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.

* 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 commentaries^a 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 wrong^b." 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 door^d: and now^e 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 title^d. 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 estate^f. 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 action^k ; 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 Fortescue^r, 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 fee^w; 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 general^b) 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 us^c, 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 money^f. 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 themselves^c." 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 writer^f, 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 judgment^r, 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 potestatis^d) 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 Coke^m, 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 ages^a : 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 bench^b : 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 time^d: 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 I^k ; 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 A^r<.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 ,iu^r 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 fdei_y 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 rolls^w, 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 1373^X, 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 part^h) 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 degree^l3.

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 same^ir.

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 ordained^r, 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 connexion^e.

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 Deos^c"

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 law^e.

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 venison^b: 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 done^e; 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-mote^d: 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 deer^e. 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 crown^r, 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 plea^w, 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 rfgis^e; 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 Whitehall^k. 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 an^fient 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 eighth^J, 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 judges^m 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 arises^r, 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 chancery^l; 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 volume^k. 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 own^a, 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 disputed^e. By the statute or rather writ^f 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 place^k ; 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 repairs^r: 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 courts^s.

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 them^v, 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 emanasse^t.ⁿ And archbishop Parker^d, 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 wills^f. 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 conform^r; (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 chapter^l; 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 ; et_t 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 kingdom^f. 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 sea^k. 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 parents^r; 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 court^c. 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 pleas^J, or exchequer^k ; 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 Justinian^c, 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 voluerwit^d" 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 it^f, "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^irror^l, 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 writ^a. 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.

ed^f; 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 adulterer^ll, 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 founded^b. 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 commitment^d; 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 highways^{c 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 power_tis 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 thereon^v j unless the term should intervene, and then it may be returned in court^w. 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 court^d, 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 Vaughan^e," 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 cause^h, 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 precedents^r 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 damages^K.

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 wife^a8.

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 him^f. 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 f_i 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 division^a 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 Mirror^c 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-breach^c, 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 attachment^h.

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 distresses^c. 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 necessary^l: 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 debt^r, 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 assignment^d) 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 debt^e. 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 indorsee^f, 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 it^1J. 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 debt^l6 (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 act^1B. 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 client^x26. 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 them^d, 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 book^b; 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 freehold^e; 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-books^f 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 right^m. 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 deforcement^q. Another species of deforcement is, where two persons have the same title to land, and one of them enters and keeps possession against