j Barn. Not. 4to. 148.

hibited may appear to the prohibition, and take a declaration, (which must always pursue the suggestion) and so plead to issue upon it; denying the contempt, and traversing the custom upon which the prohibition was grounded: and, if that issue be found for the defendant, he shall then have a writ of consultation. The writ of consultation may also be, and is frequently, granted by the court without any action brought: when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has tha law been, in compelling the inferior courts to do ample and speedy justice ; in preventing them from transgressing their due bounds; and iu allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction ".

17. The supreme-court of the United States hath power to issue writs of prohibition to the federal district-courts, when proceeding as courts of admiralty and maritime jurisdiction. L. U. 8. 1 Cong. 1 Sess. c. 20, {.13.

CHAPTER THE EIGHTH.

OF WRONGS, AND THEIR REMEDIES,

RESPECTING THE RIGHTS OF PERSONS.

THE former chapters of this part of our commentaries, having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom: I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries, or private wrongs, of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular .injury: and shall,secondly, describe the method of pursuing and obtaining these remedies in the several courts.

First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall, at present, confine myself to such wrongs, as may be committed in the mutual intercourse between subject and subject; which the king, as the fountain of justice, is officially bound to redress in the ordinary forms of law : reserving such injuries or encroachments, as may occur between the crown and the subject, to be distinct-

ly considered hereafter, as the remedy, in such cases, is generally of a peculiar, and eccentrical nature.

Now, since all wrong may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the being put in possession of that right, whereof, the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c. to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury*; though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments, whereby this remedy is obtained, (which are, sometimes, considered in the light of the remedy, itself,) are a diversity of suits and actions, which are defined by the Mirror b, to be " the lawful demand of one's right:" or as Bracton and Fleta express it, in the words of Justinianc, jus prosequendi in judicio quod aliciti debetur.

The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule, that each injury should be redressed by it's proper remedy only. " Actiones, say the pandects, " compositae sunt, quibus inter se homines disceptarent; quas actiones ne populus front vellet institueret, certas solennssque esse voluerwitd" The forms of these actions were originally preserved in the books of the pontificial college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people e. The concealment was ridiculous : but the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted

a See Book II, ch. 29. b c. 2, Sec. 1.

c Inst. 4, 6,pr. d Ff. 1, 2, 2, Sec. 6.

c Cic.pio Muracna. Stc. 11, fie orat. 1. 1, c. 41.

continually, and be at length no longer discernible. Or, as Cicero expresses itf, "sunt jura, sunt formulae, de omnibus rebus constitutae, ne quis out ingenere injuriae, out in rations actionis, errare possit. Expressae enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicae a praetor e formulae, ad quas privata Us accommodatiir" And in the same manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament s. And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; actions personal, real, and mixed.

Personal actions are such whereby a man claims a debt, of personal duty, or damages in lieu thereof: and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs: and they are the same which the civil law calls " actiones inpersonam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel conceded" Of the former nature are all actions upon debt or promises ; of the latter all actions for trespasses, nusances, assaults, defamatory words, and the like.

Real actions, (or, as they are called in the IV^irrorl, feodal actions) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other Ijereditaments, in fee-simple, fee-tail, or for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside, in practice, upon account of the great nicety required in their management, and the

f Pro. 3>u. Roscio. Sec. 8.

g Sunt quaedytn brsvia fermata super certis casibus de cursu, et (It communi comilia tdtiits regni approbata et cyncessa, quae quidcm nalluteniis nu<tari foterint absque coiisensu et voluntate earuni. (I 5, de f.-ceepiiombsu. c IT, Section 2.J

h Inst. 4, 6, 15. i c. 52. Sec. C.

inconvenient length of their process: a much more expeditious method of trying titles being since introduced, by other actions personal and mixed.

Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and all personal damages for a wrong sustained. As, for instance, an action of waste : which is brought by him who hath the inheritance, in remainder or reversion, against the tenant for life, who hath committed waste therein, to reco'\ er not only the land wasted, which would make it merely a real action ; and also treble damages ', in pursuance of the statute of Glocester k, which is a personal recompence ; and so both being joined together, denominate it a mixed action.

Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed, therefore, now to enumerate the several kinds, and to inquire into the respective natures of all private wrongs, or civil injuries, which maybe offered to the rights of either a man's person or his property; recounting at the same time the respective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premise, that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other coupled with force and violence, as batteries, or false imprisonment '. Which latter species savour something of the criminal kind, being always attended with some violation of the peace; for which, in strictness of law a fine ought to be paid to the king, as well as private satisfaction to the party injured"1. And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method that was pursued with regard to the distribution

k 6 Ed. I. c. 5.

m Finch. L. 198. Jenk. Cent, 185.

1 Finch. L. 184.

1. L. V. 1794, c. 139. Accordant.

of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system of wrongs, must correspond and tally with the former positive system, of rights. As therefore we divided n all rights into those of persons, and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.

The rights of persons we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a correspondent nature.

1. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations.

t. With regard to the first subdivison, or injuries affecting the life of man, they do not fall under our present contemplation 5 being one of the most atrocious species of crimes, the subject of the next book of our commentaries.

2. 3. The two next species of injuries, affecting' the limbs or bodies of individuals, I shall consider in one and the same view, and these may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury; but, to complete the wrong, there must be both of them together °. The remedy for this is in pecuniary damages, to be recovered by action of trespass viet armis;? this be-

n See book I. c. 1. o Finch. L. 202. p Regist. 104. 27 Ass. 11. 7 Evxl. tV. 24.

ing an inchoate, though not an absolute violence. 2. By assault; which is an attempt or offer to beat another, without touching him: or as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him, but misses him; this is an assault, insulins, which Finch 1 describes to be "an unlawful " setting upon one's person." This also is an inchoate violence, amounting considerably higher than bare threats; and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury. 3. By battery ; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner. And therefore upon a similar principle the Cornelian law de injitriis prohibited pulsation as well as verberation; distinguishing verberation, which was .accompanied with pain, from pulsation, which was attended with none r. But battery is, in some cases, justifiable or lawful: as were one who hath authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defence : and, if sued for it, may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it. So likewise in defence of my goods or possession, if a man endeavours to deprive me of them, I may justify laying hands upon him to prevent him ; and in case he persists with violence, I may proceed to beat him away". Thus too in the exercise of an office, as that of church-warden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation "2. And, if sued for

q Finch. L. 202. s 1 Finch. L 203.

r Ff 47,10, 5. ss 1 Sicl. 301.

2. Any person disturbing a religious congregation may, also, be put under restraint, by any justice present. L. V. 1794, c. 138.

this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manti-s'imposuit, for this purpose. On account of these causes of justification, battery is defined to be the vnlaivfitl beating of another; for which the remedy is, as for assault, by action of trespass vi et armis; wherein the jury will give adequate damages. 4. By wounding; which consists in .giving another some dangerous hurt, and is only an aggravated species of battery. 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so gpod a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore-tooth1, and also some others". But the loss of one of the jaw-teeth,.the ear, or the nose, is no mayhem at common law 3; as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury, which (when wilful) no motive can justify, but necessary self-preservation. If the ear be cut off, treble damages are given by statute 37 Hen. VIII, c. 64, though this is not mayhem at common law. And here I must observe that for these four last injuries, assault, battery, wounding, and mayhem, an indictment may be brought as well as an action ; and frequently both are accordingly prosecuted; the one at the suit of the crown for the crime against the public; the other at the suit of the party injured, to make him a reparation in damages. «

t Finch. L. 204.

u 1 Hawk. P. C. 111.

3. The loss of an ear, nose, or lip, if suffered within the sole and exclusive jurisdiction of the United States, is mayhem by the laws of the United States. 1 Cong. 2 Sess. c. 9. J. 13. The malicious biting, or cutting off a nose, or lip, but not of an ear, is also felony by the laws of Virginia. L. V. 1794, c. 99. -And now by the act of 1796, c. 2, it is also mayhem to cut off" an ear. Quere. If it be mayhem to bite off an ear.

4. This statute is repealed in Virginia. 1794, c, 147.

4. Injuries, affecting a man's health, are where by any unwholesome practices of another, a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions or wine w s; by the exercise of a noisome trade, which infects the air in bis neighbourhood * ° ; or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved >', that mala praxis is a great misdemesnor and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction. Thus also, in the civil law *, neglect or want of skill in physicians or surgeons " culpae adnumerantur ; veluti si medicus ciirationem dereliquerit, male quempiam secuerit, aut perperam et medicamentum dederlt" These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass, upon the case. This action of trespass, or transgression, on the case, is an universal remedy given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writa. For, though in general there are methods prescribed and forms of actions previously settled, for redressing those wrongs which most usually occur,

w 1 Roll. Abr. 90. x 9 Rep. 52. Hutt.135. y Lord Raym. 214. z Inst. 4, 3,6,and 7. a For example: " Jfex vicecomitisalutem. Si Afecerit te securum de clamore suo pi oserqueiido, time pone per vadium et salvos ptegias B. quod sit corain jtittitianie nostris apudWestnwnasteriuir. in octabis sancti Mic&aelts, ostensurus ' quare cum idem S ad dextrum ocutum ipsius Acasualiter laesum beneet competenter curandum apu.l S. pro quadam pecuniae summa prae m ambus soluta assumpsisset, idem Ji curam suain circa oculum pi aedictum tarn negligenter et impriK,i:te apposuit, quod idem A defectu ipsius B visum oculi praedicti totaliter amisit, ad dammtm ipsius A viginti librarum, utdicit. Et habeas ibi nomina plegiortim et hoc breve. TestemeipsoapudWestmonasterium, i3"c." fjlegistr. Srcv. 105.

5. Besides the civil injury, this is also an indictable offence. L. V. 1794, c. 23.

6. If many persons are injured by such a practice, the usual practice is to proceed by indictment; but where an individual sustains the injury, an action on the case lies. Vide 4 Com. 167.

and in which the very act itself is immediately prejudicial or injurious to the plaintiff's person or property, as battery, non-payment of debts, detaining one's goods, or the like ; yet, where any special consequential damage arises which could not be foreseen and provided for in the ordinary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2. c. 24, to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance b 7. For, wherever the common law gives a right or prohibits an injury, it also gives a remedy by action c; and, therefore, wherever a new injury is done, a new method of remedy must be pursued d. And it is a settltd distinction e, that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis: but where there is no act done, but only a culpable omission, or where the act is not immediately injurious, but only by consequence and collaterally ; there no action of trespass vi et armis will lie, but an action on the ^special case, for the damages consequent on such omission or act8.

5. Lastly; injuries affecting a man's reputation or good name are, first, by malicious, scandalous, and slanderous words, tend* ing to his damage and derogation. As, if a man, maliciously and falsely utter any slander or false tale of another ; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjur-

b See page 52. c 1 Salk. 20. 6 Mod. 54.

d Cro. Jac. 478.

ell Mod. 1W). Lord Raym. 1402. Stra. 635.

7. Although all British statutes are generally repealed in Virginia, yet the benefit of all writs remedial or judicial, which were given by any statute, is saved to all persons by the repealing law. L. V. 1794, c. 147.

8. In one particular case, that of distress for rent, where no rent is in arrear, the party injured may bring an action of trespass, or, of the case, against the persons •wrongfully distraining. V. L. 1794, c. 89. Sec. 4.

edf; or which may exclude him from society, as to charge him with having an infectious disease ; or which may impair or hurt t his trade or livelyhood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave s. Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous h; and, though they be such as would not be,actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed by an action on the case founded on many antient statutes ' 9 ; as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man k. It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it'. But too great encouragement being given by this lenity to false and malicious slanderers, it is now held, that for scandalous words of the several species before-mentioned, (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust) an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damages to have happened; which is called laying his action with & per quod. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can

f Finch. L. 185. g Ibid. 186.

h 1 Ventr- 60.

i Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11.

k Lord Raym. 1369. 1 2 Vent. 28.

9. These statutes are all repealed in Virginia. L. V. 1794, c. 147.

shew some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living ™. In like manner, to slander another man's title, by spreading such injurious reports, as, if true, •would deprive him of his estate (as to call the issue in tail, or one who hath land by descent, a bastard) is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land" ". But mere scurrility, or opprobrious words, which neither in themselves import, nor. are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a man heretic or adultererll, are cognizable only in the ecclesiastical court °; unless any temporal damage ensues, which may be a foundation for &per quod. Words of heat and passion, as to call a man rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before-mentioned, are not actionable : neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander p. Neither (as was formerly' hinted 1) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander r, Also, if the defendant be able to justify, and prove the words to be true, no action will lie *, even though special damage

m 4 Rep. 17. 1 Lev. 248. o Noy. 64. 1 Freem. 277. •p Finch. L. 186. 1 Lev. 82 q Page 29. s 4 Rep. 13.

n Cro. Jag. 213. Cro. Eliz. 197.,

Cro. Jac. 91.

z Dyer. 285.

Cro. Jac. 90.

10. In 4 Burrow. 2425, 2426, it is expressly laid down by lord Mansfield, there must be malice either express or implied ; aticl the words must go to defeat the plaintiff's title.

But, the case of Rosa and Pynes, Wythe's Reports 71, is evidently otherwise. There was neither malice expressed nor implied in that case; and the words went rather to affirm, than to defeat the plaintiff's title.

11. Query, if not actionable in Virginia to charge a man with adultery ? Vide L. V. 1794, c. 138.

hath ensued : for then it is no slander or false title. As, if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions : for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnuni absque injuria, and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law *: " eutn qul nocentem infamat, non est aequum et bonwn ob earn rem condemnari; deltcta enimnocentium nota esse oportet etexpedit.n

A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like ; which set him in an odious or ridiculous " light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies; one by indictment and another by .action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point of law) whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification w IJ. But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and shew that the plaintiff has received no injury at all*. What was said with regard to words spoken, will also hold in every particular with regard to libels * by writing or printing, and the

tFf.tf, 10, 18. w 5 Rep. 125.

u 2 Show. 314. 11 Mod. 99. x Hob. 253. 11 Mod. 99.

* There is a distinction between libels and words. A libel is punishable both criminally and by action, when speaking the words would not be punishable in either way; for sjieaking the words " rogue and rascal" of any one, an action will not lie ; but if those

words

12. Any person prosecuted under the act of 5 Gong. c. 92, for "writing and publishing a libel, might have given the truth of the matter contained in the publication, in evidence on the trial.

civil actions consequent thereupon : but as to signs or pictures, it seems necessary always to shew, by proper innuendo's and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences.

A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity 13. For this however the law has given a very adequate remedy in damages, either by an action of conspiracy f, which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution * ". In order to carry on the former (which gives a re-

y Finch. L, 305.

z F. N. B. 116.

words were written and published of any one, an action would He ; 2 Wils. 403. Villers v. Mousley, See also Hardress 470, and Skinn. 123. S. P. The same distinction was taken and allowed in a late case in the exchequer chamber, by a writ of error brought there, Easter term, 29 Geo. III.

13. This is, also, an indictable offence ; and by the common law the offender on conviction was to receive the villainous judgment. But by our law he shall be punished by imprisonment and amercement at the discretion of a jury, vi. 3. Inst. 143, L. V. 1794, c. 22.

14. An act of conspiracy, properly so called, lies not unless the plaintiff hath been indicted, and legitimo modo acquictatus ; but an indictment will lie where there has been a false conspiracy, though nothing has been put in execution, 5 Co. 55.

So there is a difference between an action of conspiracy, and an action on the case, in nature of a conspiracy ; for if an action of conspiracy, properly so called, is against two, or more, and only one is found guilty, judgment shall be arrested as to him: but where it is an action on the case in nature of a conspiracy, then, one only may be found guilty, and there shall be judgment against him. 1 Wilson, 210.

compense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal *; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon ». For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action on the case for a malicious prosecution may be founded upon an indictment, whereon no acquittal c,an be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is foundedb. However, any probable cause for preferring it is sufficient to justify the defendant f.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party ; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrongdoer to a civil action, on account of the damage sustained by the loss of time and liberty.

To constitute the injury of false imprisonment there are two points requisite : 1. The detention of the person: and, 2. The

a Carth. 421. Lord Raym. 253.

blOMod.21S.220. Stra. 691.

* In an action for a malicious prosecution, where the plaintiff has been indicted for a felony, it is necessary to produce a copy of the record granted by the court before which he was acquitted; but the practice is otherwise in misdemeanours, and in such a case the action may be sustained by the production of the original record of the acquit.al. 1 B!. Sep. 385....Christian.

f The essential ground of this action is, that a legal prosecution was carried on without a probable cause; but this must be substantiveLy and expressly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. From the most expiess malice, the want of probable cause cannot be implied. Sutton \. yobitstom, 1 f. £, 544...C£mf:Vin.

unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets0. Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority : which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitmentd; or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service », or the apprehending of waggoners for misbehaviour in the public highwaysc 10. False imprisonment also may arise by executing a lawful warrant or process at an unlawful time, as on a Sunday f; for the statute hath declared, that such service of process shall be void I7. This is the injury. .Let us next see the remedy : which is of two sorts j the one removing the injury, the other making satisfaction for it.

The means of removing the actual injury of false imprisonment, are fourfold. 1. By writ of, mainprize. 2. Bywritafe

c 2 Inst. 589. d Ibid. 46.

e Stat. 13 Geo. III, c, 78.

f Stat. 29 Car. II, c. 7. Salic. 78. 5 Mod. 95.

15. No such powertis yet known in the United States.

16. This is under the authority of a statute, cited in the margin, •which never was in force in Virginia.

17. All process, in civil cases, executed on a Sunday; or upon a person attending his duty at militia muster ; or at an election of members of the state legislature, or that of the United States, or of electors to choose a president; or attending as a witness, being duly summoned, at any court, or at any survey, or arbitration made by order of court; or before commissioners appointed to take depositions, in any suit, or contested election ; except attachments issued against debtors actually moving and absconding, (on a Sunday,) or upon an escape out of prison, or custody, (which may be executed at any time or place) is illegal and void, by the laws of Virginia. L. V. 1794, c. 78. §. 14. c. 80. J. 16. c. 141. J. 6.

odio et alia. S. By writ dc homing replegiando. 4. By writ of habeas corpus.

1. The writ of mainprize, manucaptio, is a writ directed to the sheriff, (either generally, when any man is imprisoned for a bailable offence, and bail hath been refused ; or specially, when the offence or cause of commitment is not properly bailable below) commanding him to take sureties for the prisoner's appearance, usually called mainpernors, and to set him at largejs.) Mainpernors differ from bail, in that a man's bail may imprison or surrender him up before the stipulated day of appearance ; mainpernors can do neither, but are barely sureties for his appearance at the day: bail are only sureties, that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to answer all charges whatsoever h.

2. The writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prisoner charged with murder was committed upon just cause of suspicion, or merely f ropier odium et atiam, for hatred and ill-will; and if upon the inquisition due cause of suspicion did not appear, then there issued another writ for the sheriff to admit him to bail. This writ, according to Bracton', ought not to be denied to any man ; it being expressly ordered to be made out graft's, withoutany denial,by magnacarta, c. 26, andstatute Westm. 2.13 Edw. I, c. 29. But the statute of Glocester, 6 Edw. I, c. 9, restrained it in the case of killing by misadventure or self-defence, and the statute 28 Edw. III. c. 9, abolished it in all cases whatsoever: but as the statute 42 Edw. III, c. 1. repealed all statutes then in being,- contrary to the great charter, sir Edward Coke is of opinion k that the writ de odio et atia was thereby revived.

3. The writ de homine replegiando' lies to replevy a man out of prison, or out of the custody of any private person, (in the

g F. N. B. 250. 1 Hal. P. C. 141. CokeonBailandMainpr. Ch. 10. h Co. Ibid Ch. 3. 4 Inst. 179. i l. 3. tr. 2. c. 8. ' ' k 2 Inst. 43, 55,315. 1 F. N. B. 66.

same manner that chattels taken in distress may be replevied, of which in the next chapter) upon giving security to the sheriff that the man shall be forthcoming to answer any charge against him. And, if the person be conveyed out of the sheriff's jurisdiction, the sheriff may return that he i.s eloigned, elongatus; upon which a process issues (called a capias in withernam)' to imprison the defendant himself, without bail or mainprize m, till he produces the party. But this writ is guarded with so many exceptions n, that it is not an effectual remedy in numerous instances, especially where the crown is concerned. The incapacity therefore of these three remedies to give complete relief in every case hath almost entirely antiquated them, and hath caused a general recourse to be had, in behalf of persons aggrieved by illegal imprisonment, to

4. The writ of habeas corpus, the most celebrated writ in the English law. Of this there are various kinds made use of by the courts at Westminster, for removing prisoners from one court into another for the more easy administration of justice. Such is the habeas corpus ad respondendum, when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner, and charge him with this new action in the court above °. Such is that ad satisfaciendum, when a prisoner hath had judgment against him in action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution p. Such also are those adprosequendwn)testijicandum,deliberandum,&c; which issue when it is necessary to remove a prisoner, in order to prosecute or bear testimony in any court, or to be tried in the proper jurisdiction wherein the fact was committed.. Such is, lastly, the common writ ad faciendum et recipiendum, which issues out of any of the courts of Westminster-hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the superior court; commanding the inferior judges to produce the body of the defendant, together with

m Raym. 474.

n Nisi captus ett per speciale praeceptum nostrum, ixl capitalis juttitiarii nostri, velpro morte bominif, vet proforesta nostra, ixl pro aliquo alto retto, quare tecundum consuctudinem Angliae turn sitreplegiabilis. (Hegistr. 77.)

o 2 Mod. 198. p 2 Lilly Prac. Reg. 4.

the day and cause of his caption and detainer (whencs the writ is frequently denominated an habeas corpus cum causa} to do and receive whatsoever the king's court shall consider in that behalf is.j This is a writ grantable of common right, without any motion in court i; and it instantly supersedes all proceedings in the court below. But, in order to prevent the surreptitious discharge of prisoners, it is ordered by statute 1 and 2 P. &? M. c. 13, that no habeas corpus shall issue to remove any prisoner out of any gaol, unless signed by some judge of the court out of which it is awarded19. And, to avoid vexatious delays by removal of frivolous causes, it is enacted by statute 21 Jac. I, c. 23, that, where the judge of an inferior court of record is a barrister of three years standing, no cause shall be removed from thence by

. habeas corpus or other writ, after issue or demurrer deliberately joined: that no-cause, if once remanded to the inferior court by writ of procedendo or otherwise, shall ever afterwards be again removed and that no cause shall be removed at all, if the debt or

•damages laid in the declaration do not amount to the sum of five pounds20. But an expedient* having been found out to elude the latter branch of the statute, byprocuringa nominal plaintiff to bring another actionforfive pounds orupwards,(and then by the course of the court the habeas corpus removed both actions together) it is therefore enactedby statute 12 Geo. I, c. 29, that the inferior court may proceed in such actions as are under the value of Si, notwithstanding other actions may he brought against the same defendant to a greater amount. And by statute 19 Geo. III, c. 70, no cause, under the value of ten pounds, shall be removed

il 2 Mod. 309.

r Bohun instit. legal. 85. edit. 1708.

18. Where any person is committed in a civil action to the jail of any county or corporation, for any matter cognizable in the district courts, the clerk of the court of the district in which the commitment is made, is required, upon application of the prisoner, and a certificate of his being actually in jail, to issue a writ of habeas corfius cum causa to vemove the body of the prisoner into the district jail, and the cause of commitment into such court. L. V. 1794, c. 66, J.22.

19. This statute stands repealed. V. L. 1794, c. 147. ' The signature of a judge is not necessary, to this writ, in Virginia.

20. This statute never was in force in Virginia.

by habeas corpus, or otherwise, into any superior court, unless the defendant, so removing the same, shall give special bail for payment of the debt and costs21.

But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum, et reciplenditm, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf8. This is a high prerogative writ, and therefore by the common law issuing out of the court of king's bench not only in term time, but also during the vacation1, by a fiat from the chief justice or any other of the judges, and running into all parts of the king's dominions : for the king is at all times entitled to have an account, why the liberty of any of his subjects is restrained", wherever that restraint may be inflicted. If it issues in vacation, it is usually returnable before the judge himself who awarded it, and he proceeds by himself thereonv j unless the term should intervene, and then it may be returned in courtw. Indeed, if the party were privileged in the courts of common pleas and exchequer, as being (or supposed to be) an officer or stiitor of the court, an habeas corpus ad subjiciendum might also by common law have been awarded

s St. Trials, viii. 142.

t The pluries habeas coipus directed to Berwick in 43 Eliz. (cited 4 Burr. 856 ) was teste'd die ywis prox' post quinrlen saticti Martini It appears, by referring to the dominical letter of that year, that this quindena (Nov. 25.) happened that year on a Saturday. The Thursday after was tlicrefoie the 30th of November, two days after the expiration of the term.

u Cro. Jac. 543. v 4 Burr. 806

w 4 Burr. 430, 542, 606.

21. The statutes of 12 Geo. I, and 19 Geo. III, here cited, were never in force in Virginia, But as the district courts have not cognizance of any case under the value of one hundred dollars, it follows, that no person can have the benefit of this writ, unless the cause of action against him amounts to that sum. vide. L. V. 1794, c. 66, §. 6 and 22.

from thence" ; and, if the cause of imprisonment were palpably illegal, they might have discharged him? : but, if he were committecl for any criminal matter, they could only have remanded him, or taken bail for his appearance in the court of king's bench z ; which occasioned the common pleas for some time to discountenance such applications. But since the mention of the king's bench and common pleas, as co-ordinate in this jurisdiction, by statute 16 Car. I, c. 10, it hath been holden, that every subject of the kingdom is equally entitled to the benefit of the common law writ, in either of those courts, at his option*. It hath also been "said, and by very respectable authorities1", that the like habeas corpus may issue out of the court of chancery in vacation: but, upon the famous application to lord Nottingham by Jenks, notwithstanding the most diligent searches, no precedent could be found where the chancellor had issued such a writ in vacation', and therefore his lordship refused it82.

In the king's bench and common pleas it is necessary to apply for it by motion to the courtd, as in the case of all other prerogative writs (certiorari, prohibition, mandamus, &c.J which do not issue as of mere course, without shewing some probable cause why the extraordinary power of the crown is called in to the party's assistance. For, as was argued by lord chief justice Vaughane," it is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it j for the court ought to be satisfied that the party hath a probable cause to be delivered." And this seems the more reasonable, because (when once granted) the person to whom it is directed

x 2 Inst. 55. 4 Inst. 290. 2 Hal. P. C. 144, 2 Ventr. 24. y Vaugh. 155. z Carter. 221. 2 Jon. 13. ,a2Mod. 138. Wood's Case. C. B. H.I. 11 Geo. III. b 4 Inst. 182. 2 Hal. P. C. 147. c Lord Nott. MSS. Rep Jnl> 1676. d 2 Mod. 306. 1 Lev. 1. e BushelPs Case. 2 Jon. 13.

22. It is expressly provided by the law of Virginia that the judge, of the high court of chancery, as well as the judges of the general court, respectively, may award, and grant a writ of habeas corfius. L. V. 1794, c. 118.

can return no satisfactory excuse for not bringing up the body of the prisoner f. So that, if it issued of mere course, without shewing to the court or judge some reasonable ground for awarding it, a traitor or felon under sentence of death, a soldier or mariner in the king's service, a wife, a child, a relation, or a domestic, confined for insanity or other prudential reasons, might obtain a temporary enlargement by suing out an habeas corpus, though sure to be remanded as soon as brought up to the court. And therefore sir Edward Coke, when chief justice, did not scruple in 13 Jac. I, to deny a habeas corpus to one confined by the court of admiralty for piracy ; there appearing, upon his own shewing, sufficient grounds to confine him £. On the other hand, if a probable ground be shewn, that the party is imprisoned without just causeh, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which " may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other'."

In a former part of these commentaries* we expatiated at large on the personal liberty of the subject. This was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, and which ought not to be abridged in any case without the special permission of law. A doctrine co-eval with the first rudiments of the English constitution ; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest : asserted afterwards and confirmed by the conquerorhimself and his descendants: and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of magna carta, and along succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law or political society : and in the end would destroy all civilliberty, by

fCro. Jac. 543

g3Bulstr.27. See also 2 Roll. Rep. 138.

h 2 Inst. 615. i Com. Journ. 1 Apr. 1628.

k Book I. c.l.

rendering it's protection impossible: but the glory of the English law consists in clearly denning the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful. This it is, whiclynduces the absolute necessity of expressing upon every commitment the reason for which it is made: that the court upon an habeas corpus may examine into it's validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner.

And yet, early in the reign of Charles I, the court of king's bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined' that they could not upon an habeas corpus either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the king, or by the lords of the privy council. This drew on a parliamentary inquiry, and produced the petition of right, 3 Car. I, which recites this illegal judgment, and enacts that no freeman hei eafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the lords of the council, in pursuance of his majesty's special command, under a general charge of "notable contempts and stirring up sedition against the king and government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding sureties for the good behaviour, which still protracted their imprisonment, the chief justice sir Nicholas Hyde, at the same time declaring01, that if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indignation and astonishment by every lawyer present; according to Mr. Selden's own" account of the

1 State Tr. vii. 136. m Hid. 240.

n " Etiamjudicum time pritnarius, nisi illiiilfaceremus, rescript!, illiusjbrensis, ijui lioertatii fe> ionalU ainnimcxlut: im^cx tegitimvs estfercsolus, mum ommmtxlinn palain pronuntiavit sui semper similtsjnobis perpetuo in pastemm denegandum. Quol, ut aiiotutiwum juris piodigium, sciential ibus hic uniwrsis censitum." fVinMc. Mar. C'laus. edit. A. JO. 1653 )

matter, whose resentment was not cooled at the distance of four and twenty years.

These pitiful evasions gave vise to the statute 16 Car. I, c. 10. §. 8, whereby it is enacted, that if any person be committed by the king himself in person, or by his privy council, or by any of the members thereof, he shall have granted unto him, without any delay upon any pretence whatsoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas; who shall thereupon, within three court days after the return is made, examine and determine the legality of such commitment, and do what to justice shall appertain, in delivering, bailing, or remanding such prisoner. Yet still in the case of Jenks, before alluded to0, who in 1676 was committed by the king in council, for> a turbulent speech at Guildhall p, new shifts and devises were made use of to prevent his enlargement by law; the chief justice (as well as the chancellor) declining to award a writ of habeas corpus adsubjiciendum in vacation, though at last he thought proper to award the usual writs ad deliberandum; &c. whereby the prisoner was discharged at the Old Bailey. Other abuses have also crept info daily practice, which had in some measure defeated the benefit of this great constitutional remedy. The party imprisoning was at liberty to delay his obedience to the first writ, and might wait till a second, and a third, called an alias and aphiries, were issued, before he produced the party: and many other vexatious shifts were practised to detain state-prisoners in custody. But whoever will attentively consider the English history, may observe, that the flagrant abuse of any power, by the crown or it's ministers, has alwaysbeen productive of a struggle ; which either discovers the exercise of that power to be contrary to law, or (if legal) restrains it for the future. This was the case in the present instance. The oppression of an obscure individual gave birth to the famous habeas corpus act, 31 Car. II, c. 2, which is frequently considered as another magna carta 1 of the kingdom; and by consequence and analogy has also in subsequent times

o page 132.

b See book I. c. 1.

p State TiiaK vi'1 l~\.

reduced the general method of proceeding on these writs (though not within the reach of that statute, but issuing merely at the common law) to the true standard of law and liberty.

The statute itself enacts, 1. That on complaint and request in writing by or on behalf of any person committed and charged with any crime (unless committed for treason or felony expressed in the warrant; or as accessory, or on suspicion of being accessory, before the fact, to any petit-treason or felony ; or upon suspicion of such petit-treason or felony, plainly expressed in the warrant; or unless he is convicted or charged in execution by legal process) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for such prisoner, returnable immediately before himself or any other of the judges; and upon the return made shall discharge the party, if bailable, upon giving security to appear and answer to the accusation in the proper court of judicature. 2. That such writs shall be indorsed, as granted in pursuance of this act, and signed by the person awarding them. 3. That the writ shall be returned and the prisoner brought up, within a limited time according to the distance, not exceeding in any case twenty days. 4. That officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent within six hours after demand a copy of the warrant of commitment, or shifting the custody of a prisoner from one to another, without sufficient reason or authority (specified in the act) shall for the first offence forfeit 100l. and for the second offence 20Ol. to the party grieved, and be disabled to hold his office. 5. That no person, once delivered by habeas corpus, shall be recommitted for the same offence, on penalty of 500l. 6. That every person committed for treason or felony shall, if he requires it the first week of the next term or the first day of the next session of over and terminer, be indicted in that term or session, or else admitted to bail; unless the king's witnesses cannot be produced at that time: and if acquitted, or if not indicted and tried in the second term or session, he shall be discharged from his impri-

sonment for such imputed offence 23; but that no person, after' the assizes shall be opened for the county in which he is detained, shall be removed by habeas corpus, till after the assizes are ended; but shall be left to the justice of the judges of assize. 7. That any such prisoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas; and the lord chancellor or judges denying the same, on sight of the warrant or oath that the same is refused, forfeit severally to the party grieved the sum of 500l. 8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey. 9. That no inhabitant of England (except persons contracting, or convicts praying, to be transported ; or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king's dominions : on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved a sum not less than 500l. to be recovered with treble costs; shall be disabled to bear any office of trust or profit; shall incur the penalties of praemunire ; and shall be incapable of the king's pardon24.

23. L. V. 1794, c. 74. §. 10. Accordant. And if the prisoner be not tried at or before the third term after his examination before the justices, he shall be forever discharged of the crime. Ibid.

24. The provisions of this famous statute have been introduced into our code, with such necessary variations as the difference of our government, and situation seems to require.

It" provides, that any person committed or detained for any crime, except treason or felony, plainly expressed in the warrant, and not being convict, or in execution by legal process, may complain to the high court of chancery, the general court, or the court of that district in which he is confined ; or, in vacation, to any judge of either of those courts, who, at his request, or that of any person in his be-, half, attested by two witnesses present at the delivery thereof, may, upon view of the copy of the warrant of commitmentor detainer, or upon affidavit that such copy was denied to be given by him in whose custody the prisoner may be, award and grant a habeas corjius tq be directed to the officer in whose custody the priboner bhall be, re-

This is the substance of that great and important statute : which extends (we may observe) only to the case of commitments for such criminal charge, as can produce no inconvenience to public justice by a temporary enlargement of the prisoner : all other cases of unjust imprisonment being left to the ha-

turnable immediately before such judge, or any other judge, or one of the said courts ; which writ shall be signed by him who awards it: and upon service thereof, the officer or his deputy in whose custody the party is, if the charges of bringing the prisoner, to be ascertained by the court or judge who awarded the writ, and thereon endorsed, not exceeding seventeen cents per mile be paid, or tendered, and sufficient security to pay the charges of carrying him back, if remanded, and that he will not escape by the way, be given, within three days after such service, or if the prisoner is to be brought more than twenty miies, within so many days more, as will be equal to one day for every twenty miles of such further distance, bring the prisoner before the court, or one of the judges thereof, before whom the writ is returnable, or in case of his absence before any other of them, with the return of the writ, and the true causes of commitment and detainer; and thereupon the judge before whom any prisoner shall be brought, shall, within two days thereafter discharge him from imprisonment, taking his recognizance, with surety in any sum, according to the discretion of the judge, having regard to the circumstances of the prisoner, and nature of the offence, for his appearance in the court of the district, the term folk wing, or in some other court where the offence is properly cognizable, as the case shall require; and certify the writ with the return thereof and the recognizance into such court, unless it shall appear that the party is detained upon a legal process, order, or warrant, out of some court that hath jurisdiction of criminal matters, or by some warrant signed and sealed with the hand and seal of any of the said judges, or some justice of the peace, for such matters or offences, which, by law, the prisoner is not bailable. If any judge, in vacation, upon view of the copy of the warrant of commitment, or detainer, or upon affidavit made that such copy was denied, shall refuse any writ of habeas coffius required by that act, he shall be liable to the action of the party grieved: and any officer neglecting or refusing to make return of the wiit, or to bring the body of the prisoner according to the command of the writ, within the time limited, or not delivering a true copy of the warrant of commitment and detainer within six hours after demand thereof, by theprisoncr,or other person in his behalf, shallforfeit to the prisoner three hundred dollars; to recover which the right of action shall not cease by the death of either party. No person who

beas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable, to antient precedentsr and the spirit of the act of parliament, that the writ should be immediately obeyed without waiting for any alias or pluries ; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes

r 4 Burr. 856.

Shall have been delivered upon an habeas corfius, shall afterwards be imprisoned for the same offence, otherwise than by order, or process of the court wherein he was bound to appear, or some other court having jurisdiction of the ca_use. If any person shall have wilfully ne- • glected for two terms after his imprisonment, to pray a writ of habeas torfius for his enlargement, such writ shall not be granted him in vacation, in pursuance of that act. A citizen of Virginia, committed to prison in custody of an officer for any criminal matter, shall not be rejnoved from thence into the custody of another officer, unless it be by habeas corpus, or some other legal writ, or where the prisoner shall be delivered to the constable, or other inferior officer, to be carried to some common gaol, or shall be sent by warrant of an overseer of the poor to some common •work-house, or shall be removed from one place to another within the same county, in order to his discharge or trial in due course of law ; or in .case of sudden fire or infection, or other necessity, or where the prisoner shall be charged by affidavit, with treason, felony, or other crime,'alleged to be done in any other of the United States of America, in which last case he may be removed by order of the general court, or by warrant of any two judges thereof in vacation. L. V. 1794, c. 118.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, or invasion, the public safety may require it. C. U. S. Art. 1. Sec. 9.

The justices of the supreme court of the United States, as well as judges of the federal district courts, have power to grant writs of habeas corpus for the purpose of an enquiry into the cause of commitment : but writs of habeas corpus issued by their authority, shall in no case extend to prisoners in gaol, unless they are in custody under, or by colour of, the authority of the United States, or are committed for trial before some court thereof, or are necessary to be brought into court to testify. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 14.

from the mere inattention, of government. For it frequently happens in foreign countries, (and has happened in England during temporary suspensions • of the statute) that persons ap. prehended upon suspicion have suffered a long imprisonment, merely because they were forgotten*.

The satisfactory remedy for this injury of false imprisonment, is by an action of trespass vi et armis, usually called an action of false imprisonment; which is generally, and almost unavoidably, accompanied with a charge of assault and battery also ; and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the ]c>ng for the violation of the public peace,

III. With regard to the third absolute right of individuals, er that of private property, though the enjoyment of it, when acquired, is strictly a personal right: yet as it's nature and original, and the means of it's acquisition or loss, feel more directly un» der our second general division, of the rights of things ; and as, of cpurse, the wrongs that affect these rights must be referred to the corresponding division in the present book of our commentaries ; I conceive it will be more commodious and easy to con-

S See Vol. I. p. 136,

* Besides the efficacy of the writ of bobcat carpus in liberating the subject from illegal confinement in a public prison, it also extends it's influence to remove every unjust lestraint of personal freedom in private life, though imposed by a husband or a father; but when women or infants are brought before the court by a habeas corput, the court will only set them free from an unmerited or unreasonable confinement, and will not determine the validity of a marriage, or the right to the guardianship, hut will leave them at liberty to chuse where they will go i and if there be any reason to apprehend that they will be seized in returning from the court, they will be sent home under the protection of an officer, But if a child is too young to have any discretion of it's own, then the court will deliver it into the custody of it's parent, or the person who appears to be it's legal guardian. See 3 Burr. 1434, where all the prior cases are considered by lord , Mansfield.

If an equivopal return is made to a habeas corpus, the court will immediately grant an attachment. 5 7*. S, W.....Christian,

sider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.

We are next to contemplate those which affect their rela* the rights; or such as are incident to persons considered as members of society, and connected to each other by various ties and relations: and, in particular, such injuries as maybe done to persons under the four following relations; husband and wife, parent and child, guardian and ward, master and servant.

L Injuries that may be offered to a person, considered as A httsband, are principally three: abduction, or faking away a man's wife; adultery, or criminal conversation with her j and beating or otherwise abusing her. 1. As to the first sort, abduction or taking her away, this may be either by fraud and persuasion, of open violence t though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore gives a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta*. This action lay at the com* mon law; and thereby the husband shall recover, not the posses* sion u of his wife, but damages for taking her away t and by sta« tute West. 1. 3 Edw. I. c. 13, the offender shall also be imprisoned two years, and be fined at the pleasure of the king25. Both the king and the husband may therefore have this action wj and the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause *. The old law was so strict in this point, that, if one's wife missed her way upon the road, it was not lawful for another man to take her

t F. N. B. 80. w 2 Inst. 234.

U 2 Inst. 454.

x Law of nitipriui. 74i

25. The statute of 3 Edw. I, here referred to seems to be repealed. By the law of Virginia the taking away pf any woman, maid, wifejj or widow, having substances, against her will, and afterwards marrying, or defiling her, is felony, in the takers, procurers, and receivers* L. V. 1784, c. 104. J. 19.

into his house, unless she was benighted and in danger, of being lost or drowned i: but a stranger might carry her behind him on horseback to market, to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce1. 2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts26; yet, considered as a civil injury, (and surely there can be no greater) the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. But these are properly increased and diminished by circumstances a; as the rank and fortune of the plaintiff and defendant; the relation or'connection between them ; the seduction or otherwise of the wife, founded on her previous behaviour and character j and the husband's obligation by settlement or otherwise to provide for those children, which he cannot but suspect to be spurious. In this case> and upon indictments for polygamy, a marriage in fact must be proved; though generally, in other cases, reputation and cohabitation are sufficient evidence of marriage b. S. The third injury is that of beating a man's wife or otherwise ill-using her; for which if it be a common assault, battery, or imprisonment, the law gives the usvial remedy to recover damages, by action of trespass vi et armis, which "must be brought in the names of the husband and vf'ife jointly: but if the beating er other mal-treatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill-usage per quod consortium amisit ; in which he shall recover a satisfaction in damagesK.

y Bro. Mr. t. -trespass. 23. a Law of nisi prim. 26. c Cro. Jac. 501, 538.

z Ibid, 207,440. b Burr. 20J7.

26. Persons guilty of adultery, in Virginia, are punishable by fine, at the suit of the overseers of the poor of the county or corporation where the offence is committed, which may be .prosecuted in any court of record in the commonwealth. L. V. 1794, c. 138. &. 6.

II. Injuries that may be offered to a person considered in the relation df a parent were likewise of two kinds: 1. Abduction, or taking his children away ; and 2. Marrying his son and heir without the father's consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, together with the right upon which it was grounded; for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no sort of injury, for which a civil action will lie. As to the other, of abduction or taking away the children from the father, that is also a matter of doubt whether it be a civil injury ", or no; for, before the abolition of the tenure in chivalry, it was equalh- a doubt whether an action would lie for taking and carrying away any other child besides the heir: some holding that it would hot, upon the supposition that the only 'ground or cause of action Was losing the value of the heir's marriage ; and others holding that an action would lie for taking away any of the children, for that the parent hath an interest in them all, to provide for their education d. If therefore before the"abolition of these tenures it was an injury to the father to take away the rest of his children, as well as his heir, (as I am inclined to think it was) it still remains an injury, and is remediable by a writ of ravishment, or, action of trespass vi et armis, defilio, vel Jilla, rapto vel abducto « : in the same manner as the husband may have it, on account of the abduction of his wifea8.

d Cro. Eliz. 770.

e F. N. -B. 90.

27. As a public offence it is punishable by two years imprisonment, if the child be a female, under the age of sixteen years. V. L. 1794, c. 104. J. 20.

28. An action of trespass vi et armia will lie at the suit of the father for getting his daughter with child ; and this, notwithstanding she may be above the age of twenty-one years, if she be resident at the time in her father's house : but the declaration must conclude jier quod servitium amisit. Tullidge v. Wilson 18. This case seems to have been otherwise decided by Lord Mansfield, 3 Burrow 1881. But in a latter case 2 Term Rep. 4, the doctrine in the case of Tullidge and Wade appears to have been supported.

And in a still later case, in England, 2 Term Rep. 166, the doctrine advanced by Holt. C. I. in Russell v. Corne, 2 Ld. Raym. 1032.

III. Of a similar nature to the last is the relation of guardian and ward; and the like actions mutatis mutandis, as are given to fathers, the guardian also has for recovery of damages, when his ward is stolen or ravished away from himf. And, though guardianship in chivalry is now totally abolished, which was the only beneficial kind of guardianship to the guardian, yet the guardian in socage was always fi and is still entitled to an action of ravishment, if his ward or pupil be taken from him : but then he must account to his pupil for the damages which he so recovers &. And, as guardian in socage was also entitled at common law to a writ of right of ward, de custodia terrae et haeredis, in order to recover the possession and custody of the infant ', so I apprehend that he is still entitled to sue out this antiquated right. But a more speedy and summary method of redressing all complaints relative to wards and guardians, hath of late obtained by an application to the court of chancery? which is the supreme guardian, and has the superintendent jurisdiction, of all the infants in the kingdom. And it is expressly provided by statute 12 Car. II. c. 24, that testamentary guardians may maintain an action of ravishment or trespass, for recovery of any of their wards, and also for damages to be applied to the use and benefit of the infants k SB. '

IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man's hired servant before his, time is expired; the other is beating or confining him in such a

fP. N. B.139.

h Hale on F. N. B. 139.

k 2 P. Wms. 108.

g Ibid.

I F. N. B. Ibid.

That if the seducer enters a man's house illegally, and debauches hik daughter, the fact of seduction may be given in evidence in a common action of trespass, as an aggravation of the trespass, appears also to have been admitted, and established. It is moreover said, that in this action the daughter may be admitted as a witness to prove the fact of seduction, as she has no interest in this suit. See Christian's note on this passage.

29. V. L. 1748, c. 2. Edi. 1760 and 1794, c. 95. Accordant.

manner that he is notable to perform his work. As to the first, the retaining another person's servant during the time he has agreed to serve his present master; this, as it is an ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased, for a valuable consideration, the service of his domestics for a limited time ; the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master ; and for that injury the law has given him a remedy by a special action on the case: and he may also have an action against the servant for the non-performance of his agreement'. But, if the new master was not apprised of the former contract, no action lies against him m, unless he refuses to restore the servant upon demand. The other point of injury is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last; viz. the property which the master has by his contract acquired in the labour of the servant. In this case, besides the remedy of an action of battery-or imprisonment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis, in which he must allege and prove the special damage be has sustained by the beating of his servant, per quod servittUm amisit»; and then the jury will make him a proportionable pecuniary satisfaction. A similar practice to which, we find also to have obtained among the Athenians ; where masters were entitled to an action against such as beat or ill treated their servants ° 3P.

1 F. N. B. 167.

n 9 Rep. 113. 10 Hep. 330.

m Kid. Winch. 51.

o Pott. Antiqu. L>. 1. c. 26.

30. Every person harbouring or entertaining an indented servant, not having a certificate of his freedom, shall forfeit one dollar, for every day, to the master, recoverable by action of debt in any county or corporation court, V. L. 1794, c. 132. J. 12.

Any master, mistress, or overseer of a family, knowingly permitting any slave to remain upon his or her plantation above four hours at one time, without leave of the owner, forfeits three dollars for every such offence to the informer, recoverable before any justice of the peace of the county or corporation. Ib. c. 103. J. 12.

We may observe, that in these relative injuries, notice \a only taken of the wrong, done to the superior of the parties related by the breach and dissolution of either the relation, itself, or, at least, the advantages accruing therefrom; while the loss of the inferior, by such injuries, is totally unregarded. One reason for which, may be this : that the inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior: and, therefore, the inferior, can suffer no loss or injury. The wife cannot recover damages, for beating her husband, for she hath no separate interest in any thing, during her coverture. The child hath no property in his father or guardian j as they have in him, for the sake of giving him education and nurture........

Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal, and which will be considered in the next book. And so the servant, whose master is disabled, does not, thereby, lose his maintenance or wages. He had no property in his master; and, if he receives his part of the stipulated contract, he suffers no injury, and is, therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.

CHAPTER THE NINTH.

OF INJURIES TO PERSONAL PROPERTY.

IN the preceding chapter, we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are, at present, to enter upon the discussion of such injuries as affect the rights of property, together with the remedies, which the law has given to repair, or redress them.

And here, again, we must follow our former divisiona of property into personal and real: personal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property, which may attend a man's person wherever he goes, and from thence receives it's denomination : and real property, which consists of such things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.

First, then, we are to consider the injuries that may be offered to the rights of personal property; and, of these, first, the rights of personal property in possession, and then those that are in action, only b.

I. The rights of personal property in possession, are liable to two species of injuries: the amotion or deprivation of that

a See Book II, c. 2.

b Book II, c. 25.

possession ; and the abuse, or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is, also, divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking, might be lawful.

1. And, first, of an unlawful taking. The right of property, in all external things, being solely acquired by occupancy, as has been formerly stated, and preserved, and transferred, by grants, deeds, and wills, which are a continuation of that occupancy ; it follows as a necessary consequence, that when I once have gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever, either by fraud or force, dispossesses me, is gui'.tv of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possessions be secured from unjust invasions.: and, if an acquisition of goods, by either force ' or fraud, were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind (which is, by far, the most numerous division) could never be secure of their possessions.

The wrongful taking of goods, being thus most clearly an injury, the next consideration is, what remedy the law of England lias given for it. And this is, in the first place, the restitution of the goods, themselves, so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin: an institution, which the Mirrorc ascribes to Glanvi!, chief-justice to king Henry the second.......

This obtains only in one instance of an unlawful taking, that ot a wrongful distress; and this, and the action of detinue (of which I shall presently say more) are almost the only actions,in which the actual specific possession of the if dentical personal chattel is restored to the proper owner. For things personal, are looked upon by the law, as of a nature so transitory and perishable, that it is, for the most part impossible, either to ascertain their iden-

c Chap. 2, Sec. 6.

tity, or to restore them in the same condition, as when they came to the hands of the wrongful possessor. And, since it is a maxim that '• lex neminem cogit ad vana, sen impossibilia," it, therefore, contents itself, in general, with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction, in damages. But in the case of ^distress the goods are, from the first taking, in the custody of the law, and not merely in that of the distreinor; and, therefore, they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force, is looked upon as an atrocious injury, and denominated a rescous, for which, the distreinor has a remedy in damages, either by writ of rescous d, in case they were going to the pound, or by writ de parco fraclo, or, found-breachc, in case they were„ actually impounded. He may, also, at his option, bring an action on the case, for this injury: and shall, therein, if the distress were taken for rent, recover treble damages f '. The term, rescous, is likewise applied to the forcible delivery of a defendant, when arrested, from the officer, who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action-on the case, or of rescous & : or, if the sheriff makes a return of such rescous to the court,'out of which the process issued, the rescuer will be punished by attachmenth.

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a re-delivery of the pledge ', or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it

d F. N. B. 101. e Ibid. 100.

f Stat. 2 W. & M. Sess. 1, c. 5.

g 6 Mod. 211. h Cro. Jac. 419. Salk. 536.

i See page 13. _

1. Upon any fionnil-dreach, or rescous, the party grieved may have a special action upon the case, and therein recover treble damages, against the offenders, or either of them, or against the owner of the goods distreined if they have come to his use, or possession. V. L. 1794, c. 89. §. 5.

if the right be adjudged against him'2: after which the distreinpr may keep it, till tender made of sufficient amends : but must then re-deliver it to the owner k. And formerly, when the party distreined upon, intended to dispute the right of the distress, he had no other proress by the old common law than by a writ of replevin, replcgian facia* ' j which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage m. For which reason the statute of Marlbridge " directs, that (without suing a writ of chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1 P. and M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application, therefore, either^ to the sheriff or one of his said deputies, security is to be given, jn pursuance of the statute of Westm. 2. 13 Edw. I. c. 2..... J. That the party replevying will pursue his action against the distreinor, for which purpose he puts in plegios de prosequendo^ pr pledges to prosecute; and, 2. That if the right be determined against him, -he will return the distress again; for which purpose he is slso bound to find plegios de retorno habendo. Besides these pledges, the sufficiency ot which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19, requires that the officer, granting a replevin on a distress for rent, shall take a bond with two sureties in a sum of double the value of the goods distreined, conditioned to prosecute the suit with effect and without delay, and for return of the goods; which bond shall be

j Co. Litt. 145.

1 F. N. B. 68.

n 52 tjen. III, c. 21,

k 8 Rep. 147. m 2 Inst. 139.

2. The law of Virginia does not require that security be given to restore the pledge, but to perform and satisfy the judgment of the court, in case the pUintifT be cast in his suit; and in that case, the party delayed by suing out the writ shall recover double the value of the rent in arrear, and distreined for with full costs of suit. V. L. 1794, c. 89. §. 15, 16.

assigned to the avowant or person making cognizance, on request made to the officer ; and, if forfeited, may be sued in the name of the assignee3. And certainly, as the end of all distresses is only to compel the party distreined upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving such security, is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distreined upon ; unless the distreinor claims a property, in the goods so taken. For if, by this method of distress, the distreinor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has regained possession ; being a kind of personal remitter °. If therefore, the distreinor claims any such property, the party replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted p. And if it be found to be in the distreinor, the sheriff can proceed no farther ; but must return the claim of property to the court of king's bench or common pleas, to, be there farther prosecuted, if thought advisable, and there finally determined'.

But if no claim of property be put in, or if (upon trial) the sheriff's inquest determines it against the distreinor ; then the sheriff is to replevy the goods (making use of even force, if the distreinor makes resistance r) in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are aloigned, elongata, carried to a distance, to places to him unknown : and thereupon the party replevying shall have a writ of capias in withernam, in vetito, (or, more properly repetito} namio.

o See page 19.

q Co. Litt. 145. Finch, L, 450.

p Finch, L. 316. r 2 List. 193.

3. These statutory provisions are with some variations adopted in our law. Vide post, page 151, note 4.

a term which signifies a second or reciprocal distress', in lieu of the first which was eloigned. It is, therefore, a command to the sheriff to take other goods of the distreinor, in lieu of the distress formerly taken, and eloigned, or withheld from the owner1. So that here is now distress against distress; one being taken to answer the other, by way of reprisal", and as a punishment for the illegal behaviour of the original distreinor. For which reason goods taken in withernam cannot be replevied, till the original distress is forthcoming v.

But,-in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin ; which may be prosecuted in the county-court, be the distress of what value it may*. But either party may remove it <• to the superior courts of king's bench or common pleas by writ of recordari or pone * ; the plaintiff at pleasure, the defendant upon reasonable cause f ; and also, if in the "course of proceeding any right of freehold comes in question, the sheriff can proceed no farther z ; so that it is usual to carry it up in the first instance to the courts of Westminster-hall. Upon this action brought, and declaration delivered, the distreinor, who is now the defendant, makes avowry; that is> he avows taking the distress in his own right, or the right of his wife a ; and sets forth the reason of it, as for rent arrere, damage done, or other cause: or else, if he justifies in another's right as -his bailiff or servant, he is said to make cognizance; that is, he acknoivleges the taking, s Smith's Commonwealth, b. 3. c 10 2 Inst 141. HicUcs's fbcsaur, 164.

t F. N. B 69. 73

u In theoldncri'nemHnguages the word whithernam is usedas equivalent toiepnsals. StieinhobU, dtjute sueon. I 1. c. 10.

v Raym. 475 The substance of this rule composed the terms of that famous question, with which si. Thomas More (when a student on his travels) is said to have puzzled a piaginancal piofessor in the umveisity of Bruges in Fi.uvUis; v.iso gave a universal cnallenge to depute with any person in any science: in 071111: cxjil., et ft qualities e>M Upon which Mi. More sent him this question " utiuin tneita cjittcac,capta in ulitoiiawto,siiit trrep'.cgibiUa," whether b-ar.s of ihe plough, taken m v>itber,uan, aie incapable of being icp!e\ied. (Ii^Jdesd c «.)

w 2 Inst 139. x Ibid 33.

> F. X. B. 69, 70 z Fmcn, L. 317.

* 2 Saun.! 195.

but insists that such taking was legal, as he acted by the command of one who had a right to distrein : and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff, viz. that the distress was wrongfully taken ; he has already got his goods back into his own possession, and shall keep them, and moi cover reco\ er damages b. But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a1 writ dt rctoruo habendo, whereby the goods or chattels (which were distreined and then replevied) are returned again into his custody; to behold, or otherwise disposed of, as if no replevin had been made. And at the common law, the plaintiff might have brought another replevin, and so injinitum to the intolerable vexation of the defendant. Wherefore the statute of Westm. 2. c. 2, restrains the plaintiff, when nonsuited, from suing out any fresh replevin ; but allows him a judicial writ, issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before..... And, if the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he.shall have a writ of return irreplevisable ; after which no writ of second deliverance shall be allowed0. But in case of a distress for rent arrere, the writ of second deliverance is in effect1) taken away by statute 17 Car. II. c. 7, uhich directs that, if the plaintiff be nonsuit before issue joined, then upon suggestion made on the record in nature of an avowry or cognizance ; or if judgment be given against him on demurrer, then, without any such suggestion, the defendant may ha\e a writ to-inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall lie equal to such arrear, with costs: or, if the nonsuit be' after issue joined, or if a verdict be against the plaintiff, then the jury impannelled to try the cause shall assess such arrears for the defendant: and if (in any of these cases) the distress be insufficient to answer the arrears distreined for, the defendant may take a farther distress or distressesc. But otherwise, if, pending a replevin for a former distress, a man

b F. N. B 69. d 1 Vcntr. 61.

c 2 Inst 340.

e Stat, 17 Car. II, c 7.

distreins again for the same rent or service, then the party is not driven to his action of replevin, but shall have a writ of recaption f, and recover damages for the defendant the re-distreinor'a contempt of the process of the law4.

