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 \
 
 COMMENTARIES 
 
 ON THE *"^ 
 
 liAWS OF VIRGI]\IA, 
 
 COMPKISING THE 
 
 SUBSTANCE OF A COURSE OF LECTURES 
 
 DELIVERED' TO THE 
 
 WINCHESTER LAW SCHOOL: 
 
 HENRY ST. GEORGE TUCKER, 
 
 CHANCELLOR OF THE FOURTH JUDICIAL CIRCUITr 
 
 CONDO ET COMPONO. 
 
 IN TWO VOLUMES. 
 VOL. II. 
 
 7.H E 3^y'- 
 
 WINCHESTER: 
 
 fRlNTED AT THE OFFICE OF THE REPUBLICAH, 
 FOR THE AUTHOR. 
 
 1837.
 
 V/ ^ 

 
 INDEX TO THE COMMENTARIES. 
 
 BOOK III 
 
 Abatement of the inheritance, 164 ; of nuisances.. 4 ; how the right is to 
 
 be exerted, 4. 
 Abatement by death, 253, 254 ; see trial by inspection, and 282 ; no abate- 
 ment if action is maintainable by executor, 254 ; see Sci.fa., and 254. 
 Abatement, plea in, 254 ; must be verified by oath, 254 ; must give plain- 
 tiff a better writ, 254; must be pleaded in time, 254; see order of 
 pleading, and 254 ; judgment on plea for plaintiff or defendant, 321, 
 255; see Costs, and 255; for want of parties, 151 ; distinction here- 
 in between contract and tort, 151. 
 Abduction, injury of, and remedy for, 72, 73; see Seduction. 
 Accord and satisfaction, 24; what good, 24; demand must be subsist- 
 ing, 25; one satisfaction discharges all, 25 ; what good in respect 
 of the compensation, 25; executory agreement not good satisfaction 
 at law, 25; if without consideration it is nudum pactum, 25; see 
 Composition, and 25, 26; contract of same nature no satisfaction^ 
 26; aliter if of higher dignity, or for different matter, 26; so pay- 
 ment of less sum before the day — or at a different place, 27 ; so bonds 
 and notes of third persons are good satisfaction, 27 ; distinction be- 
 tween assignments as payment or as collateral security, 27; pay- 
 ment in bills of exchange dishonored, 27; satisfaction must be ac- 
 cepted, 28 ; complete and executed, 28; and of the whole demand, 
 28; how to be pleaded, 28; plea of not good in real actions, 24. 
 
 Accident, ground of equitable jurisdiction, 398 ; see Lost Bond, and 398, 
 399, 400 ; see Confusion of Boundaries, and 400 ; estate defeated by 
 accident, when relieved, 401 ; distinctions herein, 401 ; see Pre- 
 sumption from time, and 401 ; see J^xecwior, and 401, 402 ; see Ca- 
 veat, and 402 ; see Laches, and 402 ; state of the currency not reliev- 
 ed against, 402. 
 
 Account, ground of eq. jurisdiction, 409 ; what deemed matters of ac- 
 count, 409, 410 ; accounts of agents, stewards, &c.,410 ; in cases 
 of mines, dower-partnership, and trust, 410 ; rents and profits how 
 far back allowed, 410, 411 ; how where the case is of a trust, 410 ; or 
 an infant's estate, 411; see Permanent Improvements, and 411 ; see 
 Stated Accounts, and 412; see Limitations, and 412 ; see Stewards, 
 Agents, &,c., and 417 ; on bill for account, defendant may have de- 
 cree, 417; see Surcharge, and 417. 
 
 Account, writ of, 129 ; items of, must be filed in assumpsit, 105, 133, 147 ; 
 or with off-set, 108, 160. 
 
 Acquiescence, distinguished from presumption from length of time, 416. 
 
 Actions at law, how commenced, 231; how divided, 50. 
 
 Actio personalis moritur cum persona, 223, 253. 
 
 Adultery, see Crim. Con. 
 
 Affidavit, 256, 304. 
 
 Affirmative, proof lies on him who holds the, 288, 298. 
 
 Agent, warned not to pay over is liable, 131, 132; bond to keep accounts, 
 417 ; confounding his principal's goods with his own, 417. 
 
 *,_ f<»/ r;..; ".. "^^JtM^.
 
 iv INDEX. 
 
 Agreemknt not to be performed within a year must be in writing, 140; 
 what sutficient signing, 141. 
 
 Aid, '2'r2. 
 
 Aliknagk, ploa of, UJO. 
 
 Allegata and probata must correspond, 148, 149, 151. 
 
 Almanac, date decided by, '^S'i. 
 
 Amendmk.nts, 3-27; never of judgment after term passed, 3-27 ; except by 
 our statute, 317, 31S; am. after demurrer, '208; leave to am. when 
 considered as waived, 2U*J ; if one amends, the otlier may plead or 
 reply de novo, "208; statutes of amendment and jeofail, 313, 3*27; 
 considered as made, if party has a right to make it, 317 ; error cured 
 as to one defendant cured as to all, 317. 
 
