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