In like manner, other remedies for other unlawful takings of a man's goods, consist only in recovering a satisfaction in damages. As if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury; which, though it doth not amount to felony, unless it be done ammo f'trandi, is nevertheless a transgression, for which an action of trespass <oi et armis will lie; wherein the plaintiff shall not reeove<- the thing itself, but only damages for the loss of it. Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more.

2. Deprivation of possession may also be, by an unjust detainer of another's goods, though the original tailing was lawful. As if I distrein another's cattle damage-teasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them s : in which he

f F. N. B. n.

g Ibid. 69.

4. Before any writ of replevin shall be granted to try the right of taking goods distreined for rent, the party praying the same shall enter into bond with one, or. move sufficient securities, in the clerk's office, in the penalty of atleast double the value of the rent distreined for, and costs of suit, to perform and satisfy the judgment of the court, in case he shall be cast in his suit. And if he be cast, judgment shall be given against him for double the value of the rent distreined for, and in arrear, with full costs of suit. And every writ of replevin shall be returnable to the next court, who shall at their next sitting, cause an issue to be made up, which shall be tried at the following court, without waiting for its turn. V. L. 1794, c. 89. ^. 15, 13V. And the pl.iintiff, in this action, may plead as many several matters, whether of law or feet, as he may think necessary for his defence. Ibid. c. 66. §. 40.

shall recover damages only for the detention, and not for the caption, because the original taking was lawful. Or, if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining, and not in the original taking, and the regular method for me to recover possession is by action of detinue11. In this action of detinue, it is necessary to ascertain the thing detained, in such a manner as that it may be specifically known and recovered. Therefore, it cannot be brought for money, corn, or the like: for that cannot be known from other money or corn; unless it be in a bag or a sack, for then it may be distinguishably marked. In order, therefore, to ground an action of detinue, which is only for the detaining, these points are necessaryl: 1. That the defendant came lawfully into possession of the goods, as either by delivery to him, or finding them; 2. That the plaintiff have a property; 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also the damages for detaining them i. But there is one disadvantage>which attends this action, viz. that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath k, and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like ; from whence arose a strong presumptive evidence, that in the plaintiff's own opinion the defendant was worthy of credit *. But for this reason the action itself is

h F. N. B. 138.

j Co. Emr. 170. Cro. Jac. 681.

i Co. Litt. 286. k Co. Litt. 295.

5. The usual method of trying the title to slaves, in Virginia, is by action of detinue; the reason, probably, is the great predilection for that species of property, and inasmuch as the specific thing cannot be recovered in any other action, recourse has been had to this, in which not only damages are recoverable for the detention, but the specific slave is also recovered : and this remedy is further aided by our law, for if a distringas (the usual execution at common Jaw) be issued,

of late much disused, and has given place to the action of trover.

This action of trover and conversion was, in it's original, an action of trespass upon the case, for recovery of damages against such person as had found another's goods, and refused to deliver them on demand, but converted them to his own use ; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the less degree of certainty requisite in describing the goods1, gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man, who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. tThe injury lies in the conversion : for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property

1 Salk. 654.

the court, for good cause shewn, may supersede it, so far as relates to the specific thing, and direct it to be executed for the alternative price, or value, only. V. L. 1794, c. 151. §. 48. Moreover, if in detinue the verdict happens to omit the price, or value of the thing recovered, the court may, at any time, award a writ of inquiry to ascertain it; and if on an issue concerning several things in one count in detinue, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title thereto. Ibid. c. 76. §. 37. In actions of detinue, the bail-piece shall be so changed, as to subject the bail to restitution of the thing sued for, or the alternative value, as the court may adjudge. Ibid. c. 66, fy. 26. Suits for recovery of goods detained, or the value of them, where the goods, with the damages, are not of greater value than twenty dollars, or eight hundred pounds of tobacco, must be prosecuted by petition to the county or corporation court. Ibid. c. 67. §. 38.

In an action of detinue, the plaintiff must prove a possession in the defendant; and by the court of appeals, such possession, at any time before the date of the writ, is sufficient to charge the defendant in this action, unless he be legally evicted before the time of commencing the suit, which it ia incumbent on him .to shew. 1 Wash. Rep, 312.

therein, unless the owner be for ever unknown"1«: and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses to restore them to the owner ; for which reason such refusal alone is, prima faciae, sufficient evidence of a conversion ". The fact of the finding, or trover, is therefore now totally immaterial: for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them: and, if he proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved: and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of detinue or replevin7.

As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explication. I have only, therefore, to mention the remedies given

m See book I. ch. & book II. ch. 1 and 26. n 10 Rep. 56.

6. A man may acquire a property in an estray, in Virginia, by pursuing the method pointed out. V. L. 1794, c. 16.

7. Suits for goods found by the defendant, and converted to his use, if the goods be under the value of twenty dollars, or eight hundred pounds of tobacco, must, as well as suits in detinue for the like value, be prosecuted by petition to the county or corporation court. V. L. 1794, c. 67. J. 38.

An action of trespass (and by an equitable construction of the statute of 4 Edw. 3. c, 7, from which our act is in part a transcript, an action of trover also; see 2 Vol. Esp. nisi flriut 335. Philad. Edition, and Cro. Eliz. 337,) may he maintained by, or against executors or administrators for any goods taken or carried away in the lifetime of the testator or intestate. V. L. 1794, c. 92. §. 58, and note; that statute only gave the action to executors or administrators, our law gives it also against them. Therefore, we may conclude, that the case of Hambly et al~vs. Trott, Cowpev 371, is not law in Virginia at this day.

by the law to redress them, which are in two shapes; by action of trespass vi et armis, where the act is in itself immediately injurious to another's property,and therefore, necessarily accompanied with some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and, therefore, arising without any breach of the peace. In both of which suits, the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction ; for the action will lie against the master as well as the servant0. And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit p.

II. Hitherto of injuries affecting the rights of things personal, \npossession. We are next to consider those which regard things in action only j or such rights as are founded on, and arise from, contracts; the nature and several divisions of which were explained in the proceeding volume i. The violation or non-performance of these contracts, might be extended into as great a variety of wrongs, as the rights which we then considered : but I shall now consider them in a more comprehensive view, by here making only a twofold division of contracts; viz. contracts express, and -contracts implied; and pointing out the injuries that arise from the violation of each, with their respective remedies.

Express contracts include three distinct species; debts, coveiymts, and promises.

1. The legal acceptation of debt is, a sum of money due by certain and express agreement; as, by a bond for a determinate sum ; a bill or note ; a special bargain ; or a rent reserved on a lease ; where the quantity is fixed, and specific, and does not depend upon any subsequent valuation to settle it. The non-pay-

o No) 's Max- c 44. q See Book II, c. 30.

p Cro. Car 254,487.

merit of these is an injury, for which, the proper remedy is by action of debtr, to compel the performance of the contract and recover the special sum due'. This is the shortest and surest remedy; particularly where the debt arises upon a specialty, that is, upon a deed or instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me ; for this is also a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, according to the nature of my contract. And indeed, actions of debt are now seldom brought, but upon special contracts under seal; wherein the sum due is clearly and precisely expressed : for, in case of such an action upon a simple contract, the plaintiff labours under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt, by oath, if he thinks proper ss. Secondly, in an action of debt, the plaintiff •must prove the whole debt he claims, or recover nothing at all. For the debt is one single cause of action, fixed and determined; and which, therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. If, therefore, I bring an action of debt for 30l. I am not at liberty to prove a debt of 20l. and recover a verdict thereon* * ; any more than if I bring an action of detinue for a horse, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged1 to be specific, express, and determinate. But in an action on the case, on what is called an indcbitattts assitmpsit, which is not brought to compel a specific performance of the contract, but to recover damages for it's non-performance, the implied assumpiit, and consequently the damages for the breach of it, are of their nature indeterminate; and will, therefore, adapt and propoition themselves, to the truth of the case which shall be proved with-

r F. N B. 119. s See Appendix, No. III, Sec 1.

ss 4 Hep. 94.

t Bro. Ze y gagei 93 Dyer. 219. 2 Roll Abr. 706 1 Show. 215.

* Jiut it seems to be now holden (Dougl. 6. Walker against Witter, see ibid. 704) that it is not necessary that the plaintiff, in an action of debt, should recover the exact sum demanded.

out being confined to the precise demand stated in the declaration. For, if any debt be proved, however less than the sum demanded, the law will raise a promise pro tanto, and the damages will, of course, be proportioned to the actual debt. So that I may declare, that the defendant, being indebted to me in 3Ol. undertook or promised to pay it, but failed; and lay my damages arising from such failure at what sum I please: and the jury will, according to the nature of my proof, allow me either the whole in damages, or any inferior sum. And, even in actions of debt, where the contract is proved or admitted, if the defendant can shew that he has discharged any part of it, the plaintiff shall recover the residue u.

The form of the writ of debt is sometimes in the debet and

detinet, and sometimes in the detinet only: that is, the writ states,

either that the defendant owes and unjustly detains the debt, or

thing in question, or only that he unjustly detains it. It is brought

in the debet as well as detinet, when sued by one of the original

contracting parties who personally gave the credit, against the

other who personally incurred the debt, or against his heirs, if

they are bound to the payment'; as by the obligee against the

obligor, the landlord against the tenant, fc? c. But, if it be brought

by, or against, an executor for a debt due to, or from, the testator,

this, not being his own debt, shall be sued for in the detinet

only w. So also if the action be for goods, for corn, or an horse,

the writ shall be in the detinet only ; for nothing but a sum of

money, for which I (or my ancestors in my name) have person-

\i 1 Roll. Hep. 237. Salk. 664. w F. N. B. 119.

8. Plowden makes a quere, whether an action of debt lies against the heir of the heir, upon an obligation made by the father of the heir Plow. Com. 441. But Sir Mathew Hale is of opinion that it does. w. Hate's F. N. B. page 120, and 1 Vernon, 400, 2 Chancery Cases, 175. Den vs. Bell. Lilly's Entries, 504. Dyer, 344.

But the heir is bound only so far as he has assets by descent; which If he confesses, and shews in certainty, he cannot, even by the common law, be charged beyond their value. Plowden, 440. But now he may plead rien per descent the day of the writ purchased ; and if it be found against him, the jury shall inquire of the value of the lands. L. V. Edi. 1794, c. 51.

ally contracted^properly considered as my debt. And, indeed, a writ of debt in the detinet only, for goods and chattels, is neither more, nor less, than a mere writ of detinue; and is followed by the very same judgment * 9.

2. A covenant also, contained in a deed, to do a direct act or to omit one, is another species of express contracts, the violation or breach of which is a civil injury. As if a man covenants to be at York, by such a day, or not to exercise a trade in a particular place, and is not at York, at the time appointed, or carries on his trade in the place forbidden, these are direct breaches of his covenant; and may be, perhaps, greatly to the disadvantage and loss of the covenantee. The remedy for this is by a writ of covenant f: which directs the sheriff to command the defendant generally to keep his covenant with the plaintiff (without specifying the nature of the covenant) or shew good cause to the contrary : and if he continues refractory, or the covenant is already so broken, that it cannot now be specifically performed, then the subsequent proceedings set forth with precision the covenant, the breach, and the loss which has happened thereby; whereupon the jury will give damages, in proportion to the injury sustained by the plaintiff, and occasioned by such breach of the defendant's contract *°.

There is one species of covenant, of a different nature from the rest; and that is a covenant real, to convey or dispose of x Rast. Entr. 174. y f. N. B. 145.

9. An action of debt lies, in Virginia, not only for money, but for tobacco due by bond, or note. V. L. 1794, c. 29. And the judgment shall not be for the specific thing, or, the alternative value, (as in an action of detinue) but for the tobacco, alone, which must be made for the plaintiff, by sale of the defendant's goods and chattels, for tobacco, and not for money.

Debt also lies upon a foreign bill of exchange, protested, not only against the drawer, but against the endorsers, also ; all of whom may be sued together, or separately, at the option of the holder of the bill. V. L. 1794, c. 77. In England, a special action on the case, must be brought upon the custom of merchants, against the drawer, or endorsers, separately.

10. There is a difference between covenants in general, and covenants secured by a penalty or forfeiture. In the latter, the obligee has

lands, which seems to be partly of a personal, and partly of a real nature » (10). For this the remedy is by a special writ of covenant for a specific performance of the contract, concerning certain lands particularly described in the writ. It, therefore, directs the sheriff to command the defendant, here called the deforciant, to keep the covenant made between the plaintiff and him concerning the identical lands in question : and, upon this process, it is that fines of lands are usually levied at common law a; the plaintiff, or person to whom the fine is levied, bringing a writ of covenant, in which he suggests some agreement to have been made between him and the deforciant, touching those particular lands, for the completion of which, he brings this action. And, for the end of this supposed difference, the fine or Jinalis concordia is made, whereby the deforciant (now called the cognizor) acknowleges the tenements to be the right of the plaintiff, now called the cognizee n. And, moreover, as leases for years were formerly considered only as contracts b or covenants for the enjoyment of the rents and profits, and not as the conveyance of any real interest in the land, the antient remedy for the lessee, if ejected, was by a writ of covenant against the lessor, to recover

z Hal. on F. N. B 146. a See Book II, c. 21 b Ibid. c. 9.

his election to bring an action of debt for the penalty, (in which he may assign as many breaches, as he may think fit. V. 1^. 1794, c. 76. §. 21,) after a recovei-y of which, he cannot again resort to the covenant ; because the penalty is a satisfaction for the whole : or he may wave the penalty, and proceed on the covenant, and recover more, or less than the penalty, toties guotiee. Per lord Mansfield, 4 Burrow's Reports, 2228.

It has been decided that the heir may maintain an action of debt) on a bond, to his-ancestor, condition for the quiet enjoyment of lands which descend to him, where the breach has happened since his ancestor's death. Eppes vs. Demonville, 2 Call, 23.

(10.) The heir may maintain an action of debt, on a bond, to his ancestor, conditioned for quiet enjoyment of lands, which descend to the heir, where the breach happens after the death of the ancestor. 2 Call, 22.

11. Fines and recoveries, for the purpose of docking estates-tail, were prohibited in Virginia. V. L. 1710, c. 13, J748, c. 1. But those acts are now obsolete, it is presumed, as no'^state-tail can now be , 'created, or exist, in Virginia. V. L. 1794, c. 90, §.9, (1776, c. 24.)

the term (if in being) and damages, in case the ouster was committed by the lessor himself: or, if the term was expired, or the ouster was committed by a stranger, claiming by an elder title, then to recover damages only.

No person could at common law take advantage of any covenant or condition, except such as were parties or privies thereto ; and, of course, no grantee or asignee of any reversion or rent. To remedy which, and more effectually to secure to the king's grantees the spoils oT the monasteries then newly dissolved, the statute 32 Hen. VIII, c. 34-, gives the assignee of a reversion (after notice of such assignmentd) the same remedies against the particular tenant, by entry or action, for waste or other forfeitures, non-payment of rent, and non-performance of conditions, covenants, and agreements, as the assignor himself might have had: and makes him equally liable, on the other hand, for acts agreed to be performed by the assignor, except in the case of warranty12.

3. A promise is \in the nature of a verbal covenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same.\ If, therefore, it be to do any explicit act, it is an express contract, as much as any covenant; and the breach of if is an equal injury. The remedy indeed is not exactly the same: since, instead of an action of covenant, there only lies an action upon the case, for what is called the assitmpsit or undertaking of the defendant; the failure of performing which is the •wrong or injury done to the plaintiff, the damages whereof a jury are to estimate and settle. As if a builder promises, undertakes, or assumes to Caius, that he will build and cover his house within a time limited, and fails to do it: Caius has an action on the case against the builder, for this breach of his express promise, undertaking or asswnpsit; and shall recover a pecuniary satisfaction for the injury sustained by such delay. So also in the case before-men.tioned, of a debt by simple contract, if the debtor promises to pay it and does not, this breach of promise entitles the creditor to his action on the case, instead of being driven to an action of debte. Thus likewise a promissory note or note of hand not under seal, to pay money at a day certain, is an express atsumpsit; and the payee at common law, or dCo. Litt 215 Mo 876. Cro. Jac 145. e 4 Uep. 92 __ 12. L. V.1794. c. 89, 6. 19 and20. Accordant.

159

by custom and act of parliament the indorseef, may recover the value of the note in damages, if it remains unpaid". Some agreements indeed, though never so expressly made, are deemed of so important a nature, that they ought not to rest in verbal promise only, which cannot be proved but by the memory (which sometimes will induce the perjury) of witnesses. To prevent which, the statute of frauds, and perjuries, 29 Car. II, c. 5, enacts, that in the five following cases, no verbal promise shall be sufficient to ground an action upon, but at the least some note or memorandum of it shall be made in writing, and signed by the party to be charged therewith: 1. Where an executor or administrator promises to answer damages out of his own estate..... 2. Where a man undertakes to answer for the debt, default, or miscarriage of another. 3. Where any agreement is made, upon consideration of marriage. 4. Where any contract or sale is made of lands, tenements, or hereditaments, or any interest therein. 5. And, lastly, where there is any agreement that is not to be performed within a year from the making thereof14. In all these cases a mere verbal assumpsit is void #..

f See book 2, ch. 30. g 1 Roll. Abr. 600, 601.

* These provisions in the statute have produced many decisions both in the courts of law and equity.

It is determined, that if two persons go to a shop, and one orders goods, and the other says, " if he does not pay I will, or, I will see you paid," he is not bound unless his engagement is reduced into writing. In all such cases the question is, who is the buyer, or to whom the credit is given, and who is the surety^ and that question, from all the circumstances, must be ascertained by the jury; for if the person for whose use the goods are furnished be liable at all,

13. Promissory notes, bonds, and bills of debt, for payment of money, or tobacco, are assignable in Virginia, and the assignee may maintain an action of debt thereupon in his own name, but is obliged to allow all just discounts which the defendant can prove against the obligee before notice of the assignment; which seems to distinguish them widely from bills of exchange, to which they have been so far assimilated in our court of appeals, as that it has been decided that an action lies against the assignor of a bond, upon his bare endorsement, without any special undertaking to that effect, for the amount of the money due thereon, if the assignee uses due diligence for the recovery, and the obligor should prove insolvent. See L. V. 1748, c. 27, 1794, c. 29. See Mackie's Executors vs. Da vis and Young, &c, in the court of appeals, Nov. term, 1796, 2 Wash. 219, and 1 Call's Rep. 226, 232, and 497.

14. V, L. 1794. c« 10. Accordant. See ajso Mr. Christian's note in this place.

From these express contracts the transition is easy to those that are only implied by law. Which are such as reason and justice dictate, and which, therefore, the law presumes that every man has contracted to perform; and, upon this presumption, makes him answerable to such persons, as suffer by his non-performance.

Of this nature, are, first, such as are necessarily implied by the fundamental constitution of government, to which every man is a contracting party. And thus it is, that every person is bound and hath virtually agreed to pay ,such particular sums of money, as are charged on him by the sentence, or assessed by the interpretation, of the law. For it is a part of the original contract, entered into by all mankind, who partake the benefits of society, to submit in all points to the municipal constitutions and local ordinances of that state, of which each individual is a member. Whatever, therefore, the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted -to discharge. And this implied agreement it is, that gives the

any promise by a third person to discharge the debt must be in writing, otherwise it is void. 2 T. JR. 80. S. Bl, Rep. 120. Mutual promises to marry need not be in writing, but the statute relates only to agreement* made in consideration of the marriage. A lease not exceeding three years from the making thereof, and in which the rent reserved amounts to two thirds of the improved value, is good without writing; but all other parol leases or agreements for any interest in lands, have the effect of estates at will only. Bull. N. P. 279. All declarations of trusts, except such as result by implication of law, must be made in writing. 29 Car. II. c. 3. t. f. trf 8.

If a promise depends upon a contingency, which may or may not fall within a year, it is not within the statute; as apromise to pay a sum of money upon a death or marriage, or upon the return of a ship, or to leave a legacy by will, is good by parol; for such a promise may, by possibility,,be performed within th« year. 3 Burr. 1278. I Salt. 280. 3 Salt. 9, fcfc.

With regard to the contracts for goods of the value of 101. see 2 vol. 448. n. 6. and 7.

But a court of equity will decree a specific performance of a verbal contract, when it is confessed by a defendant in his answer, or when there has been a part performance of it; as by payment of part of the consideration money, or by entering and expending money upon the estate, for such acts preclude the patty from denying the existence of the contract, and prove that there can be no fraud or perjury inobtaining the execution of it.

If one party only signs an agreement, he is bound by it; and if an agreement isby parol, but it is agreed it shall be reduced into writing, and this is prevented by the fraud of one of the parties, performance of it will be decreed. 2 Bro. 564,5, 6. See 3 Wood. Leet. Ivii. and Fomolanjue Tr. of Eg. b. 1. c. 3. *. 8 and 9) where this subject is fully and learnedly discussed.....G&rwf»Ynv

plaintiff a right to institute a second action, founded merely on the general contract, in order to recover such damages or sum of money, as are assessed by the jury and adjudged by the court to be due from the defendant to the plaintiff in any former action. So that if he hath once obtained a judgment against another for a certain sum, and neglects to take out execution thereupon, he may afterwards bring an action of debt upon this judgment e, and shall not be put upon the proof of the original cause of action ; but upon shewing the judgment once obtained, still in full force, and yet unsatisfied, the law immediately implies, that by the original contract of society the defendant hath contracted a debt, and is bound to pay it1J. This method seems to have been invented, when real actions were more in use than at present, and damages were permitted to be recovered thereon ; in order to have the benefit of a writ of capias to take the defendant's body in execution for those damages, which process was allowable in an action of debtl6 (in consequence of the statute 25 Edw. III. c. 17.) but not in an action real. Wherefore, since the disuse of those real actions, actions of debt upon judgment in personal suits have been pretty much discountenanced by the courts, as being generally vexatious and oppressive, by harassing the.defendant with the costs of two actions instead of one.

On the same principle it is, (of an implied original contract to submit to the rules of the community, whereof we are members) that a forfeiture imposed by the bye-laws and private ordinances of a corporation upon any that belong to the body, or an amercement set in a court-leet or court baron, upon any of the suitors to the court (for otherwise it will not be binding11) immediately create a debt, in the eye of the law ; and such forfeiture or amercement, if unpaid, work an injury to the party or parties, entitled to receive it; for which the remedy is by action

of debt!.

The same reason may, with equal justice, lie applied to all penal statutes, that is, such acts of parliament, whereby a forfeiture is inflicted for transgressing the provisions therein en-

g 1 Roll. Abr. 600, 601. h Law of nisi]>ri:ts, 155. i 5 ll<?]>- 64. Hob. 279.

15. But the suit, whether by action of debt, or by scirs facias must be brought within ten years after the date of the judgment, unless it was obtained before the act of 1792....which see. V. L. 1794, c. 76, Sec. 5 & 47.

16. V. L. 1794, c. 66, Sec. 25. Accordant.

acted. The party offending, is here bound by the fundamental contract of society to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. The usual application of this forfeiture, is either to the party grieved, or else to any of the king's subjects, in general. Of the former sort, is the forfeiture inflicted by the statute of Winchester1', (explained and enforced, by several subsequent statutes') upon the hundred, wherein a man is robbed, which is meant to oblige the hundredors to make hue and cry after the felon; for, if they take him, they stand excused1'. But, o;herwise the party robbed, is entitled to prosecute them, by a special action on the case, for damages equivalent to his loss. And of the same nature is the action given by statute 9 Geo. I, c. 22, commonly called the black act, against the inhabitants of any hundred, in order to make satisfaction in damages to all persons who have sufferred by the offences enumerated and made felony by that act1B. But, more usually, these forfeitures created by statute, are given at large, to any common informer; or, in other words, to any such person or persons, as will sue for the same: and hence, such actions are called popular actions, because they are given to the people, in general1". Sometimes one part is given to the king, to the poor, or to some public use, and the other part to the informer or prosecutor; and then the suit is called a qui tarn action, because it is brought by a person " qui tarn pro domino " rege, &?c. quam pro se ipso in hoc parte sequitur." If the king, therefore, himself, commences this suit, he shall have the whole forfeiture n. But if any one hath begun a qui tarn, or popular action, no other person can pursue it; and the verdict passed upon the defendant in the first suit, is a bar to all others, and conclusive, even to the king himself. This has frequently occasioned offenders to procure their own friends to begin a suit, in order to forestall and prevent other actions : which practice is, in some measure, prevented by a statute made in the reign of a very sharp-sighted prince in penal laws, 4 Hen. VII, c. 20, which enacts, that no recovery, otherwise than by verdict, obtained by collusion in an action popular, shall be a bar to any other action

k 13. Edw. I,c. 1.

1 27 Eliz. c. 13. 2 i Car. II, c. 7. 8 Geo. II, c. 16. 22 Geo. II. c. 24.

m See Book II, c. 29. n 2 Hawk. P. C. 26B._________

17. Obsolete, and repealed. V. L. 1794, c. 147.

18. Never in force, in Virginia.

prosecuted bona fide ». A provision, that seems borrowed from the rule of the Roman law, that if a person was acquitted of any accusation, merely by the prevarication of the accuser, a new prosecution might be commenced against him °.

A second class of implied contracts are such as do not arise from the express determination of any court, or the positive direction of any statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings orassumpsits; which, though never, perhaps, actually made, yet constantly arise from this general implication and intendment of the courts of judicature, that every man hath engaged to perform, what his duty or justice requires. Thus,

1. If I employ a person to transact any business for me, or perform any work, the law implies, that I undertook or assumed to pay him so much as his labour deserved. And, if I neglect to make him amends, he has a remedy for this injury by bring-' ing his action on the case upon this implied assumpsit; wherein he is at liberty to suggest that I promised to pay him so much as he reasonably deserved, and then to aver, that his trouble was really worth such a particular sum, which the defendant has omitted to pay. But this valuation of his trouble is submitted to the determination of a jury j who will assess such a sum in damages, as they think he really merited. This is called an assumpsit on a quantum meruit.

2. There is also an implied assumpsit on a quantum valebat, which is very similar to the former; being only where one takes tap goods or wares of a tradesman, without expressly agreeing for the price. There the law concludes, that both parties did intentionally agree, that the real value of the goods 'should be paid; and an action on the case may be brought accordingly, if the vendee refuses to pay the value.

3. A third species of implied assumpsits, is when one has had and received money belonging to another, without any valuable consideration given on the receiver's part: for the law construes this to be, money had and received, for the use of the owner only: and implies that the person so receiving promised and undertook to account for it, to the true proprietor. And, if he unjustly detains it, an action on the case lies against him for the breach of such implied promise and undertaking; and he o ff. 47, IS, 3. ________________

19. V. L. If94, c. 25. Accordant.

will be made to repair the owner in damages, equivalent to what he has obtained in violation of such his promise. This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which ex aequo et bona lie ought to refund. It lies for money paid by mistake, or on a consideration which happens to fail, or through imposition, extortion, or oppression, or where any undue advantage is taken of the plaintiff's situation v (").

%. 4. Where a person has laid out, and expended his own money for the use of another, at his request, the law implies a promise of repayment, and an action will lie on his assumpsit * *. p 4 Burr. 1012. q Carth. 446. 2 Keb. 99.

* If a surety in a bond pays the debt of the principal, he may recover it back from the principal in an action of assumpsit, for so much money paid and advanced to his use ; yet in antient times this action could not be maintained; and it is said, that the first case of the kind, in which the plaintiff succeeded, was tried before the Jate Mr J. Gould at Dorchester. But this is perfectly consistent with the equitable principles of an assumpsit. 2 T. R. WS...CMnian.

(19.) This form of action was much encouraged by Lord Mansrfield, who in speaking of it observes, that one great benefit which arises from the nature of this action, is, that the plaintiff need not state the special circumstances of his case, but may declare generally, that the money was received to his use, and make out his case at the trial. 2 Burrow, 1010. To this we may oppose the observations of judge "Pendleton, president of the-court of appeals, upon the same subject, I do not like, said he, in a late case, this new practice of general counts, •much, as they tend to surprise the other party without giving him an opportunity of preparing for a full defence. In England the usual practice is to insert a special count, and the general money counts are only resorted to on account of some defect of form in the special counts; which avoids the inconvenience of surprise, because the ad verse party has notice from the special count of the matter with which he is charged; whereas the general count does not give such notice. This,;adds he, is the stronger in cases against executors, who must necessarily be less acquainted with the circumstances of their testators' transactions, than the testator himself. 1 Call, 259.

It seems to have been a doubt whether the indorsee of a bill of exchange is entitled to recover against his next immediate indorsor, npon this general count for money had and received to his use, only. Ibid. 232 to 239.

Although this action is said to extend to almost every case where the defendant has received money which ex aequo et bono he ought to refund, yet lord Mansfield himself concurred in the decision, that it «loes not lie to recover money paid for the release of cattle distreined,

doing,

5. Likewise, fifthly, upon a stated account between two merchants, or other persons, the law implies, that he against whom the balance appears, has engaged to pay it to the others ; though there be not any actual promise. And from this implication it is frequent for actions on the case to be brought, declaring that the plaintiff and defendant hath settled their accounts together, insimul computassent, (which gives name to this species of assumpsit) and that the defendant engaged to pay the plaintiff the balance, but has since neglected to do it. But if no account has been made up, then the legal remedy is by bringing a writ of account, de compute* ; commanding the' defendant to vender a just account to the plaintiff, or shew the court good cause to the contrary. In this action, if the plaintiff succeeds, there are two judgments: the first is, that the defendant do account (quodcomftitet) before auditors appointed by the court: and, when such account .is finished, then the second judgment is that he do pay the plaintiff so much as he is found in arrears. This action, by the old common law ', lay only against the parties themselves, and not their executors; because, matters of account rested solely in their own knowlege.......

But this defect, after many fruitless attempts in parliament; vfas at last remedied by statute 4 Ann. c. 16, which gives an action of account against the executors and administrators so. But however it is found by experience, that the most ready and effectual way to .settle these matters of account is by bill in a i court of equity, where a discovery may be had on the defendant's oath, without relying merely on the evidence which the plaintiff may be able toprpduce21. Wherefore actions of account, to compel a man to bring in and settle his accounts, are now very seldom used ; though, when an account is once stated, nothing is more common than an action upon the implied assump&it to pay the balance.

r£. N. 11.11G. s Co. Litt. 90.

dcing damage, althou^'.i there was in that case a promise to return the money, if the plaintiff could make out his right. And this upon the 1,1'ound that the defendant may be surprised by such a form of bringing the action.... Cowper, 417.

20. V. L. IMS, c. 3. Edi. 1769. 1794, c. 76. Sec. 24 Accordant.

~1. The most iMu.l .waj in Virginia, is to prefer a bill in chanccrv.

6. The last class of contracts, implied by reason and construction of law, arises upon this supposition,; that every one who undertakes any office, employment, trust or duty, contracts with those who employ or entrust him, to perform it with integrity, diligence, and skill. And, if by his want of either of those qualities any injury accrues to individuals, they have therefore their remedy in damages by a special action on the case. A few instances will fully illustrate this matter. If an officer of the public is guilty of neglect of duty, or a palpable breach of it, of non-feasance or bf mis-feasance*2; as, if the sheriff does not execute a writ sent to him, or if he wilfully makes a false return thereof j in both these cases the party aggrieved shall have an action on the case, for damages to be assessed by a jury * *3. If a sheriff or gaolor suffers a prisoner, who is taken upon mesne process (that is during the pendency of a suit) to escape, he is liable to an action onthecasen34. But if, after judgment, a gaolor or a sheriff permits a debtor to escape, who is charged in execution for a certain sum; the debt immediately becomes his own, and he 4s compellable by action of debt, being for a sum liquidated and ascertained, to satisfy the creditor his

t Moor. 431. 11 Rep. 99:

n Cro. Eliz. 625, Gomb. 69.

32. It has been determined that an action of debt lies against a sheriff, or against a sheriff and his securities, upon his bond given for the faithful performance of his office, for a mis-feasance, in Virginia*; as where a sheriff proceeded to levy an execution, and sold the goods of the plaintiff taken under color of that execution, after due notice of a writ of sujtcrsecleaa to the -judgment upon which the execution issued. Bibb vs. Cauthorne. Wash. Rep. Vol. I. p. 90.

23. In Virginia, the sheriff is in both cases, moreover, liable to a fine, one moiety thereof shall go to' the commonwealth, and the other to the party grifeved, recoverable by action of debt in any county court. V. L. 1794, c. 80. ). 14. A sheriff failing to return an execution may be fined, on motion to the court from whence £he execution issued, in any sum not exceeding five per cent, per month, on the amount of the judgment, from the return day of the execution, provided there be ten days previous notice of such motion. Ibid. c. 151. Sec. 50. •

24. In this case he is liable to the same judgment as the defendant himself. Ibid. c. 66. §. 27. c. 67. J. 21.

whole demand: which doctrine is grounded * on the equity of the statutes of Westm. 2.' 13 Edw. I, c. 11, and 1 Ric. II, c. 12 ". ' An advocate or attorney that betray the cause of their client, or, being retained, neglect to appear at the trial, by which the cause miscarries, are liable to an action on the case, for a reparation to their injured clientx26. There is also in law always a.n implied contract with a common inn-keeper,to secure his guest's goods in his inn(26) ; with a common carrieror barge-master, to be answerable for the goods he carries; with a common farrier, that he shoes a horse well, without laming him; with a common taylor, or other workman, that he performs his business in a workmanlike manner: in which if they fail, an ac-

w Bro. Altr. t. parliament. 19. 2 Inst. 382. x Finch. 1.188.

25. A sheriff failing to pay money levied by execution to the party, or his attorney, or suffering the defendant to escape with his consent, shall, on the like motion, after ten days previous notice, have judgment against him for the amount of the sum levied, with interest thereon at the rate of fifteen per cent, per annum, from the return day of the execution.' Ibid. c. 151. Sec. 51. But the extraordinary remedy gi\en by this and the preceding section, abou noted, if resorted to, would bar the plaintiff of his common law remedy ; for the,law does not provide, as in the two first cases, abovementioned, that he shall have both.

26. This action'also lies against an attorney, who neglects to charge a prisoner in execution, at the suit of his client, whereby the prisoner is discharged. 2 Wilson 328. And an attorney receiving money for his client, and failing to make payment thereof, when demanded, may be proceeded against in the like summary way, on notice, befai'e any court dt'-record, as a sheriff failing to pay money le\ied by execution. V. L. 1794, c. 71. §. 7. If a suit be dismissed for the non-attendance of an attorney, not having a reasonable excuse, it shall be at his costs, and he shall also be liable to the action of his client. Ibid. §. 6. If any sheriff takes the engagement of an attorney to appear for a defendant, and he fails so to do, he forfeits eight doilars to Ihe defendant. Ibid. §.8.

(26.) It hath been long established law that an innkeeper is bound to resiitutirfi, not only where a guest is robbed by his servants, but in case he be robbed in his inn by any person whatever: unless it should appear that he was robbed by his own tervaut, or by a companion whom ho brought with him. 8 Co. 33.

tion on the case lies to recover damages for such breach of their general undertaking''. But if I employ a person to transact any of these concerns whose common profession and business it is not, the law implies no such general undertaking; but, in order to charge him with damages, a special agreement is required. Also, if an inn-keeper, or other victualler, hangs out his sign and opens his house for travellers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveller z 2r. If any one cheats me with false cards or dice38, or by false weights and measures, or by selling me one commodity for another, an action on the case also lies against him for damages, upon the contract which the law always implies, that every transaction is fair and honest*. In contracts likewise for sales, it is constantly understood that the seller undertakes that the commodfty he sells is his own; and if it proves otherwise, an action on the case lies against him, to exact damages for this deceit. In contracts for provisions it is always implied that they are wholesome; and, if they be not, the same remedy may be had29. Also if hf^ that sclleth any thing, doth upon the sale warrant it to be good, the law annexes a tacit contract to this warranty, that if it be not so, he shall make compensation to the buyer: else it is an injury to good faith, for which an action on .the case will lie to recover damages b. The warranty must be

•y 11 Rep. 54 1 Saund. 324. a 10 Kep. 56.

z 1 Vcntr. 33J. b F. N. B. 94.

27. In this case it would seem th.at an action might be brought upon his bond to the governor, conditioned by keeping his ordinary in a proper manner. See. V. L. 1794, c. 107. '

i * v

28. Money fairly won at any game, in Virginia, .if it amount to more than seven dollars, in twenty-four hours,-may be recovered of

'the winner by the party losing it, by action of debt in any court,of record, where the value is cognizable; and if he does not suaiwithin

'three months, any other person may sue far the same, and treble the value thereof, one half to his own use, and the other to the use of the parish where the offence is committed. L. V. 1784, c. 96. .

29. This is, moreover, an indictable offence. L. V.-1794, c. 23.

upon the sale; for if it be made after, and not of the time of the sale, it is a void warranty c : for it is then made without any consideration; neither does the buyer then take the goods upon the credit of the vendor. Also the warranty can only reach to things in being at the time of the warranty made, and not to things in futuro: as, that a horse is sound at the buying of him j not that he will be sound two years hence. But if the vendor knew the goods to be unsound, and hath used any art to disguise themd, or if they are in any shape different from what he represents them to be to the buyer, this artifice shall be equivalent to an express warranty, and the vendor is answerable for their goodnesss. A general warranty will not extend to guard against defects that are plainly and obviously the object of one's senses, as if a horse be warranted perfect, and wants either a tail or an ear, unless the buyer in this case be blind. But if cloth is warranted to be of such a length, when it is not, there an action on the case lies for damages; for that cannot be discerned by sight, but only by a collateral proof, the measuring it,e. Also if a horse js warranted sound, and he wants the sight of an eye, though this seems to be the object of one's senses, yet as the discernment of such defects is frequently matter of skill, it hath been held that an action on the caselieth, to recover damages for this imposition f.

Besides the special action on the case, there is also a peculiar remedy, entitled an action of deceit «, to give damages in some particular cases of fraud; and principally where one man does any thing in the name of another, by which he is deceived or injured11; as if one brings an action in another's name, and and then suffers a non-suit, whereby the plaintiff becomes liable to costs : or where one obtains or suffers a fraudulent recovery of lands, tenements, or chattels, to the prejudice of him that hath right. As when by collusion the attorney of the tenant makes default in a real action, or where the sheriff returns that the tenant was summoned when he was not so, and in either case he loses the land, the writ of deceit lies against the demandant, and

c Finch. L. 189. e Finch. L. 189. g F. N. B. 95.

d 2 Roll. Rep. 5

f Salk. 611.

h Law of nisiprius. 30.

also the attorney or the sheriff and his officers j to annul the former proceedings and recover back the land'. It also lies in the cases of warranty before-mentioned, and other personal injuries committed contrary to good faith and honesty k. But an action on the case, for damages, in nature of a writ of deceit, is more usually brought upon these occasions1. And indeed it is the only™ remedy for a lord of a manor, in or out of antient demesne, to reverse a fine or recovery had in the king's courts of lands lying within his jurisdiction ; which would otherwise be thereby turned into frank fee. And this may be brought by the lord against the parties and cestuy aue use of such fine or recovery ; and thereby he shall obtain judgment not only for damages (which are usually remitted) but also to recover his court, and jurisdiction over the lands, and to annul the former proceedings n.

Thus much for the non-performance of contracts express or implied; which includes every possible injury to what is by far the most considerable species of personal property ; viz. that which consists in action merely, and not in possession. Which finishes our inquiries into such wrongs as may be offered to per* sonal property, with their several remedies by suit or action.

i Booth. Real Actions, 251. Kast. Entr. 221, 222. See p. 405. k F. N. B- 98. 1 Booth. 253. Co. Entr. 8. mo Lev. 419. nRast.Entr. 100.1. 3 Lev. 415. Lutw. 711, 749,

CHAPTER THE TENTH.

OF INJURIES TO REAL PROPERTY,

AND FIRST OF DISPOSSESSION, OR OUSTER OF THE FREEHOLD.

I COME now to consider such injuries as affect that species of property which the laws of England have denominated real,- as being of a more substantial and permanent nature, than those transitory rights of which personal chattels are tlie object.

Real injuries then, or injuries affecting real rights, are principally six; 1. Ouster; 2. Trespass; 3. Nusance; 4-. Waste; 5. Subtraction; 6. Disturbance.

Ouster, or dispossession, is a wrong or injury that carries with it the amotion of possession: for thereby the wrong-doer gets into the actual occupation of the land or hereditament, and obliges him thai hath a right to seek his legal remedy; in order to gain possession, and damages for the injury sustained. And such ouster, or dispossession, may either be of the freehold, or of chattels real. Ouster of the freehold is effected by one of the following methods, 1. Abatement; 2. Intrusion; 3. Disseisin ; 4. Discontinuance ; 5. Deforcement. All of which in their order, and afterwards their respective remedies, will be considered in the present chapter.

1. And, first, an abatement is where a person dies seised of an inheritance, and before the heir or devisee enters, a stranger

who has no right makes entry, and gets possession of the freehold: this entry of him is called an abatement, and he htni^lf is denominated an abater*. It is to lie observed that this, expression, of ^bating, which is derived from the French, nnd vy;nifies to quash, beat down, or destroy, in used by our law in thive senses. The first, which seems to be the primitive sense, is diat of abating or beating down anusance, of which we spoke in the beginning'of this bookb; and in a like sense it is used iaitatute Westm. 1. 3 Edw. I, c. 17, whtre mention is made of abating a castle or fortress; in which case it clearly signifies to pull it down, and level it with'the ground. The second signification of abatement is that of abating a writ or action, of which we shall say more hereafter: here it is taken figuratively, and signifies the overthrow or defeating of such writ, by some fatal exception to it. The last species of abatement is diat we have now before us; which is also a figurative expression to denote that the rightful possession or freehold of the heir or devisee is over* thrown by die rude intervention of a stranger.

This abatement of a freehold is somewhat similar to an immediate occupancy in a state of nature, which is effected by taking possession of the land the same instant that the prior occupant by his death relinquishes it. But this, however agreeable to natural justice, considering man merely as an individual, is diametrically opposite to the law of society, and particularly the law of England: which, for the preservation of public peace, hath prohibited as far as possible all acquisitions by mere occupancy : and hath directed that lands, on the death of the present possessor, should immediately vest either in some person, expressly named and appointed by the deceased, as his devisee ; or, on default of such appointment, in such of his next relations as the law hath selected and pointed out as his natural representative or heir. Every entry therefore of a mere stranger by way of intervention between the ancestor and heir or person next entitled, which keeps the heir or devisee out of possession, is one of the highest injuries to the right of real j.roperty:.

a Finch. L. 195.

b page 5.

1. It has been held, that if a man devise lands to hU son, then absent iu foreign parts, any net of authority, or ownership, uoive by any

2. The second species of injury by ouster, or amotion of possession from the freehold, is by intrusion ; which'is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion. And it happens where a tenant for term of life dieth seised of certain lands and tenements, and a stranger entereth thereon, after such death of the tenant, and before any entry of him in remainder or reversion'. This entry and interposition of the stranger differ from an abatement in this -, that an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the prejudice of him in remainder or reversion. For example ; if A dies seised of lands in fee-simple, and, before the entty of B his heir, C enters thereon, this is an abatement; but if A -be tenant for life, with remainder to B in fee-simple, and, after the death of A, C enters, this is an intrusion. Also if A be tenant for life on lease from B, or his ancestors, or be tenant by the curtesy, or in dower, the reversion being vested in B ; and after the death of A, C enters and keeps B out of possession, this is likewise an intrusion. So that an intrusion is always immediately consequent upon the determination of a particular estate ; an abatement is always consequent upon the descent or devise of an estate in fee-simple. . And in either case the injury is equally great to him whose possession is defeated by this unlawful occupancy.

3. The third species of injury by ouster, or privation of the freehold, is by disseisin. Disseisin is a wrongful putting out of him that is seised of the freehold"1. The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack-upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a freehold in-

c Co. Litt. 277. F. N. B. 203, 20-1

d Co. Litt. 277.

person whatsoever in regard to the lands, may, unless the contrary^ ' proved, be considered as do'ntiVy the authority of the devisee, and operate as an actual entry into the lands by him, In case he should sell them before his return ; so as to render the conveyance valid, notwithstanding the statute against conveying pretenscd titles. In the case of Hill v. Purvis. Frcdg. D.,C. May, 1801.

deed. Disseisin may be effected either in corporal inheritances, or incorporeal. Disseisin, of things corporeal, as of houses, lands, &fc. must be by entry and actual dispossession of the freeholde; as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of possession. Disseisin of incorporeal hereditaments cannot be an actual dispossession ; for the subject itself is neither capable of actual bodily possession, nor dispossession: but it depends on their respective natures, and various kinds ; being in general nothing more than a disturbance of the owner in the means of coming at, or enjoying them. With regard to freehold rent in particular, our antient law-booksf mention five methods of working a disseisin thereof: 1. By enclosure; where the tenant so encloseth the house or land, that the lord cannot come to distrein thereon, or demand it: 2. T&yforestaller, or lying in wait: when the tenant besetteth the way with force and arms, or by menaces of bodily hurt affrights the lessor from coming: 3. By rescous; that is, either by violently retaking a distress taken, or by preventing the lord with force and arms from taking any at all: 4. By replevin! when the tenant replevies the distress at such time when his rent is really due: 5. By denial; which is when the rent being lawfully demanded is not paid. All, or any of these circumstances amount to a disseisin of rent; that is, they wrongfully put the owner out of the only possession, of which the subject-matter is capable, namely, the receipt of it.... But all these disseisins, of hereditaments incorporeal, are only so at the election and choice of the party injured; if, for the sake of more easily trying the right, he is pleased to suppose himself disseised £. Otherwise, as there can be no actual dispossession, he cannot be compulsively disseised of any incorporeal hereditament.

And so too, even in corporeal hereditaments, a man may frequently suppose himself to be disseised, when he is not so in fact, for the sake of entitling himself to the more easy and com-

e Co. Litt. 181.

f Finch, b. L. 165.166, Litt. Sec. 237, tffc.

g Litt. Sec. 588, 589.

modious remedy of an asssise of novel disseisin, (which will be explained in the sequel of this chapter) instead of being driven to the more tedious process of a writ of entry ". The true injury of compulsive disseisin seems to be that of dispossessing the tenant, and substituting oneself to be the tenant of the lord in his stead; in order to which in the times of pure feodal tenure the consent or connivance of the lord, who upon every descent or alienation personally gave, and who therefore alone could change, the seisin or investiture, seems to have been considered as necessary. But when in process of time the feodal form of alienations wore off, and the lord was no longer the instrument of giving actual seisin, it is probable that the lord's acceptance of rent or service, from him who had dispossesed another, might constitute a complete disseisin. Afterwards, no regard was had to the lords concurrence, but the dispossessor himself was considered as the sole disseisor : and this wrong was then allowed to be remedied by entry only, without any form of law, as against the disseisor himself; but required a legal process against his heir or alienee. And when the remedy by assise was introduced under Henry II, to redress such disseisins as had been committed within a few years next preceding, the facility of that remedy induced others, who were wrongfully kept out of the freehold, to feign or allow themselves to be disseised, merely for the sake of the remedy. '

These three species of injury, abatement, intrusion, and disseisin, are such wherein the entry of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining- species are where the entry of the tenant was at first lawful, but the wrong consists in the detaining of possession afterwards.

4. Such is, fourthly, the injury of discontinuance; which happens whc;.. he who hath an estate-tail maketh a lai ger estate of the land than by law he is entitled to do': in which case the estate is good, so far as his power extends who made it, but no farther. As if tenant in tail makes a feoffment in fee-simple, or

h Ha^h. parv- c.7. 4 Bun. 110.

i Finch. L. 190.

for the life of the feoffee, or in tail; all which are beyond his power to make, for that by the common law extends no farther than to make a lease for his own life: in such case the entry of the feoffee is lawful during the life of the feoffer; but if he retains the possession after the death of the feoffer, it is an injury which is termed a discontinuance; the antient legal estate, which ought to have survived to the heir in tail, being gone, or at least suspended, and for a while discontinued2. For, in this case, on the death of the alienors neither the heir in tail, nor they in remainder or reversion expectant on the determination ofche estate-tail, can enter on and possess the lands so alienated. Also by the common law, the alienation of an husband who was seised in the right of his wife, worked a discontinuance of the wife's estate : till the statute 32 Hen. VIII. c. 28, provided, that no act by the husband alone shall wdrk a discontinuance of, or prejudice, the inheritance or freehold of the wife; bat that, after his death, she or her heirs may enter on the lands in question3. Formerly also, if an alienation was made by a sole corporation, as a bishop or dean, without consent of the chapter, this was :t discontinuance'. But this is now quite antiquated by the disabling statutes of 1 Eliz. c. 19, and 13 Eliz. 10, which declare all such alienations absolutely void ab initio, and therefore at present no discontinuance can be thereby occasioned4.

5. The fifth and last species of injuries by ouster or privation of the freehold, where the entry of the present tenant or pos-

i F. N. B. 194.

2. But here it is proper that the student should be apprised, that if the conveyance of lands and tenements (which are said to lie in livery) be made by deed of bargain and sale, the usual conveyance in Virginia, or by lease and release, or by any other conveyance in fiais except a deed of feoffmenl with livery of scisin, such conveyance without livery of seisin docs not work a discontinuance ; and the entry of the heir after the death of the tenant in tail, in such case is not taken away, as it would have been by feoffment with livery of seisin. Co. Litt. 332.

3. V. L. 1794, c. 114. §. 5, ib a transcript from the statute here referred to.

4. These statutes arc now repealed. V. L. 1794) c. 147.

sessor was originally lawful, but his detainer is now become unlawful, is that by deforeement. This, in it's most extensive sense, is nomen generalissimum; a much larger and more comprerunsive expression than any of the former: it then signifying the holding of any lande or tenements to which another person hath a right1'-. So that this includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possession. But, as contradistinguished from the former it is only such a detainer of the freehold, from him that hath the right of property, but never had any possession under that right, as falls within none-of the injuries which we have before explained. As in case where a lord has a seignory, and lands escheat to him propter defectum sanguinis, but the seisin of the lands is withheld from him: here the injury is not abatement, for the right vests not in the lord as heir or devisee; nor is it intrusion, for it vests not in him who hath the remainder or reversion ; nor is it disseisin, for the lord was never seised; nor does it at all bear the nature of any species of discontinuance; but, being neither of these four, it is therefore a deforcement1. If a man marries a woman, and during the coverture is seised of lands, and alienes, and dies ; is disseised, and dies; or dies in possession ; and the alienee, disseisor, or heir, enters on the tenements and doth not assign the widow her dower ; this is also a deforcement to the widow, by withholding lands to which she hath a rightm. In like manner, if a man lease lands to another for term of years, or for the life of a'third person, and the term expires by surrender, efflux of time, or death of the cestuy que vie ; and the lessee or any stranger, who was at the expiration of the term in possession, holds over, and refuses to deliver the possession to him in remainder or reversion, this is likewise a deforcement". Deforcements may also arise upon the breach of a condition in law: as if a woman gives lands to a man by deed, to the intent that he marry her, and he will not when thereunto required, but continues to hold the lands: this is such a fraud on the man's part, that the law will

k Co. Litt. 2?f. 1 F. N. B. 143. m F. N. B. 8,147. n Ninch. L. 263. F. N. 1J. 201, 205,6,7, See book H, c. 9. p. 151.

not allow it to devest the woman's right of possession; though, his entry being lawful, it does devest the actual possession, and thereby becomes a deforcement0. Deforcements may also be grounded on the disability of the party deforced: as if an infant do make an alienation of his lands, and the alienee enters and keeps possession; now, as the alienation is voidable, this possession as against the infant (or, in case of his decease, as against his heir) is after voidance wrongful, and therefore a deforcement p. The same happens, when one of nonsane memory alienes his lands or tenements, and the alienee enters and holds possession, this may also be a deforcementq. Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against the other: as where the ancestor dies seised of an estate in fee-simple^ which descends to two sisters or coparceners, and one of them enters before the other, and will not suffer her sister to enter and enjoy her moiety ; this is also a deforcementr. . Deforcement may also be grounded on the non-performance of a covenant real: as if a man, seised of lands, covenants to convey them to another, and neglects or refuses so to do, but continues possession against him; this possession, ^eing wrongful, is a deforcement •: whence, in levying a fine of lands, the person, against whom the fictitious action is brought upon a supposed breach of covenant, is called the deforciant. And, lastly, by way of analogy, keeping a man by any means out of a freehold office is construed to be a deforcement; though, being an incorporeal hereditament, the deforciant has no corporal possession. So that whatever injury (withholding the possession of a freehold) is not included under one of the four former heads, is comprized under this of deforcement.

The several species and degrees of injury by ouster being thus ascertained and defined, the next consideration is the remedy: which is, universally, the restitution or delivery ef possession to the right owner j and, in some cases, damages also for

o F. N. B. 205.

q Ibid. F. N. B. 203.

5 F.N. B, 146.

p Finch, L. 264. F. N. B. 192. * r Ibid 293, 294. F. N. B. 197.

the unjust amotion. The methods, whereby these remedies, or either of them, may be obtained, are various*

I. The first, is that extrajudicial and summary one, which we slightly touched in the first chapter of the present book1, of entry by the legal owner, when another person, who hath no right, hath previously taken possession of lands or tenements.... In this case, the party entitled, may make a formal, but peaceable, entry thereon, declaring that thereby he takes possession; which notorious act of ownership is equivalent to a feodal investiture by the lordv: or he may enter on any part of it in the same county, declaring it to be in the name of the whole u: but if it lies in different counties, he must make different entries; for the notoriety of such entry, or claim to the pares or freeholders of Westmorland, is not any notoriety to the pares or freeholders of Sussex. Also, if there be two disseisors, the party disseised, must make his entry on both; or, if one disseisor has conveyed the lands with livery to two distinct feoffees, entry must be made on Loth" : for as their seisin is distinct, so also must be the act which devests that seisin. If the claimant be deterred from entering by menaces or bodily fear, he may make claim, as near to the estate as he can, with the like forms and solemnities: which, claim is in force for only a year and a day*. And this claim, if it be repeated once in the space of every year and day, (which is called continual claim} has the same effect with, and in all respects amounts to, a legal entry f. Such an entry gives a man seisin1, or puts into immediate possession, him that hath right of entry on the estate, and thereby makes him complete owner, and capable of con\ejing it from himself by either descent or purchase.

This remedy by entry, takes place in three> only of the five specie') of ouster, viz. abatement, intrusion, and disseisin a: for, as in these, the original entry of the wrong-doer, was unlawful, they ma}', therefore, be remedied by the mere entry of him,

t See paje 5. u Litt. Sec <117. :. Litt. Sec. 0^2. z Co. Litt 1).

v See Book II, c. 14, p. 209.

w Co Litt. 232.

y IUJ. Sec. 419, 423.

a ItiJ. 237.238.

who hath a right. But, upon a discontinuance or deforcement; the owner of the estate cannot enter, but is driven to his action, for herein the original entry being lawful, and thereby an apparent right of possession being gained, the law will not suffer that right to be overthrown by the mere, act or entry of the claimant. Yet a man may enterb on his tenant by suffrance: for such tenant hath no freehold, but only a bare possession ; which may be defeated, like a tPiancy at will, by the mere entry of the owner. But if the owner thinks it more expedient to suppose or admitc such tenant to have gained a tortious freehold, he is then remediable by writ of entry, ad terminum qui fraeteriit-

On the other hand, in case of abatement, intrusion, or disseisin, where entries are generally lawful, this right of entry may be tolled, that is, taken away, by descent. Descents, which take away entriesd, are when any one, seised by any means, whatsoever, of the inheritance of a corporeal hereditament, dies, whereby the same descends to his heir: in this case, however feeble the right of the ancestor might be, the entry of any other person, who claims title to the freehold is taken away : and he cannot recover possession against the heir by this summary method, but is driven to his action, to gain a legal seisin of the estate. And this, first, because the heir comes to the estate by act of law, and not by his own act; the law, therefore, protects his title, and will not suffer his possession to be devested, till the claimant hath proved a better right. Secondly, because the heir may not suddenly know the true state of his title; and, therefore, the law, which is ever indulgent to heirs, takes away the entry of such claimant, as neglected to enter on the ancestor, Vrho was well able to defend his title; and leaves the claimant only the remedy of all action against the heir e. Thirdly, this was admirably adapted to the military spirit of the feodal tenures, and tended to make the feudatory bold in war; since his children could not, by any mere entry of another, be dispossessed of the lands whereof he died seised. And, lastly, it is agreeable to the dictates of reason, and the general principles of law.

1» See Book II, page 150. d Litt. Sec. 385 to 413.

c Co. Litt. 57. e Co. Litt. 237.

7 For, in every complete titlef to lands, there are two things necessary: the possession or seisin, and the right or property therein *: or, as it is expressed in Fleta, juris et seisinae conjunctio h. Now, if the possession be severed from the property, if A has the jms proprietatis, and B by some unlawful means has gained possession of the lands, this is an injury to A; for which the law gives a remedy, by putting him in possession, but does it by different means according to the circumstances of the case. Thus, as B, who was himself the wrong-doer, and hath obtained the possession by either fraud or force, hath only a bare or naked possession, without any shadow of right; A, therefore, who hath both the right of property, and the right of possession, may put an end to his title at once, by the summary method of entry. But, if B, the wrong-doer dies seised of the lands, then B's heir advances one step farther towards a good title: he hath not only a bare possession, but also an apparent jus possessionis, or right of possession. For the law presumes, that the possession, which is transmitted from the ancestor to the heir, is a rightful possession, until the contrary be shewn: and, therefore, the mere entry of A, is not allowed to evict the heir of B; but A is driven to his action at law to remove the possession of the heir, though his entry alone, would have dispossessed the ancestor.

So that in general it appears, that no man can recover possession by mere entry on lands, which another hath by descent. Yet this rule hath some exceptions'1, wherein those reasons cease, upon which the general doctrine is grounded; especially if the claimant were under any legal disabilities, during the life of the ancestor, either of infancy, coverture, imprisonment, in-' sanity, or being out of the realm: in all which cases there is no neglect or laches in the claimant, and therefore no descent shall bar, or take away his entry k. And this title of taking away en-

f See Book II, c. 13. , g Mirror, c. 2, Sec. 27. h l. 3, c. 15, Sec. 5.

i See the particular cases mentioned by Littleton, b. 3. c. 6, the principle* of which are well explained in Gilbert's Law offmwit. k Co. Litt. 245.

tries by descent, is still farther narrowed by the statute 32 Hen. VIII, c. 33, which enacts that if any person disseises or turns another out of possession, no descent to the heir of the disseisor shall take away the entry of him that has right to the land, unless the disseisor had peaceable possession five years next after the disseisin'. But the statute extendeth not to any feoffee or donee of the disseisor, mediate or immediateJ: because such a one by the genuine feodal constitutions always came into the tenure solemnly and with the lord's concurrence, by actual delivery of seisin, that is, open and public investiture. On the other hand, it is enacted by the statute of limitations, 21 Jac. I, c. 16, that no entry shall be made by any man upon lands, unless within twenty years after his right shall accrue6. And by statute 4 and 5 A.nn. c. 16, no entry shall be of force to satisfy the said statute of limitations, or to void a fine levied of lands, unless an action be thereupon commenced within one year after, and prosecuted with effect7.

Upon an ouster, by the discontinuance of tenant 'in tail, we have said that no remedy by mere entry is allowed; but that when tenant in tail aliens the lands entailed, this takes away the entry of the issue in tail, and drives him to his action at law to recover the possession m. For, as in the former cases the law will not suppose, without proof, that the ancestor of him in possession acquired the estate by wrong: and therefore, after five years peaceable possession, and a descent cast, will not suffer the possession of the heir to be disturbed by mere entry without action; so here, the law will not suppose the discontinuor to have aliened the estate without power so to do, and therefore leaves the heir in tail to his action at law, and permits not his entry to be lawful. Besides the alienee, who came into possession by a lawful conveyance, which was at least good for the

1 Co. Litt. 256.

m Co. Litt. 325.

5. V. L. 1794, c. 114. Accordant.

6. V. L. 1710, c. 13. Edi. 1733 1748, c. 1. Sec. 18. Edi. 1769, and 1794, c. 76. Accordant.

7. This statute was never in force in Virginia.

life of the alienor, hath not only a bare possession, but also an apparent right of possession ; which is not allowed to be devested by the mere entry of the claimant, but continues in force till a better right be shewn, and recognized by a legal determination. And something also perhaps, in framing this rule of law, may be allowed to the inclination ol the courts of justice, to go as far as they could in making estates-tail alienable, by declaring such alienations to be voidable only, and not absolutely void.

In case of deforcements also, where the deforciant had originally a lawful possession of the land, but now detains it wrongfully, he still continues to have the presumptive prima facie possession of right; that is possession lawfully gained. Which possession shall not be overturned by the mere entry of another; but only by the demandant's shewing a better right in a course of law. , ,

This remedy by entry must be pursued, according to statute 5 Ric. II, st. 1. c. 8, in a peaceable and easy manner; and not with force or strong hand8. For, if one turns or-keeps another out of possession forcibly, this is an injury of both a civil and a criminal nature. The civil is remedied by immediate restitution; which puts the antient possessor in statu quo : the criminal injury, or public wrong, by breach of the king's peace, is punished by fine to the king. • For by the statute 8 Hen. VI. c. 9, upon complaint made to any justice of the peace, of a forcible entry, with strong hand, on lands or tenements; or a forcible detainer after a peaceable entry ; he shall try the truth of the complaint by jury, and, upcn force found, shall restore the possession to the party so put cut9 : and in such case, or if any alienation be made ta defraud the possessor of his right, (which is likewise declared to be absolutely void) the offender shall forfeit, for the force found, treble damages to the party grieved, and make fine and ransom to the king 10. But this does

8. L. V. 1794, c. 87. Accordant.

9. L. V. 1794, c. 87. Accordant.

10. This part of the statute is omitted in our law, and now •lands repealed. V. L. 1794, c. 147.

not extend to such as endeavour to keep possession manu forti after three years peaceable enjoyment of either themselves, their ancestors, or those under whom they claim , by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. 11 ".

II. Thus far of remedies, where the tenant or occupier of the land hath gained only a mere possession, and no apparent shadow of right. Next follow another class, which are in use where the title of the tenant or occupier is advanced one step nearer to perfection ; so that he hath in him not only a bare possession, which may be destroyed by a bare entry, but also an apparent right of possession^ which cannot be removed but by orderly course of law; in the process of which it must be shewn, that though he hath at present possession and therefore hath the presumptive right, yet there is a right of possession, superior to his, residing in him who brings the action.

These remdies, are either by a -writ of entry, or an assise : which are actions merely possessory; serving only to regain that possession, whereof the demandant (that is, he who sues for the land) or his ancestors have been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decide nothing with respect to the right of property: only restoring the demandant to that state or situation, in which he was (or by law ought to have been) before the dispossession

11. V. L. 1794 c. 87. Accordant. The act further provides, that no warrant of forcible entry and detainer, or of forcible detainer shall be granted but upon oath or affirmation of the party praying it: that the names of the persons charged shall be inserted in the warrant, and that the officer serving the same shall give the defendant at least three day's notice of the time and place of taking the inquisition: and if the sheriff be slack in the execution of his duty, he forfeits eighty dollars, recoverable by indictment or information, for the use of the commonwealth, or by bill at the suit of the party grieved in a qui tarn action, one moiety to his own use, the other to the use of the commonwealth.

Tenants for term of years, and tenants by elegit, may have th« same remedy as tenants of an estate of free-hold, or of inheritance. Ibid. Sec. 8.

committed. But this without any prejudice to the right of ownership: for, if the dispossessor has any legal claim, he may aftenvards exert it, notwithstanding a recovery against him in these possessory actions. Only the law will not suffer him to be his own judge, and either take or maintain possession of the lands, until he hath recovered them by legal means n : rather presuming the right to have accompanied the antient seisin, than to reside in one who had no such evidence in his favour.

1. The first of these possessory remedies is by writof entry ; which is that which disproves the title of the tenant or possessor, by shewing the unlawful means by which he entered or continues possession °. The writ is directed to the sheriff, requiring him to "command the tenant of the land that he render (in Latin, fraecipe quod reddat) to the demandant the land in question, which he claims to be his right and inheritance ; and into which, as he saith, the said tenant had not entry" but by (or after) a disseisin, infrusion, or the like, made to the said demandant, within the time limited by law* for such actions: or that upon refusal he do appear hi court on such a day, to she^r wherefore he hath not done it p". This is the original process, the fraecipe, upon which all the rest of the suit is grounded: wherein it appears, that the tenant is required, either to deliver seisin of the lands, or to shew cause why he will not. This 'cause may be either a denial of the fact, of having entered by or under such means as are suggested, or a justification of his entry by reason of title in himself or in those under whom he makes claim : whereupon the possession of the land is awarded to him who produces the clearest right to possess it.

In our antient books we find frequent mention of the degrees

within which writs of entry are brought. If they be brought

against the party himself that did the wrong, then they only

charge the tenant himself with the injury ; " non habuit Ingres-

" sum nisi per intrusionem quam ipsefecit:" But if the intruder,

disseisor, or the like, has made any alienation of the land to a

third person, or it has descended to his heir, that circumstance

n Mitr. c. 4. Sec. 24. p See Vol. II. Appendix. No. V. Sec. 1.

o Finch. L. 261

must be alleged in the writ, for the action must always be brought against the tenant of the land; and the defect of his possessory title, whether arising from his own wrong or that of those Under whom he claims, must be set forth. One such alienation or descent makes the first 1 degree, which is called the per, because then the form of a writ of entry is this ; that the tenant had not entry, but by the original wrongdoW, who alienated the land, or from whom it descended, to him; " non habuit ingressum nisi per Guilielmum, qul se in illud intrusit, et illud tenenti dimisit*" A second alienation or descent makes another degree called the per and cut; because the form of a writ of entry, in that case, is, that the tenant had not entry, but by or under a prior alienee, to whom the intruder demised it; " nan habuit ingressum, nisi per Ricardum, cui GuiUelmus illud dimisit, qui se in illud intrusit'." These degrees thus state the original wrong and the title of the tenant who claims under

•such wrong. If more than two degrees (thai is, two alienations or descents) were past, there lay no writ of entry at the common law. For, as it was provided, for the quietness of men's inheritances, that no one, even though he had the true right of possession, should enter upon him who had the apparent right by descent or otherwise, but he was driven to his writ of entry to gain possession ; so, after more than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this possessory action; but was driven to his writ of right, a long and final remedy, to punish his neglect in not sooner putting in his claim, while the degrees subsisted, and for the ending of suits, and quieting of all controversies'. But by

•the statute of Marlbridge, 52 Hen. III. c. 30, it was provided, that when the number of alienations or descents exceeded the usual degrees, a new writ should be allowed without any mention of degrees at all. And accordingly a new writ has been framed called a writ of entry in the post, which only alleges the injury of the wrongdoer, without deducing all the intermediate title

q Finch. L. 262. Booth indeed (of real actions. 172.) makes the first degree to consist in the original wrong done, the second in thepei, and the third in tha per and cui. But the difference is immaterial.

r Booth. 181. t 2 Inst 153.

s Finch. L. 253. F. N. B. 203, 204.

from him to the tenent: stating it in this manner; that the tenant had not entry unless after, or subsequent to, the ouster or injury done by the original dispossessor; " non habuit ingressum nisi post intrusionem quani Guilielmus in illud fecit,-" and rightly concluding, that if the original title was wrongful, all claims derived from thence must participate of the same wrong. Uponihe latter of these writs it is (die writ of entry sur disseisin in the posl) that the form of our common recoveries of landed festates v is usually grounded ; which, we may remember, were observed in the preceding volumeu to be fictitious actions, brought against the tenant of the freehold (usually called the tenant to the praecipe, or writ of entry) in which by collusion the demandant recovers the landia.

This remedial instrument, of writ of entry, is applicable to all the cases of ouster before-mentioned, except that of discontinuance by tenant in tail, and some peculiar species of deforcements. Such is that of deforcement of dower, by not assigning any dower to the widow within the time limited by law; for which she has her remedy by writ of dower, unde nihilhabetw. But if she be deforced of part only of her dower, she cannot then say that nihil habet; and therefore she may have recourse to another action, by writ of right of dower: which is a more general remedy, extending either to part or the whole ; and is (with regard to her claim) of the same nature as the grand writ of right, whereof we shall presently speak, is with regard to claims in fee-simple *13. On the othen hand, if the heir (being within age) or his guardian, assign her more than she ought to have, they may ~ be remedied by a writ of admeasurement of dower y. But in general the writ of entry is the universal remedy to recover posses-

v See book II, Append. No. V. u Book II. ch. 21.

w F. N. B. 147. x F. N. B. 16.

y F. N. B. US. Finch. L. 314. Stat. Westm. 2. 13 Edw. I, c. 7.

12. The benefit of this, and of every other remedial writ, founded upon any British statute, which was ever in force here, is preserved to all persons in Virginia, by the saving clause contained in the act repealing all British statutes. V. L. 1794. c. 147.

13. L. V. 1794, c. 94. Accordant.

sion, when wrongfully withheld from the owner. It were therefore endless to recount all the several divisions of writs of entry, which the different circumstances of the respective demandants may require, and which are furnished by the laws of England1: being plainly and clearly chalked out in that most antient and highly venerable collection of legal forms, the registrum omnium brevium, or register of such writs as are suable out of the king's courts, upon which Fitzherbert's natura brevium is a comment; and in which every man who is injured will be sure to find a method of relief, exactly adapted to his own case, described in the compass of a few lines, and yet without the omission of any material circumstance. So that the wise and equitable provision of the statute Westm. a. 13 Edw. I, c. 24, for framing new writs when wanted, is almost rendered useless by the very great perfection of the antient forms l4. And indeed I know not whether it is a greater credit to our laws, to have such a provision contained in them, or not to have occasion, or at least very rarely, to use it.

z See Bracton. l.4. tr. 7. c. 6. Sec. 4. Britton, c. 114, fol. 264. The most usual were, 1. The writs of entry sur disseisin, and of intrusion: (F. N. B. 191, 203.) which are brought to remedy either of those species of ouster. 2. The writs of dumfuit infra aetatem, and dumfuit non compos mentis: (Ibid. 192, 202.) which lie for a person of full age, or one who hath recovered his understanding, after having (when under age or insane) aliened his lands; or for the heirs of such alienor. 3. The writs of cui in vita, and cui ante divortium: (Ibid. 193,204.) fora woman, when a widow, or divorced, whose husband during the coverture (cui in vitasua, vel cui ante divortium, ifsa cotitradiccrc non potuitj hath aliened her estate. 4. The writ ad commttnem legem (Ibid. 207. J for the reversioner, after the alienation and death of the particular tenant for life. 5. The writs in casu proviso and in consimili casu: (16. 205.206.^ which lay not ad communem legem, but are given by stat. Gloc. C Edw. I, c. 7, and Westm. 2, 13 Edw. I, c. 24, for the reversioner after the alienation, but during the life of the tenant in dower, or other tenant for life. 6. The writ ad terminum tjui . fraeteriit: (Ib. 201.J for the reversioner, when the possession is withheld by the lessee or a stranger, after the determination of a lease for years. 7. The wi it causa inatrimoni fraelocutii: (Ib. 205.) for a woman who giveth land to a man in fee or for life, to the intent that he may mairy her, and he doth not. And the like in case of other deforcements.

14. See page 182, note 12. It is moreover provided by our lavr, that the judges of the court of appeals shall direct the form of writs, from time to time in such manner as shall seem advisable. V. L. 1794, c. 63.

In the times of our Saxon ancestors, the right of possession seems only to have been recoverable by writ of entry » ; which was then usually brought in the county court. And it is to be observed, that the proceedings in these actions were not then so tedious, when the courts were held, and process issued from and was returnable therein at the end of every three weeks, as they became after the conquest, when all causes were drawn into the king's courts, and process issued only from term to term; which was found exceeding dilatory, being at least four times as slow as the other. And hence a new remedy was invented in many cases,to do justice to the people and to determine the possession in the proper counties, and yet by the king's judges. This was the remedy by assise, which is called by statute Westm. 2.13 Edw. I, c. 24>,ffstinum remediumt'm comparison with that by a writ of entry; it not admitting of many dilatory pleas and proceedings, to which other real actions are subject1".

2. The writ of assise is said to have been invented by Glanvil, chief justice to Henry the second'; and, if so, it seems to owe it's introduction to the parliament held at Northampton, in the twenty-second year of that prince's reign; when justices in eyre were appointed to go round the kingdom in order to take these assises: and the assises themselves (particularly those of mart d'ancestor and novel dii>seit>in) were clearly pointed out and described4. As a writ of entiy is a real action, which disproves the title of the tenant by shewing the unlawful commencement of his possession; so an assize is a real action, which proves the title of the demandant merely by shewing his, or his ancestor's, possessione: and these two remedies are in all other respects so totally alike, that a judgment or recovery in one is a

a Gilb Ten 43 b Booth 262

c Mhror, c 2, Sec 25

d Sec 9 Si Arjnit nsjeodt negat baerediuus defuncti saisintim cjusdemjeodi9 justittai n donuni t egis fiicia,it indefiei t lecognitio'iemper xn legates homines, qualent saisinam dejuitctus inde habmt, die quafuit vivas et mortuus; et, sicut recognitumfue, it, it i h eiedilnis ejus restttuart. Sec 10 yustitiant donui.i regisjaciantfen reaog-nttonem, de ditsai*i,:isfa<.tis super assisam, a tempore quo doi>n>nit rex venit in Ang'tirm proxime fust patent Jactani inter iftutn et t egcm Jilium mum. (Spelm. CW 330 )

« Fmch. L. 284

bar against the other; so that when a man's possession is once established by either of these possessory actions, it can never be disturbed by the same antagonist in any other of them. 1 he word, assise, is derived by sir Edward Coke f from the Latin assideo to sit together; and it signifies, originally, the jury who try the cause, and sit together for that purpose. By a figure it is now made to signify the court or jurisdiction, which summons this jury together by a commission of assise, ovad assisas capiendas; and hence the judicial assemblies held by the king's commission in every county, as well to take these writs of assise as to try causes at nisi prius, are termed in common speech the assises. By another somewhat similar figure, the name of assise is also applied to this action, for recovering possession of lands: for the reason, saith Littletons, why such writs at the beginning were called assises, was, for that in these writs the sheriff is ordered to summon a jury, or assise; which is not expressed in any other original writh.

This remedy, by writ of assise, is only applicable to two species of injury by ouster, viz. abatement, and a recent or novel disseisin. If the abatement happened upon the death of the demandant's father or mother, brother or sister, uncle or aunt, nephew, or niece, the remedy is by an assise of mort d* ancestor, or the death of one's ancestor. This writ directs the sheriff to summon a jury or assise, who shall view the land in question, and recognize whether such ancestor were seised thereof on the day of his death, and whether the demandant be the next heirl: soon after which, the judges come down by the king's commission to take the recognition of assise : when, if these points are found in the affirmative, the law immediately transfers the possession from the tenant to the demandant. If the abatementhappened on the death of one's grandfather or grandmother, then an assise of mart d^ ancestor no longer Jics, but a writ of ayle, or de avo: if on the death of the great grandfather or great grandmother, then a writ ofbesayle, or de proavo: but if it mounts one degree higher, to the tresayle or grandfather's grandfather, or if the abatement happened upon the death of any collateral relation,

f l Inst. 153. h Co Litt. 159.

g Sec. 234.

i F. N. B. 195. Finch. L. 290.

other than those before-mentioned, the writ is called a writ of cosinage, or de consanguineo k. And the same points shall be inquired of in all these actions ancestrel, as in an assise of mart (f'ancestor: th^y being of the very same nature1: though they differ in this point of form, that these ancestrel writs (like all other writs otpraecipe) expressly assert a title in the demandant, (viz. the seisin of the ancestor at his death, and his own right of inheritance) the assise asserts nothing directly, but only prays an inquiry whether these points be som. There is also another ancestrel writ, denominated a miper obiit, to establish an equal division of the land in question, where on the death of an ancestor, who has several heirs, one enters and holds the others out of possession ". But a man is not allowed to have any of these actions ancestrel for an abatement consequent on the death of any collateral relation, beyond the fourth degree °; though in the lineal ascent he mav proceed ad infoiitum p. For there must be some boundary ; else the privilege would be universal, which ia absurd: and, therefore, the law pays no regard to the possession of a collateral ancestor, who was no nearer than the fifth de-

gree.

It was always held to be law 1, that where lands were devisable in a man's last will by the custom of the place, there an assise of mart d'1 ancestor did not lie. For, where lands were so devisa-

ble, the right of possession could never be determined by a process, which inquired only of these two points, the seisin of the ancestor, and the heirship of the demandant. And hence it may be reasonable to conclude, that when the statute of wills, 32 Hen. VIII. c. 1, made all socage lands devisable, an assise of mart ff ancestor no longer could be brought of lands held in socage r; and that now, since the statute 12 Car. II. c. 24, (which converts all tenures, a few only excepted, into free and common socage) no assise of mart d'anccstor can be brought of any lands in the

k Finch. L. 266, 267. 1 Stat. Weatm. 2. 13 Edw. I. c. 20. m 2 Inst. 399. n F. N. B. 197. Finch. L. 293. o Hale on F. N. B. 2.21. p Fitzh. Abr. tit. cosinage. 15. <j Bracton. l'. 4. rte atsis. mortis antecessoris, c. 13. Sec. 3. F. N. B. 196. r See 1 Leon. 267.

kingdom ; but that, in case of abatements, recourse must be properly had to the writs of entry 15.

An assise of novel (or recent) disseisin is an action of the same nature with the assise of mart d'ancestor before-mentioned, in that herein the demandant's possession must be shewn. But it differs considerably in other points: particularly in that it recites a complaint by the demandant of the disseisin committed, in terms of direct averment; whereupon the sheriff is commanded to reseise the lands and all the chattels thereon, and keep the • same in his custody till the arrival of the justices of assise ; (which in fact hath been usually omitted8) and in the mean time to summon a jury to view the premises, and make recognition of the assise before the justices l. At which time the tenant may plead either the general rules nul tort, nul disseisin, or any special plea. And if, upon the general issue, the recognitors find an actual seisin in the demandant, and his subsequent disseisin by the present tenant; he shall have judgment to recover his seisin, and damages for the injury sustained: being the only case in which damages were recoverable in any possessory action at the common law u ; the tenant being in all other cases allowed to retain the intermediate profits of the land, to enable him to perform the feodal services. But costs and damages were annexed to many other possessory actions by the statutes of Marlberge, 52 Hen. HI. c. 16, and of Glocester, 6 Edw. I. c. 1. And to prevent frequent and vexatious disseisins, it is enacted by the statute of Merton, 20 Hen. III. c. 3, that if a person disseised recover seisin of the land again by assise of novel disseisin, and be again disseised of the same tenements by the same disseisor, he shall have a writ of re-disseisin; and, if he recover therein,

s Booth. 211. Bra;t. 4, 1, 19. Sec. 7. n Bract-187. Stat. Mailbv. c. 16.

t F. N. B. 177.

15. If this reasoning be just, which seems presumable, no assise oimort d'anccstor could e^ev have been maintained in Virginia, all lands therein being held, under the crown, in free and common socage, and devisable ; and now being, I apprehend, allodial. Sec Appendix to vol. 2, note A, as to the charters of Virginia, and laws of Virginia, May 1779, c. 13. Edi. 1785.

the re-disseisor shall be imprisoned ; and, by the statute of Marlberge, 52 Hen. III. c. 8, shall also pay a fine to the king: to which the statute Westm. 2. IS Edw. I. c. 26, hath superadded double damages to the party aggrieved. In like manner, by the same statute of Merton, when any lands or tenements are recovered by assise of mort d'ancestor, or other jury, or any judgment of the court, if the party be afterwards disseised by the same person against whorm judgment was obtained, he shall have a writ of post-disseisin against him; which subjects the post-disseisor to the same penalties as a re-disseisor ". The reason of all which, as given by sir Edward Coke w, is because such proceeding is a contempt of the king's courts, and in despite of the law ; or, as Bracton more fully expresses itx, " tails qui Ita convictus fuerit, dupliciter delinquit contra regem: quiafacit disseisinam et roberiam contra pacem suam; et etiam ausu temerarlo irritafac'it ea, quaeincuriadomini regis riteactastmt: et prop* ter duplex delictwn merito sustinere debetpoenam duplicatam"

In all these possessory actions there is a time of limitation settled, beyond which no man shall avail himself of the possession of himself or his ancestors, or take advantage of the wrongful possession of his adversary. For, if he be negligent for a long and unreasonable time, the law refuses afterwards to lend him any assistance, to recover the possession merely ; both to punish his neglect (nam leges vigilantibus, non dormientibus, sub' veniunt,J and also because it is presumed that the supposed wrongdoer has, in such a length of time, procured a legal title, otherwise he would sooner have been sued. This time of limitation, by the statute of Merton, 2O Hen. III. c. 8, and Westm. 1. 3 Edw. I. c. 39, was successively dated from particular aeras, viz. from the return of king John from Ireland, and from the coronation, &t"c. of king Henry the third. But this date of limitation continued so long unaltered, that it became indeed no limi-

w 2 Inst. 83,84.

x l. 4. c. 49.

16. These statutes, so far as they are flenal, stand repealed; but so far as they are remedial, they may be regarded as still in force, though quite obsolete in practice. V. L. 1794, c. 147.

tation at all: it being above three hundred years from Henry the third's coronation to the year 154O, when the present statute of limitations * was made. This, instead of limiting actions from the date of a particular event, as before, which in process of years grew absurd, took another and more direct course, which might endure for ever ; by limiting a certain period, as fifty years for lands, and the like period * for customary and prescriptive rents, suits and services, (for there is no time of limitation upon rents created by deed, or reserved upon a particular estate a), and enacting that no person should bring any possessory action, to recover possession thereof merely upon the seisin, or dispossession of his ancestors, beyond such certain period17. But this does not extend to services, which by common possibility may not happen to become due more than once in the lord's or tenant's life ; as fealty, and the like b. And all writs, grounded upon the possession of the demandant himself, are directed to be sued out within thirty years after the disseisin complained of; for if it be an older date, it can with no propriety be called a fresh, recent, or novel disseisin; which name, sir Edward Coke informs us, was originally given to this proceeding, because the disseisin must have been since the last eyre or circuit of the justices, which happened once in seven years, otherwise the action was gone c. And we may observe d, that the limitation, prescribed by Henry the second at the first institution of the assize of novel

y32 Hen. VIII. c-2.

z So Berthelet's original edition of the statute, A. D. 1540; and Cay's, Pickering's, and Huffhead's editions, examined with the record. Rastell's and other intermediate editions, which sir Edward Coke (2 Inst. 95,) and other subsequent writers have followed, make it only forty years for rents, i3V.

a 8 Rep. 65. b Co. Litt. 115.

c 1 Inst. 153. Booth. 210. d See page 184.

17. Fifty years is the limitation in a writ of right; forty years in any other possessory action, upon the possession or seisin of the demandant's ancestor or predecessor ; and thirty years, upon his own possession or seisin. Twenty years is the limitation in a writ of formedon: the same period takes away the right of entry, and by consequence is the limitation in a writ of entry, as also in an ejectment, •which cannot be brought but where the plaintiff hath a right to enter. See V. L. 1794, c. 76.

disseisin, was from his own return into England after the peace made between him and the young king his son, which was but the year before.

What has been here observed may throw some light on the doctrine of remmiiter, which we spoke of in the second chapter of this book; and which, we may remember, was, where one who hath right to lands, but is out of possession, hath afterwards the freehold cast upon him by some subsequent defective title, and enters by virtue of that title. In this case the law remits him to his antient and more certain right, and by an equitable fiction supposes him to have gained possession in consequence, and by vinue thereof: and this because he cannot possibly obtain judgment at law to be restored to his prior right, since he is himself the tenant of the land, and therefore hath nobody against whom to bring his action. This determination of the law might seem superftuous to an hasty observer; who perhaps would imagine, that since the tenant hath now both the right and also the possession, it little signifies by what means such possession shall be said to be gained. But the wisdom of our antient law determined nothing in vain. As the tenant's possession was gained by a defective title, it was liable to be overturned by shewing that defect in a writ of entry: and then he must have been driven to his writ of right, to recover his just inheritance: which would have been doubly hai'd, because, during the time he was himself tenant, he could not establish his prior title by any possessory action. The law, therefore, remits him to his prior title, or puts him in the same condition as if he had recovered the land by writ of entry. Without the remitter, he would have had^'ivs, et scisinam, separate ; a good right, but a bad possession : now, by the remitter, he hath the most perfect of all titles, juris et scisinae conjunctionem.

III. By these several possessory remedies the right of possession may be restored to him, that is unjustly deprived thereof. Eut the right of possession (though it carries with it a strong presumption) is not always conclusive evidence of the right ol property, v. hich may still subsist in another man. For, as one man may huve the possession, and another the right cf posses-

sion, which is recovered by these possessory actions: so one man may have the right of possession, and so not be liable to eviction by any possessory action, and another may have the right of property, which cannot be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as are in the nature of a writ of right.

This happens principally in four cases: 1. Upon discontinuance by the alienation of tenant in tail: whereby he, who had the right of possession, hath transferred it to the alienee ; and, therefore, his issue, or those in remainder or reversion, shall not be allowed to recover by virtue of that possession, which the tenant hath so voluntarily transferred. 2, 3. In case of judgment given against either party, whether by his own default, or upon trial of the merits, in any possessory action: for such judgment, if obtained by him who hath not the true ownership, is held to be a species of deforcement; which, however, binds the right of possession, and suffers it not to be ever again disputed, unless the right of property be also proved. 4. In case the demandant, who claims the right, is barred from these possessory actions by length of time and the statute of limitations before-mentioned : for an undisturbed possession, for fifty years, ought not to be devestcd by any thing,but a very clear proof of the absolute right of propriety. In these four cases the law applies the remedial instrument of either the writ of right itself, or such other writs, as are said to be of the same nature.

1. And first, upon an alienation by tenant in tail, whereby the estate-tail is discontinued, ?nd the remainder or reversion is by failure of the particular estate displaced, and turned into a mere right, the remedy is by action of formcf'on, (sccundum fonnam donij which is in the nature of a writ of rightc, and is the highest action that tenant in tail can have f. For he cannot have an absolute writ of right, which is confined only to such as claim in fee-simple : and for that reason this writ ol'formedon was granted him by the statute de donis or Wcstm. 2. 13 Edw. I. c. 1, which is, therefore, emphatically called his writ of rights. This writ is distinguished into three species; nformedon in the descen-

ts Finch, L. 267,

f Co. Litt. 316.

S F. N. B. 255.

der, in the remainder, and in the reverter, A writ of formedon in the descender lieth where a gift in tail is made, and the tenant in tail alienes the lands entailed, or is disseised of them, and dies; in this case the heir in tail shall have this writ of formedon in the descender, to recover these lands so given in tail against him who is then the actual tenant of the freehold11. In vthii.h action the demandant is bound to state the manner and form of the gift in tail, and to prove himself heir secunditmformamdoni1*. A. formedon in the remainder lieth, where a man giveth lands to another for life or in tail, with remainder to a third person in tail or in fee; and he who hath the particular estate dieth, without issue inheritable, and a stranger intrudes upon him in remainder, and keeps him out of possession'. In this case the remainder-man shall have his writ of formedon in the remainder, wherein the whole form of the gift is stated, and the happening of the event upon which the remainder depended. This writ is not given in express words by the statute de donis ; but is founded upon the equity of the statute, and upon this maxim in law, that if any one hath a right to the land, he ought also to have an action to recover itJ9. A. formedon in the reverter

h F.N.B. 211,212.

i Ibid. 21".

18. The act declaring tenants of lands in tailto hold the same in fee simple, took effect, October 7, 1776. Twenty years is the limitation in a writ of formedon, to which, five years and one hundred and seventy-four days being added (that period being excepted out of .the operation of the acts of limitation during the revolutionary war) will give the period after which no writ offormedon in the descendor will lie for lands in Virginia ; that is, about the first of April, I'SOS. The reason is, because after the commencement of that act the issue of every tenant in tail, then living, was thereafter barred from claiming under the gift in tail made to his ancestor, the estate by the operation of that act being turned into an absolute fee simple. See V. L. 1794, c. 90.

19. A formedon in the remainder can, after the period above mentioned, only lie, where the remainder is to take effect after an estate for hie, or other less estate; for if the remainder were to take effect aHer an estate tail, the tenant in tail by the operation of the act above referred to, instantly became tenant in fee, and all remainders expectant upon the determination of the estate tail were instantly baried. V. L. Oct. 1776,c. 26. 1794, c, 90.

lieth, where there is a gift in tail, and afterwards by the death of the donee or his heirs, without issue of his body, the reversion falls in upon the donor, his heirs, or assigns: in such case the reversioner shall have this writ to recover the lands, wherein he shall suggest the gift, his own title to the reversion minutely derived from the donor, and the failure of issue upon which his reversion takes place k 20. This lay at common law, before the statute de donis, if the donee aliened before he had performed the condition of the gift, by having issue, and afterwards died without any '. The time of limitation in n formedon by statute 21 Jac. I. c. 16, is twenty years21; within which space of time after his title accrues, the demandant must bring his action, or else is for ever barred.

2. In the second case ; if the owners of a particular estate, .as for life, in dower, by the curtesy, or in fee-tail, are barred of the right of possession by a recovery had against them, through their default or non-appearance in a possessory action, they were absolutely without any remedy at the common law: as a writ of right does not lie for any but such as claim to be tenants of the fee-simple. Therefore the statute Westm. 2. 13 Edw. I, c. 4, gives a new writ for such persons, after .their lands have been so recovered against them by default, called a quod ei deforceat; which, though not strictly a writ of right, so far partakes of the nature of one, as that it will restore the right to him, who has been thus unwarily deforced by his own defaultm 23. But in case the recovery were not had by his own default, but upon defence in the inferior possessory action, this still remains final with re-

k F. N. B. 219. 8 Rep. 88. 1 Finch, L. 268. m F N. B. 155.

20. This writ will cease to be maintainable in Virginia, at the same time with the writ of formedon in the descender, for the reasons given in the two preceding notes ; but the writ offormcdon in the remainder may, by possibility, be maintainable much longer, that is, till every tenant for life in esse on the seventh of October, 1776, with a contingent remainder over in tail, shall be dead.

21. L. V. 1748, c. 1. Edi. 1769.....1794, c. 76. Accordant.

22. See note 12, page 182. Ante.

gard to these particular estates, as at the common law: and hence it is, that a common recovery (on a writ of entry in the post) had, not by default of the tenant himself, but (after his defence made and voucher of a third person to warranty) by default of such vouchee, is now the usual bar to cut off an estate-tail ».

3, 4. Thirdly, in case the right of possession be barred by a recovery upon the merits in a possessory action, or lastly, by the statute of limitations, a claimant in fee-simple may have a mere -writ of right; which is in it's nature the highest writ in the law °, and lieth only of an estate in fee-simple, and not for him who hath a less estate. This writ lies concurrently with all other real actions, in which an estate or fee-simple may be recovered ; and it also lies after them, being, as it were, an appeal to the mere right, when judgment hath been had as to the possession in an inferior possessory action v. But though a writ of right may be brought, where the demandant is entitled to the possession, yet it rarely is advisable to be brought in such cases ; as a more expeditious and easy remedy is had, without meddling with the property>by proving the demandant's own, or his ancestor's possession, and their illegal ouster, in one of the possessory actions. But, in case the right of possession be lost by length of time, or by judgment against the true owner in one of these inferior suits, there is no other choice : this is then the only remedy that can be had ; ar.d it is of so forcible a nature, that it overcomes all obstacles, and clears all objections that may have arisen to cloud ami obscure the title. And, after issue once joined in a writ of rl^ht, the judgment is absolutely final; so that a recovery had i;\ this action may be pleaded in bar of any other claim or dorar.-.-.d 1.

The pure, proper, or mere writ of right lies only, we have said, to recover lands in fee-simple, unjustly withheld from the true proprietor. But there arc f.lso some other writs which are said to be i;i the nature of a writ of right, because their process and proceedings do mostly (though not entirely) agree with the

n See boo'.v II. c. 21. p F. N. B. 1, J-

o F. N.B. 1.

u Ibid. 6. Co. Litt, 158

writ of right: but in some of them the fee-simple is not demanded ; and in others not land, but some incorporeal hereditament. Some of these have been already mentioned, as the writ of right of dower, of formedon, &ff. and the others will hereafter be taken notice of, under their proper divisions. Nor is the mere writ of right alone, or always, applicable to every case of a claim of lands in fee-simple: for if the lord's tenant in fee-simple dies without heir, whereby nn escheat accrues, the lord shall have a writ of escheatr, which is in the nature of a writ of right *. And if one of two or more coparceners deforces the other, by usurping the sole possession, the party aggrieved shall have a writ of right, de rationabill parte': which may be grounded on the seisin of the ancestor at any time during his life; whereas in a nuper o£II'f (which is a possessory remedyu)he must be seised at the time of his death. But waiving these and other minute distinctions, let us now return to the general writ of right.

This writ ought to be first brought in the court-baron w of the lord, of whom the lands are holden; and then it is open to patent : but if he holds no court, or hath waived his right, remisit curiam suam, it may be brought in the king's courts by writ of praecipe originally *; and then it is a writ of right close?, being directed to the sheriff and not the lord *. Also when one of the king's immediate tenants in capitc is deforced, his writ of right is called a Writ of praecipe incapite, (the improper use of which as well as of the former praecipe quia dominus remisit curiam, so as to oust the lord of his jurisdiction, is restrained by magna carta*) and being directed to the sheriff and originally returnable in the king's court, is also a writ of right close b. There is likewise a little writ of right close, secundum consuctudinem manerii, which lies for the king's tenants in antient demesnec, and others of a similar nature d, to try the right of their lands and tenements in the court of the lord exclusivelyc. Buf the writ of

r F. N. B. 143.

t F. N. B. 9.

w Append. No. I. Sec. 1.

y Booth. 91.

a c. 24.

c See book II. c. 6.

s Booth. 135.

n See p. 186.

x F. N,B. 2. Tina. '..313.

z Append. No. I. Sec. 4.

b F. N. B. 5.

d Kitchen, tit. copyhold.

e Bracton. l.I.e. 11. l. 4. tr. 1. c. 9. IS" tr. 3. c. 13. Sec. 9. Old Tcnur. t. tener entucajfc. Old N. 13, t.garde. & t. briefe de retto daus. F. N.B. 11.

right patent itself may also at any time be removed into the county court, by writ of tollf, and from thence into the king's courts by writof pone g or recordart facias, at the suggestion of either party that there is a delay or defect of justice h.

In the progress of this action', the demandant must allege some seisin of the lands and tenements in himself, or else in some person under whom he claims33, and then derive the right from the person so seised to himself; to which the tenant may an- • sw>. r by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand them: and this right of the tenant being shewn, it then puts the demandant upon the proof of his title: in-which, if he fails, or if the tenant hath shewn'a better, the demandant and his heirs are perpetually barred of their claim; but if he can make it appear that his right is superior to the tenant's, he shall recover the land against the tenant and his heirs forever. But even this writ of right, however superior to any other, cannot be sued out at any distance of time. For by the antient law no seisin could be alleged by the demandant, but from the time of Henry the first J ; by the statute of Mcrton, 20 lisn. III, c. 8, from the time of Henry the second ; by the statute of Westm. 1. 3 Edw. I. c. 39, from the time of Richard the first; and now by statute 32 Hen. VIII, c. 2, seisin in a writ of right shall be within sixty years '*. So that the possession of lands in fee-simple uninter-

f Append. No. I. Sec. 2.

h F.N.B 3.4.

j Glanv.l.2. c 3. Co. Litt. 114.

g Ibid. Sec. 3.

i Append. No. I. Sec. 5

23. In the form prescribed by our law, this seems to be no longer necessary. See V. L. 1794, c. 27. A subsequent act declares that' actual possession need not be proved to obtain n writ of right. Ibid. c. 76. §. 29. It would puzzle a man to reconcile this clause, to the third clause of the same act, which declares fifty years possession, or seisin to be thclimitution in a writ of right. It may be matter of some comfort tot he present race of lawyers, und judges, that it must be at least half a century from the commencement of that act, before an exposition of these chtus.es can be required. Sec the proviso contained in the act. Sec. 47.

24. Fifty years, is the period fixed by our law. y. L. 1794, c. 76. Sec. 3.

ruptedly, for threescore years, is at present a sufficient title against all the world; and cannot be impeached by any dormant claim whatsoever *.

I have gone through the several species of injury by ouster and dispossession of the freehold, with the remedies applicable to each. In considering which I have been unavoidably led to touch upon much obsolete and abstruse learning, as it lies intermixed with, and alone can explain the reason of, those parts of the law which are now more generally in use 2i. For, without contemplating the whole fabric together, it is impossible to form any clear idea of the meaning and connexion of those disjointed parts, which still form a considerable branch of the modern law; such as the doctrine of entries and remitter, the levying of fines, and the suffering of common recoveries. Neither indeed is any considerable part of that, which I have selected in this chapter from among the venerable monuments of our ancestors, so

* This is far from being universally true; for an uninterrupted possession forsixty years will not create a title, where the claimant or demandant had no right to enter within that time j as where an estate in tail, for life, or for years, continues above sixty years, still the reversioner may enter and recover the estate; the possession must be adverse, and lord Coke says, " it has been resolved, that although a man has been out of possession of land for sixty years, yet if his entry is not tolled he'may enter and bringany action of his own possession j and if his entry be congeable, and he enter, he may have an action of his own possession."4 Co. 11. b. Christian.

25. In 1786, an act passed entituled an act reforming the method of proceeding in writs of right. To this act I shall therefore refer the student, having already noted the principal circumstance that has hitherto occurred to me respecting, it. See V. L. 1794, c. 27, observing by the way, that if the demandant omits the boundaries of the lands claimed, it will be error, after a verdict. Beverly vs. Fogg. 1 Call's Rep. 485.

We may observe further, that the proceedings in a writ of right may be had at the rules, as in other suits ; that a special verdict may be found in a writ of right ; of which considerable doubts have formerly been entertained ; and that damages may be assessed, by the recognitors of the assise, in their verdict. Shaw vs. Clements. 1 Call's Rep. 429.

absolutely antiquated as to be out of force, though the whole is certainly out of use: there being but a very few instances for more than a century past of prosecuting any real action for land by writ of entry, assise, formcdon, writ of right, or otherwise.... The forms are indeed preserved in the practice of common recoveries: but they are forms and nothing else; for which the very clerks that pass them are seldom capable to assign the reason26. But the title of lands is now usually tried in actions of ejectment or trespass, of which in the following chapters1T-

26. Process in all real actions shall be the same as is used, and have the same effect, as in England, except that the returns shall be according to the lavfs of Virginia: but all essoigns, views, and vouchers are taken away; and no excuse shall be admitted to save the default of the tenant, except non-summons. V. L. 1748, c. 1. Sec. 21.

Real actions appear to have been in some measure revived in England, there having been one or two writs of right brought there within the last thirty years. See the case of Tyssen vs. Clarke. 3 Wilson. 419, 541.

27. Here it may not be improper to notice the proceedings upon caveats ; which are a species of actions, in which the title, not indeed to lands, but to a.patent for them, is contested. Of these mention was made in the Appendix to Vol. II. Note D. The method of proceeding thereupon will be found in the Appendix to this volume, note B.

CHAPTER THE ELEVENTH.

OF DISPOSSESSION, OR OUSTER, OF CHATTELS REAL.

HAVING in the preceding chapter considered with some attention the several species of injury by dispossession or ouster of the freehold, together with the regular and well-connected scheme of remedies by actions real which are given to the subject by the common law, either to recover the possession only, or else to recover at once the possession, and also to establish the right of property; th& method which I there marked out leads me next to consider injuries by ouster of chattels real; that is, by amoving the possession of the tenant from an estate by statute-merchant, statute-staple, recognizance in the nature of it, or elegit; or from an estate for years.

I. Ouster, or amotion of possession, from estates held by statute, recognizance, or elegit, is only liable to happen by a species of disseisin, or turning out of the legal proprietor, before his estate is determined by raising the sum for which it is given him in pledge. And for such ouster, though the estate be merely a chattel interest, the owner shall have the same remedy as for an injury to a freehold; viz. by assise of novel disseisin a'. But this depends upon the several statutes, which create these

a F. N. B. 178.

1. If a tenant by elegit be ousted of his lands held by elfgit, by force, or kept out of the possestiui thcieof, by force, he may have the same rereed) by -writ ofjirtiilc entri, or offorcible detainer, as a tenant of a freehold or inheritance. V. L. 1794, c. 87. Sec. 8.

respective interests b, and which expressly provide and allow this remedy in case of dispossession3. Upon which account it is that sir Edward Coke observesc, that these tenants are said to hold their estates lit liberum tenementum, until their debts be paid: because by the statutes they shall have an assise, as tenants of the freehold shall have ; and in that respect they have the similitude of a freehold11.

II.' As for ouster, or amotion of possession, from an estate for years; this happens only by a like kind of disseisin, ejecttion, or turning out, of the tenant from the occupation of the land during the continuance of his term. For this injury the law has provided him with two remedies, according to the circumstances and situation of the wrongdoer: the writ of ejectione jirmae; which lies against any one, the lessor, reversioner, remainder-man, or any stranger, who is himself the wrongdoer and has committed the injury complained of: and the writ of quare ejecit infra terminum; which lies not against the wrongdoer or ejector himself, hut his feoffee or other person claiming under him. These are mixed actions, somewhat between real and personal; for therein are two things recovered, as well restitution of the term of years, as damages for the ouster or wrong.

1. A writ then of ejectione firmae^ or action of trespass in ejectment, lieth where lands or tenements are let for a term of years: and afterwards the lessor, reversioner, remainder-man, or any stranger, doth eject or oust the lessee of his terme. In this case he shall have his writ of ejection to call the defendant to answer for entering on the lands so demised to the plaintiff for a term that is not yet expired, and ejecting himf. And by

b Stat. Westm. 2. 13 Edw.-I. c 18. Stat, de mercatorUiui, 27 Edw. III. c. 9. Stat. 23 Hen. VIII. c. 6. Sec. 9.

c 1 Inst. 43. d See book II, ch. 10.

e F. N. B. 220. f See Appendix. No. II. Sec 1.

2. It is to be remembered, that the benefit of all writs remedial or judicial given by any British statute may still be had in our courts, as if the statutes had never been repealed. V. L. 1794, c. 147.

this writ the plaintiff shr.ll recover back his term, or the remainder of it, with damages.

Since the disuse of real actions, this mixed proceeding is become the common method of trying the title to lands or tenements. It may not therefore be improper to delineate, with some degree of minuteness, it's history, the njanner of its process, and the principles whereon it is grounded.

We have before seen 6, that the writ of covenant, for breach of the contract contained in the lease for years, was antiently the only specific remedy for recovering against the lessor a term from which he had ejected his lessee, together with damages for the ouster. But if the lessee was ejected by a stranger, claiming under a title superior h to that of the lessor, or by a grantee of the reversion, (who might at any time by a common recovery have destroyed the terml) though the lessee might scill maintain an action of covenant against the lessor, for non-performance of his contract or lease, yet he could not by any means recover the term itself. If the ouster was committed by a mere stranger, without any title to the land, the lessor might indeed by a real action recover possession of the freehold, but the lessee had no other remedy against the ejector but in damages, by a writ of ejectione frmae, for the trespass committed in ejecting him from his farm k. But afterwards, when the courts of equity began to oblige the ejector to make a specific restitution of the land to the party immediately injured, the courts of law also adopted the same method of doing complete justice ; and, in the prosecution of a writ of ejectment, introduced a species

g See pag. 157. i See book II. ch. 9.

h F. N B. 145.

k P. 6. Sic. II. Ejectione frmae n'est <jtte un action de trespass en 101 nature, et It plaintiff m recovera son te> me que est a venh, nient plus que en tiesp.-isi botiie rccovera damages f-ui tiespussi.icntfcit, met ajetei ; mtsilcoiiienttisnei par action de covenant atcomen la-a a recwerer son tenne: ;r.o-J Ma curitt cj;cesiit. Et per BelUnap, la camen le; est, leu borne cut custc de so'i ten, e pi-> ettranger, it avera ejectio-se ftrmae versus ccsty queliiy ousfe ,• et si! soit tante fra> son lessor, liiitfe c!e covenant; et si pat les&ee ou grantee (le ruemon tnefeu't coveiia-it versus son lessor, et CMitcia especial count, &c. (Fitz. ail. t c'tct firm. 2.) See Bract. l. 4. (-. 1. c. 30.

of remedy not warranted by the original writ nor prayed by the declaration (which are calculated for damages merely, and are silent as to any restitution) viz. a judgment to recovi r the term, and a writ of possession thereupon'. This method seems to have been settled as early as the reign of Edward IV m: though it hath been said n to have first begun under Henry VII, because it probably was then first applied to it's i resent principal use, that of trying the title to the land.

The better to apprehend the contrivance, whereby this end is effected, we must recollect that the reined) by ejectment is in it's original an action brought by one who hath a lease for years, to repair the injury done him by dispossession. In order therefore to convert it into u method of trv ing titles to the freehold, it is first necessary that the claimant do take possession of the lands, to empower him to constitute a lessee for years, that may be capable of receiving this injury of dispossession. For it would be an offence, called in our law maintename, (of which in the next book) to convey a title to another, when the grantor is not in possession of the land ; and indeed it was doubted at first, whether this occasional possession, taken merely lor the purpose of conveying the title, excused the lessor from the legal guilt of maintenance °. When therefore a person, who hadi right of entry into lands, determines to acquire that possession, which is wrongfully withheld by the present tenant, he makes (as b\ law he may) a formal entry on the premises ; and being so in the possession of the soil, he there, upon the land, seals ana delivers a lease for years to some third person or lessee : and, having thus given him entry, leaves him in possession of the premises. This lessee is to stay upon the land, till the prior tenant, or he who had the previous possession, enters thereon afresh and ousts him; or till some ether person (either by accident or by agreement beforehand) comes upon the land, and turns him out or ejects

l See AppcnJ. No. II §. 4. p,rjcfit.

m 7 Edw IV. 6. l\i Fairfax; si home putt ejcctionejiimae, le plaintiff', i ecmera sen tennc (, in at are e, siliieh cainl in quai c ejtctt ii'Jra termimnn ; et, ti 7i«.' coit aneic, auiirjULs tout Hi cliimcgcs. (Uro. Al», t. quote ejeecit mjia termil.ktll. 0.)

n F. N. B. 220. o 1 Ch, Hep. Append. 39.

him. For this injury the lessee is entitled to his action of ejectment against the tenant, or this casual ejector, whichever it was that ousted him, to recover back his term and damages. Lut where this action is brought against such a casual ejector as is before mentioned, and not against the very tenant in possession, the court will not suffer the tenant to lose his possession without any opportunity to defend it. Wherefore it is a standing rule, that no plaintiff shall proceed in ije ctment to recover lands against a casual ejector,'without notice given to the tenant in possession (if any there be) and making him a defendant if he pleases. And, in order to maintain the action, the plaintiff must, in case of any defence, make out four points before the court; viz. title, lease, entry, and ouster. First, he must shew a good title in his lessor, which brings the matter of right entirely before the court; then, that the lessor, being seised or possessed by \ irtue of such title, did make him the lease for the present term ; thirdly, that he, the lessee, or plaintiff, did enter or take possesson in consequence of such lease ; and then, lastly, that the defendant ousted or ejected him. Whereupon he shall have judgment to recover his term and damages ; and shall, in consequence, have a writ of possession, which the sheriff is to execute by delivering him the undisturbed and peaceable possession of his term.

This is the regular method of bringing an action of ejectment, in which the title of the lessor comus collaterally and incidentally before the court, in order to shew the injury done to the lessee by this ouster. This method must be still continued in due form and strictness, save only as to the notice to the tenant, whenever the possession is vacant, or there is no actual occupant of the premises; and also in some other cas'.JC. But, as much trouble and formality were found to attend the actual making of the lcase, entry, and ouster, a new and more easy mu'noj of trying titles by writ of ejectment, where th;re is any acUi.il tenant or occupier of the premises in dispute, was invented somewhat more than a century ago, by the lord thief justice Rollci', who then sat in the court of upper bench : bo called during the exile of king Ch.-uics the second. Thib new method entirely depends upon a string of legal fictions : no actual lease is

p S')l, Piact. Keg. 103 (clit. 16J7.)

made, no act»al entry by the plaintiff, no actual ouster by the defendant ; but all are mereh ideal, for the sole purpose of trying the title*. '1 o this end, in the proceedings'! a lease for a term of years is stated to have been made by him who claims title, to the plaintiff who brings the ac'ion, as by John Rogers to Richard Smith, which plaintiff ought to be some real person, and not mci ely an ideal fictitious one who hath no existence, as is frequently though unwarrantably practised1": it is also stated that Smith the lessee entered ; and that the defendant William Stiles, who is called the la&ual ejector, ousted him ; for which ouster he biings this action. As soon as thib action is brought, and the complaint fully stated in the declaration', Stiles, the casual ejector, or defendant, sends a written notice to the tenant in possession of the lands, as George Saunders, informing him of the action brought by Riihurd Smith, and transmitting him a copy of the declaration: withal asbiiiing him that he, Stiles the defendrnt, has no title at all to the premises, and shall make no defence ; and therefore advising the tenant to appear in court and defend his own title : othcrw ise he, the casual ejector, will suffer judgment to be had against him ; and thereby the actual tenant Saunders will inevitably be turned out of possession". On receipt of this friendly caution, if the tenanUin possession does not within a limited time apply to the court to be admitted a defendant in the stead of Stiles, he is supposed to have no light at all; and, upon judgment being had against Stiles the casual ejector. Saunders the real tenant \\ill be tuined out of possession by the sheriff.

But, if the tenant in possession applies to be made a defendant, it is allowed him upon this condition ; that he enter into a

q See appendiv No II. § 1.2. s Append Nc. II § 2.

r 6 Mod 309.

ss Append. No II. §. 2.

* An actual emiy is nectssai) to avoid a fine levied \\ith pioclamations, and the demise la'd in the cjectnunt inub be subsequent to the en'r^ ; but that istheonlv case m uhich an ac'iial enti) is required 2 Str 1086 Dang, 468. 11' B 741 Unless it is an ejectment binight to recover on a \acantpossession, ai.d not by a hndloid upon a light of re-enti) undei the 4 Geo II c. 28 ; in which case the lessor or Ins attorne) mus* ac mil) seal a lease upon the premises to the plamtuT, \\ho mus be t|CCtu.ib) a leal person. See the mode of prceeedmij. 2 Cromp. fiac. 198... Ciinstian,

rule of court' to confess at the trial of the cause, three of the four requisites for the maintenance of the plaintiff's action ; vz. the teethe of Rogers the lessor, the entry of Smith the plaintiff, and his ouster by Saunders himself, now made the defendant instead of Stiles : which requisites being \\holh fictitious, should the defendant put the plaintiff to prove them, he must of course be nonsuited for want of evidence; but by such stipulated confession of le tse, entry, and ouster, the trial will no\\ stand upon the merits of the title onl\ *. This done, the declaration is altered by inserting the name of George. Saunders instead of Wm. Stiles, and the cause goes down to ti ial under the nam>' of Smith, (the plaintiff) on the demise of Rogers, (the lessor) against Sauuders, the new defendant. And therein the Irssoi ol the plaintiff is bound to make out a cleai title, othtrvt ise his fictitious lessee cannot obtain judgment to have possession of the land for the term supposed to be granted. But, if the lessor makes out his title in a satisfactory manner, then judgment and a writ of possession shall go for Richard Smith the nominal plaintiff, who by this trial has proved the right of John Kog< rs his supposed lessor3. Yet, to prevent fraudulent recoveries of the [ ossession, by collusion with the tenant of the land, all tenants are obliged

t Appendix, No. II, Sec. 3

* It has been determined, tha no ejccfment can be ma ntaincd where the lessor ofithe plaintiff has not a legal right ot'en'i, ; as the heir at law was baired from recovering in ejectment, wheie theieuas ail uiisa'is! ed term raised for the put pose of securing an annuit), the ugh the he r claimed the estate subject to tha* caaige Bu> asaMSl.cuteim w.ll be presumed to be surrendered ; and theci ui s will not pernvf the pli<n>ni 1.1 ejectment to be non-suited b) a term s amli'ig out in the trus ee of tiur less ,1. 2 T. Ji 695. 1 T R <5S.

In D e on the demis" of D -..eninin v S lumrn. 7 T R 2. Loiti Ken>on declared that in all cases wiiere tiusees cu^lr tocome\ to the be el-cial owner, he would leave it to the jur) •'• presume, wuere such a piesumpnon might reasonably be made, that the) had conve)ed aec dii'^,1. ,111 orJ1 r to prevent a just title fum being deiexted by a matter <*f firm. But ifsm. a presumption cannol be maJe, lie v» ho lias ,heeq«> aole et> afc onl) cannot iccover in ejectment. Jji.cs v yanes, 7 T- W. 4o um 1*11,11

3. After an issue i«. joined in ejectment, on the title only, no excc>ption of forrh or substance shall be taken to the declaration in"<iny court whatsoever. V. L. 1794, c. 76, ^. 35.

by statute 11 Geo. II, c. 19, on pain of forfeiting three years rent, to give notice to their landlords, when served with any declaration in ejectment: and any landlord may by leave of the court be made a co-defendant to the action, in case the tenant Kimself appears to it; or, if he makes default, though judgment must be then signed agiinst the casual ejector, yet execution shall be stayed, in case the landlord applies to be made a defendant, and enters into the common rule ; a right, which indeed the landlord had, long before the provision of this statute u 4 : in like manner as (pre\ ious to the statute of Westm. 2. c. 3.) if in a real action the tenant of the freehold made default, the remainderman or reversioner had a right to come in and defend the possession; lest, if judgment were had against the tenant; the estate of those behind should be turned to a naked right™5. But if the new defendants, whether landlord or tenant, or both, after entering into the common rule, fail to appear at the trial, and to confess lease, entry, and ouster, the plaintiff Smith must indeed be there nonsuited, for want of proving those requisites ; but judgment will in the end be entered against the casual ejector Stiles; for the condition on which Saunders, or his landlord, was admitted a defendant, is broken, and therefore the plaintiff is put again in the same situation as if he never had appeared at all; the consequence of which (we have seen) would have been, that judgment would have been-entered for the plaintiff, and the sheriff, by virtue of a writ for that purpose, would have turned out Saunders, and delivered possession to Smith. The same process therefore as would have been had, provided no conditional rule had been ever made, must now be pursued as soon as the condition is broken**.

uStaPrac Reg 108, 111,2Cs) 7 Mod 70 Salk 257 Bun 1301 w Bracton. I 5,c Id, Sec 14.

e Wheie an ejectment is defended merely to continue the possession of the premises, aud no defence is ntaJe at the trial, the prac'ice is for the cryer of the court, hist, to call the dt(encla.u to confess lease, entr\, and ouster, and

4. The statute of 11 Goo. II, c. 19, was never in force in Virginia; but it would seem fi om what is here said that it is merely in affirmance of the common law, the rules of which unless repealed by the authority of ouv own legislature are to be observed hei e.

5. V. L. 1794, c. 114. Accordant.

The damages recovered in these actions, though formerly their only intent, are now usually (since the title has been considered as the principal question) very small and inadequate; amounting commonly to Is. or some other trivial sum. In order therefore to complete the remedy, when the possession has been long detained from him that had the right to it, an action of trespass also lies, after a recovery in ejectment, to recover the mesne profits which the tenant in poesession has wrongfully received. Which action may be brought in the name of either the nominal plaintiff in the ejectment, or his lebsor, against the tenant in possession: whether he be made party to the ejectment or suffers judgment to go by default". In tnii> case the judgment in ejectment is conclusive evidence against the defendant, for all profits which have accrued since the date of the demise stated in the former declaration of the plaintiff; but if the plaintiff sues for any antecedent profits, the defendant may make a new defence*.

x. 4 Burr. 668.

then the plaintiff, as in other cases of non-suits, to come Ijnh or lie will loose his \\ rit of nisi prius.

Though in this case the judgment is given against the casual cje'ctor, > et the costs are taxed as in other cases, and if the real defendant refuses to pay them, the court will grant an attachment against him Salt. 259.

In like manner if theie be a verdic'for the defendant, or the nominal plamt.iT be non-suited without the default of the defendant, the defendant must ta\ Ins costs, and sue out a writ of execution against the nominal plaintiff; and if, upon serving the lessor of the plamtii! with this xviit and a copy of the mlc to confess lease, entry, and ouster, the lessor, of the plaintiff does not pay the costs, the court \\ Jl grant an attachment against him. 2 Cromp Bract 214. in ejectment the unsuccessful pait) may rc-trj the same question as ofieu as he pleases without the leave of the couu; for by making afiesh demise to another nominal chaiacter.it becomes the action of a new plaiiitiS" upon another right, and the cuurts'of la« cannot an) farther prevent this repetition of the action, than bybrdeiing the proceedings in one ejectment to be stayed till the costs of a former ejec'ment, though brought in another cou. t, lie discharged. 2 III kep. 1158 Banies, 133. Bill a court of equity, in some instances where there have been sevtial trials in ejectment for the same premises, though the title was entirely legal, has granted a perpetual injunction 7 P. W &n Ciuhiian.

* The defendant may jlead the statute of l>n itations, and by thaf means protect himself from the payment of ailmesrc prol.ts, e\c.epf those winch ha\f accrued witnm the last six jeirs. Bull. N P. 83 Cbitstiiui,

Such is the modern way, of obliquely bringing in question the title to lands and tenements, in order to try it, in this collateral manner; a method which is now universally adopted in almost every case. It is founded on the same principle as the antient writs of assize, being calculated to try the mere possessory title to an estate ; and hath succeeded to those real actions, as being infinitely more convenient for attaining the end of justice : because the form of the proceeding being entirely fictitious, it is wholly in the power of the court to direct the application of that fiction, so as to prevent fraud and chicane, and eviscerate the very truth of the title. The writ of ejectment and it's nominal parties (as was resolved by all the judges *) are "judicallyto be considered as the fictitious form of an action, really brought by the lessor of the plaintiff against the tenant in possession: invented, under the control and power of the court, for the advancement of justice in many respects; and to force the parties to go to trial on the merits, without being intangled in the nicety of pleadings on either side."

But a writ of ejectment is not an adequate means to try the title of all estates ; for on those things, whereon an entry cannot, in fact, be made, no entry shall be supposed by any fiction of the parties. Therefore, an ejectment will not lie of an advowson, a rent, a common, or other incorporeal hereditamentz: except for tithes, in the hands of lay appropriators, by the express purview of statute 32 Hen. VIII, c. 7, which doctrine hath since been extended by analogy to tithes in the hands of the clergy a 6: nor will it lie in such cases, where the entry of him that hath right, is taken away by descent, discontinuance, twenty years dispossession, or otherwise 7.

This action of ejectment is,however,rendered a very easy and expeditious remedy to landlords whose tenants are in arrere, by

y Mich. 32 Geo. II. 4 Burr 608.

z Brovvnl 123. Cro. Car 4S2. Sua.54.

a Cro Car. 301. 2 Ld. Haym, 7b9.

C. This statute is obsolete in Virginia. 7. L. V. 1794, c. 76. &. 1. Accordant.

statute 4 Geo. II, c. 28, which enacts, that every landlord, who hath by his lease a right of re-entry, in case of nonpayment of rent, when half a year's rent is due, and no sufficient distress is to be had, may serve a declaration in ejectment on his tenant, or fix the same, upon some notorious part of the premises, which shall be valid, without any formal re-entry or previous demand of rent. And a recovery in such ejectment shall be final and conclusive, both, in law and equity, unless the rent, and all costs be paid or tendered, within six calendar months afterwards 8.

2. The writ otquars ejecit infra terminum lieth, by the antient law, where the wrong-doer or ejector is not h'.rmelf in possession of the lands, but another, who claims under him. As where a man leaseth lands to another for years, and, after the lessor or reversioner entereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger: now the lessee cannot bring a writ of ejectionejirmae, or ejectment against the feoffee; because he did not eject him, but the reversioner: neither can he have any such action to recover his term, against the reversioner, who did oust him; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westm. 2, c. 24, as in a case where no adequate remedy was already providedb 9. And the action is brought against the feoffee, for deforcing, or keeping out, the original lessee during the continuance of his term ; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains; and also shall have actual damages for that portion of it, whereof he has been unjustly deprived. But since the introduction of fictitious ousters, whereby the title may be tried against any tenantin possession, (by what means soever he acquired it) and the subsequent recovery of damages by action of trespass for mesne profits, this action is fallen into disuse.

b F. N. B. 198.

8. This statute was never in force in Virginia. ...On this subject the student will receive much satisfactory information from Baron Gilbert's and Mr. Kunnington's treatises on the law of ejectments, particularly the latter.

9. See note 2, page 199, ante, and V. L. 1794, c. 147.

chapter twelfth:

OF TRESPASS,

IN the two preceding chapters we have considered such injuries to real property, as consisted in an ouster, or amotion 'of the possession. Those which remain to be discussed, are such as m iy be offered to a man's real property without any amotion from it.

The second species, therefore, of real injuries, or wrongs, that affect a man's lands, tenements, or hereditaments, is that of trespass. Trespass, in it's largest, and most extensive sense, signifies any transgression, or offence against the law of nature, of society, or of the country, in which we live; whether it relates to a man's person, or his property. Therefore, beating another, is a trespass; for which (as we have formerly seen) an action of trespass vl et armis in assault and battery will lie ; taking or detaining a man's goods are respectively trespasses ; for which, an action of trespass vl et armist or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings, is a trespass, upon which, an action of trespass on the case in assumpsit is grounded : and, in general, any misfeasance, or act of one man whereby another is injuriously treated, or damnified, is a transgression, or trespass, in it's largest sense ; for which we . have already seena that, whenever the act, itself, is directly, and immediately injurious to the person, or property of another, and, therefore, necessarily accompanied with some force,

a See page 123' '•

an action of trespass vi et armis will lie; but, if the injury is Only consequential, a special action of trespass on the case may be brought'.

But in the limited and confined sense, in which we are at present to consider it, it signifies no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property. For the right of meum and tuum, or property, in lands being once established, it follows as a necessary consequence, that this right must be exclusive: that is, that the owner may retain to himself the sole use and occupation of his soil: every entry, therefore, thereon without the owner's leave, and especially if contrary to his express order, is a trespass or transgression. The Roman laws seem to have made a direct prohibition necessary, in order to constitute this injury : "qui alienum fundum ingreditur, potest "adominO) si is praeviderit, prohiberi ne ingredeaturbS' But the law of England, justly considering that much inconvenience may happen to the owner, before he has an opportunity to for* bid the entry, has carried the point much farther, and has treated every entry upon another's lands, (unless by the owner's leave, or in some very particular cases) as an injury or wrong, for satisfaction of which an action of trespass will lie ; but determines the quantum of that satisfaction, by considering how far the offence was wilful or inadvertent, and by estimating the value of the actual damage sustained. -

Every unwarrantable entry on another's soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis fregit. For every man's land is in the eye of the law

b Inst 2, 1,12,

1. See the distinction between immediate, and consequential injuries very fully discussed in the case of Scott vs. Shepherd, where the eye of the plaintiff was put out by a squib originally lighted and thrown into a market-house by the defendant, and afterwards thrown by tw<> other persons in danger from it before it struck the plaintiff. 3. Wils. 403. 2 Blacks. Rep.' 892, in which it was held that trespass vi et armis would lie against the personwho first threw the squib.

inclosed and set apart from his neighbours: and that either by a visible and material fence, as one field is divided from another by a hedge ; or, by an ideal invisible boundary existing only in the contemplation of law, as when one man's land adjoins to another's in the same field. And every such entry or breach of a man's close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbagec.

One must have a property (either absolute or temporary) in the soil, and actual possession by entry, to be able to maintain an action of trespass: or at least, it is requisite that the party have a Itjase Und possession of the vesture and herbage of the land d. Thus, if a meadow be divided annually among the parishoners bs lot, then, after each person's several portion is allotted, they may be respectively capable of maintaining an action for the breach of their several closese: for they have an exclusive interest and freehold therein for the time. But before entry and actual possession, one cannot maintain an action of trespass, though he hath the freehold in lawf. And, therefore, an heir before entry cannot have this action against an abator: though a disseisee might have it against the disseisor, for the injury done by the disseisin itself, at which time the plaintiff was seised of the land: but he cannot have it for any act done after the desseisin, until he hath gained possession by re-entry, and then he may well maintain it for the intermediate damage done; for after his re-entry the law by a kind ofjuspostltminii, supposes the freehold to have all along continued in him «. Neither, by the common law, in case of an intrusion or deforcement, could the party kept out of possession sue the wrongdoer by a mode of redress, which was calculated for injuries committed against the land while in the possession of the owner. But now by the statute 6 Ann. c. 18, if a guardian or trustee for any infant, a husband seised jure uxoris, or a person having any estate or interest determinable upon a life or lives, shall, after the determi-

q F. N. B 87, 88. e Cro. E1U. 421. g 11 Rep. 5.

d Dyer, 285. 2 KoU- Abr. 549. f 2 ttoll. Abr. 553.

nation of their respective interests, hold over and continue in posession of the lands or tenements, without the consent of the person intitled thereto, they are adjudged to be trespassers; and any reversioner or remainder-man, expectant on any life-estate, may once in every year, by motion to the court of chancery, procure the cestuy que vie to be produced by the tenant of the land, or may enter thereon in case of his refusal or wilful neglect. And by the statutes of 4 Geo. II. c. 28, and 11 Geo. II. c. 19, in case after the determination of any term of life, lives, or years, any person shall wilfully hold over the same, the lessor or reversioner is entitled to recover by action of debt, either at the rate of double the annual value of the premises, in case he himself hath demanded and given notice in writing to the tenant to deliver the possession; or else double the usual rent, in case the notice of quitting proceeds from the tenant himself, having power to determine his lease, and he afterwards neglects to carry that notice into due execution (l.)

A man is answerable for not only his own trespass, but that of his cattle also: for, if by his negligent keeping they stray upon the land of another (and much more if he permits, or drives them on) and they there tread down his neighbour's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages. And the law gives the party injured a double remedy in this case; by permitting him to distrein the cattle thus damage-feasant, or doing damage, till 'the owner shall make him satisfaction; or else by leaving him to the common remedy inforo contentions, by action. And the action that lies in either of these cases of trespass committed upon another's land either by a man himself or his cattle, is the actibn of trespass vi et armis; whereby a man is called upon to answer, quarevi et armis, clausum ipsiunA. apud B.fregit, et blada ipsius A. ad valentiam centum solidorum ibidem nuper crescentia cum quibusdam averiis depaslussuit, conculcavit^etconsttmpsit, £sV.h"; for the law always couples the idea of force with that of intrusi-

• h Bcgistr. 94.

(1.) The statutes 6 Ann. c. 18....4 Geo. II, c. 28, and 11 Geo. II, c. 19, above referred to, were never in force in Virginia-

on upon the -property of another. And herein, if any unwarrantable act of the defendant or his beasts in coining upon the land be proved, it is an act of trespass for which the plaintiff must recover some damages; such however as the jury shall think proper to assess s.

In trespasses of a permanent nature, where the injury is continually renewed, (as by spoiling or consuming the herbage witH the defendant's cattle) the declaration may allege the injury to have been committed by continuation from one given day to an* other, (which is called laying the action with a continuando) and the plaintiff shall not be compelled to bring separate actions for every day's separate offence'. Butwhere the trespass is by one or several acts, each of which terminates in itself, and being once done, cannot be done again, it cannot be laid with a continuando; yet if there be repeated acts of trespass committed, (as cutting down a certain number of trees) they may be laid to be done, not continually, but at divers days and times within a given period k.

In some cases trespass is justifiable ; or, rather, entry on another's land or house shall not, in those cases, be accounted trespass : as if a man comes thither to demand or pay money, there payable: or to execute, in a legal manner, the process of the law. Also, a man may justify entering into an inn or public house, without the leave of the owner first specially asked; because, •when a man professes the keeping of such inn or public house,

i 2 Holl. Abr. 545. Lord Raym. 240.

k Salk. 638, 639. Lord Raym. 823. 7 Mod. 150.

2. If any beasts shall break into grounds inclosed with a sufficient fence, as described in the act concerning trespasses, the owner, for the first trespass, shall recompense the party injured for t,he true value of the damage ; and double damages for every subsequent trespass. For a third offence, the party injured may, at his election, sue for his damages, or kill the beasts, without being answerable for them. But if the fence be not sufficient, within the act, the owner of the beast killed, or hurt, shall recover double damages and co^ts. V. L. Edi. 1794, c. 137.

.he thereby gives a general licence to any person to enter his doors. So a landlord may justify entering to distrein for rent; a commoner to attend his cattle, commoning on another's land; and a reversioner, to see if any waste be committed on the estate; for the apparent necessity of the thing'. Also, it hath been said, that by the common law and custom of England the poor are allowed to enter and glean upon another's ground after the harvest, without being guilty of trespassm: which humane provision seems borrowed from the mosaical law n *. In like manner, the common law warrants the hunting of ravenous beasts of prey, as badgers and foxes, in another man's land ; because the .destroying such creatures is said to be profitable to the public0. But, in cases where a man misdemeans himself, or makes an ill use of the authority with which the law entrusts him, .he shall be accounted a trespasser ab initio f : as if one comes into a tavern, and will not go out in a reasonable time, but tarries there all night contrary to the inclinations of the owner; this wrongful act shall effect and have relation back even to his first entry, and make the whole a trespass 1. But a bare non-feasance, as not paying for the wine he calls for, will not make him a trespasser; for this is only a breach of contract, for which the taverner shall have an action of debt or assumpsit against himr. So, if a landlord dis-

1 8 Rep. 146.

m Gilb. Ev. 253. Tmhper pals, ch. 15. p. 438.

n Levit. c. 19. v. 9. and c. 23. v. 22. Dcut. c. 24. v. 19, £3lc.

q Cro: Jac. 321. p Finch. L. 47. Cro. Jac. 148.

q 2 Roll. Abr. 561. r 8 Rep. 147.

* Two actions of trespass have been brought in the common pleas against gleaners, with an intent to try the general question, viz. whether such a right existed j in the first, the defendant pleaded that he being a poor, necessitous, and indigent person, entered the plaintiff's close to glean; in the second, the defendant's plea was as before, with the addition that he was an inhabitant legally settled within the parish: to the plea in each case there was a general demurrer. Mr. J. Could delivered a learned judgment in favour of gleaning, but the other three judges were clearly of opinion that this claim had no foundation in law; that the only authority to support it was an extra judicial dictum of lord Hale; that it was a practice incompatible with the exclusive enjoyment of property,'and was productive of vagrancy, and many mischievous consequences. 1 H. Bl. Sep. 5^1..Christian.

treined for rent, and wilfully killed the distress, this by the common law made him a trespasser abinitio': and so indeed would any other irregularity have done, till the statute 11 Geo. II. c. 19, which enacts, that no 'subsequent irregularity of the. landlord shall make his first entry a trespass 3; but the party injured shall have a special action of trespass or on the case, for the real specific injury sustained, unless tender of amends hath been made. But still, if a reversioner, who enters on pretence of seeing waste, breaks the house, or stays there all night; or if the commoner, who comes to tend his cattle, cuts down a tree ; in these and similar cases, the law judges that he entered for this unlawful purpose, and, therefore, as the act which demonstrates such his purpose is a trespass, he shall be esteemed a trespasser ab initio1. So also, in the case of hunting the fox or the badger, a man cannot justify breaking the soil, and digging him out of his earth: for though the law warrants the hunting of such noxious animals for the public good, yet it is heldu, that such things must be done in an ordinary and usual manner ; therefore, as there is an ordinary course to kill them, viz. by hunting, the court held that the digging for them was unlawful.

A man may also justify in an action of trespass, on account of the freehold and right of entry being in himself; and this defence brings the title of the estate in question. This is therefore one of the ways devised, since the disuse of real actions, to try the property of estates; though it is not so usual as that by ejectment, because that, being now a mixed action, not only gives damages for the ejection, but also possession of the land : whereas in trespass, which is merely a personal suit, the right can be only ascertained, but no possession delivered j nothing being recovered-hut damages for the wrong committed.

s Finch. L. 47. \\ Cro. Jac. 321.

t 8 Rep. 146.

3. This statute is not in force in Virginia, nor have we any similar provision in our law ; a circumstance of which landlords will do well to take notice.

In order to prevent trifling and vexatious actions of trespass, as well as other personal actions, it is (inter alia) enacted by statutes 43 Eliz. c. 6, and 22 and 23 Car. II. c. 9. \. 1'36, that •where the jury, who try an action of trespass, give less damages than forty shillings, the plaintiff shall be allowed no more costs than damages ; unless the judge shall certify under his hand that the freehold or title of the land came chiefly in question. But this rule now admits of two exceptions more, which have been made by subsequent statutes. One is by statute 8 and 9 W. III. c. 11, which enacts, that in all actions of trespass, wherein it shall appear that the trespass was wilful and malicious, and it be so certified by the judge, the plaintiff shall recover full costs 4. Every trespass is wilful, where the defendant has notice, and is especially forewarned not to come on the land ; as every trespass is malicious, though the damage may not amount to forty shillings, where the intent of the defendant plainly appears to be to harass and distress the plaintiff*. The other exception is by statute 4 and 5 W. and M. c. 23, which gives full costs against any inferior tradesman, apprentice, or other dissolute person,

* If a person has notice to come or continue upon another's land, as if a ipoi tsnian has notice or warning not to come again, or to go ofl', and he repeal'' or continues the trespass, upon proof of this, the judges think themselves bound to certify that the trespass is wilful and malicious, amltheplaintlffwillin consequence be entitled to full costs. 1 Esp. 423.

It has been determined, that the judge was bound to certify, although the notice had been general to all persons not to trespass upon the plaintiff's lands, and given four years before, and although the defendant was unacquainted with the boundaries of the plaintiff's estate. 6 T. It. \\....Cbristian.

4. These statutes of 43 Eliz. 22 and 23 Car. 2, and 8 and 9"W. 3, are not in force in Virginia; our law is framed with an eye to them. It declares, that in all actions of trespass, and other personal actions, where the court, before whom the trial shall be, shall not be satisfied, and enter upon the record, that the freehold, title, or interest of land mentioned in the plaintiff's declaration, was, or might have been in question, or that the trespass was wilful or malicious, if the jury find under six dollars and sixty-six cents, the plaintiff shall-recover no more .costs than damages : and, if more costs are awarded, the judgment shall be void, but may be amended upon motion at any time. L. V. Edi. 1794, c. 76. §. 17.

who is convicted of a trespass in hawking, hunting, fishing, or fowling upon another's land5. Upon this statute it has been adjudged, that if a person be an inferior tradesman, as a clothier for instance, it matters not what qualification he may have in point of estate j but, if he be guilty of such trespass, he shall be liable to pay full costs w 6.

w Lord Raym. 149.

5. This statute was never in force in Virginia. But our law provides, that if any person shall shoot, hunt, fish, fowl, or range upon the lands of another without his consent, the offender shall forfeit three dollars to the use of the informer, to be recovered, with costs, before a justice of the peace. L. V. Edi. 1794, c. 88.

6. Where several persons are made defendants in an action of trespass or ejectment, if, upon the trial, any one qr more of them be acquitted, the defendants so acquitted shall recover their full costs, unless the court shall be satisfied that there was reason for making the person acquitted a defendant, and shall order it otherwise. L. V. Edi. 1794, c. 76. §. 17,

Under this act it hath been determined, that if trespass be brought against two, who plead jointly, and one of them is acquitted, and the other found guilty, if the court upon the motion of him that is found guilty, grants a new trial, it is error. 1 Wash. Rep. 325.

In actions of trespass tjuarc clausumfregit, where the defendant pleads a disclaimer and involuntary trespass, with tender of amends before action brought, the plaintiff shall join issue thereupon, and if it be found for the defendant, or the plaintiff be non-suited, he shall be forever barred of his action. V. L. Edi. 1794, c. 76. §. 19- This is borrowed from the stat. 21 Jas. 1. c. 16, upon which it has been held, that it is not sufficiertt to plead a tender of amends alone. 1 Str. 549.

Actions of trespass may be maintained by or against executors or administrators, for any goods taken or carried away in the life-time o their testator. V. L. 1785, c. 61. Edi. 1794, c. 92. §. 58. The stat. 4 Ed. 3. c. 7, gave this action to executors ; our law gives it likewise against them.

It has been held, that executors may maintain ejectment for land let to their testator for years, under the statute of 4 Edw. 3, if the testator be ousted in his life-time : or if they be ousted themselves, they may either have an ejectment, or a special writ founded on the statute, for which see F. N. B. p. 92. 4 Co. 95. 2 Vent. 20, cited 2 Esp. 144 (Phila). Under the equity of that statute, it is also held tha1! they may ha\e an action of trover for the conversion of goods in the lifetime of their testator, as well as for a conversion in their own times.

Cro. Eliz. 377, cited 2 Esp. 335 (Phila.) But, in England, lmfr •will not he against an executor for a conversion by his tesUtor, nor any action where the plea must be, that the testator was not guiltv. Cowp. Rep. 375. But quaere, whether an action of trover may not now be maintained against an executor in Virginia, on the conversion of his testator, as well as an action of trespass, which is given against executors by the act last above mentioned?

CHAPTER THE THIRTEENTH.

OF NUSANCE.

A THIRD species of real injuries to a man's lands and tenements, is by nu.iance. Nusance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nusances are of two kinds; public or common nusances, which affect the public, and are an annoyance to all the king's subjects j for which reason we must refer them to the class of public wrongs, or crimes and misdemesnors: and private nusances, which are the objects of our present consideration, and may be defined, any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another \ We will, therefore, first mark out the several kinds of nusances, and then their respective remedies.

I. In discussing the several kinds of nusances, we will consider, first, such nusances as may affect a man's corporeal hereditaments, and then those that may damage such as are incorporeal.

1. First, as to corporeal inheritances. If a man builds a house so close to mine that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nusance, for which an action will lie b. Likewise, to erect a house or building so near to mine, that it obstructs my antient lights and windows, is a nusance of a similar naturec. But in this latter case

a Finch. L. 188. c 9 Hep. 58.

bF. N. B. 184.

it is necessary that the windows be antient; that is, have subsisted there a long time without interruption; otherwise there is no injury done *. For he hath as much right to build a new edifice upon his ground, as I have upon mine: since every man may erect what he pleases upon the upright or perpendicular of his own soil, so'as not to prejudice what has long been enjoyed by another; and it was my folly to build so near another's ground d. Also, if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him and makes the air unwholesome f, this is an injurious nusance, as it tends to deprive him of the use and benefit of his house e '. A like injury is, if one's neighbour sets up and exercises any offensive trade; as a tanner's, a tallow-chandler's, or the like ; for though these are lawful and necessary trades, yet they should be exercised in remote places ; for the rule is, " sic utere " tuo, tit alienum non laedas:" this, therefore, is an actionable nusance f. So that the nusances which affects a man's dwelling may be reduced to these three : 1. Overhanging it: which is also a species of trespass, for cujus est solum ejits est usque ad coelum: 2. Stopping antient lights : and 3. Corrupting the air with noisome smells : for light and air are two indispensible requisites to every dwelling. But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall, or the like ; this, as it abridges nothing really convenient or necessary, is ho injury to the sufferer, and is therefore not an actionable nusance g.

d Cro. Eliz. 118 Salk. 459. e 9 Rep 58. f Cro Car. MO. gfllep. 58.

* The judges now hold, that lights will be considered antient to suppoir this action, of which there has been an uninterrupted enjoyment about twenty years.. .Christian.

t Lord Mansfield has said, that" il is not necessary that the smell should " be unwholesome ; it is enough, if jt renders the enjojment 01 life and property uncomfortable." 1 Burr. 337--.Christian

1. The erection of a mill, whereby the grounds of another person are overflowed, or his habitation rendered unwholesome, is a nusancc, which uur law seems particularly careful in guarding against. V. L. 17«5, c. 82. Edi. 1794, c. 105.

As to nusance to one's lands: if one erects a smelting house for lead so near the land of another, that the vapour and smoke kills his corn and grass, and damages his cattle therein, this is held to be a nusance h. And by consequence it follows, that if one does any other act, in itself lawful, which yet being done in that place necessarily tends to the damage of anothers' property, it is a nusance : for it is incumbent on him to find some other place to do that act, where it will be less offensive. So also, if my neighbour ought to scour a ditch, and does not, whereby mf land is overflowed, this is an actionable nusance '.

With regard to other corporeal hereditaments: it is a nusance to stop or divert water that uses to run to another's meadow or millk; to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream'; or in short to do any act therein, that in it's consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of " doing to others, as we would they " should do unto ourselves."

2. As to incorporeal hereditaments, the law carries itself with the same equity. If I have a way, annexed to my estate, across another's land, and he obstructs me in the use of it, either by totally'stopping it, or putting logs across it, or ploughing over it, it is a nusance: for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ' oughtm. Also, if I am entitled to hold a fair or market, and another person sets up a ftiir or market so near mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fairn. But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For sir Matthew Hale0 construes the dieta^ or reasonable day'sjour-

h 1 Roll. Abr. 89. i Hate on F. N. B. 427. Ic F. N. B. 184. 19 Rep. 59. 2 Roll. Abi. 141. k. F. N. B. 183.2 Roll. Abr. 14(£ n F. N. B. 181. 2 Roll. Abr.. 140, oOnF. N. B.1SJ4.

ney mentioned by Bracton'^, to be twenty miles: as indeed it is usually understood not only in our own law * but also in the civilr from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no nusance : for it is held reasonable that every man should have a market within one third of a day's journey from his own home ; that, the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his necessary business there. If such market or fair be on the same day with mine, it is prlma facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so: but if it be on any other day, it may be a nusance; thougli whether it in so or not, cannot be intended or presumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another antient ferry as to draw away it's custom, it is a nusance to the owner of the old one. !For where there is a ferry by prescription, the owner is bound to keep it always in repair, and readiness, for the ease of all the king's subjects ; otherwise he may be grievously amerced*: it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen2. But where the reason ceases, the law also ceases with it: therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another: for by such emulation the public are like to be gainers; and, if the new mill- or school occasion a damage to the old one, it is damnum absqueinjuria*.

p l.3. c. 1C.

t Ff. 2. 11. 1.

l Hale on F. N. B. 184.

q2 Inst. 56r.

s 2 Roll. Abr. 140.

2. Ferries being established in Virginia by act of assembly, or by order of court, the ferry keeper hath the same exclusive right to the profits of his ferry, as if it were a ferry by prescription. And if any person shall for reward set any person over a river or creek on which public ferries are appointed by the act for regulating ferries, they shall forfeit twenty dollars for every offence. Vide, V. L. 1794, c. I16. }. 7.

II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy ,for anything but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only : because the damage being common to all the king's subjects, no one can assign his particular proportion of it; or if he could, it would be extremely hard, if every subject hi the kingdom were allowed to harass the offender with separate actions. For this reason, no person, natural or corporate, can have an artion for a public nusance, or punish it; but only the king in his public capacity of supreme governor, and pater-familias of the kingdomu. Yet this rule admits of one exception; where a private person suffers some extraordinary damage, beyond the rest of the king's subjects, by a puolic nusance; in which case he shall have a private satisfaction by action3. As if, by means of a ditch dug across a public way, which is a common nusance, a man or his horse suffer any injury by falling therein ; there, for this particular damage*, which is not common to others, the party shall have his actionw. Also if a man hath abated, or removed, a nusance which offended him, (as we may remember it was stated in the first chapter of this book, that the party injured hath a right to do) in this case he is entitled to no action *. For he had choice of two remedies; either without suit, by abating it himself, by his own mere act and authority : or by suit, in which he may both recover damages, and remove it by the aid of the law: but having made his election of one remedy, he is totally precluded from the other.

n Vaugb, 341,342. x 9 Rep. So.

w Co. Litt. 56. 5 Hep. 73.

'.But the particular damage in this case mubt be dhcct, and not consequential, as by being delayed in a jouiuey of importance, Jiull- jV P. "2o....Christian.

3. Any person sustaining any loss by breach of the condition of a bond for building and keeping a bridge in repair, may maintain an action thereon, in the name of the goiernor, as often as an injury shall happen, until the whole penalty of the bond shall be paid. V. L. Edi. 1794, c. 19.

The remedies by suit are, 1. By action on the case for damages: in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nusance. Indeed every continuance of .a nusance is held to be a fresh one * ; and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it. Yet the founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the assise of nusance, and the writ of quod permittat prosternere: which not only give the plaintiff satisfaction for hi 3 injury past, but also strike at the root and remove the cause itself, the nusance that occasioned the injury. These two actions however can only be brought by the tenant of the freehold ; so that a lessee for years is confined to his action upon the case *.

2. An assise of nusance is a writ; wherein it is stated that the party injured complains of some particular fact done, ad nocumentum liberi tenementi sim, and therefore commanding the sheriff to summon an assise, that is a jury, and view the premises, and have them at the next commission of assises, that justice may be done therein •: and, if the assise is found for the plaintiff, he shall have judgment of two things; 1. To have the nusance abated; and 2. To recover damages b. Formerly an assise of nusance only lay against the very wrongdoer himself who levied, or did, the nusance; and did not lie against any person to whom he had aliened the tenements, whereon the nusance was situated. This was the immediate reason for making that • equitable provision in statute Westm. 2. 13 Edw. I. c. 24, for granting a similar writ, in casu consimili^ where no former precedent was to be found4. The statute enacts, that u dc caetero

ySLeon. pi 129. Cro. Eliz. 402. a F. N. B. 183.

z. Finch. L. 239. b91lep. 55.

4. The benefit of this statute is saved by the act repealing all British statutes, V. L. 1794, c. 147. It is moreover provided that the judges of the court of appeals shall direct the f,orm of writs, from

non recedant querentes a curia domini regis, pro eo quod tenementuin transfcrtur de uno inalium;" and then gives the form of a new writ in this case: which only differs from the old one in this, that, where the assise is brought against the very person only who levied the nusance, it is said u quod A. (the wrongdoer) injuste levavit tale nocumentum;" but, where the lands are aliened to another person, the complaint is against both; " qaod A. (the wrongdoer) et B. (the alienee) " levaveruntc." For every continuation, as was before said, is a fresh nusance ; and therefore the complaint is as well grounded against the alienee who continues it, as against the alienor who first levied it.

3. Before this statute, the party injured, upon any alienation of the land wherein the nusance was set up, was driven to his quod permittat proslernere; which is in the natuie of a writ of i ight, and therefore subject to greater delays d. This, is a writ, commanding the defendant to permit the plaintiff to abate, quodpermittat prostetnere, the nusance complained of; and, unless he so permits, to summon him to appear in court, and shew cause why he will note. And this writ lies as well for the alienee of the party first injured, as against the alienee of the party first injuring ; as hath been determined by all the judges f. And the plaintiff shall have judgment herein to abate the nusance, and to recover damages against the defendant.

Both these actions, of assise of nusance, and of quod permittat prosternere, are now out of use, and have given way to the action on the case ; in which, as was before observed, no judgment can be had to abate the nusance, but only to recover damages. Yet, as therein it is not necessary that the freehold should be in the plaintiff and defendant respectively, as it must be in these real actions, but it is maintainable by one that hath

c 9 Rep. 55 e F N B. 124.

d 2 Inst 405 £5 Rep 100, 101.

time to time, in such manner as may seem advisable. Ibid, c. 63. Sec. 21.

possession only, against another that hath like possession, the process is therefore easier: and the effect will be much the same, unless a man has a very obstinate as well as an ill-natured neigh! bpur: who had rather continue to pay damages, than remove his nusance. For in such a case, recourse must at last be had to the old and sure remedies, which will effectually conquer the defendant's perverseness, by sending the sheriff with his fos'e comitattis, or power of the county, to level it.

CHAPTER THE FOURTEENTH.

OF WASTE.

THE fourth species of injury, that may be offered to one's real property, is by waste, or destruction in lands and tenements. What shall be called waste was considered at large in a former volume a, as it was a means of forfeiture, and thereby of transferring the property of real estates. I shall, therefore, here only beg leave to remind the student, that waste is a spoil and destruction of the estate, either in houses, woods, or lands ; by demolishing not the temporary profits only, but the very substance of the thing; thereby rendering it wild and desolate ; which the common law expresses very significantly by the word vastum: and that this vastum, or waste, is either voluntary, or permissive j the one by an actual and designed demolition of the lands, woods, and houses ; the other arising from mere negligence, and want of sufficient care in reparations, fences, and the like. So that my only business is at present to shew, to whom this waste is an injury ; and of course who is entitled to any, and what, remedy by action.

I. The persons, who may be injured by waste, are such as have some interest in the estate wasted; for if a man be the absolute tenant in fee simple, without any incumbrance or charge on the premises, he may commit whatever waste his own indiscretion may prompt him to, without being impeachable or account-

a !>cc Vol. II. ch. 18.

able for it to any one. And, though his heir is sure to be the sufferer, yet nemo est haeres viventis: 1:0 man is certain of succeeding him, as well on account of the uncertainty which shall die first, as also because he has it in his own power to constitute what heir he pleases, according to the civil law notion of an haeres natus and an haeres foetus: or, in the more accurate phraseology of our English law, he may aliene or devise his estate to whomever he thinks proper, and by such alienation or devise may disinherit his heir at law. Into whose hands soever therefore the estate wasted comes, after a tenant in fee-simple, though the waste is undoubtedly damnum, it is daninutn absque injuria.

One species of interest, which is injured by waste, is that of a person who has a right of common in the place wasted ; especially if it be common of estovers, or a right of cutting and carrying away wood for house-bote, plough-bote, &?c. Here, if the owner of the wood demolishes the whole wood, and thereby destroys all possibility of taking estovers, this is an injury to the commoner, amounting to no less than a disseisin of his common of estovers, if he chooses so to consider it; for which he has his remedy to recover possession and damages by assise, if entitled to a frehold in such common: but if he has only a chattel interest, then he can only recover damages by an action on the case for this waste and destruction of the woods, out of which his estovers were to issue b.

But the most usual and important interest, that is hurt by this commission of waste, is that of him who hath the remainder or reversion of the inheritance after a particular estate for life or years in being. Here, if the particular tenant, (be it the tenant in dower or by curtesy, who was answerable for waste at the common lawc, or the lessee for life or years, who was first made liable by the statutes of Marlbridge d and of Glocestere) if the particular tenant, I say, commits or suffers any waste, it is a manifest injury to him that has the inheritance, as it tends

b F. N. B. 59. 9 Rep 112. d 52 Hen. III. c. 23.

c 2 Inst. 299. e 6 Edw. I. c. 5.

to mangle and dismember it of it's most desirable incidents and ornaments, among which timber and houses may justly be reckoned the principal. To him therefore in remainder or reversion, to whom the inheritance appertains in expectancy f, the law hath given an adequate remedy. For he, who hath the remainder for life only, is not entitled to sue for waste; since his interest may never perhaps come into possession, and then he hath suffered no injury *. Yet a parson, vicar, arch-deacon, prebendary, and th§ like, who are seised in right of their churches of any remainder or reversion, may have an action of waste; for they, in many cases, have for the benefit of the church and of the successor a fee-simple qualified: and yet, as they are not seised in their own right, the writ of waste shall not say, ad exhaeredationem ipsius, as for other tenants in fee-simple; but ad exhaeredationem ecclesiae, in whose right the fee-simple is holden e.

II. The redress for this injury of waste is of two kinds: preventive, and corrective: the former of which is by writ of estrepement, the latter by that of waste.

1. Estrepement is an old French word, signifying the same as waste or extirpation: and the writ of estrepement lay at the common law, after judgment obtained in any action real1*, and before possession was delivered by the sheriff; to stop any waste which the vanquished party might be tempted to commit in lands which were determined to be no longer his. But as in some cases the demandant may be justly apprehensive, that the tenant

f Co. Litt. 53. h 2 Inst. 328.

g Ibid. 341.

* No person is, entitled to an action of waste against a tenant for life, but he who has the immediate estate of inheritance in remainder or reversion, expectant.Hpon the estate for life. If between the estate of the tenant for life who commits waste, and the subsequent estate of inheritance, there is interposed an estate of fiechold to any person in etse, then, during the continuance of such interposed estate, the action of waste is suspended j and if the first tenant for life dies dining; the continuance of such interposed estate, the action ii gone for ever flarg. Co. Litt. 218. b.,..Cbiutain.

may make waste or estrepement pending the suit, well knowing the weakness of his title, therefore the statute of Glocester' gave another writ of estrepement, pendents placito, commanding the sheriff firmly to inhibit the tenant " nc facial vastum vel eitrepamentum pendents placito dicto indiscusso k." And, by virtue of either of these writs the sheriff may resist them that do, or offer to do waste; and, if otherwise he cannot prevent them, he ma)' lawfully imprison the wasters, or make a warrant to others to imprison them: or if necessity require, he may take the posse commitatus to his assistancel. So odious in the sight of the law is waste and destruction1. In suing out these two writs this difference was formerly observed j that in actions merely possessory, where no damages are recovered, a writ of estt epcmcnt might be had at any time pendcnte lite, nay even at the time of suing out the original writ, or first process: but, in an action where damages were recovered, the demandant could only have a writ of estrepement, if he was apprehensive of waste after verdict hadmj for, with regard to waste done before the verdict was given, it was presumed the jury would consider that inassessing the quantum of damages. But now it seems to be held, by an equitable construction of the statute of Glocester, and in advancement of the remedy, that a writ of estrepement, to prevent waste, may be had in every stage, as well of such actions wherein damages are recovered, as of those wherein only possession is had of the lands; 'for peradventure, saith the law, the tenant may not be of ability to satisfy the demandant his full damages ". And, thei-efore, now, in an action of waste itself, to recover the place wasted and also damages, a writ of estrepement will lie, as well before as after judgment. For the plaintiff cannot recover damages for more waste than is contained in his original complaint : neither is he at liberty to assign or give in evidence any waste made after the suing out of the writ: it is therefore reasonable that he should have this writ of preventive justice, since he is in his present suit debarred of any farther remedial0. If a

i 6Edw. I.e. 13. 1 2 Inst. 329. ' n Ibid. 61.

k Sfg.tt. 7T.

m F. N. B. 60, 61.

o S Kep. 115.

1. See L. V. IT'94, c. 139, J. 8.

Writ of estrepement, forbidding waste, be directed and delivered to the tenant himself, as it may be, and he afterwards proceeds to commit waste, an action may be carried on upon the foundation of this writ; wherein the only plea of the tenant can be, non fecit vastum contraprohibitionem: and, if upon verdict it be found that he did, the plaintiff may recover costs and damages v • or the' party may proceed to punish the defendant for the contempt: for if, after the writ directed and delivered to the tenant or his servants, they proceed to commit waste, the court will imprison them for this contempt of the writ 1. But not so, if it be directed to the sheriff, for then it is incumbent upon him to prevent the 'estrepement absolutely, even by raising the fosse comitatus, if it can be done no other wav.

Besides this preventive redress at common law, the courts of equity, upon bill exhibited therein, complaining of waste and destruction, will grant an injunction or order to stay waste, until the defendant shall, have put in his answer, and the court shall thereupon make farther order. Which is now become the most usual way of preventing waste.

2. A writ of waste is also an action, partly founded upon the common law and partly upon the statute of Glocesterr; and may be brought by him who hath the immediate estate of inheritance in reversion or remainder, against the tenant for life, tenant in dower, tenant by the curtesy, or tenant for years. This action is also maintainable in pursuance of statute' Westm. 2, by one tenant in common of the inheritance against another, who makes waste in the estate holden in common. The equity of which statute extends to joint-tenants, but not to coparceners2: because by the old law coparceners might make partition, whenever either of them thought proper, and thereby prevent future waste, but tenants in common and joint-tenants could not; and therefore the statute gave them this remedy, compelling the defend-

p Moor-100. r 6 Edw. I, c. 5.

q Hob. 85.

6 13 Edw. I, c. 2.2.

2. Parceners may have an action of waste against each other, in Virginia. L. V. Edi. 1794, c. 93, §. 21.

ant either to make partition, and take the place wasted to his own share, or to give security not to commit any farther waste'. But these tenants in common and joint-tenants are not liable to the penalties of the statute of Glocester, which extends only to such as have life-estates, and do waste to the prejudice of the inheritance. The waste, however, must be something considerable; for if it amount only to twelve pence, or some such petty sum, the plaintiff shall not recover in an action of waste: nam de minimis non carat lex u.

This action of waste is a mixed action; partly real, so far as It recovers land, and partly personal, so far as it recovers damages. For it is brought for both those purposes; and, if the waste be proved, the plaintiff shall recover the thing or place wasted, and also treble damages by the statute of Glocester..... The writ of waste calls upon the tenant to appear and shew cause, why he hath committed waste and destruction in the place named, adexhaeredationem, to the disinherison of the plaintiff*. And if the defendant makes default, or does not appear at the day assigned him, then the sheriff is to take with him a jury of twelve men, and go in person to the place alleged to be wasted, and there inquire of the waste done, and the damages ; and make a return or report of the same to the court, upon which report the judgment is founded *. For the law will not suffer so heavy a judgment, as the forfeiture and treble damages,-to be passed upon a mere default, without full assurance that the fact is according as it is stated in the writ. But if the defendant appears to the writ, and afterwards suffers judgment to gd against him by default, or upon a nihil dicit, (when he makes no answer, puts in no plea, in defence) this amounts to a confession of the waste ; since, having once appeared, he cannot now pretend ignorance of the charge. Now, therefore, the sheriff shall not go to the place to inquire of the fact, whether any waste has, or has, not, been committed; for this is already ascertained by the silent confession of the defendant: but he shall only, as in defaults upon other actions, make inquiry of the quantum of damages >. The

t 2 Inst. 403,404.

w F. N. B. 55.

y Cro. Eliz. 18,290.

u Finch. L. 29. x Poph. 24.

defendant, on the trial, may give in evidence any thing that proves there was no waste committed, as that the destruction, happened by lightning, tempest, the king's enemies, or other inevitable accident * *. But it is no defence to say, that a stranger did the waste, for against him the plaintiff hath no remedy: though the defendant is entitled to sue such stranger in an action of trespass vi et armis, and shall recover the damages he has suffered in consequence of such unlawful act *.

When the waste and damages are thus ascertained, either by confession, verdict, or inquiry of the sheriff, judgment is given, in pursuance of the statute of Glocester, c. 5, that the plaintiff shall recover the place wasted; for which he has immediately a writ of seisin, provided the particular estate be still subsisting, (for, if it be expired, there can be no forfeiture of the land) and also that the plaintiff shall recover treble the damages assessed by the jury; which he must obtain in the same manner as all other damages in actions personal and mixed, are obtained, whether the particular estate be expired, or still in being3.

z Co Litt. 53.

9, Law of nisifrtus. 112.

• But the destruction of a house by fire, unless in convenient time repaired, is waste So between landlord and tenant, though there be no covenant to repair or rebuild, the tenant is subject to waste in general; and, if the house be burnt by hre, he must rebuild. 1 Vet. 462.... Christian.

3. Our act concerning waste being a transcript from the British statutes referred to in this chapter, what is said therein will serve as a sufficient commentary upon our'law, at this day. See V. L. Edi. 1794, c. 139.

CHAPTER THE FIFTEENTH.

OF SUBTRACTION.

SUBTRACTION, which is the fifth species of injuries affecting a man's real property, happens, when any person who owes any suit, duty, custom, or service to another, withdraws or neglects to perform it. It differs from a disseisin, in that this is committed without any denial of the right, consisting merely in non-performance; that strikes at the very title of the party injured, and amounts to an ouster or actual dispossession. Subtraction however, being clearly an injury, is remediable by "due course of law: but the remedy differs according to the nature of the services: whether they be due by virtue of any tenure, or by custom only.

I. Fealty, suit of court, and rent, are duties and services usually issuing and arising ratlone tenurae, being the conditions upon which the antient lords granted out their lands to their feudatories : whereby it was stipulated, that they and their heirs should take the oath of fealty or fidelity to their lord, which was the feodal bond or commune vinculum between lord and tenant *; that they should do suit, or duly attend and follow the lord's courts, and there from time to time give their assistance, by serving on juries, either to decide the property of their neighbours in the court-baron, or correct their misdemesnors in the court-leet; and, lastly, that they should yield to the lord certain an-

1. It seems hardly necessary to remark that both fealty, and tuit of court, are obsolete in Virginia.

nual stated returns, in military attendance, in provisions, in arms, in matters of ornament or pleasure, in rustic employments or praedial labours, or (which is instar omnium) in money, which will provide all the rest; all which are comprised under the one general name of reditus, return, or rent. And the subtraction or non-observance of any of these conditions, by neglecting to swear fealty, to do suit of court, or to render the rent or service reserved, is an injury to the freehold of the lord, by diminishing and depreciating the value of his seignory.

The general remedy for all these is by distress; and it is the only remedy at the common law for the two first of them. The nature of distresses, their incidents and consequences, we have before more than once explained »: it may here suffice to remember, that they are a taking of beasts, or other personal property, by way of pledge to enforce the performance of some, thing due from the party distreined upon. And for the most part it is provided that distresses be reasonable and moderate; but, in the case of distress for fealty or suit of court, no distress can be unreasonable, immoderate, or too largeb: for this is the only remedy to which the party aggrieved is entitled, and therefore it ought to be such as is sufficiently compulsory ; and be it of what value it will, there is no harm done, especially as it cannot be sold or made away with, but must be restored immediately on satisfaction made. A distress of this nature, that has no bounds with regard to it's quantity, and may be repeated from time to time, until the stubbornness of the party is conquered, is called a distress infinite; which is also used for some other' purposes, as in summoning jurors and the like.

Other remedies for subtraction of rents or services are 1. By action of debt, for the breach of this express contract, of which enough has been formerly said. This is the most usual remedy, when recourse is had to any action at all for the recovery of pecuniary rents, to which species of render almost all free services are now reduced, since the abolition of the military tenures. But for a freehold rent, reserved on a lease for life, &fc.

» See page 6.148.

b Finch. L. 285.

no action of debt lay by the common law, during the continuance of the freehold out of which it issuedc: for the law would not suffer a real injury to be remedied by an action that was merely personal. However, by the statutes 8 Ann. c. 14, and 5 Geo. III, c. 17, actions of debt may now be brought at any time to recover such freehold rents z. 2. An assise of mart d? ancestor or novel disseisin will lie of rents as well as of lands'1; if the lord, for the sake of trying the possessory right, will make it his election to suppose himself ousted or disseised thereof.... This is now seldom heard of; and all other real actions to recover rent being in the nature of writs of right, and therefore more dilatory in their progress, are entirely disused, though not formally abolished by law. Of this species, however is, 3. The writ de consuetudinibus et servitiis, which lies for the lord against his tenant, who withholds from him the rents and services due by custom, or tenure, for his lande. This compels a specific payment or performance of the rent or service; and there are also others, whereby the lord shall recover the land itself in lieu of the duty withheld. As, 4. The writ of cessavit: which lies by the statute of Glocester, 6 Edw. I, c. 4, and of Westm. 2. 13 Edw. I, c. 21, and 41, when a man who holds lands of alord by rent or other services, neglects or ceases to perform his services for two years together ; or where a religious house hath lands given it, on condition of performing some certain spiritual service, as reading prayers or giving alms, and neglects it; in either of which cases, if the cesser or neglect have continued for two years, the lord or donor and his heirs shall have a writ of cessavit to recover the land itself, eo quod tenem injaciendis servitiis per bienniumjam cessavitt3. In like manner, by the civil

c 1 RoU. Abr.595. d F. N. B. 195-

e Ibid. 151. f Ibid. 208.

2. Any person having rent due upon a lease for life may bring an action of debt for the same, as if it had been due on a lease for years. V. L. 1794, c. 89. Sec. 11.

3. The writ of cessavit lies not by the statute of Glocester, unless the lands be let in fee-simple, and the rent thereon reserved be of the fourth part of the value of the laird: therefore a cessavit lay not against tenant in tail, or for life. This writ though obsolete in practice in Virginia, seems to be still capable of being resorted to, under the saving clause in the act of 1792, Edi. 1794, c. 147. vide. Co.. Inst, part 2. p. 295, 296.

law, if a tenant who held lands upon payment of rent or services, or '•'•jure emphyteutico," neglected to pay or perform them' per totum trienn'mm, he might be ejected from such emphyteutic lands *. But by the statute of Glocester, the censavit does not lie for lands let upon free-farm rents, unless they have lain fresh and uncultivated for two years, and there be not sufficient distress upon the premises; or unless the tenant hath so enclosed the land, that the lord cannot come upon it to distreinh. For the law prefers the simple and ordinary remedies, by distress or by the actions just now mentioned, to this extraordinary one of forfeiture for a cessavit; and therefore the same statute of Glocester has provided farther, that upon tender of arrears and damages before judgment, and giving security for the future performance of the services, the process shall be at an end, and the tenant shall retain his land: to which the statute of Westm. 2, conforms, so far as may stand with convenience and reason of law V It is easy to observe, that the statute k 4 Geo. II. c. 28, (which permits landlords who have a right of • re-entry for nonpayment of rent, to serve an ejectment on their tenants, when half a year's rent is due, and there is no sufficient distress on the premises) is in some measure copied from the antient writ of cessavit: especially as it may be satisfied and put an end to in a similar manner, by tender of the rent and costs within six months after. And the same remedy is, in substance, adopted by statute 11 Geo. II, c. 19. §. 16, which enacts, that where any tenant at rack-rent shall be one year's rent in arrear, and shall desert the demised premises, leaving the same uncultivated or unoccupied, so that no sufficient distress can be had: two justices of the peace (after notice affixed on the premises for fourteen days without effect) may give the landlord possession thereof, and thenceforth the lease shall be void4. 5. There is also another very effectual remedy, which takes place when the tenant upon a writ of assise for rent, or on a replevin, dis- '

g Cod. 4 66 a. i 2 Inst. 401,460.

h F. N. B. 209. 2 Inst. 296. k See page 206.

4. The statutes 4. Geo. II, c. 28, and 11 Geo. II, c. 19, here cited, •were never in force in Virginia ; nor is there any similar provision in our law : and herein our law seems defective.

owns or disclaims his tenure, whereby the lord loses his verdict: in which case the lord may have a writ of right, sur disclaimer, grounded on this denial of tenure ; and shall, upon proof of the tenure, recover back the land itself so holden, as a punishment to'the tenant for such his false disclaimer1. This piece of retaliating justice, whereby the tenant who endeavours to defraud his lord is himself deprived of the estate, as it evidently proceeds upon feodal principles, so it is expressly to be met with in the feodal .constitutions'": "•vasallus, qui abiiegavit feudum ejusve " conditionem, exspoliabitur"

And, as on the one hand the antient law provided these seTeral remedies to obviate the knavery and punish the ingratitude of the tenant, so on the other hand it was equally careful to redress the oppression of the lord ; by furnishing, 1. The writ of ne.injuste vexes n ; which is an antient writ founded on that chapter e of magna carta,'which prohibits distresses for greater services than are really due to the lord j being itself of the prohibitory kind, and yet in the nature of a writ of right f. It lies, where the tenant in fee-simple and his ancestors have held of the lord by certain services ; and the lord hath obtained seisin of more or greater services, by the inadvertent payment or performance of them by the tenant himself. Here the tenant cannot in an avowry avoid the lord's possessory right, because of the seisin given by his own hands ; but is driven to this writ, to devest the lord's possession, and establish the mere right of property, by assertaining the services, and reducing them to their proper standard. But this writ does not lie for tenant in tail; for he may avoid such seisin of the lord, obtained from the payment of his ancestors, by plea to an avowry in replevin •«. 2. The writ of mesne, de media; which is also in the nature of a writ of right', and lies, when upon a subinfeudation the mesne, or middle lord', suffers his under-tenant, or tenant paravail, to be distreined upon by the lord paramount, for the rent due to him from the mesne

1 Finch. L. 270,271. n F. N. B. 10. p Booth. 126. r Booth. 136.

m Feud. I. 2. t. 26.

o e. 10-

<1 F N B. 11. 2 Inst. 21.

« See book II. ch. S. p. 59,60,

lord *. And in such case the tenant shall have judgment to be acquitted (or indemnified) by the mesne lord; and if he makes default therein, or does not appear originally to the tenant's writ, he shall be .forejudged of his mesnalty, and the tenant shall hold immediately of the lord paramount himself u 5.

II. Thus far of the remedies for subtraction of rents or other services due by tenure. There are also other services, due by antient custom and prescription only. Such is that of doing suit to another's mill: where the persons, resident in a particular place, by usage time out of mind have been accustomed to grind their corn at a certain mill; and afterwards any of them go to another mill, and withdraw their suit, (their secta, a sequendo) from the antient mill. This is not only a damage, but an injury to the owner ;<because this prescription might have a very reasonable foundation, viz. upon the erection of such mill by the an* cestors of the owner for the convenience of the inhabitants, on condition, that when erected, they should all grind their corn there only. And for this injury the owner shall have a writ de secta ad molendinum w, commanding the defendant to do his suit at that mill, quam ad ittud facere debet, et solet, or shew good cause to the contrary: in which action the validity of the prescription may be tried, and if it be found for the owner, he shall recover damages against the defendant x. In like manner, and for like reasons, the register ? will inform us> that a man may have a writ of secta ad jurnum, secta ad torrale, et ad omnia alia hujusmodi; for suit due to biafurnum, his public oven or bakehouse ; or to his torrale, his kiln, or malthouse ; when a person's ancestors have erected a convenience of that sort for the benefit of the neighbourhood, upon an agreement (proved by immemorial custom) that all the inhabitants should use and resort to it,

t F. N. B. 135. w F. N. B. 123. y Fol. 153.

u 2 Inst. 374. x Co. Entr. 461.

5. These remedies are obsolete in practice, at least in Virginia ; though perhaps still obtainable by such as may be disposed to resort to them, instead of a special action on the case, to obtain satisfaction for the injury sustained in damages.

when erected «. But besides these special remedies for subtractions, to compel the specific performance of the service due by custom: an action on the case will also lie for all of them, torepair the party injured in damages. And thus much for the injury'of subtraction.

6. As .these remedies depend upon prescriptive or customary rights, which it is presumed, cannot exist at present in Virginia, the remedies incident thereto must be considered as obsolete in this country. See vol. II. p. 31, note 2 ; and p. ,36, note 7.

CHAPTER THE SIXTEENTH.

OF DISTURBANCE.

THE sixth and last species of real injuries is that of disturbance ; which • is usually a wrong done to some incorporeal hereditament, by hindering or disquieting the owners in their regular and lawful enjoyment of ita. I shall consider five sorts of this injury ; viz. 1. Disturbance affranchises, 2. Disturbance of common, 3, Disturbance of ways, 4. Disturbance of tenure, 5. Disturbance of patronage,

I. Disturbance of franchises happens, when a man has the franchise of holding a court-leet, of keeping a fair or market, of free-warren, of taking, toll, of seising waifs or estrays, or (in short) any other species of franchise whatsoever; and he is disturbed or.incommoded in the lawful exercise thereof. As if another by distress, menaces, or persuasions', prevails upon the suitors not to appear at my court: or obstructs the passage to my fair or market; or hunts in my free-warren ; or refuses to pay me the accustomed toll; or hinders me from seising the waif or estray, whereby it escapes or is carried out of my liberty : in every case of this kind, all which it is impossible here to recite or suggest, there is an injury done to the legal owner; his property is damnified; and the profits arising from such his franchise are diminished. To remedy which, as the law has given no other writ, he is therefore entitled to suel'for damages by a

a Finch. L. 1ST,

special action on the case: or, in case of toll, may take a distress if he pleases b *.

II. The disturbance of common comes next to be consider«d; v here any act is done, by which the right of another to his common is incommoded or diminished. This may happen, in the first place, where one who hath no rightof common, puts his cattle into the land; and thereby robs the cattle of the commoners of their respective shares of the pasture. Or if one, who hath a right of common, puts in cattle which are not commonable, as hogs and goats ; which amounts to the same inconvenience. But the lord of the soil may (by custom or prescription, but not without) put a stranger's cattle into the commonc; and also, by a like prescription for common appurtenant, cattle that are not commonable may be put into the common d. The lord also of the soil may justify making burrows therein, and putting > in rabbets, so as they do not encrease to so large a number as to. tally to destroy the common*. But in general, in case the beasts of a stranger, or the uncommonable cattle of a. commoner, be found upon the land, the lord, or any .of the commoners, may distrein them damage-feasantf: or the commoner may bring an action on the case to recover damages, provided ihe injury done be any thing considerable : so that he may lay his action, with a fir quod, or allege that thereby he was deprived of his common. But for a trivial trespass the commoner has no action; but the lord of the soil only for the entry and trespass committed s.

Another disturbance of common is by surcharging it; or putting more cattle therein than the pasture and herbage will sus-

bCro.Eliz 558. d Co. Litt. 122.' f 9 Rep 112.

c 1 Roll. Abr. 396.

eCro.Eli'z.876. Cro Jac. 195. Lutw. 108.

g Ibid.

l>.Jt is scarcely necessary to repeat that franchises are generally abolished in Vif g'mm....Rill of Rights, Art. 4. But, in some instances, . such as the keeping of ferries, or the erection of bridges, and taking toll, they still exist under the authority of special acts of the legislature. And, for any disturbance therein, an action on the case, I presume, lies_; or a petition to the county court, if it be the case of a ferry-keeper. 'L. V. 1794, c. 116, and c. 67. J. 37.'

tain, or the party hath a right to do. In this case he that surcharges does an injury to the rest of the owners, by depriving them of their respective portions, or at least contracting them into a smaller compass. This injury by surcharging, can, properly speaking, only happen where the common is appendant or appurtenantb, and of course limitable by law; or where, when in gross, it is expressly limited and certain: for where a man hath common in gross, sans nombre or without stint, he cannot be a surcharges However, even where a man is said to have common without stint, still there must be left sufficient for the lord's own beabts': for the law will not suppose that, at the original grant of the common, the lord meant to exclude himself.

The usual remedies, for surcharging the common, are either by distreining so many of the beasts as are above the number allowed, or else by an action of trespass ; both which may be had by the lord: or lastly, by a special action on the case for damages, in which any commoner may be plaintiff J. But the antient and most effectual method of proceeding is by writ of admeasurement of pasture. This lies, either where a common appurtenant or in gross is certain, ,a? to number, or where a man has common appendant or appurtenant to his land, the quantity of which common has never yet been ascertained. In either of these cases, as well the lord as any of the commoners, is^entitled to this writ of admeasurement; which is one of those writs that are called vicontiel*, being directed to the sheriff, (vice comiti) and not to be returned to any superior court, till finally executed by him. It recites a complaint, that the defendant hath surcharged, superoneravit) the common: and therefore commands the sheriff to admeasure and apportion it; that the defendant may not have more than belongs to him, and that the plaintiff may have his rightful share. And upon this suit all the commoners shall be admeasured, as well those who have not, as those who have, surcharged the common; as well the plaintiff, as the defendant'. The execution of this writ must be by a jury of twelve men, who are upon their oaths to ascertain, under the superintendence of the

h See book II. ch. 3 j f reem. 273. J F. N. B. 125

i 1 Uoll. Abr 399.

k 2 Inst. 369. Finch. L. 314.

sheriff, what and how many cattle each commoner is entitled to feed. And the rule for this admeasurement is generally understood to be, that the commoner shall not turn more cattle upon the common, than are sufficient to manure and stock the land to which his right of common is annexed; or, as our antientlaw expressed it, such cattle only as are levant and couchant upon his tenementm: which being a thing uncertain before admeasurement, has frequently, though erroneously, occasioned this unmeasured right of common to be called a common without stint or sans nombre*; a thing whichythough possible in law °, does in fact very rarely exist.

If, after the admeasurement has thus ascertained the right, the same defendant surcharges the common again, the plaintiff may have a writ of second surcharge, desecunda superoneratione* which is given by the statute Westm. 2. 13 Edw. I. c. 8, and thereby the sheriff is directed to inquire by a jury, whether the defendant has in fact again surcharged the common contrary to the tenor of the last admeasurement: and if he has, he-shall then forfeit to the kingthe supernumerary cattle put in, and also shall pay damages to the plaintiff p. This process seems highly equitable ; for the first offence is .held to be committed through mere inadvertance j and, therefore, there are no damages or forfeiture on th« first writ, which was only to ascertain the right which was disputed : but the second offence is a wilful contempt and injustice; and, therefore, punished very properly with not only damages, but also forfeiture. And herein the Tight, being once settled, is never again disputed; but only the fact is tried, whether there be any second surcharge or no: \irhich gives this neglected proceeding a great advantage Over the modern method, by action on the case, wherein the quantum of common belonging to ,the defendant must be proved upon every fresh trial, for every repeated offence.

There is yet another disturbance of common, when the owner of the land, or other person, so encloses or otherwise obstructs it, that the commoner is precluded from enjoying the

m Bro. Abr. t. preteriptim, 28. o Lord. Ra) m, 407.

n Hardr. 117.

f F. N. B. 126. 2 Inst. 370.

benefit, to which he is by lawitititled. This may be done either by erecting 'fences, or by driving the cattle off the land, or by ploughing up the soil of the common ?. Or it may be done by erecting a warren therein, and stocking it with rabbets in such quantities, that they devour the whole herbage, and thereby destroy the common. For in such case, though the commoner may not destroy the rabbets, yet the law looks upon this as an injurious disturbance of his right, and has given him his remedy by action against the owner r. This kind of disturbance does indeed amount to a disseisin, and if the commoner chuses to consider it in that light, the law has given him an assize of novel disseisin, against the lord, to recover the possession of his com-, mon •. Or it has given a writ of quod permitiat, against any stranger, as well as the owner of the land," in case of such a disturbance to the plaintiff as amounts to a total deprivation of his common ; whereby the defendant shall be compelled to permit the plaintiff to enjoy his common as he ought*. But if the commoner does not chuse to bring a real action to recover seisin, or to try the right, he may (which is the easier and more usual way) bring an action on the case for his damages, instead of an assise or a quod permittat".

There are cases indeed, in which the lord may enclose and abridge the common ; for which, as they are no injury to any one, so no one is entitled to any remedy. For it is provided by the statute of Merton, 20 Hen.' III. c. 4, that the lord may approve, that is, enclose and convert to the uses of husbandry, (which is a melioration or approvement) any waste grounds, woods, or pastures, in which his tenantsliave common appendant to their estates ; provided he leaves sufficient common to his tenants, according to the proportion of their land. And this is extremely reasonable: for it would be very hard'if the lord, whose ancestors .granted out these estates to which the commons are appendant, should be precluded from making what advantage'he can of the rest of his manor; provided such advantage and improvement be no way derogatory from the former

q Cro. Eliz.195. s >. N. B. 179. » Cro. Jac. 195.

r Cio. Jac 195.

t Finch. L. 275. F. N. B. 133.

grants. The statute Westm; 2. IS Edw. I. c. 46, extends this liberty of approving, in like manner, against all others that have common appurtenant, or in gross, as well as against the tenants of the lord, who have their common appendant,- and farther enacts, that no assise of novel disseisin, for common, shall lie against a lord for erecting on the common any windmill, sheep-house, or other necessary buildings therein specified: which,sir Edward Coke says w, are only put as examples.; and that any other necessary improvements may be made by the lord, though in reality they abridge the common, and make it less sufficient for the commoners. And lastly by statute 29 Geo. II. c. 3(5 and •31 Geo. II. c. 41, it is particularly enacted, that any lords of wastes and commons, with the consent of the major part, in number and value, of the commoners, may inclose any part thereof, for the growth of timber and underwood \

III. The third species of disturbance, that of ways, is very similar in it's nature to the last; it principally happening when a person, who hath a right to a way, over another's grounds, by grant or prescription3, is obstructed by inclosures, or other obstacles, or by ploughing across it; by which means he cannot .enjoy his right or way, or at least, not in so commodious a manner as he might have done. If this be a way annexed to his estate, and the obstruction is made by the tenant of jthe land, this brings it to another species of injury; for it is then a nusance, for which, 'an assise will He, as mentioned in a former chapter *. But if die right of way, thus obstructed by the tenant, be only in gnss (that is, annexed to a man's person, and unconnected with any lands or tenements) or if the obstruction of a way, belonging to ' an house, or land, is made by a stranger, it is then, in either case, merely a disturbance: for the obstruction of a way in gross, is

w 2 Inst. 476.

x Chap. 13, page 218.

2. As the right of common, except common of estovers, is supposed not to have existence in Virginia,°for the reasons given Vol. 2. p. 32, note 3, these remedies, Whether given by the common law, or by statute may be regarded as obsolete here. '

3. See the notes dn the subject of ways, Vol. 2. p. 36. note fi, r, 8.

no detriment to any lands or tenements, and, therefore, does not fall under the legal notion of a nnsance, which must be laid, ad nocumentum llbert tenement! 1; and the obstruction of it by a stranger, can never tend to put the right of way in dispute: the remedy, therefore, for these disturbances, is not by assise or any real action, but by the universal remedy of action on the case to recover damages z.

IV. The fourth species of disturbance, is that of disturbance of tenure, or breaking that connexion, which subsists between the lord and his tenant, and to which the law pays so high a regard, that it will not suffer it to be wantonly dissolved by the act of a third person. To have an estate well tenanted, is an advantage that every landlord must be very sensible of: and, therefore, the driving away of a tenant from off his estate is an injury of no small consequence. So that, if there be a tenant at will, of any lands or tenements, and a stranger, either by menaces and threats, or by unlawful distresses, or by fraud and circumvention, or other means, contrives to drive him away, or inveigle him to leave his tenancy, this the law very justly construes to be a wrong and injury to the lord(a, and gives him a reparation in damages against the offender, by a special action on the case.

V. The fifth and last species of disturbance, but by far the most considerable, is that of disturbance of patronage; which is an hindrance, or obstruction of a patron to present his clerk to a benefice. <

This injury was distinguished, at common law, from another species of injury, called usurpation; which is an absolute ouster or dispossession of the patron, and happens when a stranger, that hath no right, presenteth a clerk, and he is, thereupon, admitted and instituted11. In which case, of usurpation, the patron lost, by the common law, not only his turn of presenting

y F. N. B. 183.

* Hale on F. N. B. 183. Lutw. 111, 119. a Hal. Anal. c. 40. 1 Koll. Abr. 108. It Co. Litt. 227.

pro hoc vice, but also the absolute and perpetual inheritance of the advowson, so that he could not present again upon the next avoidance, unless, in the mean time, he .recovered his right by a real action, viz. a writ of right of advowson c. The reason given for his losing the present turn, and not ejecting the usurper's clerk, was, that the final intent of the law in creating this species of property being to have a fit person to celebrate divine service, it preferred the peace of the church '(provided a clerk were once admitted and instituted) to the right of any patron whatever. And the patron, also, lost the inheritance of his ad-< vowson, unless he recovered it in a writ of right, because, by such usurpation he was put out of possession of his advowson, as much as when by actual entry r and ouster, he is disseised of lands or houses: since the only possession, of which an advowson is capable, is by actual presentation and admission of one's clerk. As, therefore, when the clerk was once instituted (except in the case of the king, where he must also be inducted"1) the church became absolutely full; so the usurper, by such plenarty, arising from his own presentation, became in fact seised of the advowson: which seisin it was impossible for the true patron to remove by any possessory action, or other means, during the plenarty or fullness of the church; and when it became void afresh, he could not then present, since another had the right of possession. The only remedy, therefore, which-the patron had left, was to try the mere right in a writ of right of advowson: which is a peculiar writ of right, framed for this special purpose, but in every other -respect corresponding with other writs of fighte : and if a man recovered therein, he regained the poses-" session of his advowson, and was entitled to present at the next avoidance f. But in order to such recovery he must allege a presentation in himself or some of his ancestors, which proves him or them to have been once in possession: for, as a grant of the advowson, during the fullness of the church, conveys no manner of possession for the present, therefore, a purchaser, Until he hath presented, hath no actual seisin whereon to ground a writ of right b. Thus stood the common law.

c 6 Ucp. 49. ' d Ibid.

e F. N. B. 30. f Ibid. 36,

g 2Inst.3Sr.

'But bishops, in antient times, either by carelessness or collusion, frequently instituting clerks upon the presentation of usurpers, and thereby defrauding the real patrons of their right of possession, it was in substance enacted by statute Westm. 2. 13 Edw. I,c. 5, §. 2, that if a possessory action be brought within six months after the avoidance, the patron shall (notwithstanding such usurpation and institution) recover that very presentation ; which gives back to him,the seisin of the advowson. Yet still, if the true patron omitted to bring his action within six months, the seisin was gained by the usurper, and the patron to recover it was driven to the long and hazardous process of a writ of right. To remedy which it was farther enacted by stat. 7 Ann. c. 18, that no usurpation shall displace the estate or interest of the patron, or turn it to a mere right; but that the true patron may present upon the next avoidance, as if no such usurpation had happened. So that the title of usurpation is now much narrowed, and the law stands upon this reasonable foundation: that if a stranger usurps my presentation, and I do not pursue my right within six months, I shall lose that turn without remedy, for the peace of the church, and as a punishment for my own negligence; but that turn is the only one I shall lose thereby. Usurpation now gains no right to the usurper, with regard to any future avoidance, but only to the present vacancy: it cannot indeed be remedied after six months are past j but, during those six months, it is only a species of disturbance.

Disturbers of a right of advowson may therefore be these three persons; the pseudo-patron, his clerk, and the ordinary: the pretended patron, by presenting to a church to which he has no right, and thereby making it litigious or disputable ; the clerk, by demanding or obtaining institution, which tends to and promotes the sanre inconvenience ; and the ordinary, by refusing to admit the real patron's clerk, or admitting the clerk of the pretender. These disturbances are vexatious and injurious to him who hath the right: and therefore, if he be not wanting to himself, the law( besides the writ'of right of advowson, which is a final and conclusive remedy) hath given him two inferior possessory actions for his relief ; an assise of darrein presentment', and a writ of quare impedit; in which the patron is always the

plaintiff, and not the clerk. For the law supposes the injury to be offered to him only, by obstructing or refusing the admission of his nominee ; and not to the clerk, who hath no right in him till institution, and o'f course can suffer no injury.

1. An assise of darrein presentment, or last presentation, lies when a man, or his ancestors, under whom he claims, have presented a clerk to a benefice, who is instituted j and afterwards upon the next avoidance a stranger presents a clerk, and thereby disturbs him that is the real patron. In which case the patron shall have this writ'1 directed to the sheriff to summon an assise or jury, to Inquire who was the last patron that presented to the church now vacant, of which the plaintiff complains that he is deforced by the defendant: and, according as the assise determines that question, a writ shall issue to the bishop; to institute the clerk of that patron, in whose favour the determination is made, and also to give damages, in pursuance of statute Westm. 2. 13 Edw. I, c. 5. This question, it is to be observed, was, before the statute 7 Ann. before-mentioned, entirely conclusive, as between the patron and his heirs and a stranger: for, till then, the full possession of the advowson was in him who presented last and his heirs: unless, since that presentation, the clerk had been evicted within six months, or the rightful patron had recovered the advowson in a writ of right; which is a titlc.superior to all others. But that statute having given a right to any person to bring a quare impedit, and to recover (if his title be good) notwithstanding the last presentation, by whomsoever made ; assises of darrein presentment, now not being in any wise conclusive, have been totally disused, as indeed they began to be before ; a quare imprdit being a more general, and therefore a more usual action. For the assise of darrein presentment lies only where a man has an advowson by descent from his ancestors ; but the writ of quare impedit is equally remediable whether a man claims title by descent or by purchasel.

2. I proceed therefore, secondly, to inquire into the nature k of a writ of quare impedit, now the only action used in case of

h F. N. B. 31. ,12 Inst. 355. k See JBoswell's case. 6 Rep. 48.

the disturbance of patronage: and shall first premise the usual proceedings previous to the bringing of the writ.

Upon the vacancy of a living, the patron, we know, is bound to present within six calendar months1, otherwise it will lapse to the bishop. But if the presentation be made within that time, the bishop is bound to admit and institute the clerk, if found sufficient"1 ; unless the church be full, or there be notice of any litigation. For if any opposition be intended, it is usual for each party to enter a caveat with the bibhop, to prevent his institution of his antagonist's clerk. An institution after a caveat entered is void by the ecclesiastical law "; but this the temporal courts pay no regard to, and look upon a caveat as a mere nullity °. But if two presentations be offered to the bishop upon the same avoidance, the church is. then said to become litigious ; and if nothing farther be done, the bishop may suspend the admission of either, and suffer a lapse to incur. Yet if the patron or clerk on either hide request him to award ajuspatronatus, he-is bound to do it. A jus paironatus is a commission from the bishop, directed usually to his chancellor and others of competent learning \> who are to summon a jury of six clergymen and six laymen, to inquire into and examine who is the rightful patron p ; and if, upon such inquiry made and certificate thereof returned by the commissioners, he admits and institutes the clerk of that patron whom they return as the true one, the bishop secures himself at all events from being a disturber, whatever proceedings may be had afterwards in the temporal courts.

The clerk refused by the bishop may also have a remedy against him in the spiritual court denominated a duplex querelcfr; which is a complaint in the nature of an appeal from the ordinary to his next immediate superior; as from a bishop to the archbishop, or from an archbishop to the delegates: and if the superior court adjudges the cause of refusal to be insufficient, it will grant institution to the appellant.

ISeebookll.ch. 18. n 1 Burn. 207. p I Burn. 16,17.

m Ibid. I, ch. 11. o 1 Roll. Rep. 191. <j Ibid. 113.

Thus far matters may go on in the mere ecclesiastical course; but in contested presentations they seldom go so far: for, upon . the first delay or refusal of the bishop to admit his clerk, the patron usually brings his writ of quare imptdit against the bishop, for the temporal injury done to his prope'rty, in disturbing him in his presentation. And, if the delay arises from the bishop alone, as upon pretence of incapacity, or the like, then he only is named in the writ; but if there be another presentation set up, then the pretended patron and his clerk are also joined in the ao> tion; or it may be brought against the patron and clerk, leaving out the bishop ; or against the patron only. But it is most advisable to bring it against all three : for if the bishop be left out, and the suit be not determined till the six months are past, the' bishop is entitled to present by lapse ; for he is not party to the suit'; but, if he be named, no lapse can possibly accrue till the right is determined. If the patron'be left out, and the writ be brought only against the bishop and the clerk, the suit is of no effect, and the writ shall abate«; for the right of the patron is the principal question in the cause'. If the clerk be left out, and has received institution beforethe action brought (as is sometimes the case) the patron by this suit may recover his right of patronage, but not the present turn : for he cannot have judgment to remove the clerk, unless he be made a defendant, and party to the suit, to hear what he can allege against it. For which reason it is the safest way to insert all three in the writ.

The writ of quare impeditu commands the disturbera, the bishop, the pseudo-patron, and his clerk, to permit the plaintiff to present a proper person (%vilhodt specifying the particular clerk) to such a vacant church, which pertains to his patronage ; and which the defendants, as he alleges, do obstruct; and unless . they so do, then that they appear in court to shew the reason why they hinder him.

Immediately on'the suing out of the quare imfedit,-\f the plaintiff suspects that the bishop will admit the defendant's or any other clerk, pending the suit, he may have a prohibitory

r Cro. Jac. 93. t r Rep. 25.

5 Hob. 316. n F.-N.'B. 32.

writ, called aW admittas w ; which recites the contention begun in the king's courts, and forbids the bishop to admit any clerk .whatsoever till such contention be determined. And if the bishop doth, after the receipt of this wi it, admit any person, even though the patron's right may have been found in a jure patronatus, then the plaintiff, after he has obtained judgment in the quare impedit, may remove the incumbent, if the clerk ot a stranger, by writ of scire facia:, *: and shall have a special action against the bishop, called a qitare incuinlravit; to recover the presentation, and also satisfaction in damages for the injury done him by incumbering the church with a clerk, pending the suit, and after the ne admitias received 1. But if the bishop has incumbered the church by instituting the clerk, before the madmittan issued, no quare incumbravit lies ; for the bishop hath no legal notice, till the writ of ne admittas is served upon him. The patron is therefore'left to his quare impedit merely; which, as was before observed, now lies (since the statute of Westm. 2.) as well upon a recent usurpation within six months past, as upon a disturbance without any usurpation had.

In the proceedings upon a quare impedit, the plaintiff must set out his title at length, and prove at least one presentation in himself, his ancestors, or those under whom he claims; for he must recover by the strength of his own right, and not by the weakness of the defendant's * : and he must also shew a disturbance before the action brought». Upon this the bishop and the clerk usually disclaim all title : save only, the one as ordinary, to admit and institute ; and the other as presentee of the patron who is left to defend his own right. And, upon failure of the plaintiff in making out his own title, the defendant is put upon the proof of his, in order to obtain judgment for himself, if needful. But if the right be found for the plaintiff, on the trial, three farther points are also to be inquired : 1. 'If the church be full; and, if full, then of whose pesentation: for if it be of the defendant's presentation, then the clerk is removeable by writ

•wF.N.B. 3r. yF. N. B. 43. a Hob. 199.

x 2 Sid. 94. z Vaugh r,&.

brought in due time. 2. Of what value the living is: and this in order to assess the damages which are directed to be given by the statute of Westm. 2. 3. In case of plenartyupon an usurpation, whether six calendar b months have passed between the avoidance and the time of bringing the action : for then it would not be within the statute, which permits an usurpation to be devested by a quare impedit, brought infra tempus semestre. So that plenarty is still a sufficient bar in an action of quare impedit, brought above six months after the vacancy happens ; as it was universally by the common law, however early the action was commenced.

If it be found that the plaintiff hath the right, and hath commenced his action in due time, then he shall have judgment to recover the presentation; and, if the church be full by institution of any clerk, to remove him : unless it were filled pendente lile by lapse to the ordinary, he not being party to the suit; in which case the plaintiff loses his presentation pro liac vice, but shall recover two years' full value of the church from the defendant the pretended patron, as a satisfaction for the turn lost by his disturbance : or, in case of insolvency, the defendant shall be imprisoned for two years c. But if the church remains still void at the end of the suit, then whichever party the presentation is found to belong to, whether plaintiff or defendant, shall have a writ directed to the bishop adadmittendum clericitm d, reciting the judgment of the court, and ordering him to admit and institute the clerk of the prevailing party ; and, if upon this order he does not admit him, the patron may sue the bishop in a writ of quare non admisit e, and recover ample satisfaction in damages.

Besides these possessor)' actions, there may be also had (as hath before been incidentally mentioned) a writ of right of advowson, which resembles other writs of right: the only distinguishing advantage now attending it, being, that it is more conclusive than a quare impedit; since to an action of qitare impedit a recovery had in a writ of right may be pleaded in bar.

b 2 Inst. 361.

c Stat. Westm. 2. 13 Edw. I. c. 5. Sec. 5.

U F. N. B. 38. . e Ibid. 47.

There is no limitation with regard to the time within which' any actions touching advowsons are to be brought; at least none later than the times of Richard I and Henry III: for by statute 1 Mar. st. 2. c. 5, the statute of limitations, 32 Hen. VIII. c. 2, is declared not to extend to any writ of right of advowson, quare impedit, or assise of darrein presentment, or jus patronatus. And this upon very good reason: because it may. very easily happen that the title to an advowson may not come in question, nor the right have opportunity to be tried, within sixty years; which is the longest period of limitation assigned by the statute of Henry VIII. For sir Edward Coke *' tells us, that there was a parson of one of his churches, that had been incumbent there above fifty years; nor are instances wanting wherein two successive incumbents have continued for upwards of a hundred years «, Had therefore the.last of these incumbents been the clerk of a usurper, or had been presented by lapse, it would have been necessary and unavoidable for the patron, in case of a dispute, to have recurred back above a century; in order to have shewn a clear title and seisin by presentation and admission of , »he prior incumbent. But though, for these reasons, a limitation is highly improper with respect only to the length of lime; yet,-as the title of advowsons is, for want of some limitation, rendered more precarious than that of any other hereditament, (especially since the statute of queen Anne hath allowed possessory actions to be brought upon any prior presentation, however distant) it might not perhaps be amiss if a limitation were established with respect to the number of avoidances; or, rather, if a limitation were compounded of the length of time and the number of avoidances together: for instance, if no seisin were admitted to be alleged in any of these writs of patronage, after sixty years and three avoidances were past.

In a writ of quare impedit, which is almost the only real action that remains in common use, and also in the assize ofdar* rein presentment, and writ of right, the patron only, and not the

f 1 Inst- 115.

g Two successive incumbents of the rectory of Chelsneld cum Fatnborough in Kent, continued 101 )eavs; of whom the former was admitted in 1650, the latter in 17£0, and died iu 1?01.

clerk, is allowed to sue the disturber. But, by virtue of several acts of parliamenth, there is one species of presentations, in which a remedy, to be sued in the temporal courts, is put into the hands of the clerks presented, as well as of the owners of the advowson. I mean the presentation to such benefices as belong to Roman catholic patrons: which, according to their several counties, are vested in and secured to the two universities of this kingdom. And particularly by the statute of 12 Ann. st. 2. c. 14. §. 4, a new method of proceeding is provided ; viz. that besides the writs of quare impedit, which the universities as patrons are entitled to bring, they or their clerks, may be at liberty to file a bill in equity against any person presenting to such livings, and disturbing their right of patronage, or his Cestuy qite trust, or any other person whom they have cause to suspect; in order to compel a discovery of any secret trusts, for the benefit of papists, in evasion of those laws whereby this right of advowson is vested in those learned bodies: and also (by the statute 11 Geo. II, c. 17.) to compel a discovery whether any grant or conveyance, said to be made of such advowson, were made bona fde to a protestant purchaser, for the benefit of protestants, and for a full consideration; without which requisites every such grant and conveyance of any advowson or avoidance is abso-. lutely null and void, This is a particular law, and calculated for a particular purpose: but in no instance but this does the common law permit the clerk himself to interfere in recovering a presentation, of which he is afterwards to have the advantage. For besides that he has (as was before observed) no temporal right in him till after institution and induction; and as he therefore can suffer no wrong, is consequently entitled to no remedy; this exclusion of the clerk from being plaintiff seems also to arise from the very great honour and regard which the law pays, to his sacred function. For it looks upon the cure of souls as too arduous and important a task to be eagerly sought for By any serious clergyman; and therefore will not permit him to contend openly at law, for a charge and trust, which it presumes he undertakes with diffidence.

h Stat. 3 Jac. I. c. S. 1W.&M. c. 26. 12 Ann. st. 2. c. 14. 11 Geo. II. c. 17.

But when the clerk is in full possession of the benefice, the law gives him the same possessory remedies to recover his glebe, his rents, his tithes, and other ecclesiastical dues, by writ of entry, assise, ejectment, debt, or trespass, (as the case may happen) which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon the mere right; because he hath not in him the entire fee and right*; but'he is entitled to a special remedy called a writ of juris utrum, which is sometimes stiled the parson's writ of rightk, being the highest writ which he can have1. This lies for a parson or a prebendary at common law, and for a vicar by statute 14 Edw. III, c, 17, and is in the nature of an assize, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenantm. And thereby the demandant may recover lands and tenements, belonging to the church, which were aliened by the predecessor; or of which he was disseised; or which were recovered against him by verdict, confession, or default, without praying the aid of the patron and ordinary ; or on which any person has intruded since the predecessor's death0. But since the restraining statute of 13 Eliz. c. 10, whereby the alienation of the predecessor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than twenty years °; for the successor, at any competent time after his accession to the benefice, may epter, or bring an ejectment4.

i F. N. B. 49. 1 F. N. B. 48. n F. N. B. 48, 49.

k Booth. 221. m Registr. 32. 6 Booth. 221.

4. The whole doctrine of advowsons, with the remedies incident thereto may be regarded as obsolete in Virginia, for the reasons given in Vol. II. p. 21. Note 1.

Kj" Under this head of disturbance, though not strictly within the definition of it, we may particularise the giving notice to any person to survey his lands, upon the presumption that he holds more than the quantity comprehended in his patent. In this case, if the party in possession of the land (as the law formerly ?tood, but now this proceeding seems to be confined to the original patentee, only) does not within a

year thereafter obtain rights, and sue forth a patent for such surplus land, the person giving the notice may proceed to survey the lands, at his own charge, and to sue out a patent for all the surplus land, after allowing five acres per cent, for variation of instruments. But, on the other hand, if the party in possession, (or the original patentee) to •whom the notice is given shall, within one year after notice re-survey his tract, and it be thereupon found that he hath no more than the quantity expressed in his patent, with the like allowance for variation of instruments, this is an injury, for which the law not only gives the party thus unjustly vexed, a specific recompence,by subjecting the person giving the notice, to the payment of all the charges of re-survey, for which he must give sufficient security to the patentee, at the time of the notice, otherwise such notice is void, ,but moreover gives him an action on the case, against thelatter for his unjust vexation. See L. V. 1748, c. 1. Edi. 1769. May 1779, c. 13. J. 4, and 5. Edi. 1785. Edi. 1794,c.86.5. 46, 47.

CHAPTER THE SEVENTEENTH.'

OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN,

HAVING in the nine proceeding chapters considered the injuries, or private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the king, signified by his original writs returnable in his several courts of justice, which thence derive a jurisdiction of examining and determining the complaint: 'I proceed now to enquire into the mode of redressing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy a; or else is the sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these, we will consider first, the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing those which the crown may receive from a subject.

I. That the king can do no wrong,'is a necessary and fundamental principle of the English constitution1: meaning only,

a Bro. Abr. t. petition-12. t. prerogativ. 2.

1. Our constitution admits no such principle. See C. U. S. Art 2. §.4, and Art. 1. §. 3:

as has formerly been observedb, that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people : and, secondly, that the prerogative of the crown extends not to do any injury ; for, being created for the benefit of the people, it cannot be exerted to their prejudice c. Whenever therefore it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's subjects, though no action will lie against the sovereign"1, (for who shall command the kinge?) . yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute : and, as it presumes that tor know of any injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved.

The distance between the sovereign and his subjects is such, that it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man; and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account. The inconveniency therefore of a mischief that is barely possible, is (as Mr. Locke has observedf) well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of it's officers ; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do a temporary injustice.

bBookI.c.7.p.243....246. djenkins. 78. fOnGov. p. 2. Sec.205.

c Plowd. 437. e Finch. L. 83.

The common law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right, which is said to owe it's original to king Edward the firsts. 3. By monstrans dedroity manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequerhz. The former is of use, where the king is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate': and then, upon this answer being endorsed or underwritten by the king, soit droitfait al par tie (let right be done to the party 3) a commission shall issue to inquire of the truth of this suggestion k: after the return of which, the king's attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. Thus, if a disseisor of lands, which are holden of the crown, dies seised without an heir, whereby the king is prima facie entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any office found ; now the disseisee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made'. But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit, which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, (as well the

gBro. Abr. t.prerog. 2 Fitz. Abr t. error. 8.

h Skin. 609. i Finch. L. 256.

j Stat. Tr. vii. 134. k Skin. 608. Rast. £ntr. 461.

1 Bro. Abr. {.petition. 20. 4 Rep. 58.

2. In Virginia the petition of right may be preferred, according to the nature of the case, either to the high court of chancery, or t» the district court held at Richmond. V. L. 1794, c. 85. fc. 6.

disseisin, as the dying without any heir) the party grieved shall have monstrans de droit at the common law m 3. But as this seldom happens, and the remedy by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8, which also allow inquisitions of office to be traversed or denied, wherever the right of a subject is concerned, except in a very few cases n. These •proceedings are had in the petty bag office in the court of chancery : and, if upon either of them the right be determined against the crown, the judgment is, quod mantis domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis0 ; which last clause is always added to judgments against the king p, to whom no laches is ever imputed, and whose right (till some late statutes i) was never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession1'; so that there needs not the indecent interposition of his own officers to transfer the seisin from the king to the party Aggrieved4.

m 4 Rep. 55. n Skin. 608.

o 2 Inst. 695. Rast. Entr. 463. p Finch. L. 460.

^21 Jac. I. c. 2. 9 Geo. III. c. 16. r Finch. L. 459.

3. In this case the monstrans de droit must be preferred to the court of that district, in which the land lies. V.L. 1794, c. 82.

4. After an inquest of escheat found for the commonwealth any person making claim to the lands, (or goods I presume) shall be heard without delay, (in the district court) upon a traverse to the office, or monstrans de droit, or (in the high court of chancery, it would seem) upon a petition of right. V. L. 1794, c. 82. J. 3,5. c. 85. §. 6.

But during the revolutionary war no British subject nor any person on his behalf, could be permitted to traverse an inquisition whereby lands &c. were found to have been the property of a British subject, and escheated by the act of May, 1779, c. 14, but he was put to his monstrans de droit, or his petition of right; not being permitted to contest the fact already established by the inquest of escheat, viz. that the lands were the property of a British subject, but, only to shew that he came within some of the exceptions contained in that act, in favour of infants,jfcme coverts, and such absent persons, as had by overt act adhered to the United States since .the nineteenth of April, 1775. See Acts of May, 1779, c. 14,45, and Oct. 1779, c. 18. Edi. 1785.

II. The methods of redressing such injuries as the crown may receive from a subject are,

1. By such usual common law actions as are consistent withv the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action, which supposes a dispossession of the plaintiff; such as an assise or an ejectment" : but he may bring a quare Impedit *, which always supposes the complainant to be seised or possessed of the advowson : and he may prosecute this writ, like every other by him brought, as well in the king's bench u as the common pleas, or in whatever court he pleases. So too, he may bring an action of trespass for taking away his goods ; hut such actions are not usual (chough in strictness maintainable) for breaking his close, or other injury done upon his soil or possession w. It would be equally tedious and difficult, to run through every minute distinction that might be gleaned from our antient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usu-, ally obtained by such prerogative modes of process, as are peculiarly confined to the crown.

2. Such is that of inquisition or'inquest of office: which is an inquiry made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels *. This is done by a jury of no determinate number; being either twelve, or less, or more 5. As, to inquire whether the king's tenant for life died seised, whereby the reversion ac-

s Bro. Air. t prerogative. 89 t F. N. B 32.

u Dyoersite de courtes c. bant leroy.

vr Bro. Abr. t picrog. 130. F, N. B. 90. Year book, 4 Hen. IV. 4-

x Finch. L. 323, 4, 5.

5. Every inquest of escheat must consist of sixteen freeholders, and the inquisition by them taken must be by indentures made between the escheator, and any twelve or more of the inquest. V. L. 1794, c. ICO.

crues to the king: whether A, who held immediately of the crown, died without heirs ; in which case the lands belong to the ting by escheat: whether B be attainted of treason, whereby his estate is forfeited to the crown: whether C, who has purchased lands, be an alien ; which is another cause of forfeiture: whether D be an idiot a nativitate; and therefore, together'with his lands, appertains to the custody of the king: and other questions of like import, concerning both the circumstances of the tenant, and the value or identity of the lands. These inquests of office were more frequently in practice than at present, during the continuance of the military tenures amongst us: when, upon the death of every one of the king's tenants, an inquest of office was held, called an inquisitto-post mortem, to inquire of what lands he died seised, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries, the courts of wards and liveries was instituted by statute 32 Hen. VIII. c.'46, which was abolished at the restoration of king Charles the second, together >vith the oppressive tenures upon which it was founded.

With regard to other matters, the inquests of office still re- : main in force, and are taken upon proper occasions ; being extended not only to lands, but also to goods and chattels personal, as in the case of wreck, treasure-trove, and the like ; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony6, every coroner's inquest that sits upon afelo de se *, or one killed by chance-medley, is, not only with regard to chattels, but also as to real interests, in all respects an inquest of office: and if they find the treason or felony,

6. The law in this case seems to be altered by the act of 1789, c. 30. Edi. 1794, c. 74, and by C. U. S. Art. 3. J. 3. L. U. S. 1 Cong. 2 Sess. c. 9. By which forfeitures, on conviction of treason or felony, are abolished.

7. It may still be doubted whether the chattels of a felo de se may not be forfeited to the commonwealth, upon office found, as that appears to'be a cams omissus in the law.... Vide V. L. 1794, c. 74. But the lands of afelo de se were not liable to forfeiture, even before that act. Plowd. 261.

or even the flight of the party accused, (though innocent) the king is thereupon, by virtue of this office found) entitled to have his forfeitures ; and also, in the case of chance-medley, he or his grantees are entitled to such things by way of deodand, as have moved to the death of the party.

These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record; without which he in general can neither take, nor part from any thing 7. For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seise any man's possessions upon bare surmises without the intervention of a jury ". It is, however, particularly enacted by the statute 33 Hen. VIII. c. 2O, that, in case of attainder for high treason, the king shall have the forfeiture instantly without any inquisition of office 8. And, as the king hath (in general) no title at all to anyproperty of this sort before office found, therefore, by the statute 18 Hen. VI. c. 6, it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And, by the bill of rights at the revolution, 1 W. and M. st. 2. c. 2, it is declared, that all grants and promises of fines and forfeitures of particular persons before conviction (which is here the inquest of office) are illegal and void; which indeed was the law of the land in the reign of Edward the third a.

With regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have'a

j Finch. L. 82. a 2 Inst. 48.

a Gilb. Hist. Even. 132. Hob. 347.

8. This statute is repealed....The act of May, 1779, c. 14, seems ,to have been intended to operate as a legislative attainder of all British subjects having property in this country at that time, all which was declared to be vested in the commonwealth by that act j the lands, slaves, and ether real estate by escheat, and the personal estate by way of forfeiture. The act of 1784, c. 53, declaring, that there should be ho future confiscations, may be considered as a release of the commonwealth's right where no inquest of escheat had been found.

right to enter; and the king shall receive all the mesne or intermediate profits from the time that Jiis title accrued b. As on the other hand, by the articuli super cartas °, if the king's escheator or sheriff seise lands into the king's hand without cause, upon taking them out of the king's hand again, the party shall have the mesne profits restored to him.

In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition ofrigti.} which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found; but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the court of chancery: yet still, in some special cases, he hath no remedy left but a mere petition of right4. . These traverses, as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject, by the statutes before-mentioned, and others °. , And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing'is considered as the plaintifff; and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, £jfc'.

3. Where the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted *, or where the patentee hath done an act that amounts to a forfeiture of the granth, the remedy to repeal the patent is by writ of scire facias in chancery'. This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be

b Finch. L. S25, 326. c 28 Edw. I. st. 3. c. 19.

d Finch. L.324.

e Stat. 34 Edw. III. c. 13. 36 Edw. III. c. 13. 2 and 3 Edw. VI. c. 8.-

f Law of niiifrius, 201, 202. g See book II. ch. 21.

h Dyer. 198. i 3 Lev. 220. 4 Inst. 88.

9. See the acts of May, 1779, c. 14 and 45, and Oct. 1779, c. 18, and those of 1794, c. 82 and 180, before referred to, as also p. 257, note 4, ante.

injurious to a subject, the king is bound of right to permit him, (upon his petition) to use his royal name for repealing the patent in a srire facias k. And so also, if, upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled before issue joined to a scire facias against the patentee, in order to avoid the grantl ".

k2Ventr.344.

1 Bro. Abr. t. scire facias, 69,185.

10. This is certainly the regular way of contesting the validity of «t patent or grant of the commonwealth ; but the court of appeals have in one case decided, that " where a defendant offered to prove, that there never was any survey made of the lands in question (on the trial of an ejectment) by any county surveyor, or his deputy properly commissioned by the college of William and Mary, acting in conformity to the laws and rules then in force, and that the lessor of the plaintiff, the patentee, was actually privy thereto, and procured a plat to be returned, without a survey actually made; the district court erred in not admitting evidence to prove the same, inasmuch as such matter, if proved, would make the patent void at law.".... Wills vs. Hambleton; Bradford if ah. June term, 1791.

With all deference to the court of appeals, we may be permitted to remark, that it is greatly to be apprehended that this collateral method of contesting the validity of a patent, which is the highest evidence of a legal right or title to lands, may be attended with great inconvenience. For although it be true that a patent may be avoided by some extrinsic matter, which does not appear upon the face of it, yet it would seem, that in a court of law, and on the trial of a collateral issue, (such as that of not guilty in ejectment) no evidence ought to be admitted to avoid a patent, which is not, at least, of equal or superior dignity to the patent itself. As if, upon a trial in ejectment, two patents be produced by the opposite parties for the same lands, if one of them shall, upon the face of it, appear to be defective, and the other perfect, that which is perfect ought to prevail, unless it be shewn, that the perfect patent hath been repealed, by judgment of the high court of chancery, for some fraud or false suggestion on the part of the patentee : or, if two patents be produced, both apparently perfect, upon the face cf them respectively, the elder patent ought to prevail over the younger ; for here the evidence arising out of the elder patent, is of equal dignity with the younger patent, and since both cannot stand together, the former must, according to the established rules of law, prevuil over the latter: but if the younger patent recite, that the former hath been forfeited, by due course of law, and that for that

4. An information on behalf of the crown, filed in the exchequer by the king's attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrongm committed in the lands or other possessions of the crown. It differs from an information filed in the court of king's bench, of which we shall treat in the next book; in that this is instituted to redres,s a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong, or heinous misdemesnor in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king's officer the attorney-general, who " gives the court to understand and be informed of" the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those of intrusion and debt: intrusion, for any

m Moor. 375.

cause the younger patent issued; here the evidence arising out of the younger patent would be such as to avoid the elder ; being, in point of evidence, of equal dignity with it, and containing matter sufficient t» render that void, which upon the face of it appeared to be perfect. But, where evidence of inferior dignity is admitted to set aside that which is of the greatest dignity, such as a patent or other matter of record, upon the trial of a collateral issue, it seems impossible for a party to be prepared to defend himself against such an irregular mode of attack.

And there seems to be the less reason for encouraging this irregular method of contesting the validity of a patent for lands in Virginia, because the law allows six months at least, during which no patent can issue, for the plat and certificate of survey to lie in the register's office, that any person disposed to avail himself of any irregularity or fraud in obtaining the same, or claiming a better right to the lands, may enter a caveat against the issuing the patent: the proceedings in which case have been already explained, and may again be recurred to by the student. Appendix, note B.

Petitions for lapsed lands, formerly in use in Virginia, where lands were forfeited by not seating and planting them pursuant to the condition of the patent, or for non-payment of quit -rents, bore a great resemblance to the writ of scire facias to repeal a patent. See L. V. 1748, c. 1. J. 30. But the act of May, 1779, c. 13. Edi. 1785, abolished forfeitures for those causes, and consequently the proceedings occasioned thereby.

trespass committed on the lands of the crown n, as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or "the like; and debt, upon any contract for monies due n to the king, or for any forfeiture due to the crown upon the breach of a penal statute. This is'most commonly used to recover-forfeitures occasioned by transgressing those laws, which are enacted for the establishment and support of the revenue: others, which regard mere matters of police and public convenience, being usually left to be inforced by common informers, in the qui tarn informations or actions, of which we have formerly spoken °. But after the attorney-general has informed upon the breach of a penal law, no other information can be received p. There is also an information in rent, when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title of the king. As antiently in the case of treasure-trove, wrecks, waifs, and estrays, seised by the king's officer for his use1S. Upon such seisure an information was usually filed in -the king's -exchequer, and thereupon a proclamation Was made for the owner (if any) to come in and claim the effects; and at the same time there issued a commission of appraisement to value the goods in the officer's hands : after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crowni. And when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order

n Cro Jac. 212. 1 Leon. 48. Savil. 49.

o See page 162. ' p Hard. 201.

q Gilb. Hist, of Exch. cli 13.

11» The object of these informations for monies due the commonwealth, has generally been obtained by motion, in Virginia, though in some cases it is necessary to bring an action. See V. L. 1794, c. 84. And even the formality of notice of such motions, if made within one year, against collectors for arrears of taxes, was atone period rendered unnecessary. See V. L. 1797, c. 1. 1798, c. 3, &. 6, but these last acts were repealed by 1799, c. 2, §. 5.

12. See the act concerning wrecks, Edi. 1794, c. 6, and that, concerning estrays, Ibid. c. 16, by which the law herein is altered.

to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice.

S. A writ of quo ivarranto is in the nature of a writ of right for the king,vagainst him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the rightr. It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to shew by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. This was originally returnable before the king's justices at Westminster*; but afterwards only before the justices in e)re, by virtue of the statutes of quo warranto, 6 Edw. I, c. 1, and 18 Edw. I, st. 2c, but since those justices have given place to the king's temporary commissioners of assise, the judges on the several circuits, this branch of the statutes hath lost it's effectu; and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king's justices at Westminster. And in case of judgment for the defendant, he shall have an allowance of his franchise ; but in case of judgment for the king, for that the party is entitled to no such franchise or hath disused or abused it, the franchise is either seised into the king's hands, to be granted out again to whomever he shall please ; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped itw.

The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive even against the crownS Which, together with the length of it's process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the

r Finch. L. 322. 2 Inst. 282. ' s Old Nat. Breve fol. 107. edit. 1534. t 2 Inst. 498. Rast. Entr. 540. u 2 Inst. 498. w Cro. Jac. 259: 1 Show. 280. x I Sidd. 86. 2 Show. 47. 12 Mod. 225.

judgment not quite so decisive. Tins is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seise it for the crown : hut hath long been applied to the mere purposes of trying the civil right, seising the franchise, or ousting the wrongful possessor; the fine being nominal only.

During the violent proceedings that took place in the latter end of the reign of king Charles the second, it was among other things thought expedient to new-model most of the corporation towns in the kingdom; for which purpose many of those bodies were persuaded to surrender their charters, and informations in the nature of quo znarranto were brought against others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seised into the hands of the king, who granted them fresh charters with such alterations as were thought expedient; and, during their state of anarchy, the crown named all their magistrates. This exertion of power, though perhaps in summojure it was for the most part strictly legal, gave a great and just alarm; the new-modelling of all corporations be-' ing a very large stride towards establishing arbitrary power; and therefore it was thought necessary at the revolution to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 W. and M. c. 8, which enacts, that the franchises of the city of London shall never hereafter be seised or forejudged for any forfeiture or misdemesnor whatsoever.

This proceeding is however now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. c. 2O, which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same (who is then stiled the relator) against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate j provides for its speedy determination; and, directs that, if the defendant be convicted, judgment of ouster (as well as a

fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suitI3.

6. The writ of mandamus f is also made by the same statute 9 Ann. c. 2O, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation ; and, secondly, for wrongful removal, when a person is legally possessed. These are injuries, for which though redress for the party interested may be had by assise, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king's bench; commanding, upon good cause shewn to the court, the party complaining to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus ; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had, as if an action on the case had been brought, for making a false return: and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution ; which latter (in case of an action) is effected by a writ of restitution z. So that now the writ of mandamus^ in cases within this statute, is in the nature of an action: whereupon the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, burgess, or freeman"; and also, in general, a writ of error may be had thereupon11.

This writ of mandamus may also be issiled, in pursuance of the statute 11 Geo. I. c. 4. in case within the regular time no election shall be made of the mayor or other chief officer of the city, borough, or town corporate, or (being made) it shall afterwards become void; requiring the electors to proceed to election,

y See page HO.

a Stat. 12 Geo. III, c. 21.

z 11 Hep. 79. b IP. Wms. 351.

13. The statute of 9 Ann. c. 20, was never in force in Virginia.

and proper courts to be held for admitting and swearing in the magistrates so respectively chosen ".

We have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe, that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory : a difficulty not a little increased by the very immethodical arrangement, in which they are delivered to us by our antient writers, and the numerous terms of art in which the language of our ancestors has obscured them. Terms of art there will unavoidably be.in all sciences; the easy conception and thorough comprehension of which must depend upon frequent and familiar use : and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey. But I trust that this difficulty, however great it may appear at first view, will shrink to nothing upon a nearer and more frequent approach; and indeed be rather advantageous than of any disservice, by imprinting on the student's mind a clear and distinct notion of the nature of these several remedies. And, such as it is, it arises principally from

14. The statutes of 9. Ann. c. 20 and 11, Geo. I. c. 4, referred to in this, and the preceding paragraph were never in force in Virginia. But the act of 1798, c. 23, declares that it shall be lawful, for the person prosecuting a writ of mandamus, to traverse any material fact contained in the return, to which the person making the return shall reply, take issue, or demur ; and such further proceedings shall be had thereupon, as if ihe person suing the writ h£d brought an action on the case for a false return. And in cate of verdict, or judgment on demurrer in his favor, or by nil dicit, Etc. he shall recover his damages and costs as in an action on the case, and may have execution for the same, and a peremptory mandamus shall be granted without delay, as if the return had been adjudged insufficient. But if judgment be given for the person making the return, he shall reco\ er his costs, and have execution accordingly. Sessions Acts of 1798. c. 23. which is nearly a transcript from the Statute 9. Ann. c. 20.

the excellence of our English laws ; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, \\hich are impossible to be brought within one and the same description: wl'ereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer, and not to prescribe the remedy. And I may venture to affirm, that there is hardly a possible injury, that can be offered either to the person or property of another, for-which the party injured may not find a remedial writ, conceived in such terms as are properly and singularly adapted to his own particular grievance.

In the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the antient common law. In the methods prescribed for the recovery of landed and other permanent property, as the right is more intricate, the feodal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficulties, and retrench those delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse to such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural that ever was adopted by a free and enlightened people.

But this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding every thing that is dear to us. In absolute governments, when new arrangements of property and a gradual change of manners have destroj ed the original ideas, on which the laws were devised and established, the prince by his edict may pro-

mulge a new code, more suited to the present]emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counsellors. A single .legislator or an enterprizing sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice: and evil betide that presumptuous subject who questions it's wisdom or utility. But who, that is acquainted with the difficulty of new-modelling any branch of our statute laws (though relating but to roads or to parish settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all it's appendages and consequents, and set up another rule in it's stead I When therefore, by the gradual influence of foreign trade and domestic tranquility, the spirit of our military tenures began to decay, and atlengththe whole structure was removed, the judgesquick1)' perceived that the forms and delays of the old feodal actions (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable intrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation. Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of consequences more numerous and extensive than the most penetrating genius could foresee ; but left them as they were, to languish in obscurity and oblivion, and endeavoured by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprizing judges, who have sate in our courts of equity, to shew them their error by supplying the omissions of the courts of law. And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fun-

damental alterations. The only difficulty that attends them arises from their fictions and circuities: but, when once we have discovered the proper clew, that labyrinth is easily pervaded. Our-system of remedial law resembles an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless, and therefore negletced. The inferior apartments, now accommodated to daily use, are cheerful and commodious, though their approaches may be winding and difficult.

In this part of our disquisitions, I however, thought it my duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused ; and may perhaps, in their turn, be hereafter with some necessary corrections called out again into common use; but also because, as a sensible writer has well observed z, " whoever considers how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will I presume be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern." And besides I should have done great injustice to the founders of our legal constitution, had I led the student to imagine, that the remedial instruments of our law were originally contrived in so complicated a form, as we now present them to his view : had I, for instance, entirely passed over the direct and obvious remedies by assises and writs of entry, and only laid before him the modern method of pfosecuting a writ of ejectment.

z Hawk. Abr. Co. Litt. Pref,

CHAPTER THE EIGHTEENTH.

OF THE PURSUIT OF REMEDIES BY ACTION ;

AND FIRST, OF THE ORIGINAL WRIT.

HAVING, under the head of redress by suits in courts, pointed out in the preceding pages, in the first place, the nature and several species of courts of justice, wherein remedies are administered for all sorts of private wrongs ; and, in the second place, shewn to which of these courts in particular, application must be made for redress, according to the distinction of injuries, or in other words, what wrongs are cognizable by one court, and what by another ; I proceeded, under the title of injuries cognizable by the courts of common law, to define and explain the specifical remedies by action provided for every possible degree of wrong or injury; as well such remedies as are dormant and out of use, as those which are in every day's practice, apprehending that the reason of the one .could never be clearly comprehended, without some acquaintance with the other: and, I am now, in the last place to examine the manner in which these several remedies are pursued and applied, by action in the courts of common law; to which I'shall afterwards subjoin a brief account of the proceedings in courts of equity.

In treating of remedies by action at common law, I shall confine myself to the modern method of practice in our courts of judicature. For, though I thought it necessary to throw out a few observations on the nature of real actions, however at pre-

sent disused, in order to demonstrate the coherence and uniformity of our legal constitution, and that there was no injury so obstinate and inveterate, but which might in the end be eradicated by some or other of those remedial writs ; yet it would be too irksome a task to perplex both my readers and myself with explaining all the rules of proceeding in these obsolete actions, which are frequently mere positive establishments, thejbrma et fgurajudicii, and conduce very little to illustrate the reason and fundamental grounds of the law. Wherever I apprehend they may at all conduce to this end, I shall endeavour to hint at them incidentally.

What thei efore the student may expect in this and the succeeding chapters, is an acccount of the method of proceeding in and prosecuting a suit upon any of the personal writs we have before spoken of, in the court of common pleas at Westminster; that being the court originally constituted for the prosecution of all civil actions. It is true that the courts of king's bench and exchequer, in order, without intrenching upon antient forms, to extend their remedial influence to the necessities of modern times, have now obtained a concurrent jurisdiction and cognizance of very many civil suits : but, as causes arc therein conducted by much the same advocates and attorneys, and the several courts and their judges have an entire communication with each other, the methods and forms of proceeding are in all material respects the same in all of them. So that, in giving an. abstract or history a of the progress of a suit through the court

a In deducing this history the student must not expect authorities to be Constantly cited; as practical knowlege is not so much to be learned from anv books of law, as from experience and attendance on the courts. The compiler must therefore be frequently obliged to rely upon his own observations; which in general he hath been studious to avoid where those of any other might be had. To accompany and illustrate these remarks, such gentlemen as are designed for the profession will find it necessary to peruse the books of entries, antient and modern; which are trascripts of proceedings that have been had in some particular actions. A book or two of technical learning will also be found very convenient j from which a man of a liberal education and tolerable understanding may glean pro re nata as much as is sufficient for his purpose.... These booh of practice, as they are called, are all pretty much on alevel, in point of composition and solid instruction; so that that which bears the latest edition is usually ths best. But Gilbert't History and Practice of tie Court of Common Pleas

of common pleas, we shall at the same time give a general account of the proceedings of the other two courts j taking notice, however, of any considerable difference in the local practice of each. And the same abstract will moreover afford us some general idea of the conduct of a cause in the inferior courts of common law, those in cities and boroughs, or in the court-baron, or hundred, or county court: all which conform (as near as may be) to the example of the superior tribunals to which their causes may probably be, in some stage or other, removed.

The most natural and conspicuous way of considering the subject before us will be (I apprehend) to pursue it in the order and method wherein the proceedings themselves follow each other; rather than to distract and subdivide it by any more logical analysis. The general therefore and orderly parts of a suit are these ; 1. The original writ: 2. The process: 3. The pleadings: 4. The issue or demurrer: 5. The trial: 6. The judgment, and it's incidents: 7. The proceedings in nature of appeals : 8. The execution.

First, then, of the original or original writ: which is the beginning or foundation of the suit. When a person hath received an injury, and thinks it worth his while to demand a satisfaction for it, he is to consider! with himself, or take advice, what redress the law has given for that injury; and thereupon is to make application or suit to the crown, the fountain of all justice, for that particular specific remedy which he is determined or advised to pursue. As, for money due on bond, an action of debt; for goods detained without force, an action of detinue or trover: or, if taken with force, an action of trespass vi et armis; or to try the title of lands, a writ of entry or action of trespass in ejectment; or, for any consequential injury received, a special action on the case. To this end he is to sue out, or purchase by paying the stated fees, an original, or original writ, from the

is a book of a very different stamp; and though (like the rest of his posthumous works) it has suffered most grosslj by ignorant or carelsss transcribers, yet it has ti aced out the reason of many pai ts of our modern practice, froni'the feodal institutions and the primitive construction of our courts, in a most clear and ingenious manner.

court of chancery', which is the officina justitiae, the shop or mint of justice, wherein all the king's writs are framed. It is a mandatory letter from the king in parchment, sealed with his great sealb, and directed to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party accused, either to do justice to the complainant, or else to appear in court, and answer the accusation against him2. Whatever the sheriff does in pursuance of this writ, he must return or certify to the court of common pleas, together with the writ itself: which is the foundation of the jurisdiction of that court, being the king's warrant for the judges to proceed to the determination of the cause. For it was a maxim introduced by the Normans, that there should be no proceedings in common pleas before the king's justices without his original writ; because they held it unfit that those justices, being only the substitutes of the crown, should take cognizance of any thing but what was thus expressly referred to their judgment0 3. However, in small actions, below the value of forty shillings, which are brought in the court-baron or county court, no royal writ is necessary; but the foundation of such suits continues to be (as in the times of the Saxons) not by original writ, but by plaintA; that is, by a private memorial tendered in open court

b Finch. L. 237. d Mirr. c. 2. Sec. 3.

cFlet. I. 2. c.34.

1. In Virginia all writs must be sued out of that court to which they are returnable.

2. In Virginia, writs must run in the name of the commonwealth of Virginia, and bear teste by the clerks of the several courts. C, V. Art. 18. The supreme court of the United States, directed the writs from that court to run in the name of the President of the United States : an imitation, as it would seem, of the stile of royalty here spoken of. The law directs that they shall bear teste in the name of the chief justice, or the eldest judge of the respective courts, or, of the clerk, where there shall happen to be no judge of the court from whence the writ issues. L. U. S. 2 Cong. c. 36.

3. The revival of this antiquated maxim may be a natural consequence of the stile prescribed by the supreme court, if much longer persisted in.

to the judge, wherein the party injured sets forth his cause of action : and the judge is bound of common right to administer juftice therein, without any special mandate from the king. Now indeed, even the royal writs are held to be demandable of common right, on paying the usual fees: for any delay in the granting them, or setting an unusual or exorbitant price upon them, would be a breach of magna carta, c. 29. " nulli vendemus, nulli negabimus, out differ emus justitiam vel rectum*'1''

Original writs are either optional or peremptory; or, in the language of our lawyers, they are either a praecipe, or a si tefe~ cerit securum*. The praecipe is in the alternative, commanding the defendant to do die thing required, or shew the reason wherefore he hath not done itf. The use of this writ is where something certain is demanded by the plaintiff, which it is incumbent on the defendant himself to perform; as to restore the possession of land, to pay a certain liquidated debt, to perform a specific covenant, to render an account, and the like: in all which cases the writ is drawn up in the form of a praecipe or command, to do thus, or shew cause to the contrary; giving the defendant his choice, to redress the injury or stand the suit. The other species of original writs is called a sifecerit te securum, from the words of the writ j which directs the sheriff to cause the defendant to appear in court, without any option given him, provided the plaintiff gives the sheriff security effectually to prosecute his claim s. This writ is in use, where nothing is specifically demanded, but only a satisfaction in general; to obtain which, and minister complete redress, the intervention of some judicature is necessary. Such are writs of trespass, or on the case, wherein no debt or other specific thing is sued for in certain, but only damages to be assessed by a jury. For this end the defendant is immediately called upon to appear in court,

e Finch. L. 257. f Append. No. III. Sec. 1. g Append. No. II Sec. 1.

4. V. L. Edi. 1794, c. 15. Accordant.

5. The original writ here described is never sued out in Virginia, except in real actions, for lands; and where such actions are brought by an original writ, as here described, the writ issues out of that court to which it is returnable, and not out of chancery, as is the practice in England.

provided the plaintiff gives good security of prosecuting his claim. Both species of writ are teste'd, or witnessed, in the king's own name; " witness ourself at Westminster," or wherever the chancery may be held5.

The security here spoken of, to be given by the plaintiff for prosecuting his claim, is common to both writs, though it gives denomination only to the latter. The whole of it is at present become a mere matter of form; and John Doe and Richard TRoe are always returned as the standing, pledges for this purpose. The antient use of them was to answer for the plaintiff, who in case he brought an-action without cause, or failed in the prosecution of it when brought, was liable to an amercement from the crown for raising a false accusation ; and so the form of the judgment still is h. In like manner, as by the Gothic constitutions no person was permitted to lay a complaint against another, " nisi sub script ura out specifcatione trium testi~ urn, quod actionem velletpersequl!;" and, as by the laws of Sancho I, king of Portugal, damages were given against a plaintiff who prosecuted a groundless action k.

The day, on which the defendant is ordered to appear in court, and on which the sheriff is to bring in the writ and report how far he has obeyed it, is called the return of the writ; it being then returned by him to the king's justices at Westminster. And it is always made returnable at the distance of at least fifteen days from die date or teste *, that the defendant may have

h Finch. L. 189, 252.

k Mod. Un. Hist. xxii. 45.

i Sticrn. dejure Gotbor. I, 3. c. 7.

6. All process issuing from the county courts (except on petitions for small debts; and summonses in suits wherein the governor, or a member of the privy council, a judge of the superior courts, or the sheriff of a county may be a party defendant, in which cases the summons must be executed ten days before the return day) shall be executed three days, at least, before the return day. But process issuing from any other court (except in the cases of certain privileged, persons as before-mentioned) may be made returnable to the next court, and may be executed at any time before the return day. V. L. 1794, c. 66. J. 21, 23. c. 67. L 17,18, 37.

time to come up to Westminster, even from the most remote parts of the kingdom; and upon some day in one of the four terms, in which the court sits for the dispatch of business.

These terms are supposed by Mr. Seldonl to have been instituted by William the conqueror: but sir Henry Spelman hath clearly and learnedly shewn, that they were gradually formed from the canonical constitutions of the church; being indeed no other than those leisure seasons of the year, which were not occupied by the great festivals or fasts, or which were not liable to the general avocations of rural business. Throughout all Christendom, in very early times, the whole year was one continual . term for hearing and deciding causes. For the Christian magistrates, to distinguish themselves from the heathens, who were extremely superstitious in the observation of their dies fasti et nefasti, went.into a contrary extreme, and administered justice .upon all. days alike. Till at length the church interposed and exempted certain holy seasons from being profaned by the tumult of forensic litigations. As, particularly, the time of advent and Christmas, which gave rise to the winter vacation; the time of lent and caster, which created that in the spring ; the time of pentecost, which produced the third; and the long vacation, between midsummer and michaelmas, which was allowed for the hay time and harvest. AH Sundays also, and some particular festivals, as the days of the purification, ascension, and some others, were included in the same prohibition: which was established by a canon of the church, A. D. 517, and was fortified by

1 yan. Ang. i. 2. Sec. 9.

Although the words of our law are, that writs and summonses shall be returnable to the next court, yet it may be questioned, whether the writ ought not to be made returnable to some certain day, ey. gra. to the first day of the court; for it hath been held, in England, and it •would seem upon good grounds, that a capias made returnable at the - next court of the marshalsea, without any day certain, is ill. Cro. Jas. 314. Perhaps, however, that this nicety is rendered unnecessary by that clause of the act, which declares that the first day after the end of the court, to which the process is returnable, shall be the appearance-day in all process returnable to any day of th£ court next proceeding. V. L. 1794, c. 66. §. 25. c. 67. §. 19.

an imperial constitution of the younger Theodosius, comprised in the Theodosian code m.

Afterwards, when our own legal constitution came to be settled, the commencement and duration of our law terms were appointed with an eye to those canonical prohibitions; and it was ordered by the laws of king Edward the confessor", that from advent to the octave of the epiphany, from septuagesima to the octave of easter, from the ascension to the octave of pentecost, and from three in the afternoon of all Saturdays till Monday morning, the peace of God and of holy church shall be kept throughout all the kingdom. And so extravagant was afterwards the regard that was paid to these holy times, that though the author of the Mirror ° mentions only one vacation of any considerable length, containing the months of August and September, yet Britton is express p, that in the reign of king Edward the first, no secular plea could be held, nor any man sworn on the evangelists', in the times of advent, lent, pentecost, harvest and vintage, the days of the great litanies, and all solemn festivals. But he adds that the bishops did nevertheless' grant dispensations, (of which many are preserved in 'Ryme.r'&foederav) that assises and juries might be taken in some of these holy seasons. And soon afterwards a general dispensation was established by statute Westm. 1. 3 Edw. I, c. 51, which declares,that,"by the assent of all the prelates, assises of novel disseisin, mart d'ancestor, and darrein presentment shall be taken in advent, septuagesima, and lent; and that at the special request of the king • to the bishops." The portions of time, that were not included within these prohibited seasons, fell naturally into a fourfold division, and, from some festival day that immediately preceded their commencement, were denominated the terms of St. Hilary, of Easter, of the Holy Trinity, and of St. Michael: which terms have been since regulated and abreviated by several acts of parliament ; particularly Trinity term by statute 32 Hen. VIII, c.

m Spelman of the terms.

n c. S. tie ternporilnu et diebuspads.

o c. 3. Sec. 8.

p c. 53.

<j See p. 59.

r Temp Hen. III. passim.

21, and Michaelmas term by statute 16 Car. I, c. 6, and again by statute 24 Geo. II, c. 48 7.

1 There are in each of these terms stated days called days in lank, dies in banco; that is, days of appearance in the court of common bench. They are generally at the distance of about a week from each other, and have reference to some festival of the church. On some one of these days in bank all original writs must be made returnable; and,therefore,they are generally called the returns of that term: whereof every term has more or less, said by the Mirror • to have been originally fixed by king Alfred,

7. The court of appeals, in Virginia, sits twice a year, viz: on the tenth days of April and October: the terms are not limited. L. V. 1794, c. 63. The high court of chancery holds three terms annually, •Crr. on the first day of March ; the twelfth day of May, and the tenth day of September ; these terms continue twenty-four days each, if the business of the court require it. The other superior courts of chancery hold likewise three terms, annually, consisting of the same number of days. Acts of 1801, c. 14. The general court sits twice, on the ninth days of June and November, and the terms continue sixteen days. 1794, c. 65. The district courts hold two terms, annually, each; the circuits commence on the first of April and September, and are finished a little before the next session of the general court. The terms are in general limited to twelve days: in several districts they are now lengthened to fifteen days. Ibid. c. 66. Sessions acts of 1795, c. 30. 1796, c. 25, 86. The county courts sit monthly, four of these monthly courts are distinguished by the name of quarterly courts: these last sit six days, each quarterly term. Edi. 1794, c. 67..... The court of appeals, high court of chancery, and general court, sit at Richmond; the district courts at the places particularly directed by die acts concerning them; and the county courts at their respective court-houses.

The federal circuit court sits in Richmond, on the twenty-second days of May and November, yearly. The federal district court sits at Richmond twice, -viz : on the third Tuesdays in June and December, and at Williamsburgh, (bince changed to Norfolk, 7 Cong. c. 31.) on die like days in March and September, yearly. L. U. S. 1 Cong. 1 Sess. c. 20. 2 Cong. c. 21, and 7 Cong. c. 31.

From the multiplicity of these courts, amounting to more than one hundred and twenty, including eight corporation courts, which sit in the same manner as the county courts, it is probable that not a day in the year, Sundays excepted, passes, in which there are not 'more than one or two courts in ec siicn, in Virginia. & c. 5. Sec. 101.

but certainly settled as early as the statute of 51 Hen. III. st. 2. But though many of the return days are fixed upon Sundays, yet the court never sits to receive these returns till the Monday after*: and therefore no proceedings can beheld, or judgment can be given, or supposed to be given, on the Sunday u.

The first return in every term is, properly speaking, the first day in that term ; as, for instance, the octave of St. Hilary, or the eighth day inclusive after the feast of that saint; which falling on the thirteenth of January, the octave therefore, or the first day of Hilary term, is the twentieth of January. And thereon the court sits to take essoigns, or excuses, for such as do not appear according to the summons of the writ: wherefore, this is usually called the essoign day of the term. But, on every return-day in the term, the person summoned has three days of grace, beyond the day named in the writ, in which to make his appearance ; and if he appears on the fourth day inclusive, quarto die fast, it is sufficient. For our sturdy ancestors held it beneath the condition of a freeman to appear, or to do any other act, at the precise time appointed. The feodal law, therefore, always allowed three distinct days of citation, before the defendant was adjudged contumacious for not appearing v : preserving, in this respect, the German custom, of which Tacitus thus speaks % Mud ex libertate vitium, quod nonsimulnecjlissiconveniunt; sed et alter et tertius dies cunctatione coeuntium absumitur™ And a similar indulgence prevailed in the Gothic constitution: ; illud enim nimiae libertatis indicium, concessa toties impunitas nonparendi; nee enim trims judicii conscssibus poenam perditae causae contumax meruit *." Therefore, at the beginning of each term, the court does not usually y sit for dispatch of busyness till the fourth or appearance day, as in Hilary term on the twenty-third of January; and in Trinity term, by statute 32 Hen. VIII. c. 21, not till the fifth day, the fourth happening on

t Registr. 19. Salk. 627. 6 Mod. 250.

u 1 Jon. 156. Swann and Broome. B. S. Micb. S. Geo. III. et in Don. froc. 1766.

v Feud. I. 2. t. 22. w de mar- Ger. c. 11. x Stiern. dcjure Goth. 1.1. c, 6. y See 1 Bulstr. 35.

the great popish festival of Corpus Christil; which days are therefore called and set down in the almanacks as the first days of the term: and the court also sits till the quarto die post or appearance-day of the last return *, which is therefore the end of each term.

z See Spelman on the terms, ch. 17. Note, that if the feast of saint John the baptist, or midsummer day, falls on the morrow of Corpus Ctristi day, (as it did A. D. 1614,1698, and 1709, and will again A. D. 1791,) Trinity full term then commences, and the courts sit on that day j though in other years it is no juridical day. Yet, in 1702, 1713, and 1724, when midsummer day fell upon what was regularly the last day of the term, the courts did not then sit, but it was regarded like a Sunday, and the term was prolonged to the twenty-fifth of June. (Rot. C. S. Bunb. 176.)

8. The appearance day in the courts of chancery, general court, the district, county and corporation courts "(except on petitions for small debts, in the county and corporation courts, when the defendant must appear at the first day of the monthly court) is by law fixed to the first day lifter the end of every term. V. L. 1794, c. 64, 65, 66, 67. 1801, c. 14.

And as the mode of proceeding in the federal courts, except so far as is otherwise specially directed by law, is made conformable to that in the superior courts of the respective states, subject to such alterations or additions as those courts, in their discretion, may deem expedient, or to such regulations as the supreme court of the United States may prescribe, it is presumed that the day of appearance in the federal courts in Virginia, is also the day after the end of the term. Vide L. U. S. 2 Cong. c. 36.

CHAPTER THE NINETEENTH.

OF PROCESS.

THE next step for carrying on the suit, after suing out the original, is called the process, being the means of compelling the defendant to appear in court. This is sometimes called original process, being founded upon the original writ; and also to distinguish it from mesne or intermediate process, which issues, pending the suit, upon some collateral interlocutory matter; as to summon juries, witnesses, and the like a. Mesne process is also sometimes put in contradistinction tofnal process, or process of execution, and then it signifies all such process as intervenes between the beginning and the end of a suit.

But process, as we are now to consider it, is the method taken by the law to compel a compliance with the original writ, of which the primary step is by giving the party notice to obey it. This notice is given upon all real praecipes, and also upon all personal writs for injuries not against the peace, by summons, which is a warning to appear in court at the return of the original writ, given to the defendantbytwo of the sheriff's messengers called summoners, either in person'or left at his house or land b: in like manner as in the civil law the first process is by personal citation, in jus vocandoc. This warning on the land is given, in real actions, by erecting a white stick or wand on the defendant's grounds d ; (which stick or wand, among the northern nations, is called the baculus nunciatoriuse) and by statute 31 Eliz.

a Finch. L. 436.

c*y:2,4,l.

e Stiernh, dejurc Sueon. 1. 1. e. 0.

b Ibut. dDalt.ofShcr.c.31.

c. 3, the notice must also be proclaimed on some Sunday before the door of the parish church.

If the defendant disobeys this verbal monition, the next process is by writ of attachment, or pone, so called from the words of the writf, '•'•poneper vadium et salvos plegios, put by gage and safe pledges A. B. the defendant, &?c." This is a writ, not issuing out of chanceryj but out of the court of common pleas, being grounded on the non-appearance of the defendant at the return of the original writ; and thereby the sheriff is commanded to attach him, by taking gage, that is, certain of his goods, which he shall forfeit if he doth not appear f; or by making him find safe pledges or sureties who shall be amerced in case of his non-appearance h. This is also the first and immediate process, without any previous summons, upon actions of trespass vi et armis, or for other injuries, whicji though not forcible, are yet trespasses against the peace, as deceit and conspiracy *; where the violence of the wrong requires a more speedy remedy, and therefore the original writ commands the defendant to be at once attached, without any precedent warning J.

If, after attachment, the defendant neglects to appear, he not only forfeits this security, but is moreover to be farther compelled by writ of distringast, or distress, infinite; which is a.subsequent process issuing from the court of common pleas, commanding the sheriff to distrein the defendant from time to time, and coritinually afterwards, by taking his goods and the profits of his lands, which are called issues, and which by the common law he forfeits to the king if he doth not appear1. But now the issues may be sold, if the court shall so direct, in order to defray the reasonable costs of the plaintiffm. ' In like manner by the civil law, if the defendant absconds, so that the citation is of no effect, " mittitur adversarius inpossessionem bonorum ejus11."

{ Append. No. III. Sec. 2.

h Dalt. Sher. c. 32.

j Append. No. II. Sec. 1.

1 Finch. L. 362.

11^:2,4,19.

g Finch. L. 345. Lord Raym. 278. \ Finch. L. 305, 352. k Append. No. III. Sec. 2. m Stat. 10 Geo, HI. c. 50.

And here by the common, as well as the civil law, the process ended in case of injuries without force : the defendant, if he had any substance, being gradually stripped of it all by repeated distresses, till he rendered obedience to the king's writ; and, if he had no substance, the law held him incapable of making satisfaction, and therefore looked upon all farther process as nugatory. And besides, upon feodal principles, the person of a feudatory was not liable to be attached for injuries merely civil, lest thereby his lord should be deprived of his personal services. But, in cases of injury accompanied with force, the law, to punish the breach of the peace, and prevent it's disturbance for the future, provided also a process against the defendant's person in case he negltcted to appear upon the former process of attachment, or had no substance whereby to be attached j subjecting his body to imprisonment by the writ of capias dtl retyondendum0. But this immunity of the defendant's person, in case of peaceable though fraudulent injuries, producing great contempt of the law in indigent wrongdoers, a capias was also allowed, to arrest the person, in actions of account^ though no breach of the peace be suggested, by the statute of Marlbridge, 52 Hen. III, c. 23, and Westm. 2. 13 Edw. I, c- 11, in actions of debt and delintie, by statute 25 Edw. III, c. 17, and in all actions on the case, by st. 19 Hen. VII, c. 9. Before which last statute a practice had been introduced of commencing the suit by bringing an original writ of trespass quare clausumfregit, for breaking the plaintiff's close, vi et armis; which by the old common law subjected the defendant's person to be arrested by writ of capias: and then afterwards, by connivance of the court, the plaintiff might proceed to prosecute for any other less forcible injury. This practice (though custom rather than necessity, and for saving some trouble and expense, in suing out a special original adapted to the particular injury) still contines in almost all cases, except in actions of debt; though now, by virtue of the statutes above cited and others, a capias might be had upon almost every species of complaint.

If therefore the defendant being summoned or attached makes default, and neglects to appear; or if the sheriff rsti'rns a

o 3 Hep 12.

nihil, or that the defendant hath nodiing whereby he may be summoned, attached, or distreined j the capias now usually issues' : being a writ commanding the sheriff to take the body of the defendant if he may be found in his bailiwick or county, and him safely to keep, so that he may have him in court on the day of the return, to answer to the plaintiff of a plea of debt, or trespass, &?c. as the case may be. This writ, and all others subsequent to the original writ, not issuing out of chancery but from the court into which the original was returnable, and being grounded on what has passed in that court in consequence of the sheriff's return, are called judicial, not original, writs; they is-* sue under the private seal of that court, and not under the great seal of England; and are teste'd, not in the king's name, but in that of the chief (or, if there be no chief, of.the senior) justice only. And these several writs being grounded on the sheriff's return, must respectively bear date the same day on which the writ immediately preceding was returnable.

This is the regular and orderly method of process. But it is now usual in practice, to sue out the capias in the first instance, upon a supposed return of the sheriff; especially if it be suspected that the defendant, upon notice of the action, will abscond : and afterwards a fictitious original is drawn up, if the party is called upon so to do, with a proper return thereupon, in order to give the proceedings a colour of regularity *. When fahcapias is delivered to the sheriff, he by his under-sheriffgrants a warrant to his inferior officers, or bailiffs, to execute it on the defendant. And, if the sheriff of Oxfordshire (in which county the injury is supposed to be committed and the action is laid)

p Appendix No. III, Sec. 2.

1. It has been before remarked that the original writ, or praecipe, is never sued out in Virginia, except in real actions : the writ of cafiias ad resfiondendum is the foundation of the suit in all personal actions, at common law, where the value of the debt or thing demanded exceeds twenty dollars; except where the governor, a member of the privy council, a judge of either of the superior courts, or the sheriff of any county is a party defendant, in which cases the process is by summons, instead of the writ of cafiias. See the notes p. 274,275..

cannot find the defendant in his jurisdiction, he returns that he is not found, non est inventus, in his bailiwick 2: whereupon another writ issues, called a testatum capias •>, directed to the sheriff of the county where the defendant is supposed to reside, as of Berkshire, reciting the former writ, and that it is testified, testatum est, that the defendant lurks or wanders in his bailiwick, wherefore he is commanded to take him, as in the former capias. But here also, when the action is brought in one county and the defendant lives in another, it is usual, for saving trouble, time, and expense, to make out a testatum capias at the first; supposing not only an original, but also a former capias, to have been granted, which in fact never was3. And this fiction, being beneficial to all parties, is readily acquiesced in, and is now become the settled practice; being one among many instances to illustrate that maxim of law, that in Jictione juris consistit aequitas.

But where a defendant absconds, and the plaintiff would proceed to an outlawry against him, an original wric must then be

q Appendix No. III, Sec. 2.

2. This return, that the defendant is not found, cannot be made unless the sheriff hath been actually at the defendant's dwelling-house, or usual place of abode, and not finding him, shall have left an attested copy of the writ. V. L. 1794, c. 80, J. 15.

3. The writ of testatum capias cannot issue from one district court to a county in another district, except where two or more persons arc bound in the same bond, covenant, or otherwise, for the payment of money, or the performance of any contract, and reside in different districts j in this case the action (I apprehend) may be brought in whatever district either of them may reside, and process maybe issued and served in any other county, or district, where the non-resident defendant may be found. V. L. Edi. 1794, c. 66, J. 24. But the case of M'Call vs. Turner, seems contrary to this opinion. 1 Call's Rep. 132, of which something will be said hereafter. Nor can the writ of testatum cajiias be sued out of any county court, in an action at law: for if the defendant be returned no inhabitant of the county, the suit shall abate. Ib. c. 80, J. 15.1 But in suits in chancery the process of the county courts may now be directed to the sheriff of any other county, in which any of the defendants may residue, provided that some one or more of them reside in the county where the suit is commenced. Sessions acts, 1797, c. 8. So also in the superior courts of chancery, process may issue into any other district, in the like case. 1801, c. 14.

sued out regularly, and after that a capias*. And if the sheriff cannot find the defendant upon the first vrritofcapias, and returns a non est inventits, there issues out an alias writ, and after that a fluries, to the same effect as the former': only after these words "we command you," this clause is inserted, " as we have formerly" or, " as we have often commanded you ;"..." sicut alias," or, '•'•sicut pluries,praecipimus1." And, if a non est inventus is returned upon all of them, then a writ of exigent or exigi facias may be sued out', which requires the sheriff to cause the defendant to be proclaimed, required, or exacted, in five county courts successively, to render himself; and if he does, then to take him, as in a capias: but if he does not appear, and is returned auinto exactus, he shall then be outlawed by the coroners of the county. Also by statutes 6 Hen. VIII, c. 4, and 31 Eliz. c. 3, whether the defendant dwells within the same or another county than that wherein the exigent is sued out, a writ of proclamation" shall issue out at the same time with the exigent, commanding the sheriff of the county, wherein the defendant dwells, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place. Such outlawry is putting

r Append No. III, Sec. 2. &s Ibidem.

s Ibid.

4. In all original writs, in which the exigent may be awarded, the name of the defendant, with the addition of his state and degree, or mystery, and the county wherein he resides, or did reside, must be inserted. V. L. 1789, c. 30. But as the process of outlawry is disused in Virginia, that act was omitted in the late revisal, except as it relates to outlawry in criminal cases.

5. Upon the return of a cajiias that the defendant is not found, the plaintiff may sue out an alias, or pluries, until the defendant is arrested ; or a testatum cafiias where he shall have removed into another county, or, may at his election sue out an attachment against the defendant's estate, to force an appearance; and if the sheriff returns that he hath attached the goods, and the defendant does not appear and replevy them, by entering his appearance, and giving special bail, if ruled so to do, the plaintiff may proceed to judgment against him by default. The goods attached remain in the sheriff's hands until final judgment; and are then to be sold, in the same manner as if they had been taken on a \rritofjicrijacia8* V. L. 1794, c. 66, ^. 33.

a man out of the protection of the law, so that he is incapable to bring an action for redress of injuries; and it is also attended with a forfeiture of all one's goods and chattels to the king. And therefore, till some time after the conquest, no man could be outlawed but for felony; but in Bracton's time, and somewhat earlier, process of outlawry was ordained to lie in all actions for trespasses vi et armis *. And since his days, by a variety of statutes (the same which allow the writ of capias before-mentioned) process of outlawry doth lie in divers actions that are merely civil; provided they be commenced by original and not by bill*. If after outlawry the defendant appears publicly, he may be arrested by a writ of capias uilagatumu, and committed till the outlawry be reversed. Which reversal may be had by the demandant's appearing personally in court or by attorney w; (though in the king's bench he could not appear by attorney *, till permitted by statute 4 and 5 W. and M. c. 18,) and any plausible cause, however slight, will in general be sufficient to reverse it, it being considered only as a process to compel an appearance. But then the defendant must pay full costs, and put the plaintiff in the same condition, as if he had appeared before the \\ lit of cxigifacias was awarded6.

Such is the first process in the court of common pleas. In the ling's bench they may also (and frequently do) proceed in

t Co. Litt. 128. v 1 Sid. 159 u Append. No. III, Sec 2.

w 2 Roll Kep. 490. Rcgul. C. B. A. D. 1654,'c. lj. x Cro. Jac. 616. Salk. 496.

6. Process of outlawry in civil actions appears to have fallen utterly into disuse, ^in Virginia. The county courts are expressly prohibited from awarding it. And the law now directs, generally, that on the return of the pluries, "that the defendant is not found," the court instead of the process to outlawry, may order proclamation to issue, warning the defendant to appear at a certain day therein named, or that judgment will be rendered against him, which proclamation must be published on three successive court days at the door of the court-house of that county to which the last process was directed, and also three times in the Virginia gazette ; and if the defendant fails to appear pursuant thereto, the same proceeding may be had, and the same judgment gi v«i as in other cases of default. V. L. 1794, c. 66, Sec. 41.

certain causes, particularly in actions of ejectment and trespass, by original writ, with attachment and capias thereon t ; returnable, not at Westminster, where the common pleas are now fixed in consequence of magna carta, but " ubicunque fuerimus in Anglia" wheresoever the king shall then be in England ; the king's bench being removeable into any part of England at the pleasure and discretion of the crown. But the more usual method of proceeding therein is without any original, but by a peculiar species of process entitled a bill of Middlesex: and therefore so entitled, because the court now sits in that county; for if it sat in Kent, it would then be a bill of Kentx. For though, as the justices of this court have, by it's fundamental constitution, power to determine all offences and trespasses, by the common law and custom of the realm», it needed no original writ from the crown to give it cognizance of any misdemesnor in the county wherein it resides ; yet, as by this court's coming into any county, it immediately superseded the ordinary administration of justice by the general commissions of eyre and of oyer and terminer b, a process of it's own became necessary within the county where it sate, to bring in such persons as were accused of committing any forcible injury. 1'he bill of Middlesex c, (which was formerly always founded on a plaint of trespass quare clausum fregit, entered on the records of the courtd) is a kind of capias, directed to the sheriff of that county, and commanding him to take the defendant, and have him before our lord the king at Westminster on a day prefixed, to answer to the plaintiff of a plea of trespass. For this accusation of trespass it is, that gives the court of king's bench jurisdiction in other civil causes, as was formerly observed; since, when once the defendant is taken into custody of the marshal, or prison-keeper of this court, for the supposed trespass, he, being then a prisoner of this court, may here be prosecuted for any other species of injury. Yet, in order to found this juris-.-

y Append. No. II, Sec. 1.

z Thus, when the court sate at Oxford, by reason of the plague, Micht 1665. the process was by bill of Oxfordshire. Trye's Jus Filizar. 101. a Bro. Mr. t. oyer and determiner. 8. b Bro. Abr. t. jurisdiction. 66. 3 Inst. H7. ' c Appendix. No. III. Sec. 3. d Trye's Jut Filizar. 98.

diction, it is not necessary that the defendant be actually the marshal's prisoner; for, as soon as he appears, or puts in bail, to the process, he is deemed by so doing to be in such custody of the marshal, as will give the court a jurisdiction to proceed'. And, upon these accounts, in the bill or process a complaint of trespass is always suggested, whatever else may be the real cause of action. This bill of Middlesex must be served on the defendant by the sheriff, if he finds him in that county; but, if he returns " non est inventus," then there issues out a writ of latitatf to the sheriff of another county, as Berks: which is similar to the testatum capias in the common pleas, and recites the bill of Middlesex and the proceedings thereon, and that it is testified that the defendant" latitat etdiscurrit," lurks and wanders about in Berks ; and therefore commands the sheriff to take him, and have his body in court on the day of the return. But, as in the common pleas the testatem capias may be sued out upon only a supposed, and not an actual, preceding capias; so in the king's bench a latitat is usually sued out upon only a supposed, and not an actual, bill of Middlesex. So that, in fact, a latitat may be called the first process in the court of king's bench, as the testatum capias is in the common pleas. Yet, as in the common pleas, if the defendant lives in the county wherein the action is laid, a common capias suffices ; so in the king's bench likewise, if he lives in Middlesex, the process must still be by bill of Middlesex only r.

In the exchequer the first process is by writ of quo minus, in order to give the court a jurisdiction over pleas between party and party. In which writ e the plaintiff is alleged to be the king's farmer or debtor, and that the defendant hath done him the injury complained of; quo minus sufficiens existit,by which he is the less able to pay the king his rent, or debt. And upon this the defendant may be arrested as upon a capias from the common pleas.

e 4 Inst. 72. g Ibid. Sec. 4.

f Append. No. III. Sec. 3.

7. There are no similar proceedings in our courts.

Thus differently do the three courts set out at first, in the commencement of a suit, in order to entitle the two courts of king's bench and exchequer to hold plea in causes between subject and subject, which by- the original constitution of Westminster-hall they were not empowered to do. Afterwards, when the cause is once drawn into the respective courts, the method of pursuing it is pretty much the same in all of them.

If the sheriff has found the defendant upon any of the former writs, the capias latitat, &c. he was antiently obliged to take him into custody, in order to produce him in court upon the return, however small and minute the cause of action might be. For, not having obeyed the original summons, he had shewn a contempt of the court, and was no longer to be trusted at large. But when the summons fell into disuse, and the capias became in fact the first process, it was thought hard to imprison a man for a contempt which was only supposed : and therefore in common cases by the gradual indulgence of the courts (at length authorized by statute 12 Geo.'I, c. 29, which was amended by 5 Geo. II, c. 27, made perpetual by 21 Geo. II, c. 3, and extended to all inferior courts by 19 Geo. III, c. 70,) the sheriff or proper officer can now only personally serve the defendant with the copy of the writ or process, and with notice in writing to appear by his attorney in court to defend this action ; which in effects reduces it to a mere summons8. And if the defendant thinks proper to appear upon this notice, his appearance is recorded, and he puts in sureties for his future attendance and

8. And herewith the laws of Virginia agree, in common cases. But in actions of debt fuunded upon any writing obligatory, bill, or note in writing, for the payment of money or tobacco, and in actions of covenant, and deunue, the plaintiff may, by endorsement on the writ, in which the true species of action •must be mentioned, require the defendant to give bail for his appearance, which the sheriff must then take at his peril, or render himself liable to the same judgment as may be awarded against the defendant himself, if he fail to appear. And even in other actions, any judge of the court from whence the writ issues, may, upon proper affidavit, or affirmation, direct bail to be taken, and the sheriff must govern hiinsdf accordingly. V. L. 1794, c. 66. §. 25, 26. c. 67.J&. 19,,CO.

obedience; which sureties are called common bail, being the same two imaginary persons that were pledges for the plaintiff's prosecution, John Doe and Richard Roe. Or, if the defendant does not appear upon the return of the writ, or within four (or in some cases, eight) days after, the plaintiff may enter an appearance for him, as if he had really appeared; and may file common bail in the defendant's name, and proceed thereupon as if the defendant had done it himself9.

But if the plaintiff will make affidavit, or assert upon oath, that the cause of action amounts to ten pounds or upwards *, then he may arrest the defendant, and make him put in substantial sureties for his appearance, called special bail10, fn order to which, it is required by statute 13 Car. II, st. 2. c. 2. that the true cause of action should be expressed in the body of the writ or process : else no security can be taken in a greater sum than 40l. This statute (without any such intention in the makers) had like to have ousted the king's bench of all it's ju-

* This affidavit must be certain and positive; for an affidavit made upon belief, or with a refeience to something else, as where the plaintiff swears the defendant is indeb.ed to him in ten pounds or upwards, as appears by his books, or by a bill delivered, will not be sufficient, unless the plaintiff is an executor, administrator, or assignee, for then, from the nature of his situation, he cannot swear more positively than from belief, or from a reference to the accounts of others. 1 Sellon's Prac. \\%..C'bristian.

9. In those cases where bail is not required, the sheriff may take the engagement of an attorney to appear for the defendant. Ibid : Quere j If the attorney shall fail to appear according to his engagement, whether the plaintiff may proceed to take judgment against him by default, as in other cases where the defendant fails to appear ?

10. No affidavit is necessary in actions of debt upon a bond, bill or note in writing; nor in actions of covenant, or detinue, in all which it is sufficient that the true species of action be endorsed on the writ, and that bail is required; but in actions on the case, and all other actions except those above mentioned, there must be an affidavit, (or solemn affirmation, equivalent thereto,) and a judge's order, (or justice's, if the suit be brought in the county court) endorsed on the writ,, •without which, the defendant can not be held to bail, as was before mentioned. Ibid.

risdiction over civil injuries without force; for, as the bill of Middlesex was framed only for actions of trespass, a defendant could not be arrested and held to bail thereupon for breaches of ci\ il contracts. But to remedy this inconvenience, the officers of the king's bench devised a method of adding what is called a clause of ac etiam to the usual complaint of trespass: the bill of Middlesex commanding the defendant to be brought in to answer the plaintiff of a pica of trespass, and also to a bill of debtff: the complaint of trespass giving cognizance to the court, and that of debt authorizing the arrest. In imitation of which, lord chief justice North a few years afterwards, in order to save the suitors of his court the trouble and expense of suing out special originals, directed that in the common pleas, besides the usual complaint of breaking the plaintiff's close, a clause of ac etiam might be also added to the writ of capias, containing the true cause of action ; as, " that the said Charles the defendant may answer to the plaintiff of a plea of trespass in breaking his close: and also, ac etiam, may answer him, according to the custom of the court, in a certain plea of trespass upon the case, upon promises, to the value of twenty pounds, &?c. sb." The sum sworn to by the plaintiff is marked upon the back of the writ; and the sheriff, or his officer the bailiff, is then obliged actually to arrest or take into custody the body of the defendant, and, having so done, to return the writ with a cepi corpus endorsed thereon.

An arrest must be by corporal seising or touching the defendant's body ; after which the bailiff may justify breaking open the house in which he is, to take him: otherwise he has no such power ; but must watch his opportunity to arrest him. For eveiy man's house is looked upon by the law to be his castle of defence and asylum, wherein he should suffer no violence*'.....

ff Trve's Jus Ftlizar. 102. Append No. 3, Sec 3

gg Lilly pract Reg t ac etiam North's life of lord Guilford 99

* A bailiff oeiore he lias made the arrest cannot break open an outer door of a house , but if he enters the outer door peaceabl), he iray then break open the inner door, though it be the apartment of a lodger, if the owner himscl f occupies paitof the house. Coup 1. But if the whole house be let in lodgings,

Which principle is carried so far in the civil law, that for the most part not so much as a common citation or summons, much less an arrest, can be executed upon a man within his own walls h. Peers of the realm, membeis of pailiament, and corporations, are privileged from ai rests ; and of couise from outlawries '. And against them the process to enforce an appearance must be by summons and distress infinite •>, instead of a cafias1'. Also clerks, attorneys, and all other persons attending the courts of justice (for attornejs, being officers of the court, are always supposed to be there attending) are not liable to be arrested by the ordinary process of the court, but must be sued by bill (called usually a bill of privilege) as being personally present in courtk. Clergymen performing divine service, and not merely staying in the church with a fraudulent design, ai e for the time privileged from arrests12, by stat. 50 Edw. III. c. 5, and 1 Ric. II, c. 16, as likewise members of convocation actually attending thereon, by statute 8 Hen. VI. c. 1. Suitors, witnesses '3, and other persons, necessarily attending any coui ts of record upon business, are not to be arrested during their actual at-

h Ff 2,4,18. -21. j See page 280.

i Whitelock of Parl 206 207. k Bro. Abr. t. bille 29. 12 Mod 163.

as each lodging is then considered a dwelling house, in which burglar) may be stated to have been committed, so in that case I conceive the door of each appartment would be considered an outer door, which could not be legally broken open to execute an arrest. Cawp. 2 It is not necessary that the arrest should be made by the hand of the bailiff, nor that he should be actually in sight, yet where an arrest is made by his assistant or follow er, the bailiff ought to be so near as to be con&ideied as acting in it Couyft 65 Chnstsan

11. The process in Virginia must also be by summons, and not by cafnas, against the governor, or any member of the privy council, or a judge of either of the superior courts, or the sheriff of any county. V. L. 1794, c. 66. §. 23. c. 67. §. 18.

12. L. V. 1794, c. 138. Accordant.

13. V. L. 1794, c. 141. J. 6, extends the protection of witnesses to such as may be attending commissioners, or refciecs, or upon any order or survey, if duly supoeud'd for that purpose.

tendance, whichincludestheirnecessarycomingandreturning14. And no arrest can be made in the king's presence, nor within the verge of his ro^ al palace1, nor in any place where the king's justices are actually sitting. The king hath moieovei a special prerogative, (which indeed is •v ei y seldom exerted m) that he may by his writ off>i otect'on privilege a defendant from all personal, and many real, suits for one year at a time, and no longer; in lespect of his being engaged in his service out of the realm n. And the king also by the common law might tale his debtor into his protection, so that no one might sue or anesthim till the king's debt were paid °: but by the statute 25 Edw. III. st. 5. c. 19, notwithstanding such protection, another creditor mav proceed to judgment against him, with a stay of execution, till the king's debt be paid; unless such creditor will undertake for the king's debt, and then he &hall have execution foi both ". And, lastly, by statute 29 Cai. II. c. 7, no arrest can be made, nor piocess seivedupon a Sunday, except for treason, felony, or breach of the peace16.

I Stc Vol IV 276 The verge of the palace of Westminster extends, by slat 28 Hen VIII c U, from Charmg-cross to Wes'mmstei-hall

m Sn Edward Coke informs us, (1 Inst 131) that herein " he could say nothing of his ow n experience, for albeit queen Elizabeth maintained many \\ ^irs, \ et ihe granted few or no protections, and her reason was, that he w as no fit subject to be employed in her service, that was subject to other men'<i actions , lest she might be thought to delay justice " But king William, in 1629, granted one to lord Cults, to protect him fiom being outlawed ti> his ts) lor, (3 Lev 332 ) which is the last that appears upon our books

n Finch L 454 SLev 332. oF N. B 23 Co Litt 131

14. Audi cw Ronald's case, in the court of appeals, Nov. 14,1787. Accordant. See also, 1 H. Blacks. 636, and 3 Anst. 941.

15. This branch of the royal preiogative was abolished at the resolution. C. V. Ait. 9.

1C. All process., (except in case of treason, felony, liot, breach of the peace, 01 escppe out of prison, or custody ; and except attachments against absconding debtors, actually removing out of the county, on a Sunday ;) executed on a Sunday, or upon any person attending his dul}, a,, a muslei, or election of a member of the geneial assembly, or of congicss, or of <in elector to vote for a piesident of tlie United

When the defendant is rcgulailv arrested, he must either go topiison, foi sale custody : 01 put in special bail to the sheriff17. For, the intent of the auest being only to compel an appearance in Louit at the icturn of the writ, that purpose is equally answered, whether the sheuft detains hib pcison, or takes sufficient secunty for his appeaiance, called bail (from the French woid, batller, to delivti) because the defendant is bailed, or dehveied, to his sureties, upon then giving secui ity for his appeal ance ; and is supposed to continue in their fi icndly custody instead of going to gaol. The method of putting in bail to the sheriff is by entering into a bond or obligation, with one or more sureties, (not fictitious persons, as in the former case of common bail, but real, substantial,.responsible bondsmen) to insure the defendant's appearance at the return of the writ; which obligation is called the bail-bond>18. The sheriff, if he pleases, may let the defendant go without any sureties ; but that is at his own peril: for, after once taking him, the sheriff is bound to keep him safely, so as to be forthcoming in court; otherwise an action lies against him for an escape19. But, on the other hand, he is obliged, by

p Appendix, No HI Sec 5

States; or attending as a witness, in any case where he shall have been legally summoned, shall be illegal and void. V. L. 1794, c. 80. §. 16. c. 78. §. 14.

17. The bail given at this stage of the suit, is generally called afifitarance-bail, in Vn ginia ; special-bail, \\ ith us, answei s to the hail above, or bail to the action, mentioned in the succeeding page. See V. L. 1794, c. 66. J. 26. c. 67. §. 20.

18. L. V. 1794, c. 66. }. 26. c. 67. §. 20. Accordant.

19. If the sheriff neglects to return bail, or a copy of the bail-bond, or if the bail i eturned by him be adjudged insufficient, b\ the court, and the defendant shall fail to appear, and give special bail, if ruled thereto, the shei iff thereby rendeis himself liable to the same judgment, as may be rendeied against the defendant himself, which is a more summary, and equally efficacious remedy, as that by action on the case, for an escape: on the other hand, the sheriff may defend the suit, although the defendant do not appear thereto, or be not pei mitted to appear \s ithoul special bail, and eithei neglects, 01 is unable to piocmc it. V. L. 1794, c. 66. §. 26, 27. c. 67". &. 20, 21.

statute 23 Hen. VI. c. 10, to take (if it be tendered) a sufficient bail-bond: and, by statute 12 Geo. I. c. 29, the sheriff shall take bail for no other sum than such as is sworn to by the plaintiff, and endorsed on the back of the writ20.

Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ.... This appearance is effected by putting in and justifying bail to the action ; which is commonly called putting in bail above "..,. If this be not done, and the bail that were taken by the sheriff below are responsible persons, the plaintiff may take an assignment from the sheriff of the bail-bond (under the statute 4 & S Ann. c. 16.) and bring an action thereupon against the sheriff's bail22. But if the bail, so accepted by the sheriff, be insolvent persons, the.plaintiff may proceed against the sheriff himself, by calling upon him, first, to return the writ (if not already done) and afterwards to bring in the body of the defendant. And, if the sheriff does not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff23.

The bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof; or else, in the country, before a commissioner appointed for that purpose by virtue of the statute 4 W. and M. c. 4, which must betransmit-

20. He is to take bail for the amount of the debt, which amount ought regularly to be endorsed upon the writ, but need not be sworn to. Ibid. c. 66. J. 25. c. 67. §. 19.

21. This answers to our special-bail, as was observed before.

22. A more summary remedy is given in Virginia, where the bail for the defendant's appeal-price are sufficient: for, if he fails to appear, or" shall not give special-bail, if ruled thereto by the court, the plaintiff may proceed against the bail, who are liable to the same judgment and recovery as the defendant himself; on the other hand the bail in this case may defend the suit, as the defendant himself might have done, if lie had appeared and given special bail. V. L. 1794, c. 66. §. 26.

23. And will be liable, as was before observed, to the same judgment ami recovery as the defendant himself. Ibid. §. 27.

ted to the courtS4. These bail, who must at least be two in number25, must enter into a recognizance 1 in court or before the judge or commissioner, in a sum equal (or in some cases double) to that which the plaintiff has sworn to ; whereby they do jointly and severally undertake, that if the defendant be condemned in the action he shall pay the costs and condemnation, or render himself a prisoner, or that they will pay it for him: which recognizance is transmitted to the court in a slip of parchment entitled a bail piecer 26. And if excepted to, the bail must be perfected, that is, they mast justify themselves in court, or before the commissioner in the country, by swearing themselves housekeepers, and each of them to be worth the full sum for which they are bail, after payment of all their debts27. This answers .in some measure to the stifulatio or satisdatio of the Roman laws', which is mutually given by each litigant party to the other: by the plaintiff, that he will prosecute his suit, and pay the costs if he loses his cause; in like manner as our law still requires nominal pledges of prosecution from the plaintiff: by the defendant, that he shall continue in court, and abide the sentence of the judge, much like our special bail; but with this

q Append. No. HI. Sec. 5. r Ibid. s Inst. 1.4. f.ll. Ff. 1.2. t. 8.

24. Any judge of the general court, or justice of the peace may take recognizances of special bail, which must be transmitted to the court. V. L. 1794, c. 76. J. 40.

25. It is not necessary that there should be two, if one sufficient person enter into the recognizance.

26. See the form thereof, as prescribed, V. L. 1794, c. 76. J. 40.

27. The plaintiff must object to the sufficiency of the bail, during the sitting of the court, next succeeding that to which the writ is returnable, or in the office on the first or second rule day, after the return of the writ, and not afterwards. V. L. 1794, c. 66. Sec. 27.

If a defendant who hath given bail to a suit in one district of the United States, be committed to jail in another district, the bail in the first suit may procure an order from the judge of the court where the suit is depending, for his detention in jail, and the bail may be discharged. L. U. S. 5 Cong. c. 138.

difference, that thcjidejussores were there absolutely bound judlcatum solver e, to see the costs and condemnation paid at all events: whereas our special bail may be discharged, by surrendering the defendant into custody, within the time allowed by law; for which purpose they arc at all times entitled to a warrant to apprehend him'28.

Special bail29 is required (as of course) only upon actions of debt, or actions on the case in trover or for money due, where the plaintiff can swear that the cause of action amounts to ten pounds : but in actions where the damages are precarious, being to be assessed ad libitum by a jury, as in actions for words, ejectment, or trespass, it is very seldom possible for a plaintiff to swear to the amount of his cause of action ; and therefore no special bail is taken thereon, unless by a judge's order, or the particular directions of the court, in some peculiar species of injuries, as in cases of mayhem or atrocious battery; or upon such special circumstances, as make it absolutely necessary that the defendant should be kept within the reach of justice30. Also in actions against heirs, executors and administrators, for debts of the deceased, special bail is not demandable; for the action is t 2 Show. 202. 6 Mod. 231.

28. Every special bail (but not the bail for the defendant's appearance) may surrender the principal before the court at any time before, or after the judgment, provided it be done, before the appearance day of the first scire facias against him, if returned executed ; or before the second, returned nihil; but in either of these cases the bail must pay the costs of the scire facias, for his neglect in not surrendering the defendant, until warned so to do, by the process of the court: or such surrender may be made to the sheriff of the county where the original writ was served: and thereupon the bail is discharged. But in the latter case he must give notice of the surrender to the creditor, or his attorney, or agent, which if he neglects, it seems that he thereby makes himself liable to the action of the creditor, if the defendant, for want of such notice to the plaintiff, who might thereupon charge him in execution, should obtain his discharge from prison. V. L. 1794, c. 66. Sec. 31. 1 Wash. Rep. 318.

29. That is, appearance bail.

30. See V. L. 1794, c. 66. Sec. 25. Accordant.

not so properly against them in person, as against the effects of the deceased in their possession. But special bail is required even of them, in actions for a devastavit, or wasting the goods of the deceased ; that wrong being of their own committing31.

Thus much (or process; which is only meant to bring the defendant into court, in order to contest the suit, and abide the determination of the law. When he appears either in person as a prisoner, or out upon bail, then follow the pleadings between the parties, which we shall consider at large in the next chapter32.

31. The laws of the several states, except where the constitution, treaties, or statutes of the United States shall otherwise direct, or require, shall be regarded as rules of decision in trials at common lav., in the courts of the United States in cases where they apply. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 34, and the forms of writs, executions, and other process, except their stile, and the form and modes of proceeding in suits at common law, shall be the same in each state respectivelyj as are used in the supreme courts of the same, subject to such alterations and additions, as the courts respectivly may in theii\discre tion deem expedient, or to such regulations as the supreme court of the United States shall think proper from time to time, by rule to prescribe to any circuit or district court. Ibid. c. 21. and 2 Cong. c. 36.

32. For a more connected view of the method of commencing and prosecuting suits at common law in Virginia, I must refer the student to the Appendix, note C.

CHAPTER THE TWENTIETH.

OF PLEADING.

PLEADINGS are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce, in court, and then minuted down by the chief clerks, or prothonotaries ; whence in our old law French the pleadings are frequently denominated the parol.

The first of these is the declaration, narratio or count, antiently called the tale a; in which the plaintiff sets forth his cause of complaint at length: being indeed only an amplification or exposition of the original writ upon which his action is founded, with the additional circumstances of time and place, when and where the injury was committed. But we may remember b, that in the king's bench, when the defendant is brought into court by bill of Middlesex, upon a supposed trespass, in order to give the court a jurisdiction, the plaintiff may declare in whatever action, or charge him with whatever injury he thinks proper; unless he has held him to bail by a special ac etiam, which the plaintiff is then bound to pursue. And so also, in order to have the benefit of a capias to secure the defendant's person, it was the antient practice and is therefore still warrantable in the common pleas, to sue out a writ of trespass qitare clausiim fregit, for

a Append. No. II. Sec. 2. No. III. Sec. 6.

b See p. 285,288.

breaking the plaintiff's close : and when the defendant is once brought in upon this writ, the plaintiff declares in whatever action the nature of his true injury may require; as in an action of covenant, or on the case for breach of contract, or other less forcible transgression c: unless, by holding the defendant to bail on a special ac etiarn, he has bound himself to declare accordingly.

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, &fc'. affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen'; but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases, and then the trial must be had in that county in which the declaration is laid. Though if the defendant will make affidavit, that the cause of action, if any, arose not in that but in another county, the court will direct a change of the venue or visne, (that is, the vicinia or neighbourhood in which the injury is declared to be done) and

c 2 Ventr. 259.

1. By this it appears that local actions must be laid (and from that circumstance, it would seem, they must, in this country, be brought, or commenced) within the local jurisdiction of that court, in Which they ought to be tried. Suppose then that an inhabitant residing within the jurisdiction of Richmond district court, should commit a. trespass on lands lying -within the jurisdiction of the Williamsburg district court, in what court must the party injured institute his action ? We must remember that no writ of cafiias ad respondendum shall be issued against any person, in any other district than that in which he resides, until a non cat invent us has been returned in his own district, upon a cafiias issued in the same suit. It would seem that neither court hath complete jurisdiction in this case ; for if the defendant be taken upon the cafiias issued against him in the district •where he resides, the jurisdiction of that court in a suit in which the title to lands lying in another district, may be contested, seems highly questionable; and on the other hand any writ issued in 'the district where the lands lie, unless a non est inventus be first returned in the district where the defendant resides, is void, and shall be dismissed at the first calling of it. V. L. 1794, c. 66. Sec. 24.

will oblige the plaintiff to declare in the other county ; unless he will undertake to give material evidence in the first*. For the statutes 6 Rich. II, c. 2, and 4 Hen. IV, c. 18, having ordered all writs to be laid in their proper counties, this, as the judges conceived, impowered them to change the venue, if required, and not to insist rigidly on abating the writ: which practice began in the reign of James the firstd 2. And this power is discretionally exercised, so as to prevent and not to cause a defect of justice. Therefore the court will not change the venue to any of the four northern counties, previous to the spring circuit ; because there the assises are holden only once a year, at the time of the summer circuit. And it will sometimes remove the venue from the proper jurisdiction, (especially of a narrow and limited kind) upon a suggestion, duly supported, that a fair and impartial trial cannot be had thereine.

It is generally usual in actions upon the case to set forth several cases, by different counts in the same declaration j so that if the pliantiff fails in the proof of one, he may succeed in another. As, in an action on the case upon an assumpsit for goods sold and delivered, the plaintiff usually counts or declares, first, upon a settled and agreed price between him and the defendant: as that they bargained for twenty pounds: and lest he should fail in the proof of this, he counts likewise upon a quantum valebant; that the defendant brought other goods, and agreed to pay him so much as they were reasonably worth; and then avers that they were worth other twenty pounds: and so on in three or four

d Rastell t. Dette. 184. b. Fitz. Abr. t. Sriefe. 18. Salk.670. Trye's Jus 1'elin. 231. Stjl.pract. Reg. (edit. 1657.) 331.

e Stra. 874. Mylock «. Saladine. frin. 4 Geo. III. B. JR.

* But if he fails to produce at the trial material evidence of the cause of action in the county, in which he has laid it, he must be non-suited, though he might have recovered a verdict in another county. 2 Bl. Sep. 1031. Christian.

2. How far the power which the general court possesses, of changing the -venue from one 'district to another, may remove the doubt suggested in the preceding note, must be left to that court to determine. See,V. L. 1794, c. 65. Sec. 6.

different shapes ; and at last concludes with declaring, that the defendant had refused to fulfil any of these agreements, whereby he is endamaged to such a value. And if he proves the case laid in any one of his counts, though he fails in the rest, he shall recover proportionable damages. This declaration always concludes with these words, " and thereupon he brings suit, fcfc." '* inde producit sectam, &fc." By which words, suit or secta (~a sequendo) were antiently understood the witnesses or followers of the plaintifff. For in former times the law would not put the defendant to the trouble of answering the charge, till the plaintiff had made out at least a probable case k. But the actual production of the suit, the secta, or followers, is now antiquated; and hath been totally disused, at least ever since the reign of Edward the third, though the form of it still continues.

At the end of the declaration are added also the plaintiff's common pledges of prosecution, John Doe and Richard Roe, which, as we before observed h, are now mere names of form ; though formerly they were of use £o answer to the king for the amercement of the plaintiff, in case he were nonsuited, barred of his action, or had a verdict or judgment against him'. For, if the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered; and he is said to be nonpros'd. And for thus deserting his complaint, after making a false claim or complaint (pro f also clamors suo) he shall not only pay costs to the defendant, but is liable to be amerced to the king3. A retraxit differs from a nonsuit, in that

f Seld, on Fortesc c. 21. • g Bract. 400. Flet. l 2. c. 6. h,See page 274. i 3 Bulstr. 275. 4 Inst. 189.

3. The plaintiff must file his declaration at the next rule day, after the defendant enters his appearance, or the defendant may then enter a rule for him to declare ; which if he fails to do, at the succeeding rule day, or at any time fails to prosecute his suit, he shall be nonsuited, and pay to the defendant, besides his costs, three dollars, if his residence exceed not twenty-five miles from the court, and where it is more, ten cents for every mile above twenty. L. V. 1794, c. 66, Sec. 35.

the one is negative, and the other positive: the nonsuit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a relraxit is an open and voluntary renunciation of his suit, in court, and by this he for ever loses his action. A discontinuance is somewhat similar to a nonsuit: for when aplaintiffleaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day, and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend; but the plaintiff must begin again, by suing out a new original, usually paying costs to his antagonist. Antiently, by the demise of the king, all suits depending in his courts were at once discontinued, and the plaintiff was obliged to renew the process, by suing out a fresh writ from the successor: the virtue of the former writ being totally gone, and the defendant no longer bound to attend in consequence thereof: butj to prevent the expense as well as delay attending this rule of law, the statute 1 Edw. VI, c. 7, enacts, that by the death of the king no action shall be discontinued; but all proceedings shall stand good as if the same king had been living.

When the plaintiff hath stated his case in the declaration, it is incumbent on the defendant within a reasonable time to make his defence, and to put in a flea; else the plaintiff will at once recover judgment by default or nihil dicit of the defendant4.

Defence, in it's true legal sense, signifies not a justification, protection, or guard, which is now it's popular signification; but

And here it may be proper to apprise the student, that rules are held monthly in the clerk's office of each court, beginning the day after the rising of the court, which, as has been more than once observed, is the appearance day, to all process executed since the last term ; and all rules, to declare, plead, reply, or rejoin, or for any other purpose, must be given regularly from month to month ; and be entered in a rule book kept by the clerk, and expire (if not enlarged, or continued) on the succeeding rule day. Ibid. J. 35, 37.

4. One month after the plaintiff hath filed his declaration, he may give a rule to plead, with the clerk, and if the defendant doth not plead accordingly, the plaintiff may enter judgment for his debt, or damages, and costs. Ibid. §. 36.

merely an opposing or denial (from the French verb defender} of the truth or validity of the complaint. It is the contestatio litis of the civilians: a general assertion that the plaintiff hath no ground of action, which assertion is afterwards extended and maintained in his plea. For it would be ridiculous to suppose that the defendant comes and defends (or, in the vulgar acceptation, justifies) the force and injury, in one line, and pleads that he is not guilty of the trespass complained of, in the next. And therefore in actions of dower, where the demandant doth not count of any injury done, but merely demands her endowment1, and in assises of land, where also there is no injury alledged, but merely a question of right stated for the determination of the recognitors or jury, the tenant makes no such defence'. In writs of entry01, where no injury is stated in the count, but merely the right of the demandant and the defective title of the tenant, the tenant comes and defends or denies fas right jus suttm; that is (as I understand it, though with a small grammatical inaccuracy) the right of the demandant, the only one expressly mentioned in the pleadings: or else denies his own right to be such, as is suggested by the count of the demandant. And in writs of right" the tenant always comes and defends the right of the demandant and his seisin, jus praedicti S. et seisinam ipsius0 (or else the seisin of his ancestor, upon which he counts, as the case may be) and the demandant may reply, that the tenant unjustly defends his, the demandant's right, and the seisin on which he counts p*. All which is extremely clear, if we understand by defence an opposition or denial, butj is otherwise inexplicably difficult 9.

The courts were formerly very nice and curious with respect to the nature of the defence, so that if no defence was made,

k Uastal. entr. 234. 1 Booth of real actions, 118. ni Vol. II. Append No. V. Sec. 2. n Append. No. I, Sec. 5. o Co. Entr. 182. p Nero. Narr. 230- edit. 1534. q Tl.e true reason of this, says Booth, (on Real Actions, 94, 112.) I could never > et find! so little did he understand of principles!

5. The form of pleading prescribed' in similiar cases, by our law, corresponds herewith. See V. L. 1794, c. 27. ,

though a sufficient plea was pleaded, the plaintiff should recover judgment1": and therefore the book entitled novae narrationes or the new talys", at the end of almost every count, narratio, or tale, subjoins such defence as is proper for the defendant to make. For a general defence or denial was not prudent in every situation, since thereby the propriety of the writ, the competency of the plaintiff, and the cognizance of the court, were allowed. By defending the force and injury the defendant waved all pleas of misnosmerc; by defending the damages, all exceptions to the person of the plaintiff: and by defending either one or the other when andiuhere it should behove him, he acknowledged the jurisdiction of the court". But of late years these niceties have been very deservedly discountenanced w; though they still seem to be law, if insisted on x.

Before defence made, if at all, cognizance of the suit must be claimed or demanded; when any person or body corporate hath the franchise, not only of holding pleas within a particular limited jurisdiction, but also of the cognizance of pleas: and that, either without any words exclusive of other courts, which entitles the lord of the franchise, whenever any suit that belongs to his jurisdiction is commenced in the courts at Westminster, to demand the cognizance thereof j or with such exclusive words which also entitle the defendant to plead to the jurisdiction of the court y. Upon this claim of cognizance, if allowed, all proceedings shall cease in the superior court, and the plaintiff is left at liberty to pursue his remedy in the special jurisdiction. As, when a scholar, or other privileged person of the universities of Oxford or Cambridge is impleaded in the courts at Westminster, for any cause of action whatsoever, unless upon a question of freehold *. In these cases, by the charter of those learned

r Co. Litt. 127. sfdit. 1534.

t Theloal.di3. l. 14. c. 1. page 357.

u jEn la defei.ce su it iij ctoses entendants: per taut ent'il defends tortict farce, home doyt entenclie qu'il se excuse de tort a tuji turtnys per counte, et fait se panic atp!et et per tant qu'il Jefende let damages, il affirm le parte able destre respondu; et par tant qu'il dcfeiue on et <juant ii ilever.a, il acccpte lapoiar de court de conustre ou trier lour pie (MM te,.eiu. cur. 408. eMt. 1534.) See also Co. Litt. 127.

w Salk.217. Loid Kaym.2(fc>. x Carth.230. Lord Raym. 117.

y 2 Lord Raym, fa'36. 10 Mod. 126. z See page 83.

bodies, confirmed by act of parliament, the chancellor, or vice-chancellor may put in a claim of cognizance ; which, if made in due time and form, and with due proof of the facts alledged, is regularly allowed by the courts a. It must be demanded before full defence is madeb or imparlance prayed; for these are a submission to the jurisdiction of the superior court, and the delay is a laches in the lord of the franchise : and it will not be allowed, if it occasions a failure of justicec, or if an action be brought against the person himself, who claims the franchise, unless he hath also a power in such case of making another judge d6.

After defence made, the defendant must put in his plea. But, before he defends, if the suit is commenced by capias or latitat, without any special original, he is entitled to demand one imparlancee, or licentia loquendi; and may, before he pleads, have more granted by consent of the court j to see if he

a Hardr. 505. b Rast. Entr. 128, tSfr. c 2 Ventr. .563.

d Hob. 87. Yearbook M. 8 Hen. VI- 20. In this latter case the chancellor of Oxford claimed cognizance of an action of trespass brought against himself; which was disallowed, because he should not be judge in his own cause. The argument used by serjeant Rolfe, on behalf of the cognizance, is curious and worth transcribing.... Jea nous dirai tin faille. En ascun temps fu'tt nnpape, et aiuitfait un grand ofence, et le cardinals vindrent a luy et disoyent a luy, "peccastii"et ildit, "judicatnc;" etilsdisq)eKt,"nonpossumus, quia caput et ecclesinc; judicateipium;" etl'apostoldit, "judicome cremari;" etfuitcomlmstus;etapret fuit un sainct. Et in eeo can ilfait sonjnge demene, et itsint n'est pas inconvenient que un borne soitjtige demene,

e Append. No. III. Sec. 6.

6. Civil suits commenced in a state court, if cognizable in the circuit courts of the United States, may be removed thither, if the defendant at the time of entering his appearance in the state court, shall file a petition for the removal, and offer sufficient security for his entering in the circuit court of the United States, on the first day of the next session, copies of the process against him, and also for his appearance and putting in special bail, if required, and thereupon the state court can proceed no further, and the bail for the defendants appearance are discharged, and the cause is to be proceeded in as if the suit had been originally brought in the federal court. L. U. S. 1 Cong. ISess. c. 20, §. 12.

can end the matter amicably without farther suit, by talking with the plaintiff: a practice, which isf supposed to have arisen from a principle of religion, in obedience to that precept of the gospel, " agree with thine adversary quickly, whilst thou art in the way with him s." And it may be observed that this gospel precept has a plain reference to the Roman law of the twelve tables, which expressly directed the plaintiff and defendant to make up the matter, while they were in the way, or going to the praetor... in via, rer.i utl pacunt orato r. There are also many other previous stepjis which may be taken by a defendant before he puts in his plea. He may, in real actions, demand a view of the thing in question, in order to ascertain it's identity aftd other circumstances8. He may crave oyer h of the writ, or of the bond, or other specialty upon which the action is brought; that is to hear it read to him; the generality of defendants in the times of antient simplicity being supposed incapable to read it themselves : whereupon the whole is entered verbatim upon the record, and the defendant may take advantage of any condition or other part of it, not stated in the plaintiff's declaration. In real actions also the tenant may pray in aid, or call for assistance of another, to help him to plead, because of the feebleness or imbecillity of his own estate. Thus a tenant for life may pray in aid of him that hath the inheritance in remainder or reversion ; and an incumbent may pray in aid of the patron and ordinary : that is, that they shall be joined in the action and help to defend the title. Voucher also is the calling in of some person to answer the action, that hath warranted the title to the tenant or defendant. This we still make use of in the form of common recoveries', which are grounded on a writ of entry ; a

fGUd. Hist. Com. PI. 35. h Appendix. No. III. Sec. 6.

g Matth. v. 25.

i Vol. II. Append. No. V. §. 2.

r T. Where the defendant appears on the first rule day, he seems entitled to an imparlance as of course; the plaintiff not being authorised to give a rule to plead, until one'month after he has filed his declaration. V. L. 1794, c. 66. Sec. 36.

8. All essoigns, views and vouchers in real actions are expressly taken away in Virginia. V. L. 1794, c. 76. Sec. 25.

species-of action that we may remember relies chiefly on the weakness of the tenant's title, who therefore vouches another person to warrant it. If the vouchee appears, he is made defendant instead of the vouchor: but, if he afterwards makes default, recovery shall be had against the original defendant; and he shall recover over an equivalent in value, against the deficient vouchee. In assises indeed, where the principal question is, whether the demandant or his ancestors were or were not in possession till the ouster happened, and the title of the tenant is little (if at all) discussed, there no voucher is allowed ; but the tenant may bring a writ of wdrrantia chartae against the warrantor, to compel him to assist him with a good plea or defence, or else to render damages and the value of the land, if recovered against the tenantk 9. In many real actions also', brought by or against an infant under the age of twenty-one years, and also in actions of debt brought against him, as heir to any deceased ancestor, either party may suggest the nonage of the infant, and pray that the proceedings may be deferred till his full age ; or (in our legal phrase) that the infant may have have his age, and that the parol may damur, that is, that the pleadings may be staid; and then they shall not proceed till his full age, unless it be apparent that he cannot be prejudiced thereby m 10. But, by the statutes of Westm. 1. 3 Edw. I, c. 46, and of Glocester 6 Edw. I, c. 2, in writs of entry sur disseisin in some particular cases, and in actions auncestrel brought by an infant, the parpl shall not demur : otherwise he might be deforced of his whole property, and even want a maintenance, till he came of age. So likewise in a writ of dower the heir shall not have his age; for it is necessary that the widow's claim be immediately determined, else she may want a present subsist-

kF.N. E. 13X in Finch. L. SCO.

1 Dyer. 137-

9. Vouchers are expressly taken away. \. L. 1794. c. 76. Sec. 25.

10. The fiarol shall not demur in any suit at law, or in equity, by reason of the infancy of any of the parties, but, the court ma) proceed to a final judgment, or decree in the cause. V. L. 1797, c. £8.

cnce n. Nor shall an infant patron have it in a quare iinpcdit °, since the law holds it necessary and expedient that the church be immediately filled.

When these proceedings are over, the defendant must then put in his excuse or plea. Pleas are of two sorts ; dilatory pleas, and pleas to the action. Dilatory pleas are such as tend merely to delay or put off the suit, by questioning the propriety of the remedy, rather than by denying the injury : pleas to the action are such as dispute the very cause of suit. The former cannot be pleaded after a general imparlance, which is an acknowledgment of the propriety of the action. For imparlances are either general, of which we have before spoken, and which are granted of course ; or special, with a saving of all exceptions to the writ or count, which may be granted by the prothonotary ; or they may be still more special, with a saving of all exceptions what, soever, which are granted at the discretion of the court p.

1. Dilatory pleas are, 1. To the jurisdiction of the court: alleging, that it ought not to hold plea of this injury, it arising in Wales or beyond sea ; or because the land in question is of antient demesne,~and ought only to be demanded in the lord's court, &?f u. 2. To the disability of the plaintiff, by reason whereof he is incapable to commence or continue the suit; as, that he is an alien qnemy, outlawed, excommunicated, attainted of treason or felony, under a praemunire, not in rerum natitra (being only a fictitious person,) an infant, a feme-covert, or a monk professed. 3. In abatement: which abatement is either of the writ or the count, for some defect in one of thtm l2 ; as by misnaming the defendant, which is called a misnosmer; giving him a wrong addition, as esquire instead of knight; or other

n 1 Roll. Abr. 137. p 12 Mod. i23

o Ibid. 138.

11. See page 294, note 1, and page 299, note 6.

12. Pleas in abatement must he verified by the oath, or affirmation of the party offering them. V. L. 1794, c. 66. Sec. 38.

want of form in any material respect *. Or, it may be, that the plaintiff is dead ; for the death of either party is at once an abatement of the suit13. And in actions merely personal, arising ex delicto, for wrongs actually done or committed by the defendant, as trespass u, battery, and slander, the rule is that actio person-

* All dilatory pleas are called pleas in abatement, in contradistinction to pleas in bar. By the 4 and 5 Ann. c. 16, and the practice of the courts, no plea in abatement can be received unless the defendant proves the truth of it by affidavit, 1 Cromp. 132. 3 Burr. 1618.

These pleas are not favoured by the courts, and they must be filed within four days after the da> upon which the declaration is delivered, both da} s being inclusive. 1 T. S. 277. 5 T. -ff. 210.

Where an action is brought against one or some only of a number of partners, if the defendant or defendants intend to take advantage of the partnership, it must be pleaded in abatement, or it is supposed to be \\ aived. And the plea in abatement must state who are the real partners 2 Bl. Mep. .47. If one of several part-owners of a chattel, as of a ship sue alone, ai.d although this appears by the declaration, for an injury done to the chattel, the defendant can only take advantage of this by a plea in abatement > ' but if there is no such plea, the plaintiff may recover damages for his shaie. 6 f. S. 766. And if another part-owner brings a similaraction, then the defendant cannot plead in abatement that the former part-owner is not joined in the action, for he has already obtained a compensation for the injury done to him. 7?: .ff. 279.

13. And herewith the law of the state agrees, provided there hath been no interlocutory judgment in the suit, before the death happened. But by the laws of the United States, where any suit is depending in the federal courts, and either of the parties dies before final judgment, the executor of such deceased party who was plaintiff, in case the cause of action survives, may carry on the suit, and the executor of the defendant, if he die, may in like manner defend it. And the court may award a scire facias to warn the executors in either case, to make themselves parties to the suit; which if they neglect, or refuse to do, judgment may be rendered against the estate of the deceased party. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 31.

14. Actions of trespass may be maintained by, or against executors for goods taken and carried away in the lifetime of the testator ; the maxim, that actio jiersinialis moritur cum fiersona may therefore be considered no longer to apply in such cases,. See V. L. 1794. c. 92. Sec. 58.

alls moritur cum persona i; and it never shall be revived either by or against the executors or other representatives. For neither the executors of the plaintiff have received, nor those of the defendant have committed, in their own personal capacity, any manner of wrong or injury. But in actions arising ex contractu, by breach of promise and the like, where the right descends to the representatives of the plaintiff, and those of the defendant have assets to answer the demand, though the suits shall abate by the death of the parties, yet they may be revived against or by the executorsr: being indeed rather actions against the property than the person, in which the executors have now the same interest that their testator had before 15.

These pleas to the jurisdiction, to the disability, or in abatement, were formerly very often used as mere dilatory pleas, without any foundation of truth, and calculated only for delay; but now by statute 4 and 5 Ann. c. 16, no dilatory plea is to be admitted, without affidavit made of the truth thereof, or some probable matter shewn to the court to induce them to believe it true16. And with respect to the pleas themselves, it is a rule, that no exception shall be admitted against a declaration or writ, unless the defendant will in the same plea give the plaintiff a better s; that is, shew him how it might be amended, that there may not be two objections upon the same account. Neither, by statute 8 and 9 W. III, c. 31, shall any plea in abatement be admitted in any suit for partition of lands ; nor shall the same be abated by reason of the death of any tenant17.

q 4 Inst. 315. s Brownl. 159.

r Match. 14.

15. Where cither party dies after an interlocutory judgment, anclbefore final judgment, the suit shall not abate, but the plaintiff, or his executors, as the case may be, may sue out a scire facias against the defendant, or his executors, to shew cause why damages should not be assessed, in such action. V. L. 1794, c. 76. Sec. 20.

16. V. L. 1794, c. 66. Sec. 38. Accordant. 1". V. L. J794, c, 24, Sec. 5. Accordant.

All pleas to the jurisdiction conclude to the cognizance of the court; praying " judgment, whether the court will have fttrther cognizance of the suit:" pleas to the disability conclude to the person; by praying "judgment, if the said A the plaintiff " ought to be answered:" and pleas in abatement (when the suit is by original) conclude to the writ or declaration ; by praying " judgment of the writ, or declaration, and that the same may be *' quashed," cassetur, made void, or abated: but if the action be by bill, the plea must pray "judgment of the bill," and not of the declaration; the bill being here the original, and the declaration only a copy of the bill.

When these dilatory pleas are allowed, the cause is either dismissed from that jurisdiction ; or the plaintiff is stayed till his disability be removed; or he is obliged to sue out a new writ, by leave obtained from the court'; or to amend and new frame his declaration. But when on the other hand they are overruled as frivolous, the defendant has judgment of respondeat ouster, or to answer over in some better manner. It is then incumbent on him to plead.

2. A plea to the action; that is, to answer to the merits of the complaint. This is done by confessing or den) ing it.

A confession of the whole complaint is not very usual, for then the defendant would probably end the matter sooner; or not plead at all, but suffer judgment to go by default. Yet sometimes after tender and refusal of a debt, if the creditor harasses his debtor with an action, it then becomes necessary for the defendant to acknowlege the debt, and plead the tender ; adding that he has always been ready, tout temps prist, and still is ready, uncore prist, to discharge it: for a tender by the debtor and refusal by the creditor will in all ceases discharge the costsv, but not the debt itself; though in some particular cases the creditor will totally lose his money u. But frequently the defendant confesses one part of the complaint, (by a cogno-

t Co. Entr. 271.

11 Litt. §. 338. Co. Litt. 209.

v 1 Vent. 21.

vit actionem in respect thereof) and traverses or denies the rest: in order to avoid, the expense of carrying that part to a formal trial, which he has no ground to litigate. A species of this sort of confession is the payment of money into courtuu: which is for the most part necessary upon pleading a tender, and is itself a kind of tender to the plaintiff; by paying into the hands of the proper officer of the court as much as the defendant acknowleges to be due, together with the costs hitherto incurred, in order to prevent the expense of any farther proceedings18. This may be done upon what is called a motion ; which is an occasional application to the court by the parties or their counsel, in order to obtain some rule or order of court, which becomes necessary in the progress of a cause; and it is usually grounded upon an affidavit, (the perfect tense of the verb ajpdo) being a voluntary oath before some judge orofficer of the court, to evince the truth of certain facts, upon which the motion is grounded: though no such affidavit is necessary for payment of money into court. If, after the money paid in, the plaintiff proceeds in his suit, it is at his own peril: for if he does not prove more due than is so paid into court, he shall be nonsuited and pay the defendant costs; but he shall still have the money so paid in, for that the defendant has acknowleged to be his due. In the French law the rule of practice is grounded upon principles somewhat similar to this ; for there, if a person be sued for more than he

uu Styl. Pract. Reg. (edit. 1657.) 201.2 Keb. 555. Salk. 596.

18. If before judgment the defendant shall bring into court the principal and interest due upon any bond upon which suit is brought, he shall be discharged, and judgment shall be entered for the costs only. But it hath been decided, that if he pay the money to the clerk, with~ out the intervention of the court, it is a mere personal trust, and the plaintiff is not thereby barred of his recovery against him. L. V. 1794, c. 76. J. 21, and Stuart t». Madison, 1 Call's Rep. 481.

And by the same act, Sec. 19. The defendant in an action of trespass quare clausumjreffit, may plead a disclaimer, and that the trespass was involuntary, or by negligence, with a tender of amends before action brought; whereupon the plaintiff shall join issue, and if it be found for the defendant the plaintiff shall be barred of his action.. But it seems that he can not plead a tender of amends alone, 1. Strange 549. 2. Espin. HOjPhila. Edi.

owes, yet he loses his cause if he doth not tender so much as he really does owe w. To this head may also be referred the practice of what is called a set-off; whereby the defendant acknowledges the justice of the plaintiff's'demand on the one hand ; but on the other, sets up a demand of his own, to counterbalance that of the plaintiff, either in the whole or in part: as, if the plaintiff sues for ten pounds due on a note of hand, the defendant may -set off nine pounds due to himself for merchandize bold to the plaintiff, and, in case he pleads such set-off, must pay the remaining balance into court. This answers very nearly to the compensation or stoppage, of the civil law x, and depends on the statutes 2 Geo. II. c. 22, and 8 Geo. II. c. 24, which enact, that, where there are mutual debts between the plaintiff and defendant, one debt may be set against the other, and either pleaded in bar, or given in evidence upon the general issue at the trial; which shall operate as payment, and extinguish so much of the plaintiff's demand19.

\

Pleas, that totally deny the cause of complaint, are either the general issue, or a special plea, in bar.

1. The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration j without offering any special matter, whereby to evade it. As in trespass

w Sp. L. b. 6. c. 4.

x Ff. 16. 2,1.

19. This statute was never in force in Virginia ; a practice, somewhat similar to that which it authorises, is not altogether uncommon in the courts of law in Virginia, even in suits upon bonds, founded, I presume, upon the act of 1748, c. 27. i). 6, which declares that when any suit shall be brought for any debt due by judgment, bond, bill, or otherwise, the defendant shall have liberty upon trial thereof to make all the discount he can against such debt, and'upon proof thereof the same shall be allowed by the court, Edi. 1769. Upon this act it has been decided, that a bond given by a person deceased, and assigned to one whp had given a bond to his administratrix, for goods of the deceased purchased of her, after giving such bond to the administratrix, was not admissible as a set off, against his bond to the administratrix, in a suit brought against him upon it. Brown's Admx. vs. Gai'land, 1 Wash. Rep. 221.

either vi et armis, or on the case, nan culpabilis, not guilty t ; in debt upon contract, nihildebet, he owes nothing; in debt on bond non estfactum, it is not his deed 20 ; on an assumpsit, non assumpsit, he made no such promise. Or in real actions, mil tort, no wrong done ; mil disseisin, no disscissin ; and in a writ of right, the raise or issue is, that the tenant has more right to hold than the demandant has to demand. These pleas are called the general issue, because, by importing an absolute and general denial of what is alleged in the declaration, they amount at once to an issue; by which we mean a fact affirmed on one side and denied on the other.

Formerly, the general issue was seldom pleaded, except when the party meant wholly to deny the jcharge alleged against him. But when he meant to distinguish away or palliate the charge, it was always usual to set forth the particular facts in what is called a special plea; which was originally intended to apprize the court and the adverse party of the nature and circumstances of the defence, and to keep the law and the fact distinct. And it is an invariable rule, that every defence, which cannot be thus specially pleaded, may be given in evidence, upon the general issue at the trial. But, the science of special pleading having been frequently perverted to the purposes of chicane and delay, the courts have, of late, in some instances, and the legislature in many more, permitted the general issue to be pleaded, which leaves every thing open, the fact, the law, and the equity of the case ; and have allowed special matter to be given in evidence at the trial. And, though it should seem as if much confusion and uncertainty would follow from so great a relaxation of the strictness antiently observed, yet experience has shewn it to bo otherwise; especially with the aid of a new trial, in case cither party be unfairly surprized by the other.

y Appendix, No. II, Sec. 4.

20. The plea of non at faction can not he admitted, in Virginia, unless it he verified by affidavit, or solemn affirmation, L. V. 1794, c. .66. §. 38, 39. The plea of payment is the most usual plea in actions of debt.

2. Special pleas, in bar of the plaintiff's demand, are very various, according to the circumstances of the defendant's case. As, in real actions, a general release or a fine, both of which may destroy and bar the plaintiff's title. Or, in personal actions, an accord, arbitration, conditions performed, nonage of the defendant, or some other fact which precludes the plaintiff fioin his action z. A justification is, likewise, a special plea in bar ; as in actions of assault and battery, son assault demesne, that it was the plaintiff's own original assault; in trespass, that the defendant did the thing complained of, in right of some office which warranted him so to do; or, in an action of slander, that the plaintiff is really as bad a man as the defendant said he was.

Also a man may plead the statutes of limitationa in bar; ,pr the time limited by certain acts of parliament, beyond which, no plaintiff can lay his cause of action. jThis, by the statute of 32 Hen. VIII, c. 2, in a writ of right is sixty years al: in assises, writs of entry, or other possessory actions real, of the seisin of one's ancestors, in lands: and either of their seisin, or •one's own, in rents, suits, and services; fifty years aa: and in actions real for lands grounded upon one's own seisin or possession, such possession must have been within thirty years33. By statute 1 Mar. st. 2, c. 5, this limitation does not extend to any suit for advowsons 24, upon reasons given in a former chapter b. But, by the statute 21 Jac. I, c. 2, a time of limitation was extended to the case of the king: viz. sixty years precedent to 19 Feb. 1623 c ; but, this becoming ineffectual by efflux

z Appendix, No. III, Sec. 6. b See page 250.

a See page 183, 196. c 3 Inst. 189.

21. Formerly the limitation in a writ of right was only thirty years. V. L. Edi. 1733,1710, c. 13 ; but the act of 1748, c. I.Edi. 1769, extended it to fifty years, which ib the present limitation. V. L. 1794, c. 76.

22. Forty years. V. L. 1794, c. 76.

23. V. L. 1794, c. 76. Accordant.

24. This statute is obsolete in Virginia; or if it ever was in force it was repealed in 1792. V. L. 1794, c. 14 T.

of time, the same date of limitation was fixed by statute 9 Geo. III, c. 16, to commence and be reckoned backwards, from the time of bringing any suit or other process, to recover the thing in question; so that a possession for sixty years is now a bar even against the prerogative, in derogation of the antient maxim " nullum tempus occurrit regi25." By another statute, 21 Jac. I, c. 16, twenty years is the time of limitation in any writ of formedon: and, by a consequence, twenty years is also the limitation in eveiy action of ejectment; for no ejectment can be brought, unless where the lessor of the plaintiff, is entitled to enter on the lands d, and by the statute 31 Jac. I, c. 16, no entry can be made by any man, unless within twenty years after his right shall accrue20. Also, all actions of trespass, (quare clausum fregitpr otherwise) detinue, trover, replevin, account, and case, (except upon accounts between merchants) debt on simple contract, or for arrears of rent, are limited by the statute last mentioned to six years after the cause of action commenced S7: and actions of assault, menace, battery, mayhem, and imprisonment, must be -brought within four years *8, and actions for words within two years, after the injury committed"». And by the statute 31 Eliz. c. 5, all suits, indictments, and informations, upon any penal statutes, where any forfeiture is to the crown, alone, shall be sued within two years,and where the forfeiture is to a subject, or to the crown and a subject, within one year, affer the offence committed j unless, where any other time is specially limited by the statute 30. Lastly, by statute 10 W.

d See page 203.

25. Thirty years is now a bar against the claim of the commonwealth in certain cases. V. L. 1797, c. 10.

26. L. V. 1748, c. 1. 1794, c. 76. Accordant.

27. Five years. L. V. 1794, c. 76.

28. Three years. Ibidem.

29. One year. Ibidem. Actions upon store accounts must also be sued v ithin one year; but in case of the creditor's death, one year more is allowed. Ibidem.

30. AH actions, suits, bills, indictments, or informations, upon any penal statute, must be sued, or exhibited within one year. V. L. 1794, c. 74. §. 34. Offences against the L. U. S. not capital, must be pro-

III, c. 14, no writ of error, scire facias, or other suit, shall be brought to reverse any judgment, fine, or recovery, for error, unless it be prosecuted within twenty years 3I. The use of these statutes of limitation is to preserve the peace of the kingdom, and to prevent those innumerable perjuries which might ensue, if a man were allowed to bring an action for any injury committed at any distance of time. Upon both these accounts the law, therefore, holds, that " interest reipublicae ut sit finis litium:" and, upon the same principle the Athenian laws in general prohibited all actions, where the injury was committed Jive years before the complaint was madee. If, therefore, in any suit, the injury, or cause of action, happened earlier than the period, expressly limitted by law, the defendant may plead the statutes of limitations in bar: as upon an assumpsit, or promibe to pay money to the plaintiff, the defendant may plead non assumpsit infra sex annos; he made no such promise within six years; which is an effectual bar to the complaint32.

e Pott. Ant. b. 1, c 21,

secuted within two years, unless the offender flies from justice. L. U. S. 1 Cong. 2 Sess. c. 9.

31. No writ of error, or, supersedeas, shall be granted to reverse any judgment after five years, from the rendition thereof. Saving to infants, &c. two years after their respective disabilities be removed. V. L. 1794, c. 66. §. 52.

Judgments may be revived by scire facias^ or an action of debt may be brought thereupon -within ten years after the date. But infants, 6cc. are allowed five years after their respecth e disabilities are removed. V. L. 1794, c. 76. §. 5.

But no action of debt, or scire facias ; grounded upon any judgment against a person deceased, shall be brought against an executoi, after five years from the time of his qualification, saving to infants, Isfc. the term of three years after their respective disabilities removed. V.L. 1794, c. 92. §.57.

^ These acts seem not to relate to any judgment obtained before the passing of them. Ibid. §. 47.

Writs of error must be sued cut within five years, in the federal courts ; saving to infants, &c. five years after their disabilities are removed, L. U. S. 1 Cong. 1 Sess. c. 20. J. 22.

32. The courts of justice ha\ ing been shut up during a considerable part of the revolutionary war, several periods between the twelfth day of April, 1774, and the twentieth day of October, 1783, were fiom time to time excepted out of the acts of limitation; the whole time amounts to five yeari>, and one hundred and severity -four days, bee V. L. 1794, c. 76. §. 11.

An estoppel is likV ise a special plea in bar: which happens where a man hash done some act, or executed some deed, which estops or peck Jcs him (torn averring any thing to the contrary. As if tenant lor years (w.io hath no freehold) levies a fine to another person. 1 hough this is void as to strangers, yet it shall work as an estop; cl to the cognizor ; for, if he afterwards brings an action to recover these lauds, and his fine is pleaded against him, he shall thereby be estopped from saying, that he had no freehold at the time, and therefore was incapable of levying it33.

The conditions and qualities of a plea (which, as well as the doctrine of estoppels, will also hold equally, mutatis mutandis, with regard to other parts of pleading) are, 1. That it be single and containing only one matter: for duplicity begets confusion. But by statute 4 fk 5 Ann. c. 16, a man with leave of the court may plead two or more distinct matters or single pleas ; as in an action of assault and battery, these three, not guilty, son assault demesne, and the statute of limitations34. 2. That it be direct and positive, and not argumentative. 3. That it have convenient certainty of time, place, and persons. 4. That it answer the plaintiff's allegations in every material point. S. That it be so pleaded as to be capable of trial.

Special pleas are usually in the affirmative, sometimes in the negative, but they always advance some new fact not men-

33. We may here suppose another case of an estoppel, whichthose young attornies, who contrary to law, have obtained licences to practice, as such, before the age of twenty-one years, may do well to consider. Suppose then such an attorney •were sued for an) neglect, or want of skill, whereby his cliantmay lose his suit; in this case, if the injured client were to bring his action to recover damages for such neglect, or misconduct, the attorney, I apprehend would be cstopjietl From pleading infancy in bar of the action, because the law prohibits an infant from being an attorney. See V. L. 1794, c. 71.

34. The plaintiff in replevin, and the defendant in all other actions may plead as many several matters, whether of law, or fact, as he shall think necessary for his defence. V.L. 1794, c. 66. Sec. 40.

tioned in the declaration ; and then they must be averred to be true in the common form:...."'and this he is ready to verify." ....This is not necessary in pleas of the general issue: those always containing a total denial of the facts before advanced by the other party, and therefore putting him upon the proof of them.

It is a rule in pleading, that no man be allowed to plead specially such a plea as amounts only to the general issue, or a total denial of the charge; but in such case he shall be driven to plead the general issue in terms, whereby the whole question is referred to a jury. But if the defendant, in an assise or action of trespass, be desirous to refer the validity of his title to the court rather than the jury, he may state his title specially, and at the same time give colour to the plaintiff, or suppose him to have aa appearance or colour of title, bad indeed in point of law, but of which the jury are not competent judges. As if his own true title be, that he claims by|feoffment with livery from A, by force of which he entered on the lands in question, he cannot plead this by itself, as it amounts to no more than the general issue, nul tort nul disseisin, in assise, or not guilty in an action of trespass. But he may allege this specially, provided he goes farther and says, that the plaintiff claiming by colour of a prior deed of feoffment, without livery, entered; upon whom he entered; and may then refer himself to the judgment of the court which of these two titles is the best in point of law f.

When the plea of the defendant is thus put in, if it does not amount to an issue or total contradiction of the declaration but only evades it, the plaintiff may plead again, and reply to the defendant's plea: either traversing it, that is, totally denying it: as if on an action of debt upon bond the defendant pleads solvit ad diem, that he paid the money when due, here the plaintiff in his replication may totally traverse this plea, by denying that the defendant paid it: or he may allege new matter in contradiction to the defendant's plea; as when the defendant pleads no award made, the plaintiff may reply, and set forth an actual award, and

f Dr. and Slud. 2. c. 53.

assign a breach * ; or the replication may confess and avoid the plea, by some new matter or distinction, consistent with the plaintiff's former declaration; as, in an action for trespassing upon land whereof the plaintiff is seised, if the defendant shews a title to the land by descent, and that therefore he had a right to enter and gives colour to the plaintiff, the plaintiff may either traverse and totally deny the fact of the descent; or he may confess and avoid it, by replying, that true it is that such descent happened, but that since the descent the defendant himself demised the lanus to the plaintiff for term of life. To the replication the defendant may rejoin, or put in an answer called a rejoinder..... The plaintiff may answer the rejoinder by a sur-rejoinder; upon which the defendant may rebut; and the plaintiff answer him by a sur-rebutter. Which pleas, replications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters answer to the exceptio, replicatio^ duplicatio, triplicatio, and quadruplicate of the Roman laws h.

The whole of this process is denominated the pleading: in the several stages of w^hich it must be carefully observed, not to depart or vary from l!he title or defence, which the party has once insisted on. Fof this (which is called & departure in pleading) might occasion endless altercation. Therefore the replication must support the declaration, and the rejoinder must support the plea, without departing out of it. As in the case of pleading no award made, in consequence of a bond of arbitration, to which the plaintiff replies, setting forth an actual award; now the defendant cannot rejoin that he hath performed this award, for such rejoinder would be an entire departure from his original plea, which alleged that no such award was made: therefore he has now no other choice, but to traverse the fact of the replication, or else to demur upon the law of it.

Yet in many actions the plaintiff who has alleged in his declaration a general wrong, may in his replication, after an evasive plea by the defendant, reduce that general wrong to a more particular certainty, by assigning the injury afresh with all it's

g Append. No. III. Sec. 6. h Inst. 4, 14. Bract. 1. 5. tr. 5. c. 1.

specific circumstances in such manner as clearly to ascertain and identify it, consistently with his general complaint; which is called a new or novel assignment. As, if the plaintiff in trespass declares on a breach of his close in D ; and the defendant pleads that the place where the injury is said to have happened is a certain close of pasture in D, which descended to him from B his father, and so is his own freehold; the plaintiff may reply and assign another close in D, specifying the abuttals and boundaries, as the real place of the injury '. -

It hath previously been observed k,that duplicity in pleading must he avoided. Every plea must he simple, entire, connected, and confined to one single point: it must never be entangled with a variety of distinct independent answers to the same matter; which must require as many different replies, and introduce a multitude of issues upon one and the same dispute. For this would often embarrass the jury, and sometimes the. court itself, and at all e,vents would greatly enhance the expence of the parties. Yet it frequently is expedient to plead in such a manner, as to avoid any implied admission of a fact, which cannot with propriety or safety be positively affirmed or denied. And this may be done by what is called a protestation; whereby the party interposes an oblique allegation or denial of some fact, protesting by the gerund, protestando} that such a matter does or does not exist; and at '•the .same time avoiding a direct affirmation or denial. Sir Edward Coke hath defined * a protestation (in the pithy dialect of that age) to be " an exclusion of a conclusion." For the use of it is, to save the party from being concluded with respect to some fact or circumstance, which cannot be directly affirmed or denied without falling into duplicity of pleading ; and which yet, if he did not thus enter in his protest, he might be deemed to have tacitly waived or admitted. Thus, while tenure in villenage subsisted, if a villein had brought an action against his lord, and the lord was inclined to try the merits of the demand, and at the same time to prevent any conclusion against himself that he had waived his signiory; he could not in this case both plead

i Bro. Abr. t. trespass. 205, 284. k Pag. 308. 1 1 Inst. 124.

affirmatively that the plaintiff was his villein, and also take issue upon the demand; for then his plea would have been double, as the former alone would have been a good bar to the action: but he might have alleged the villenage of the plaintiff, by way of protestation, and then have denied the demand. By this means the future vasselage of the plaintiff was saved to the defendant, in case the issue was found in his (the defendant's) favour m : for the protestation prevented that conclusion, which would otherwise have resulted from the rest of his defence, that he had enfranchised the plaintiff" ; since no villein could maintain a civil action against his lord. So also if a defendant, by way of inducement to the point of his defence, alleges (among other matters) a particular mode of seisin or tenure, which the plaintiff is unwilling to admit, and yet desires to take issue on the principal point of the defence, he must deny the seisin or tenure by way of protestation, and then traverse the defensive '.matter. So lastly, if an award be set forth by the plaintiff, and he can assign a breach in one part of it, (viz, the non-payment of a sum of money) and yet is afraid to admit the performance of the rest of the award, or to aver in general a non-performance of any part of it, lest something should appear to have been performed ; he may save to himself any advantage he might hereafter make of the general non-performance, by alleging that by protestation ; and plead only the non-payment of the money °.

In any stage of the pleadings, when either side advances or affirms any new matter, he usually (as was said) avers it to be true ; " and this he is ready to verify." On the other hand, when either side traverses or denies the facts pleaded by his antagonist, he usually tenders an issue, as it is called; the language of which is different according to the party by whom the issue is tendered ; for if the traverse or denial comes from the defendant, the issue is tendered in this manner, " and of this he u puts himself upon the country," thereby submitting himself to the judgment of his peers f ; but if the traverse lies upon the plaintiff, he tenders the issue or prays the judgment of the peers against the defendant in another form ; thus, " and this he prays may be inquired of by the country."

m Co. Litt. 126. n See book II. ch. 6. pag. 94.

o Append No. HI. Sec. 6 p Append. No. II. Sec. 4,

But if either side (as, for instance, the defendant) pleads a special negative plea, not traversing or denying any thing that was before alleged, but disclosing some new negative matter; as where the suit is on abond, conditioned to perform an award, and the defendant pleads, negatively, that no award was made, he tenders no issue upon this plea ; because it doe's not yet appear whether the fact will be disputed, the plaintiff not having yet asserted the existence of any award ; but when the plaintiff replies, and sets forth an actual specific award, if then the de-> fendant traverses the replication, and denies the making of any such award, he then, and not before, tenders an issue to the plaintiff. For when in the course of pleading they come to a point which is affirmed on one side, and denied on the other, they are then said to be at issue ; all their debates being at last contracted into a single point, which must now be determined either in favour of the plaintiff or of the defendant3S.

*35. Rules shall be held monthly in the clerk's office of each district court, beginning the day after the rising .of the court. V. L. 1794, c. 66. Sec. 35. But the rule days, in the county courts are to be held monthly, on such days as the courts, at their respective quarter sessions shall appoint. Ib. c. 67. Sec. 27. The plaintiff must file his declaration at the next rule day after the defendant enters his appearance ; or the defendant may then enter a rule for the plaintiff to declare, which if he fails to do, at the next rule day ; or at any time fails to prosecute his suit, he may be non-suited....One month after the plaintiff hath filed his declaration, he may give the defendant a rulo to plead, and if he'doth not plead accordingly at the expiration of the rule, the plaintiff,may enter judgment for his debt, or damages, and costs. All rules to declare, plead, reply, rejoin or for other proceedings must be given regularly from month to month ; be entered in a book kept for that purpose by the clerk, and expire atjthe succeeding rule day. L. V. 1794, c. 66. Sec. 35, 36, 37. Ib. c. 67. Sec. 27, 28.

For a more connected view of the usual method of proceeding at thi sstage of the cause, in the courts of common law in 'Virginia, see appendix, Note 1).

CHAPTER THE TWENTY-FIRST.

OF ISSUE AND DEMURRER.

ISSUE exitus, being the end of all the pleadings, is the fourth part or stage of an action, and is either upon matter of law, or matter of fact.

An issue upon matter of law is called a demurrer: and it confesses the facts to be true, as stated by the opposite party; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse ; according to the party which first demurs, demoratur, rests or abides upon the point in question. As, if the matter of the plaintiff's complaint or declaration be insufficient in law, as by not assigning any sufficient trespass, then the defendant demurs to the declaration ; if on the other hand the defendant's excuse or plea be invalid, as if he pleads that he committed the trespass by authority from a stranger, without making out the stranger's right; here the plaintiff may demur in law to the plea: and so on in every other part of the proceedings, where either side perceives any material objection in point of law, upon which he may rest his case.

The form of such demurrer is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or the defence ; and therefore praying judgment for want of sufficient matter alleged a. Sometimes demurrers are merely for want of sufficient form in the writ or declaration. But in case of exceptions to the form, or manner

a Append. No. III. Sec. 6.

of pleading, the party demurring must by statute 27 Eliz. c. 5, and 4 and 5 Ann. c. 16, set forth the causes of his demurrer, or wherein he apprehends the deficiency to consistl. And upon either a general, or such a special demurrer, the opposite party must aver it to be sufficient, which is called a joinder in demurrer b, and then the parties are at issue in point of law. Which issue in law, or demurrer, the judges of the court before,which the action is brought must determine.

An issue of fact is, where the fact only, and not the law, is disputed. And when he that denies or traverses the fact pleaded by his antagonist has tendered the issue, thus, " and this he prays may be inquired of by the country,'' or, " and of this he puts himself upon the county," it may immediately be subjoined by the other party, " and the said A. B . doth the like.'' Which done, the issue is said to be joined, both parties having agreed to rest the fate of the cause upon the truth of the fact in questionc. And this issue, of fact, must, generally speaking, be determined, not by the judges of the court, but by some other method; the principal of which methods is that by the country, per pats, (in Latin, per patrianf) that is, by jury. Which establishment, of different tribunals for determining these different issues, is in some measure agreeable to the course of justice in the Roman republic, where thejudices ordinarii determined only questions of fact, but questions of law were referred to the decisions of the centumvirid.

But here it will be proper to observe, that during the whole of these proceedings, from the time of the defendant's appearance in obedience to the kings writ, it is necessary that both the parties be kept or continued in court from day to day, till the final determination of the suit. For the court can determine nothing, unless in the presence of both the parties, in person, or by their attorneys, or upon default of one of them, after his original appearance and a time prefixed for his appearance in court

b Append. No. III, Sec. 6. c Append. No. II, Sec. 4. d Cic. tie Orator. 1. 1. c. 38.

a. L. V. 1794, c. 76. Sec. 27. Accordant.

again *. Therefore, in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the times allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit^ or not to follow and pursue his complaint, and shall loose the benefit of his writ: or, if the negligence be on the side of the defendant, judgment may be had against him, for such his default.

2. The term default seems in this passage to be confined to the case of a party failing to appear, after his original appearance : but with us, it seems not to be so strictly construed; for whenever a defendant hath been duly served with process, if he fails* or neglects to appear, he is said to make default.

In the case of Harfield vs. Parish, in New Kent county court, the defendant afifteared, and pleaded to issue; but failing' to appear on the day when the suit came on for trial, the court gave judgment against him for his default; or in the technical phrase, entered judgment against him by default. The cause came up to the general court, upon an appeal; and five judges out of six then present, were of opinion that the court erred in giving judgment by default, because the defendant had appeared, and there was an issue joined between the parties; which issue they considered could not be got rid of any otherwise than by a trial, although in the absence of the defendant. The sixth was pf opinion, that the court did right in rendering judgment by default, and that, without a writ of enquiry, because the amount of the debt was certain. He cited this passage of the commentaries to shew, that whenever either party fails to appear according to the continuance, judgment must be rendered against him by default; and further to shew, that although there was an issue joined between the parties, jet that issue-could not be tried in the absence of either party. That the defendant's default, amounted to a waver of his plea, and was consequently a tacit confession of judgment, as is the case when an attorney after issue joined suffers his plea to be withdrawn, and judgment is entered by non sum informants. That the giving judgment of nonsuit against the plaintiff, after issue joined, was a parallel case to the judgment by default against the defendant. He referred also to 1 Salk. 216. Shower 65. Mod. Cases 8. Co. Litt. 259. Cro. Jac. 36, 357. SSalk. 213. 2. Ld. Raym. 924, 925. 1. Strange 46. 3B1. Com. 296, 395. In the general court, June term, 1789. Note; in that case the appellant did not prosecute his appeal; the counsel for the appellee perceiving the opinion of the court was against him upon the point of law, moved to ha\ e the appellant called, and ujJon his failing to appear, the court dismissed the appeal: so that no decision of the question here stated appears by the record. '

And, after issue or demurrer joined, as well as in some of the previous stages of proceeding, a day is continually given and entered upon the record, for the parties to appear on from time to time, as the exigence of the case may require. The giving of this day, is called the continuance, because thereby the proceedings are continued without interruption from one adjournment to another. If these continuances are omitted, the cause is thereby discontinued, and the defendant is discharged sine die, without a day, for this turn: for by his appearance in court he has obeyed the command of the king's writ; and, unless he be adjourned over to a day certain, he is no longer bound to attend upon that summons; but he must be warned afresh, and the

whole must begin de novo.

i

Now it may sometimes happen, that after the defendant has pleaded, nay, even after issue or demurrer joined, there may have arisen some new matter, which it is proper for the defendant to plead; as, that the plaintiff, being a feme-sole^ is since married, ok that she has given the defendant a release, and the like: here, if the defendant takes advantage of this new matter, as early as he possibly can, viz. at the day given for his next appearance, he is permitted to plead it in what is called a plea, puis darre'm continuance, or since the last adjournment For it would be unjust to exclude him from the benefit of this new defence, which it was not in his power to make when he pleaded the former. But it is dangerous to rely on such a plea, without due consideration; for U confesses the matter which was before a dispute between the parties e. And it is not allowed to be put in, if any continuance has intervened between the arising of this fresh matter and the pleading of it: for then the defendant is guilty of neglect, or laches, and is supposed to rely on the merits of his former plea. Also it is not allowed after a demurrer is determined, or verdict given; because then relief may be had in another way, namely by writ of audita querela, of which hereafter. And these pleas puts darrein continuance, when brought to a demurrer in law or issue of fact, shall be determined in like manner as other pleas.

c Cro. Eliz. 49.

We have said, that demurrers, or questions concerning the sufficiency of the matfers alleged in the pleadings, are to be determined by the judges of the court, upon solemn argument by counsel on both sides ; and to that end a demurrer book is made up, containing all the proceedings at length, which are afterwards entered on record; and copies thereof, called paper-books^ are delivered to the judges to peruse. The record1, is a history of the most material proceedings in the cause, entered on a parchment roll, and continued down to the present time; in which must be stated the original writ and summons, all the pleadings, the declaration, view or oyer prayed, the imparlances, plea, replication, rejoinder, continuances, and whatever farther proceedings have been had: all entered verbatim on the roll, and also the issue or demurrer, and joinder therein.

These were formerly all written, as indeed all public proceedings were, in Norman or law French, and even the arguments of the counsel and decisions of the court, were in the same barbarous dialect. An evident and shameful badge, it must be owned of tyranny and foreign servitude; being introduced under the auspices of William the Norman, and his sons: whereby the ironical observations of the Roman satyrist, came to be literally verified, that "Gallia causidicos docuit facunda Britannos*."' This continued till the reign of Edward III; who, having employed his arms successfully in subduing the crown of France, thought it unbeseeming the dignity of the victors to use any longer the language of a vanquished country. By a statute, therefore passed in the thirty-sixth year of his reignh, it was enacted, that for the future all pleas should be pleaded, shewn, defended, answered, debated, and judged in the English tongue j but be entered and enrolled in Latin. In like manner as don Alonso X, king of Castile, (the great-grandfather of our Edw. III,) obliged his subjects to use the Castilian tongue in all legal proceedings': and as, in 1286, the German language was established in the courts of the empire k. And, perhaps, if our legislature had then directed that the writs themselves, which are

f Append. No. H. Sec. 4. No. III, Sec 6.

gyuv.xvsin. h c. 15.

i Mod. Un. Hist. xx. 211. k Ibid. xxbt. 235.

mandates from the king to his subjects to perform certain acts or to appear at certain places, should have been framed in the English language, according to the rule of our antient tow >, it had not been very improper. But the record or enrollment of those writs, and the proceedings thereon, which was calculated for the benefit of posterity, was more serviceable (because more durable) in a dead and immutable language than in any flax or li\ ing one. The prattisers, however, being used to the Normaa language, and, therefore, imagining they could express their thoughts more aptly andmore concisely in than that in any other, still continued to take their notes in law French: and of course when those notes came to be published, under the denomination of reports, hey were printed in that barbarous dialect; which, joined to tl': additional terrors of a Gothic black letter, has occasioned r. my a student to throw away his Plowden and Littleton, without venturing to attack a page of them. And yet, in reality, upon a nearer acquaintance, they would have found nothing very formidable in the language; which differs in it's grammar and orthography as much from the modern French, as the diction of Chaucer and Gower does t'rom that of Addison • and Pope. Besides, as the English and Norman languages were concurrently used by our ancestors for several centuries together, the two idioms have naturally assimilated, and mutually borrowed from each other: for which reason the grammatical construction of each is so very much the same, tluit I apprehend an Englishman(with a week's preparation) would understand the laws of Normandy, collected in their grand'coustumier, as well if not better than a Frenchman, bred within the walls of Paris.

The Latin which succeeded the French for the entry and enrollment of pleas, and which continued in use for four centuries, answers so nearly to the English (oftentimes word for word) that it is not at all surprising it should generally be imagined to he totally fabricated at home, with little more art or trouble than by adding Roman terminations to English words. Whereas in reality it is a very universal dialect, spread throughout all Eu-

IMirr.c 1, Sec 3

rope at the irruption of the northern nations, and particularly accommodated and moulded to answer all the purposes of the lawyers with a peculiar exactness and precision. This is principally owing to the simplicity, or (if the reader pleases) the poverty and baldness of it's texture, calculated to express the ideas of mankind just as they arise in the human mind, without any rhetorical flourishes, or perplexed ornaments of stile: for it may be observed, that those laws and ordinances, of public as well as private communities, are generally the most easily understood, where strength and perspicuity, not harmony or elegance of expression, have been principally consulted in compiling them. These northern nations, or rather their legislators, though they resolved to make use of the Latin tongue in promulging their laws, as being more durable and more generally known to their conquered subjects than their own Teutonic dialects, yet (either through choice or necessity) have frequently intermixed therein some words of a Gothic original; which is, more or less, the case in every country of Europe, and therefore not to be imputed as any peculiar blemish in our English legal latinity m..... The truth is, what is generally denominated law-latin, is in reality a mere technical language, calculated for eternal duration, and easy to be apprehended both in present and future times; and on those accounts best suited to preserve those memorials which are intended for perpetual rules of action. The rude pyramids of Egypt have endured from the earliest ages, while the more modern and more elegant structures of Attica, Rome, and Palmyra have sunk beneath the stroke of time.

As to the objection of locking up the law in a strange and unknown tongue, this is of little weight with regard to records, which few have occasion to read but such as do, or ought to, understand the rudiments of Latin. And besides it may be observed of the law-latin, as the very ingenious sir John Davis n

, m The following sentence,'' si quit ad battalia carte tua exierit, if any one « goes out of his own court to fight," {JV. may raise a smile in the student as a .flaming modern anglicism; but he may meet with it, among others of the same stamp, in the laws of the Burgundians on the continent, before the end of the fifth century. (Add. 1. c. 5. Sec. 2.)

n Pref. Rep.

observes of the law-french," that it is so very easy to be learned that the meanest wit that eVer came to the study of the law

doth come to understand it almost perfectly in ten days without a reader."

It is true indeed that the many terms'of art, with which the law abounds, are sufficiently harsh when latinized, (yet not more so than those of other sciences) and may, as Mr. Selden observes °, give offence " to some grammarians of squeamish stomachs, " who would rather chuse to live in ignorance of things the most " useful and important, than to have their delicate ears wounded u by the use of a word unknown to Cicero, Sallust, or the other

*' writers of the Augustan age.'' Yet this is no more than must unavoidably happen when things of modern use, of which the Romans had no idea, and consequently no phrases to express them, come to be delivered in the Latin tongue. It would puzzle the most classical scholar to find an appellation, in his pure latinity, for a constable, a record, or, a deed of feoffment: it is therefore to be imputed, as much to necessity, as ignorance, that they were stiled in our forensic d\a\cclconstabularhis, recordum^ and feqffamentum. Thus again, another uncouth word of our antient laws (for I defend not the ridiculous barbarisms sometimes introduced by the ignorance of modern practisers) the substantive murdrum, or the verb murdrare, however harsh and unclassical it may seem, was necessarily framed to express a particular offence ; since no other word in being, occidere, interficere, necare, or the like, was sufficient to express the intention of the criminal, or quo animo the act was perpetrated; and therefore by no means came up to the notion of murder at present entertained by our law j viz. a killing with malpe aforethought.

A similar necessity to this produced a similar effect at Byzantium, when the Roman laws -were turned into Greek for the use of the oriental empire; for, without any regard to Attic elegance, the lawyers of the imperial courts made no scruple to translate Jidei commissaries, fideikommissariouV p ; cubiculum, *aCWAwon i; JHium-faniiliasi ««<&*-p«{**<«*r; refiudiwn, ftiralaa •; com-

o Pref. ad Eadmer". p tfov. 1. c. 1. q 2fav. 8. edict. Conttantinop. r Nov. 117. o. 1. s Ibid. c. 8.

promissum Ko^w^w/xKra-o**, revercntia et obsequlum, fnn(nn»>uu o£«xow(mu, and the like. They studied more the exact and precise import of the words, than the neatness and delicacy of their cadence. And my academical readers will excuse me for suggesting that the terms of the law are not more numerous, more uncouth, or more difficult to be explained by a teacher, than those of logic, physics, and the whole circle of Aristotle's philosophy, nay, even of the politer arts of architecture, and it's kindred studies, or the science of rhetoric^itself. Sir Thomas More's famous legal question w contains in it nothing more difficult, than the definition which in his time the philosopher's currently gave of their materia prima, the groundwork of all natural knowlege: that it is "neque quid, neque quantum, neque quale, neque aliquid eorum quibus ens determinatur;'' or it's subsequent explanation by Adrian Heereboord, who assures us x that " materia prima non est corpus, neque per formam corporeitatis, neque per simplicem essentiam: est tamen ens, et quidem substantia, licet incompleta; habetque actum ex se entitativum, et simul est potentia subjeC' tiva." The law therefore, with regard to it's technical phrases, stands upon the same footing with other studies, and requests only the same indulgence.

The technical Latin continued in use from the time of it's first introduction, till the subversion of our antient constitution under Cromwell; when among many other innovations in the law, some for the better and some for the worse, the language of our records was altered and turned into English. But at the restoration of king Charles, this novelty was no longer countenanced ; the practisers finding it very difficult to express themselves sp concisely or significantly in any other language but the Latin. And thus it continued without any sensible inconvenience till about the year 1730, when it was again thought proper that the proceedings at law should be done into English, and it was accordingly so ordered by statute 4 Geo. II, c. 26. This provision was made, according to the preamble of the statute, that the common people might have knowlege and understanding of what was alleged or done for and against them in the pro-

t Nov. 82. c. H. w Seep. 149.

« Nov. 78. e. 2.

x Pbilosopb. Nattiralc. \. Sec. 38.fcrc.

cess and pleadings, the judgment and entries in a cause. Which purpose has, I fear not been answered; being apt to suspect that the people are now, after many year's experience, altogether as ignorant in matters of la w as before. On the other hand, these inconveniences have already arisen from the alteration; that now many clerks and attorneys are hardly able to read, much less to understand, a record even of so modern a date as the reign of George the first. And it has much enhanced the expence of all legal proceedings: for since the practisers are confined (for the sake of the stamp duties, which are thereby considerably increased) to write only a stated number of words in a sheet; and as the English language, through the multitude of it's particles, is much more verbose than the Latin ; it follows that the number of sheets must be very much augmented by the change f, The translation also of technical phrases, and the names of writs and other process, were found to be so very ridiculous (a writ of nisi prius, quare impedit,jieri facias, habeas corpus, and the rest, not being capable of an English dress with any degree of seriousness) that in two year's time it was found necessary to make anew act, 6 Geo. II, c. 34, which allows all technical words to continue in the usual language, and has thereby almost defeated every beneficial purpose of the former statute.

What is said of the alteration of language by the statute 4 Geo. II, c. 26, will hold equally strong with respect to the prohibition of using the antient immutable court hand in writing the records or other legal proceedings; whereby the reading of any record that is fifty year's old is now become the object of science, and calls for the help of an antiquarian. But that branch of it, which forbids the use of abreviations, seems to be of more solid advantage, in delivering such proceedings from obscurity: according to the precept of Justinian z; "ne per scripturam allqua fat in posterum dubltatio, jubemus non per siglorum captiones et compendicaa, enigmata ejusdem codicis textum conscribt, sedperliterarumconsequentiamcxplanari concedimus" But,to return to our demurrur.

y For instance, these three words, " secimtlum, formam, ttatuti" are now converted into seven, " according; to the form of the statute." z De Concept. Digest. Sec. 13.

When the substance of the record is completed, and copies are delivered to the judges, the matter of law upon which the demurrur is grounded is upon solemn argument determined by the court, and not by any trial by jury; and judgment is thereupon accordingly given. As, in an action of trespass, if the defendant in his plea confesses the fact, but justifies it causa venationis, for that he was hunting; and to this the plaintiff demurs, that is, he admits the truth of the plea, but denies the justification to be legal: now, on arguing this demurrur, if the court be of opinion, that a man may not justify trespass in hunting, they will give judgment for the plaintiff; if they think that he may, then judgment is given for the defendant. Thus is an issue in law, or demurrer, disposed of.

An issue of fact takes up more form and preparation to settle it; for here the truth of the matters alleged must be solemnly examined and established by proper evidence in the channel prescribed by law. To which examination, of facts, the name of trial is usually confined, which will be treated of at large in the two succeeding chapters 3.

3. Before every district court the clerk shall enter in a particular docket all such causes (and those only) in which an issue is to be held, or an enquiry of damages to be made, or a special verdict, case agreed, demurrer, or other matter of law is to be argued, in the same order, as they stand in the course of proceeding, setting as near as may be an equal number to each day. V. L. 1794, c. 66. Sec. 43. The same course is likewise to be observed in the county courts. Ibid. c. 67. Sec. 31.

CHAPTER THE TWETNY-SECOND.'

OF THE SEVERAL SPECIES OF TRIAL.

THE uncertainty of legal proceedings is a notion so generally adopted, and has so long been the standing theme of wit and good humour, that he who should attempt to refute it would be looked upon as a man, who was either incapable of discernment himself, or else meant to impose upon others. Yet it may not be amiss, 'before we enter upon the several modes whereby certainty is meant to be obtained in our courts of justice, to inquire a little wherein this uncertainty, so frequently complained of, consists ; and to what causes it owes it's original.

It hath sometimes been said to owe it's original to the number of our municipal constitutions, and the multitude of our judicial decisions» ; which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. The fact, of multiplicity, is allowed ; and that thereby the researches of the student are rendered more difficult and laborious : but that, with proper industry, the result of those inquiries will be doubt and indecision, is a consequence that cannot be admitted. People are apt to be angry at the want of simplicity in our laws : they mistake variety for confusion, and

a Seethe preface to sir John Davies's Reports; whetein many of the following topics are discussed more at large.

complicated cases for contradictory. They bring us the examples of arbitrary governments, of Denmark, Muscovy, and Prussia j of wild and uncultivated nations, the savages of Africa and America ; or of narrow domestic republics, in antient Greece and modern Switzerland; and unreasonably require the same paucity of laws, the same conciseness of practice, in a nation of freemen, a polite and commercial people, and a populous extent of territory.

In an arbitrary, despotic government, where the lands are at the disposal of the prince, the rules of succession, or the mode of enjoyment, must depend upon his will and pleasure. Hence there can be but few legal determinations relating to the property, the descent, or the conveyance of real estates; and the same holds in a stronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyrannical sway, trade must be continually in jeopardy, and of consequence can never be extensive : this therefore puts an end to the necessity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial differences. Marriages are there usually contracted with slaves; or at least women are treated as such : no laws can be "therefore expected to regulate the rights of dower, jointures, and marriage settlements. Few also are the persons who can claim the privileges of any laws; the bulk of those nations, viz. the commonalty, boors, or peasants, being merely villeins and bondmen. Tho,se are therefore left to the private coercion of their lords, are esteemed (in the contemplation of these boasted legislators) incapable of either right or injury, and of consequence are entitled to no redress. We may see, in these arbitrary states, how large a field of legal contests is already rooted up and destroyed.

Again; were we a poor and naked people, as the savages of America are, strangers to science, to commerce, and the arts as well of convenience as of luxury, we might perhaps be content, as some of them are said' to be, to refer all disputes to the next man we meet upon the road, and so put a short end to every controversy. For in a state of nature there is no room for municipal laws; and the nearer any nation approaches to that state,

the fewer they will have occasion for. When the people of Rome were little better than sturdy shepherds or herdsmen, all their laws were contained in ten or twelve tables: but as luxury, politeness, and dominion increased, the civil law increased in the same prpportion; and swelled to that amazing bulk which it now occupies, though successively pruned and retrenched by the emperors Theodosius and Justinian.

In like manner we may lastly observe, that, in petty states and narrow territories, much fewer laws will suffice than in large ones, because there are fewer objects upon which the laws can operate. The regulations of a private family are short and well-known ; those of a prince's houshold are necessarily more various and diffuse.

The causes therefore of the multiplicity of the English laws are, the extent of the country which they govern ; the commerce and refinement of it's inhabitants: but, above all, the liberty and property of the subject. These will naturally produce an infinite fund of disputes, which must be terminated in a judicial way: and it is essential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as tht* very constitution of their state. For though in many other countries every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decisions, or cases adjudged, will arise ; for seldom will it happen that any one rule will exactly suit with many cases. And in proportion as the decisions of courts of judicature are multiplied, the law will be loaded with decrees, that may sometimes (though rarely) interfere with each other: either because succeeding judges may not be apprized of the prior adjudication ; or because they may think differently from their predecessors ; or because the same arguments did not occur formerly as at present; or, in fine, because of the natural imbecility and imperfection that attends .all human proceedings. But wherever this happens to be the case in any material point, the legislature is ready, and from time to time both may, and frequently does, intervene to remove the doubt; and, upon due deliberation had,

determines by a declaratory statute how the law shall be held for the future.

Whatever instances therefore of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill construction of the English system. Indeed the reverse is most strictly true. The English law is less embarrassed with inconsistent resolutions and doubtful questions, than any other known system of the same extent and the same duration. I may instance in the civil law: the text whereof, as collected by Justinian and his agents, is extremely voluminous and diffuse : but the idle comments, obscure glosses, and jarring interpretations grafted thereupon by the learned jurists, are literally without number. And these glosses, which are mere private opinions of scholastic doctors (and not like our books of reports, judicial determinations of the court) are all of authority sufficient to be vouched and relied on: which must needs breed great distraction and confusion in their tribunals. The same may be said of the canon law ; though the text thereof is not of half the antiquity with the common law of England j and though the more antient any system of laws is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws, of so high antiquity as the English, is in general so clear and perspicuous, it argues deep wisdom and foresight in such as laid the foundations, and great care and circumspection in such as have built the superstructure.

But is not (it will be asked) the multitude of law-suits, which we daily see and experience, an argument against the clearness and certainty of the law itself ? By no means: for among the various disputes and controversies which are daily to be met with in the course of legal proceedings, it is obvious to observe how very few arise from obscurity in the rules or maxims of law. An action shall seldom be heard of, to determine a question of inheritance, unless the fact of the descent be controverted *» But

1. But since the several alterations which have been established in Virginia respecting the rules of descents it is extremely-probable

the dubious points, which are usually agitated in our courts, arise chiefly from the difficulty there is of ascertaining the intentions of individuals, in their solemn dispositions of property ; in their contracts, conveyances, and testaments. It is an object indeed of the utmost importance in this free and commercial country, to lay as few restraints as possible upon the transfer of possessions from hand to hand, or their various designations marked out by the prudence, convenience, necessities, or even by the caprice, of their owners: yet to investigate the intention of the owner is frequently matter of difficulty, among heaps of entangled conve\ ances or wills of a various obscurity. The law rarely hesitates in declaring it's own meaning; but the judges are frequently puzzled to find out the meaning of others. Thus the powers, the interest, the privileges, and properties of a tenant for life, and a tenant in tail, are clearly distinguished and precisely settled by law : but, what words in a will shall constitute this or that estate, has occasionally been disputed for more than two centuries past; and will continue to be disputed as long as the carelessness, the ignorance, or singularity of testators shall continue to cloath their intentions in dark or new-fangled expressions.

But, notwithstanding so vast an accession of legal controversies, arising from so fertile a fund as the ignorance and wilfulness of individuals, these will bear no comparison in point of number to those which are founded upon the dishonesty, and disingenuity of the parties: by either their suggesting complaints that are false in fact, and thereupon bringing groundless actions; or by their denying such facts as are true, in setting up unwarrantable defences, ex facto oriturjus: if therefore the fact be perverted or mis-represented, the law which arises from thence will unavoidably be unjust or partial. And, in order to prevent this, it is necessary to set right the fact, and establish the truth contended for, by appealing to some mode of probation or trial, which the law of the country has ordained for a criterion of truth and falshood.

that the number of these questions, will in a few years be infinitely multiplied in this country.

These modes of probation or trial form in every civilized country the great object of judicial decisions. And experience will abundantly shew, that above a hundred of our law-suits arise from disputed facts, for one where the law is doubted of.... About twenty days in the year are sufficient in Westminster-hall, to settle (upon solemn argument) every demurrer or other special point of law that arises throughout the nation : but two months are annually spent in deciding the truth of facts, before six distinct tribunals, in the several circuits of England ; exclusive of Middlesex and London, which afford a supply of causes much more than equivalent to any two of the largest circuits.

Trial then is the examination of the matter of fact in issue ; of which there are many different species, according to the difference of the subject, or thing to be tried: of all which we will take a cursory view in this and the subsequent chapter. For the law of England so industriously endeavours to investigate truth at any rate, that it will not confine itself to one, or to a few, manners of trial; but varies it's examination of facts according to the nature of the facts themselves: this being the one invariable principle pursued, that as well the best method of trial, as the best evidence upon that trial, which the nature of the case affords, and no other, shall be admitted in the English courts of justice.

The species of trials in civil cases are seven. By record; by inspection, or examination; by certificate; by witnesses ; by wagerofbattel; by wager of law; and by jury.

I. First then of the trial by record. This is only used in one particular instance: and that is where a matter of record is pleaded in any"action, as a'fine, a judgment, or the like ; and th» opposite party pleads, " nul tiel record? that there is no such matter of record existing: upon this, issue is tendered and joined in the following form, " and this he prays may be inquired of " by the record, and the other doth the like ;" and hereupon the party pleading the record has a day given him to bring it in, and proclamation is made in court for him to " bring forth " the record by him in pleading alleged, or else he shall be con-

*' demned ;" and, on his failure, his antagonist shall have judgment to recover. The trial therefore of this issue is merely by the record ; for, as sir Edward Coke b observes, a record or enrollment is a monument of s>o high a nature, and importeth in itself such absolute verity, that if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself2. Thus titles of nobility, as whether earl or no earl, baron or no baron, shall be tried by the king's writ or patent only, which is matter of record c. Also in case of an alien, whether alien, friend or enemy, shall be tried by the league or 'treaty between his sovereign and ours; for every league or treaty is of recordd. And also, whether a manor be to be held in antient demense or not, shall be tried by the record of domeitday in the king's exchequer.

II. Trial by inspection or examination, is when for the greater expedition fof a cause, in some point or issue being either the principal question, or arising collaterally out of it, but being evidently the object of sense, the judges of the court, upon the tes-

b 1 Inst. 117, 260. d 9 Kep. 31.

c 6 Hep. 53.

2. In the case of Burke -vs. Trigg, in the court of appeals, November term, 1796, it appeared to have been the opinion of some of the judges that 3f the record of another court be pleaded, the record itself need not be produced, as an attested copy would be admissible, in such a case. But this was said rather extrajudicially, since the record pleaded in lhat case was of the same court.

Where a bond or other writing on which a suit shall be brought against a joint-obligor or covenantor, in one district court, shall be filed in any other court, and oyer thereof is demanded, the plaintiff may file a copy of the bond or other writing attested by the clerk of the court where the same is filed, and the defendant shall be obliged to plead thereto, as if it were the original j and such copy shall be admitted as evidence on the trial, unless there be a plea of non cst factum, in which case the clerk having it in his custody may be summoned to produce it for the inspection of the jury. V. L. 1794, c. 66. J. 24'.

Attested copies of bonds given by sheriffs for the execution of their office shall be admitted in evidence in any suit, motion or proceeding founded thereon : the bond itself remains of record in the office of the court where taken. Ib. c. 80. §. 8.

timony of their own senses, shall decide the point in dispute..... For, where the affirmative pr negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to decide it; who are properly called in to inform the conscience of the court in respect of dubious facts: and therefore -when the fact, from it's nature, must tje evident to the court either from ocular demonstration or other irrefragable proof, there the law departs from it's usual resort, the verdict of twelve, men, and relies on the judgment of the court alone. As in case of a suit to reverse a fine for non-age of the cognizor, or to set aside a statute or recognizance entered into by an infant; here, and in other cases of the like sort, a writ shall issue to the sheriff* ; commanding him that he constrain the said party to appear, that it may be ascertained by the-view of his body by the king's justices, whether he be of full age or not; " ut per aspecturn carports sui constare poteritjusticiar Us nostris, sipraedictus A sit plenae aetatis necne{" If however die court has, upon inspection, any doubt of the age of the party, (as may frequently be the case) it may proceed to take proofs of the fact; and, perticularly, may examine the infant himself upon an oath of voir dire, veritatem dicere, that is, to make true answer to such questions as the court shall demand of him: or the court may examine his mother, his god-father, or the" like «.

, In like manner if a defendant pleads in abatement of the suit that the plaintiff is dead, and one appears and calls himself the plaintiff, which the defendant denies; in this case the judges shall determine by inspection and examination, whether he be the plaintiff or noth. Also if a man be found by a jury an idiot a nativitate, he may come in person into the chancery before the chancellor, or be brought there by his friends, to be inspected and examined, whether idiot or not: and, if upon such view and inquiry, it appears he is not so, the verdict of the jury, and all the proceedings thereon, are utterly void and instantly of no effect1.

e 9 Rep. 31.

f This question of non-age was formerly, according to Glanvil, ( l.13.C. 15.) tried by a juryofeightmen j though now it is tried by inspection, g 2 Roll. Abr. 573. U 9 Rep. 30. i 9 Rep. 31.

Another instance in which the trial by inspection may be used, is when, upon an appeal of maihem, the issue joined is whether it be maihem or no maihem, this shall be decided by the court upon inspection, for which purpose they may call in the assistance of surgeons J. And, by analogy to this, in an action of trespass for maihem, the court (upon view of such maihem as the plaintiff has laid in his declaration, or which is certified by the judges who tried the cause to be the same as was given in evidence to the jury) may increase the damages at their own discretion k; as may also be the case upon view of an atrocious battery '3. But then the battery must likewise be alleged so certainly in the declaration, that it may appear to be the same with the battery inspected.

Also, to ascertain any circumstances relative to a particular day past, it hath been tried by an inspection of the almanac by the court. Thus, upon a writ of error from an inferior court, that of Lynn, the error assigned was that the judgment was given on a Sunday, it appearing to be on 26 February, 26 Eliz. and upon inspection of the almanacs of that year it was found that the 26 of February in that year actually fell upon a Sunday: this was held to be a sufficient trial, and that a trial by a jury was not necessary, although it was an error in fact; and so the judgment was reversed m. But, in all these cases, the judges, if they conceive a doubt, may order it to be tried by jury.

III. The trial by certifcate is allowed in such cases, where the. evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out

j 2 Roll. Abr. 578. 1 Hardr. 408.

k 1 Sid. 108. m Cro. Eliz. 227.

3. This power seems questionable in Virginia: the bill of rights, Art. 11, and the act of 1*86, c. 64. Edi. 1794, c. 74. J. 26, may be considered as establishing a general principle contrary to the exercise < i' this right. I have seen cases where it might have been exercisH with great justice to the abused party, if the court had conceived itsx.f authorised by law to do so.

of the cognizance of the court, the judges must rely on the solemn averment or information of persons in such a station, as affords them the most clear and competent knowlege of the truth. As therefore such evidence (if given to a jury) must have been conclusive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely..... Thus, 1. If the issue be whether A was absent with the king in his army out of the realm in time of war, this shall be tried n by the certificate of the mareschall of the king's host in writing under his seal, which shall be sent to the justices. 2. If, in order to avoid an outlawry or the like, it was alleged that the defendant was in prison, ultra mare, at Bourdeaux, or in the ser- • vice of the mayor of Bourdeaux, this should have been tried by the certificate of the mayor; and the like of the captain of Calais °. But, when this was law p, those towns were under .the dominion of the crown of England. And, therefore, by a parity of reason, it should now hold that in similar cases, arising at Jamaica or Minorca, the trial should be by certificate from the governor of those islands. We also find' that the certificate of the queen's messenger, sent to summon home a peeress of the realm, was formerly held a sufficient trial of the contempt in refusing to obey such summons. 3 For matters within the realm, the customs of the city of London shall be tried by the certificate of the mayor and aldermen, certified by the mouth of their recorder r; upon a surmise from the party alleging it, that the custom ought to be thus 'tried: else it must be tried by the county'. As, the custom of distributing the effects of freemen deceased; of enrolling apprentices; or that he who is free of one trade may use another; if any of these or other similar points come in issue. But this rule admits of art exception, where the corpora* tion of London is party, .or interested, in the suit; as in an action brought for a penalty inflicted by the custom: for there the reason of the law will not endure so partial a trial; but this custom shall be determined by a jury, and not by the mayor and alderman, certifying by the mouth of their

n Litt. Sec. 102.

•\

p 2 Roll. Abr. 583.

r Co. Litt. 74. 4 Burr. 248,

o 9 Hep. SI.

q Dyer, 176,177.

» Bro. Abr It, trial, fl. 96.

recorder'. 4. In some cases, the sheriff of London's certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner v, in case of privilege pleaded to be sued only in the city courts. Of a nature somewhat similar to which is the trial of the privilege of the university, when the chancellor claims cognizance of the cause, because one of the parties is a privileged person. In this case, the charters, confirmed by act of parliament, direct the trial of the question, whether a privileged person or no, to be determined by the certificate and notification of the chancellor under seal; to which it hath also been usual to add an affidavit of the fact: but if the parties be at issue between themselves, whether A is a member of the university or no, on a plea of privilege, the trial shall be then by jury, and not by the chancellor's certificate n: because the charters direct only that the privilege be allowed on the chancellor's certificate, when the claim of cognizance is made by him, and not where the defendant himself pleads his privilege : so that this must be left to the ordinary course of determination. S. In matters of ecclesiastical jurisdiction, as marrz'figr, and of course general bastardy, and also excommunication, and orders, these, and other like matters, shall be tried 4jy the bishop's certificate w. As if it be pleaded in abatement, that the plaintiff is excommunicated, and issue is joined thereon ; or if a man claims an estate by descent, and the tenant alleges the demandant to be a bastard; or if on a writ of dower the heir pleads no marriage ; or if the issue in a quare imfedit be whether or no the church be full by institution; all these, being matters of mere ecclesiastical cognizance, shall be tried by certificate from the ordinary. But in an action on the case for calling a man bastard, the defendant having pleaded in justification that the plaintiff was really so, this was directed to be tried by a jury x: because, whether the plaintiff be found either a general or special bastard, the justification will be good j and no question of special bastardy shall be tried by the bishop's certificate, but by a jury ?. For a special bastard is one born before marriage, of parents who afterwards intermarry: which is bastardy by our

t Hob. 85.

u 2 Roll. Abr. 583.

x Hob. 179.

v Co. Litt. 74.

w Co. Litt. 74. 2 Lev. 250.

>- Dyer. 79.

law, though not by the ecclesiastical. It would therefore be improper to refer the trial of that question to the bishop; who, whether the child be born before or after marriage, will be su re to return or certify him legitimate *. Ability of a clerk presented % admission, institution t and deprivation of a clerk, shall also be tried by certificate from the ordinary or metropolitan, because of these he is the most competent judge b : but induction shall be tried by a jury, because it is a matter of public notoriety c, and is likewise the corporal investiture of the temporal profits. Resignation of a benefice may be tried in either way d; but it seems most properly to fall within the bishop's cognizance. 6. The ti ial of all customs and practice of the courts shall be by certificate from the proper officers of those courts respectively; and, what return was made on a writ by the sheriff or under-sheriff, shall be only tried by his own certificate * *. And thus much for those several issues, Or matters of fact, which are proper to be tried by certificate.

IV. A fourth species of trial is that by witnesses, per testes, without the intervention of a jury. This is the only method of trial known to the civil law ; in which the judge is left to form, in his own breast his sentence upon the credit of the witnesses

z See Introd. to the great charter, edit, Oxon. tub anno 1233. a See Book 1. ch. 11.

b 2 Inst 632. Show. Parl. C. 88. 2 Roll. Abr. 583, fcfc. c Dyer. 229. d 2 Roll. Abr. 583. e 9 Hep. 31.

4. In certain summary proceedings authorised by the laws of Virginia, as where goods taken in execution have been returned to the debtor upon giving security to have them forth coming at the day of sale, the sheriff's return, that they were not produced accordingly, is admitted as conclusive evidence-against the debtor and his securities, on a motion for judgment against them, for such failure. V. L. 1794, c. 151. Sec. 13. So also, bonds taken to replevy goods taken in execution, or for payment of rent, have the force of judgment upon the return of the sheriff, that they were taken by him for either of those causes. Ibid. §. 22. Acts of 1748, c. 8, and 10.

examined': but it is very rarely used in our law, which prefers the trial by jury before it in almost every instance. Save only, that when a widow brings a writ of dower, and the tenant pleads that the husband is not dead ; this, being looked upon as a dilatory plea, is, in favour of the widow and for greater expedition, allowed to be tried by witnesses examined before the judges : and so, saith Finchf, shall no other case in our law. But sir Edward Coke * mentions some others: as to try whether the tenant in a real action was duly summoned, or the validity of a challenge to a juror: so that Finch's observation must be confined to the trial of direct,and not collateral, issues. And in every case sir Edward Coke lays it down, that the affirmative must be proved by two witnesses at the least.

V. The next species of trial is of great antiquity, but much disused; though still in force if the parties chuse to abide by it; I mean the trial by wager of battle6. This seems to have owed it's original to the military spirit of our ancestors, joined to a superstitious frame of mind: it being in the nature of an appeal to providence, under an apprehension and hope (however presumptuous and unwarrantable) that heaven would give the vic-

fL.423.

g 1 Inst. 6.

5. This is the ordinary mode of trial in our courts of chancery. By the act of October 1777, c. IS, it was declared that all matters of fact should be tried by a jury upon evidence given viva voce, in court, unless the parties should wave the trial by jury, and submit the whole to the judgment of the court. But the inconvenience and delay attending this mode of trial, where long and intricate questions were to be decided by a jury, occasioned a change of the law, in October 1783. c. 26, whereby the antient mode of trial according to the course of the civil law was revived....But the chancellor may still direct an issue to be made up and tried, either at the bar of his own court, or in any other court whenever he thinks it necessary or proper to do so. V.L. 1794, c. 64. Sec. 13.

6. The trial by wager of battle is not only obsolete in Virginia, but seems to have been abolished, (if not obsolete) by the bill of rights, Art. 11, which declares, that in controversies respecting property, and in suits between man and man, the antient trial by jury is pieferablo to any ctheiv and ought to be held sacred.

tory to him who had the right. The decision of suits, by this, appeal to the God of battles, is by some said to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul. And it is true, that the first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A. D. 501, which are preserved in the Burgundiancode. Yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike people from the earliest times h. And it may also seem from a passage in Velleius Paterculus J, that the Germans, when first they became known to the Romans, were wont to decide all contests of right by the sword : for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (says the historian) as a " novitas incognitae disciplinae, ut solita annis decernijure terminarenlur." And among the antient Goths in Sweden we find the practice of judiciary duels established upon much the same footing as they were formerly in our own country *.

This trial was introduced intb England among other Norman customs by William the Conqueror; but was only used in three cases, one military, one criminal, and the third civil. The first in the court-martial, or court of chivalry and honour1' : the second in appeals of felony', of which we shall speak 'n the next book: and the third upon issue joined in a writ of right, the last and most solemn decision of real property. For in writs of right the jus proprietatis, which is frequently a matter of difficulty, is in question ; but other real actions being merely questions of the jus possessions, which are usually more plain and obvious, our ancestors did not in them appeal to the decision of providence. Another pretext for allowing it, upon these final writs of right, was also for the sake of such claimants as might have the true right, but yet by the death of witnesses, or other defect of evidence, be unable to prove it to a jury. But the most curious reason of all is given in the Mirror01, that it is

h Seld, of duels, c. 5.

i Stiernh, dcjitre Sueon. 1.1. c 7.

1 2 Hawk. P. C. 45.

j 2. c. 118.

k Co. Litt 261.

m c. 3. Sec. 23.

allowable upon warrant- of the combat between David for the people of Israel of the one party, and Goliah for the Philistines of the other party: a reason, which pope Nicholas I, very seriously decides to be inconclusive". Of battle therefore on a writ of right0, we are now to speak ; and although the writ of right itself, and of course this trial thereof, be at present much disused; yet as it is law at this day, it may be matter of curiosity at least, to enquire into the forms of this proceeding, as we may gather them from antient authors v.

The last trial by battle was waged in the court of common pleas at Westminster (though there was afterwards * one in the court of chivalry in 1631; and another in the county palatine of Durham1 in 1638) was in the thirteenth year of queen Elizabeth, A. D. 1571, as reported by sir James Dyer'; was held in Tothill-fields, Westminster, " non sine magna juris consultorum " perturbatione]' saith sir Henry Spelman", who was himself a witness of the ceremony. The form, as appears from the authors before cited, is as follows:

When a tenant in a writ of right pleads the general issue, viz. that he hath more right to hold, than the demandant hath to recover; and offers to prove it by the body of his champion, which tender is accepted by the demandant; the tenant in the first place must produce his champion, who by throwing down his glove as a gage or pledge, thus wages or stipulates battle with the champion of the defendant; who, by taking up the gage, or glove, stipulates on his part to accept the challenge. The reason why it is waged by champions, and not by the parties themselves, in civil actions, is because, if any party to the suit dies, the suit must abate and be at an end for the present; and therefore no judgment could be given for the lands in question, either of the parties were slain in battle1: and also that no person

n Decrct.part. 2. cam. 2.711.,5. c. 22. o Append. No. I Sec. 5.

p Glanvil. l. 2. c. 3. Vet. Nat. brcv.fol. 2. Nov. Nar. tit. Droit patent, fol. 221. (edit. 1534) Yearbook. 29Edw. HI, 12. Finch. L. 421. Dyci. 301. 2 Inst. 247.

q Rushw. Coll. Vol. II. part 2. fol 112. 19Rym. 322.

t Cro. Car. 512. s Dyer. 301,

ss Gloss. 103. t Co. Litt. 294. JDyvtrtite des courts 304.

might claim an exemption from the trial, as was allowed in criminal cases, where the battle was waged in person.

A piece of ground is then in due time set out, of sixty feet square, enclosed with lists, and on one side a court erected for the judges of the court of common pleas, who attend there in their scarlet robes ; and also a bar is prepared for the learned serjeants at law. When the court sits, which ought to be by sun-rising, proclamation is made for the parties, and their champions ; who are introduced by two knights, and are dressed in a coat of armour, with red sandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows.... The weapons allowed them are only batons, or staves of an ell long, and a four-cornered leather target; so that death very seldom ensued this civil combat. In the> court military indeed they fought with sword and lance, according to Spelman and Rushworth; as likewise in France only villeins fought with the buckler and baton, gentlemen armed at all points. And upon this and other circumstances, the president Montesquieu u hath with great ingenuity not only deduced the impious custom of private duels upon imaginary points of honour, but hath also traced the heroic madness of knight-errantry, from the same original of judicial combats. But to proceed.

When the champions, thus armed with batons, arrive within the lists or place of combat, the champion of the tenant then takcfc his adversary by the hand, and makes oath that the tenements in dispute are not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swears in the same manner that they are: so that each champion is, or ought to be, thoroughly persuaded of the truth of the cause he fights for. Next an oath against sorcery and enchantment is to be taken by both the champions, in this or a similar form; hear this ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, brass, stone, ne grass, nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and his saints."

u Sp. L. b. 28. c. 20, 22.

The battle is thus begun, and the combatants are bound to fight till the stars appear in the evening; and if the champion of the tenant can defend himself till the stars appear, the tenant shall prevail in his cause; for it is sufficient for him to maintain his ground, and make it a drawn battle, he being already in possession ; but if victory declares itself for either party, for him is judgment finally given. This victory may arise, from the death of either of the champions: which indeed hath rarely happened; the whole ceremony, to say the truth, bearing a near resemblance to certain rural athletic diversions, which are properly derived from this original. Or victory is obtained, if either champion proves recreant, that is, yields, and pronounces the horrible word of craven; a word of disgrace and obloquy, rather than of any determiiiate meaning. But a horrible word it indeed is to the vanquished champion: since as a punishment to him for forfeiting the land of his principal by pronouncing that shameful word, he is condemned, as a recreant, amittere liberum legem, that is, to become infamous, and not be accounted liber et legalis homo ; being supposed by the event to be proved forsworn, and therefore never to be put upon a jury or admitted as a witness in any cause.

This is the form of a trial by battel; a trial which the tenant or defendant in a writ of right, has it in his election at this day to demand7; and which was the only decision of such writ of right after the conquest, till Henry the second by consent of parliament introduced the grand assise w, a peculiar species of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. Which example, of discountenancing these judicial combats, was imitated about a century afterwards in France, by an edict of Louis the pious, A. D. 1260, and soon after by the rest of Europe. The establishment of this alternative, Glanvil, chief justice to Henry the second, and pro-

•w Append. No. I, Sec. 6.

7,1 apprehend not, for the reasons assigned in the note page 537. In addition to which, it may be remarked that, the trial of a writ of right is now regulated in Virginia by the act of 1786, c. 59, Edi, 1794, c. 27. vi. post, page 351, in notes.

bably his adviser herein, considers as a most noble improvement, as in fact it was, of the law x.

VI. A sixth species of trial is by wager of law, vadiatio legis, as the foregoing is called wager qfbattel, vadiatio duelll: because, 'as in the former case the defendant gave a pledge, gage, or vadium, to try the cause by battel; so here he was to put in sureties or vadios, that at such a day he will make his law, that is, take the benefit which the law has allowed him*. For our ancestors considered, that there were many cases where an innocent man, of good credit, might be overborne by a multitude of false witnesses ; and therefore established this species of trial, by the oath of the defendant himself, for if he will absolutely swear himself not chargeable, and appears to be a person of reputation, he shall go free and for ever acquitted of the debt, or other cause of action.

This method of trial is not x>nly to be found in the codes of almost all the northern nations, that broke in upon the Roman empire, and established petty kingdoms upon it's ruins'4; but it's original may also be traced as far back as the Mosaical law. " If a man deliver unto his neighbour an ass, or an ox, or a sheep, or any beast, to keep; and it die, or be hurt, or driven away, no man seeing it; then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods; and the owner of it shall accept thereof, and he shall not make it good a." We shall likewise be able to discern a

x Eit autein magna anisa regale quoddam bcneficium, dementia principle, cle consllio procerum, populia indultumi quo v'fae bominum, et status integritati tarn talubriter coiuulitur, irt, retinendo quod quit potsidet in libera tenemento soli, duellicasum declinarepottintbominetambiguum, Ac per hoc contingit,insperatac etprematurae mortis ultlmum eaadere tuppliaum, vel saltern perennit iitfamiae opprobrium illiui infesti et imerecundi verbi, quod in one victi turpiter tonat, constcutivum. Ex aequitate item maxima predita at legalis ista inttitvtio. Jut tnim, quod pott multat et Itngat dilations* vix evincitur per duellum, per bentficiumistius constitution!tcommodiut et accekratitu expeditur. (I. 2. c.T.J

y Co. Litt. 295.

z Sp. L. b. 28, c. 13. Stiwnhook, tkjvt Sttcomm. 1. X. c. 9. Feud. I. \, «. 4,10,28.

a Exod. xxU. 10,

manifest resemblance, between this species of trial, and the canonical purgation of the popish clergy, when accused of any capital crime. The defendant or person accused was in both cases to make oath of his own innocence, and to produce a certain number of compurgators, who swore they believed his oath..... Somewhat similar also to this is the sacramentum decisionis, or the voluntary and decisive oath of the civil lawb; where one of the parties to the suit, not being able to prove his charge, offers to refer the decision of the cause to the oath of his adversary: which the adversary was bound to accept, or tender the same proposal back again; otherwise the whole was taken as confessed by him. But though a custom somewhat similar to this prevailed formerly in the city of Londonc, yet in general the English law does not thus, like the civil, reduce the defendant, in case he is in the wrong, to the dilemma of either confession or jury: but is indeed so tender of permitting the oath to be taken, even upon the defendant's own request, that it allows it only in a very few cases ; and in those it hath also devised other collateral remedies for the party injured, in which the defendant is excluded from his wager of law.

The manner of waging and making law is this. He that has waged, or given security, to make his law, brings with him into court eleven of his neighbours: a custom, which we find particularly described so early as in the league between Alfred and Guthrun the Dane d; for by the old Saxon constitution every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then standing at the end of the bar, is admonished by the judges of the nature and danger of a false oathe. And if he still persists, he is to repeat this or the like oath: " hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds, nor any penny thereof, in manner and form as the said Richard hath declared against me. So help me God." And thereupon his eleven neighbours or compurgators shall avow upon their oaths, that they believe in their consciences that he saith the truth; so that himself must be sworn defideKtate, and the eleven de credit

bCVxf.4,1,12.

d cap. 3. WUk. I,L. Angl. Sax.

c Bro. Abr. t. Ityfager. 77. c Salk. 682.

Ktate*. ' It is held indeed by later authorities * that fewer than eleven compurgators will do ; but sir Edward Coke is positive that there must be this number; and his opinion not only seems founded upon better authority, but also upon better reason: for, as wager of law is equivalent to a verdict in the defendant's favour, it ought to be established by the same or equal testimony, namely, by the oath of twelve men. And so indeed Glanvil expresses ith, "jurabitduodecimo manu:" and in 9 Hen. III, when a defendant in an action of debt waged his law, it was adjudged by the court" quod defendat se duodecimo manu'." Thus too, in an author of the age of Edward the firstk, we read, lladjudicabitur reus ad legem sitam duodecimo manu." And the antient treatise, entitled, dyversite des courts, expressly confirms sir Edward Coke's opinion1.

It must be howevet observed, that so long as the custom continued of producing the secta, the stilt, or witnesses to give probability to the plaintiff's demand, (of which we spoke in a former chapter) the defendant was not put to wage his law unless the secta was first produced, and their testimony was found consistent. To this purpose speaks magna carta, c. 28. " Nullus ballivus de caetero ponat aliquem ad legem manifestam," (that is, wager of battel) " nee ad juramentum," (that is, wager of law) simplici loquela sua,"' (that is, merely by his count or declaration) " sine testibusjtdelibus ad hoc inductis" Which Fleta thus explains™:" sipetens sectam produxerit, et Concordes iriveniantur, tune reus potent vadiare legem suam contra petentem et contra sectam suamprolatam; sedsi secta variabilis inveniatur, extunc non tenebitur legem vadiare contra sectam illam." It is true indeed, that Fleta expressly limits the number of compurgators to be only double to that of the secta produced; ut si duos vel tres testesproduxerit adprobandum, oportet quod defensiofat per quatuor velper sex; ita quodpro quolibet teste duosproducat juratores, usque ad duodecim:" so that according to this doc-

f Co. Litt. 295. g 2 Ventr. 171, hU.c.9.

i Ilcomrientmer out luyxi maynz dejureroue luy, ic. queilz entendre en lour tonscieia que il disoyt voier ffol.'306. edit. 1534.^

k Hcngbam magna, c. S. 1 Fitzh. Ab. t, ley, 78. ro l. 2- c. 63.

trine the eleven compurgators were only to be produced, but not all of them sworn, unless the secta consisted of six. But, though this might possibly be the rule till the productions of the secta was generally disused, since that time the duodecimo manus seems to have been generally required ".

In the old Swedish or Gothic constitution, wager of law was not only permitted, as it still is in criminal cases, unless the fact be extremely clear against the prisoner0: but was also absolutely required, in many civil cases: which an author of their own? very justly charges as being the source of frequent perjury. This, he tells us, was owing to the popish ecclesiastics, who introduced this method of purgation from their canon law; and, having sown a plentiful crop of oaths in all judicial proceedings, reaped afterwards an ample harvest of perjuries: for perjuries were punished in part by pecuniary fines, payable to the coffers of the church. But with us in England, wager of law is never required; md is then only admitted, where an action is brought upon such matters as may be supposed to be privately transacted between ,the parties, and wherein the defendant may be presumed to have made satisfaction without being able to prove it. Therefore it is only in actions of debt, upon simple contract, or for amercement, in actions of detinue, and of account, where the debt may have been paid, the goods restored, or the account ballanced, without any evidence of either; it is only in these actions, I say, that the defendant is admitted to wage his law 1: so that wager of law lieth not, when there is any specialty (as a bond or deed) to charge the defendant, for that would be cancelled if satisfied; but when the debt groweth by word only: nor doth it lie in an action of debt, for arrears of an account, settled by auditors in a former actionr. And by such wager of law (when admitted) the plaintiff is perpetually barred; for the law, in the simplicity of the antient times, presumed that no one would forswear himself for any worldly thing •. Wager of law however lieth in a real action, where the tenant alleges he

n Bro. Mr. t. leygager. 9. o Mod. Un. Hist, xxxiii. 22.

p Stiernhook dejure Sueomim. 1.1. c. 9.

q Co. Litt. 295. r 1Q Rep. 103.

t Co. Litt. 295.

was not legally summoned to appear, as well as in mere personal contracts'.

A man outlawed, attainted for false verdict, .or for conspiracy or perjury, or otherwise become infamous, as by pronouncing the horrible word in a trial by battel, shall not be permitted to wage his law. Neither shall an infant under the age of twenty one, for he cannot be admitted to his oath ; and therefore, on the other hand, the course of justice shall flow equally, and the defendant, where an infant is plaintiff, shall not wage his law. But a feme-covert, when joined with her husband, may be admitted to wage her law; and an alien shall do it in his own language n.

It is moreover a rule, that where a man is compellable by law to do any thing, whereby he becomes creditor to another, the defendant in that case shall not be admitted to wage his law: for then it would be in the power of any bad man to run in debt first, against the inclinations of his creditor, and afterwards to swear it away. But where the plaintiff hath given voluntary credit to the defendant, there he may wage his law; for, by giving him such credit, the plaintiff has himself borne testimony that he is one whose character may be trusted. Upon this principle it is, that in an action of debt against a prisoner by a gaoler for his victuals, the defendant shall not wage his law : for the gaoler cannot refuse the prisoner, and ought not to suffer him to perish for want of sustenance. But otherwise it is for the board or diet of a man at liberty. In an action of debt brought by an attorney for his fees, the defendant cannot wage his law, because the plaintiff is compellable to be his attorney. And so, if a servant be retained according to the statute of labourers, 5 Eliz. c. 4, which obliges all single persons of a certain age, and not having other visible means of livelyhood, to go out to service ; in an action of debt for the wages of such a servant, the master shall not wage his law, because the plaintiff was compellable to serve". But it had been otherwise, had the hiring been by special contract, and not according to'the statute w.

t Finch. L. 423. u Co. Litt. 295. w Co. Litt. 295.

S. This statute if ever in force in Virginia, which it is supposed isever to have been, was repealed. V. L. 1794. c. 147.

In no case where a contempt, trespass, deceit, or any injury, with force is alleged against the defendant, is he permitted to wage his law * : for it is impossible to presume he has satisfied the plaintiff his demand in such cases, where damages are-uncertain and left to be assessed by a jury. Nor will the law trust the defendant with an oath to discharge himself, where the private injury is coupled as it were with a public crime, that of force and violence ; which would be equivalent to the purgation oath of the civil law, which ours has so justly rejected.

Executors and administrators, when charged for the debt of the deceased, shall not be admitted to wage their .law 1: for no man can with a safe conscience wage law of another man's contract ; that is, swear that he never entered into it, or at least that he privately discharged it. The king also has his prerogative; for, as all wager of law imports a reflection on the plaintiff for ' dishonesty, therefore there shall be no such wager on actions brought by him z. And this prerogative extends and is communicated to his debtor and accomptant; for, on a writ of quo minus in the exchequer for a debt on simple contract, the defendant is not allowed to wage his law ».

Thus the wager of law was never permitted, but where the defendant bore a fair and unreproachable character j and it also was confined to such cases where a debt might be supposed to be discharged, or satisfaction made in private, without any witnesses to attest it: and many other prudential restrictions accompanied this indulgence. But at length it was considered, that (even under all it's restrictions) it threw too great a temptation in the way of indigent or profligate men: and therefore by degrees new remedies were devised, and new forms of action were introduced, wherein no defendant is at liberty to wage his law. So that now no plaintiff need at all apprehend any danger from the hardiness of his debtor's conscience, unless he voluntarily chuses to rely on his adversary's veracity, by bringing an obsolete, instead of a modern, action. Therefore one shall hardly hear at

x Ibid. Raym. 286. z Ibid. 425.

y Finch. L. 424. a Co. Litt. 295.

present of an action of debt brought upon a simple contract: that being supplied by an action of trespass on the case for the breach of a promise orassumpsit; wherein, though the specific debt cannotbe recovered, yet damages may, equivalent to the specific debt. And, this being an action of trespass, no law can be waged therein. So, instead of an action of detinue to recover the very thing detained, an action of trespass on the case in trover and conversion is usually brought; wherein, though the horse or other specific chattel cannot be had, yet the defendant shall pay damages for the conversion, equal to the value of the chattel; and for this trespass also no wager of law is allowed. In the room of actions of account, a bill in equity is usually filed: wherein, though the defendant answers upon his oath, yet such oath is not conclusive to the plaintiff; but he may prove every article by other evidence^ in contradiction to what the defendant has sworn. So that wager of law is quite out of use, being avoided by the mode of bringing the action; but still it is not out of force ». And therefore, when a new statute inflicts a penalty, and gives an action of debt for recovering it, it is usual to add, in which no wager of law shall be allowed : otherwise an hardy delinquent might escape any penalty of the law, by swearing he had never incurred,

or else had discharged it10.

i

These six species of trials, that we have considered in the present chapter, are only had in certain special and eccentrical cases ; where the trial by the country, per pais, or by jury, would not be so proper or effectualu. In the next chapter we shall consider at large the nature of that principal criterion of truth in the law of England.

9. The wager of law is perfectly obsolete in Virginia, at least in

practice.

10. Sir Edward Coke lays down the doctrine of wager of law in this case, expressly contrary to that which Mr. Blackstone supposes, in this place, vi. Co. Litt. 295. a.

11. Judgments upon proceedings in a summary way without the solemnity of a trial by jury, have, of late years, been greatly favoured by the legislature of Virginia. They have indeed, been so multiplied, as to threaten the subversion of that principle in the bill of rights, ivh ich declares that the trial by jury ought to be held aacrcd. See Appendix. Note E.

CHAPTER THE TWENTY-THIRD.

OF THE TRIAL BY JURY.

THE subject of our next inquiries will be the nature and method of the trial by jury ; called also the trial per pais, or by the country: a trial that hath been used time out of mind in this nation, and seems to have been co-eval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but certain it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by bishop Nicholson *• to Woden himself, their great legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feodal system, as in Germany, France and Italy; who had all of them a tribunal composed of twelve good men and true, " boni homines" usually the vasals or tenants of the lord, being the equals or peers of the parties litigant; and, as the lord's vasals judged each other in the lord's courts, so the king's vasals, or the lords themselves, judged each other in the king's courtb. In England we find actual mention of them so early as the laws of king Ethelred, and that not as a new inventionc. Stiernhook d ascribes the invention of the jury, which in the Teutonic language is denominated nembda, to Regner, king of Sweden and Denmark, who was cost dcjure Saxonum, p. 12,

b Sp. L. b. SO. c. 18. Capital. Lvd. pit. A. D. 819. c.2. c Wilk. LL. Angl. Sax. 117. ddejtire Suamum.I. 1. e. 4.

temporary with our king Egbert. Just as we are apt to impute the invention of this, and some other pieces of juridical polity, to the superior genius of Alfred the great; to whom, on account of his having done much, it is usual to attribute every thing: and as the tradition of antient Greece placed to the account of their own Hercules whatever atchievment was performed superior to the ordinary prowess of mankind. Whereas the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution, that the earliest accounts of the one give us also some traces of the other. It's establishment however and use, in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battel, was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever prevail to abolish it. In magna carta it is more than once insisted on as the principal bulwark of our liberties; but especially by chap. 29, that no freeman shall be hurt in either his person or property ; " nisi per legate judkium parium suorum vel per legem terrae." A privilege which is couched in almost the same words with that of the emperor Conrad, two hundred years before «: " nemo benefcium tuum perdat, nisi secundum consuetudinem antecessorum nostrorum et per juditium parium suorum" And it was ever esteemed, in all countries, a privilege of the highest and most beneficial nature1.

eLL.Lor<got,.l.3.t.6.t.4.

1. In controversies respecting property, and in suits between man and man, the antient trial by jury is preferable to any other, and ought tobe held sacred. Virginiabill of rights, Art. 11.

No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, nor shall the commm on wealth pass upon him or condemn him, butby lawful judgment ofhie peera, or by the law of the land. V. L. Edi. 1794, c. 15.

In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury Shall be preserved, and no fact ti ied by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law. Amendment to C.U. S.Art. 9. The

But I will not mispend the reader's time in fruitless encomiums on this method of trial: but shall proceed to the dissection and examination of it in all it's parts, from whence indeed it's highest encomium will arise: since, the more it is searched into and understood, the more it is sure to be valued. And this is a species of knowlege most absolutely necessary for every gentleman in the kingdom: as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects; as because his own property, his liberty, and his life, depend upon maintaining, in it's legal force, the constitutional trial by jury. Trials by jury in civil causes are of two kinds ; extraordinary and ordinary. The extraordinary I shall only briefly hint at, and confine die main of my observations to that which is more usual and ordinary.

The first species of extraordinary trial by jury is that of the grand assise, which was instituted by king Henry the second in parliament, as was mentioned in the preceding chapter, by way of alternative offered to the choice of the tenant or defendant in a writ of right, instead of the barbarous and unchristian custom of duelling. For this purpose a writ de magna assisa eligenda is directed to the sheriff*, to return four knights, who are to elect and chuse twelve others to be joined with them, in the manner mentioned by Glanvil *; who, having probably advised the measure itself, is more than usually copious in describing it: and these, all together, form the grand assise, or great jury, which

fF.N. B.4.

g l. 2. c. 11 ..31.

The trial of all crimes, except in cases of impeachment shall be by jury, C. U. S. Art. 3. §. 2. But in the case of impeachment by the general assembly, for any crime or offence against the state, the trial shall beby a special jury. L.V.Edi. 1794, c. 72.

The trial of issues in fact, in the district and circuit 'courts of the United States, in all causes, except civil causes of admiralty and maritime jurisdiction and suits in equity, shall be by jury L. U. S. I Cong. 1 Seas. c. 20. Sec. 9 and 13.

is to try the matter of right, and must now consist of sixteen jurors h *,

Another species of extraordinary juries, is the jury to try an attaint; which is a process commenced against a former jury, for bringing in a false verdict; of which we shall speak more largely in a subsequent chapter. At present I shall only observe, that this jury is to consist of twenty-four of the best men in the county, who are called the grand jury in the attaint, to distinguish them from the first or petit jury ; and these are to hear and try the goodness of the former verdict3.

With regard to the ordinary trial by jury in civil cases, I shall pursue the same method in considering it, that I set out with in explaining the nature of prosecuting actions in general, viz. by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

When therefore an issue is joined, by these words, "and this the said A prays may be inquired of by the country," or, and of this he puts himself upon the country,....and the said B does the like," the court awards a writ of venire facias upon, the roll or record, commanding the sheriff " that he cause to come here on such a day, twelve free and lawful men, libera*

h Finch. L. 412. 1 Leon. 303.

{2. Formerly sixteen jurors were required for the trial of a writ of right in Virginia, but the number is now reduced to twelve, as in other cases, vi. Edi. 1769, p. 147. V. L. 1794, c. 27.

3. The trial of attaints may be-.regarded as obsolete in Virginia.

It may not be amiss to notice in this place, that there is another species of extraordinary trial by jury, in Virginia viz. in case of impeachment by the general assembly for any crime, or offence committed by a person in office, against the state. In this case the law directs twenty-four jurors to be summoned from the several counties in the senatorial district, in which the person impeached shall reside, of whom the prosecutor for the commonwealth, and the person accused Shall alternately strike one., until th« number be reduced to twelve, who shall constitute the jury for the trial. L. V, 1794, c. 72.

et legates homines, of the body of his county, by whom the truth of the matter may be better known, and who are neither of kin to the aforesaid A, nor the aforesaid B, to recognize the truth of the issue between the said parties'." And such writ is accordingly issued to the sheriff4.

Thus the cause stands ready for a trial at the bar of the court itself: for all trials were there antiently had, in actions which were there first commenced; which then never happened but in matters of weight and consequence, all trifling suits being ended in the court-baron, hundred, or county courts: and in-

i Append. No. II. Sec. 4.

4. No writ issues in Virginia ; but when a cause is at issue, it is put upon the court docket for trial, in its course: and the law directs that the sheriff or other officer attending the court, shall every day the court sits, summon a sufficient number of bye standers, or others, qualified as the law directs, to attend the court that day, that out of them may be impannelled sufficient juries for the trial of causes depending therein. V. L. 1794, c. 73. J. 11. The law of the United States directs, that jurors in all cases to serve in the courts of the U. S. shall be designated by lot, or otherwise in each state, respectively, according to the mode of forming juries therein practised on the thirteenth day of May one thousand eight hundred, so far as the laws of the same' shall make such designation practicable by the courts, or marshals of the United .States; and the jurors shall have the same qualifications as are required for jurors, by the laws of the state of which they are citizens, to serve in the highest courts oflaw of such • state, and shall be returned' as there shall be occasion for them from such parts of the 'district from time to time as the court shall direct, so as to be most favourable to an impartial trial, and so as not to incur an unnecessary expence, or unduly to burthen the citizens of any part of the district, with such services. L. U. S. 1 Cong. 1 Sess. c. 20. J. 29, writs of -venire facias when directed by the court shall issue from the clerk's office, and shall be served and returned by the marshal in his proper person or by his deputy, or in case the marshal or his deputy is not an indifferent person, by such fit person as the court shall appoint, first administering to him an oath impartially' to serve and return the writ, and where from challenges, or otherwise, there shall be a'defect of jurors, the court may order jurymen de talibus circumstantibut to be returned, sufficient to complete the panel. Ibidem. See also 6 Cong. c. 61.

deed all causes of great importance or difficulty are still usually retained upon motion, to be tried at the bar in the superior courts. But when the usage began, to bring actions of any trifling value in the courts of Westminster-hall, it was found to be an intolerable burthen to compel the parties, witnesses, and jurors, to come from VVestmoreland perhaps, or Cornwall, to try an action of assault at Westminster. A practice therefore very early obtained, of continuing the cause from term to term, in the court above, provided the justices ,in eyre did not previously come into the county where the cause of action arose k: and if it happened that they arrived there within that interval, then the cause was removed from the jurisdiction of the justices at Westminster to that of the justices in eyre. Afterwards when the justices in eyre were superseded by the modern justices of assise (who came twice or thrice in the year into the several counties, ad capiendas assisas, to take or try writs of assise, of mart tfancestor, novel disseisin, nusance, and the like) a power was superadded by statute Westm. 2. 13 Edw. I, c. 30, to these justices of assise to try common issues in trespass, and other less important suits, with directions to return them (when tried) into the court above; where alone the judgment should be given. And as only the trial, and not the determination of the cause, was now intended to be had in the court below, therefore the clause of nisiprius was left out of the conditional continuances before-mentioned, and was directed by the statute to be inserted in the writs of venire facias; that is, " that the sheriff should cause the jurors to come to Westminster (or wherever the king's courts should be held) on such a day in easter and michaelmas terms ; nisi pr'nis, unless before that day, the justices assigned to take assises shall come into his said county." By virtue of which the sheriff returned his jurors to the court of the justices of assise, which was sure to be held in the vacation before easter and michaelmas terms; and there the trial was had.

An inconvenience attended this provision: principally because, as the sheriff made no return of the jury to the court at

k Semper datilar diet partibus a jasticiariis de banco, tut taii conditime, " nisi jttiticiarii itir.irantet privt venerint ad fortes illat." (Bract. l. 3. tr. 1. «. 11. Sec. 8.)

Westminster, the parties were ignorant who they were till they came upon the trial, and therefore were not ready with their challenges or exceptions *. For this reason by the statute 42 Edw. III, c. 11, the method of trials by rust prins was altered: and it was enacted that no inquests (except of assise and gaol-delivery) should be taken by writ of nisi frius, till after the sheriff had returned the names of the jurors to the court above. So that now in almost every civil cause the clause of nisi frius is left out of the writ of venire facias, which is the sheriff's warrant to warn the jury ; and is inserted in another part of the proceedings, as we shall see presently.

For now the course is, to make the sheriff's venire returnable on the last return of the same term wherein issue is joined, viz. hilary or trinity terms; which, from the making up of the issues therein, are usually called issuable terms. And he returns the names of the jurors in a panel (a little pane, or oblong piece of parchment) annexed to the writ. This jury is not summoned, and therefore, not appearing at the day, must unavoidably make default. For which reason a compulsive process is now awarded against the jurors, called in the common pleas a writ of habeas corforajwatorum,sa\d in the king's bench a distringas, commanding the-sheriff to have their bodies, or to distrein them by their lands and goods, that they may appear upon the day appointed. The entry therefore on the roll or record is', " that the jury is respited, through defect of the jurors, till the first day of the next term, then to appear at Westminster ; unless before that time, viz. on Wednesday the fourth of March, the justices of our lord the king, appointed to.take assises in that county, shall have come to Oxford, that is, to the place assigned for holding the assises." And thereupon the writ commands the sheriff to have their bodies at Westminster on the said first day of next term, or before the said justices of assise, if before that time they come to Oxford; viz. on the

1 Append. No. II. Sec. 4.

5. This inconvenience, if it be one, still remains without remedf in Virginia, the.jury being summoned inttanier.

fourth of March aforesaid. And, as the judges are sure to come and open the circuit commissions on the day mentioned 4n the writ, the sheriff returns and summons this jury to appear at the assises, and there the trial is had before the justices of assise and nisi frius: among whom (as hath been said"1) are usually two of the judges of the courts at Westminster, the whole kingdom being divided into six circuits for this purpose. And thus we may observe that the trial of common issues, at nisi prius, which was in it's original only a collateral incident to the original business of the justices of assise, is now, by the various revolutions of practice, become their principal civil employment : hardly any thing remaining in use of the real assises, but the name.

If the sheriff be not an indifferent person; as if he be a party in the suit, or be related by either blood or affinity to either of the parties, he is not then trusted to return the jury; but the venire shall be directed to the coroners, who in this, as in many other instances, are the substitutes of the sheriff, to execute proceso when he is deemed an improper person6. If any exception lies to the coroners, the venire shall be directed to two clerks of the court or two persons of the county named by the court, and sworn " 7. And these two, who are called elij>ors, or electors, shall indifferently name the jury, and their return is final,; no challenge being allowed to their array.

Let us now pause awhile, and observe (with sir Matthew Hale °) in these first preparatory stages of the trial, how admirably this constitution is adapted and framed for the investigation of truth, beyond any other method of trial in the world. For, first, the person returning the jurors is a man of some fortune and consequence : that so he may be not only the less tempted to

m See page 59. o Hist. C. L. c. 12.

n Fortesc. rfe Laud. LL. c. 25. Co. Litt. 158.

6. L. V. 1794, c. 81. Sec. 21. Accordant. ' '»

7. L. U. S. 1 Cong. 1 Sess. c. 20. Sec. 29, contains a provision totnewhat similar. See note, p. 352.

commit wilful errors, but likewise be responsible for the faults of either himself or his officers: and he is also bound by the obligation of an oath faithfully to execute his duty. Next, as to the time of their return: the panel is returned to the court upon the originalfcemVe,and the jurors are to be summoned and brought in many weeks afterwards to the trial, whereby the parties may have notice of the jurors, and of their sufficiency or insufficiency, characters, connections, and relations, that so they may be challenged upon just cause; while at the same time by means of the compulsory process (of distringas, or habeas corpora) the cause is not like to be retarded through defect of jurors. Thirdly, as to the place of their appearance: which in causes of weight and consequence is at the bar of the court; but in ordinary cases at the assises, held in the county where the cause of action arises, and the witnesses and jurors live: a provision most excellently calculated for the saving of expense to the parties. For though the preparation of the causes in point of pleading is transacted at Westminster, whereby the order and uniformity of proceeding is preserved throughout the kingdom, and multiplicity of forms is prevented; yet this is no great charge or trouble, one attorney being able to transact the business of forty clients. But the troublesome and most expensive attendance is that.of jurors and witnesses at the trial; which therefore is brought home to them, in the country where most of them inhabit. Fourthly, the persons before whom they are to appear, and before whom the trial is to be held, are the judges of the superior court, if it be a trial at bar; or the judges of assise, delegated from the courts at Westminster by the king, if the trial be held in the country: persons, whose learning and dignity secure their jurisdiction from contempt, and the novelty and very parade of whose appearance have no small influence upon the multitude. The very point of their being strangers in the county is of infinite service, in preventing those factions and parties, which would intrude in every cause of moment, were it tried only before persons resident on the spot, as justices of the peace, and the like. And, the better to remove all suspicion of partiality, it was wisely provided by the statutes 4 Edw. III, c. 2, eRic. II, c. 2, and 33 Hen. VIII, c. 24, that no judge of assise should hold pleas in any county wherein he was born or inhabits. And, as this constitution pre-

vents party and faction from intermingling in the trial of right, so it keeps both the rale and the administration of the laws uniform. These justices, though thus varied and shifted at every assises, are all sworn to the same laws, have had the same education, have pursued the same studies, converse and consult together, communicate their decisions and resolutions, and preside in those courts which are mutually connected and their judgments blended together, as they are interchangeably courts of appeal or advice to each other. And hence their administration of justice, and conduct of trials, are consonant and uniform; whereby that confusion and contrariety are avoided, which would naturally arise from a variety of uncommunicating judges, or from any provincial establishment8. But let us now return to the assises.

When the general day of trials is fixed, the plaintiff or his attorney must bring down the record to the assises, and enter it with the proper officer, in order to it's being called on in course. If it be not so entered, it cannot be tried; therefore, it is in the p