 Ancient keeds ])rove themselves, "288 ; and wills, 288. 
 
 Answer, dciendant by his plea must answer the whole, 262; eflect of de- 
 fence as to part only, lOo, 202; or of defence as to the whole, and 
 answer to part oidy, 2G2, 105. 
 
 Answer in Chanccnj, weight of, 48(J, 502; how it must be contradicted, 
 4b7, 5U2 : when it loses its weight, 487, 502, 503 ; not replied to, 
 effect of, 487, 503 ; in what court is the weight of the answer deem- 
 ed superior to oath of one witness, 488, 502; see Practice, and 499 ; 
 when plaintilF goes into equity on the irround of discovery only, the 
 answer is conclusive, 503 ; answer of one defendant no evidence 
 against another, 5i)3 ; but his deposition may be taken, 503. 
 
 AiTEALs, 335 ; when and how allowed, 335, 336; to whom, 335; for what 
 amount, 336; when matter of right, 336; at what time allowed, 336; 
 facts when rc-examinable, 336; bond on, 329, 330; when only de- 
 mandablc of executors, •331 ; one of several parties in equity may ap- 
 peal alone, 331 ; record when to be filed 332 ; proceedings on — see 
 Error, writ of, and 332, 3-3^3 ; damages on, 334; judgment on, how 
 certified, 33 1 ; see Executor, and 339 ; proceedings in nature of, .326. 
 
 Application of payments, 106 ; rule as respects principal and interest, 106. 
 
 Application of purchase money, obligation to sec to, 451. 
 
 Aruitkatiox, 28. 
 
 ARurnt.vToRs, 28; sec Umpire, and 28; proceedings by them, 33; should 
 in all things be impartial, 32; somclimcs ap])oiiit unij)ire, 32. 
 
 Arrest, when illegal, 71 ; void in case of executor, 71 ; except when sued 
 for devastavit, 71 ; when privilege \s personal, ofllcer not liable, 71 ; 
 nor trespass against the plaintilf, 71 ; but case does, 71 ; what 
 amounts to arrest, 316 ; how to be made, 347. 
 
 Arrest, who privileged from, 235. 
 
 Artsio.NKE, declaration by, 102; pleas to dec. by, 115; plea of payment bo- 
 fore noiire, 1 15 ; must be specially |)lcaded, 116 ; plea of no assio-n- 
 ment throws proof on plaintifi", 11(5; see Verdict, and 120. 
 
 AssAUi-T and iJATTERY, 5; iicvcr laid with a ro7//iH!/an(/o, 54 ; nor a (piod 
 cum, 'il ; but this is now cured by verdict, 54 ; lies against several but 
 two cannot join in except baron and feme, 55; general issue, 55; 
 Stat, of Inn. — former recovery — satisfaction, and other matters may 
 be specially jdeaded, .55; justification must always be, 55 ; other 
 matters in regard to the pleadings, 55; evidence, 55 ; trial — verdict 
 — ^judgment — damages ami costs, 56; judgment de mclioribus dam- 
 nis, 5() ; .'-ec Wife, ami 73. 
 
 As.sTMPsiT, I2S'; express, 12-', |.31; implied, 129, 130; see quantum me- 
 ruit, and 129, 133, 116, I 1<», i.lO ; sec ipinntum vaUhat, and 129; 
 see mfincy had and rercired, and 129 ; money paid, and 129 ; insivml 
 compiilassent, :iui\ 129; Far stated account, iiud I-IU ; indebitatus as- 
 sumpsit, iind 130; mistake, and 131 ; deceit, and 131; void authori-
 
 INDEX. V 
 
 ty, and 132 ; extortion, and 132 ; cheating, and 132; fees, and 133; 
 implied assumpsit, and 133 ; express contracts, and 134 ; sales, and 
 134 ; see Statute of Frauds, Collateral Promises, Executors, Marriage 
 Agreements, Sales of Lands, Agreement, and 138, 139; action of, 
 can in general only be maintained by party to the promise, 141 ; 
 evidence, 148; see Pleadings, and 151 ; amount of demand must 
 be proved, 161 ; nonsuit, 161 ; costs, 161. 
 
 Attachment, pending plea of, 159 ; when in bar, and when only in abate- 
 ment, 107; doctrines as to attachment, 107; what a good attach- 
 ing order, 107 ; does not excuse from interest, 107; attachment, a 
 remedy for recovery of debts, 241. 
 
 Attorney at law, 45 ; right to the aid of counsel, 46; what a sufficient 
 retainer, 46; powers of, 46; when determined, 46; may remit da- 
 mages — and receive money, 46 ; cannot enter into collateral engage- 
 ments, 47 ; nor take bonds in payment, 47 ; how responsible for ne- 
 glect or misbehaviour, 47; not charged with interest on debts lost 
 through his fault, 47; must keep his client's secrets, 48; penalties 
 for extortion, 48; for appearing on appeals, 48; right to retain his 
 fees, 49 ; lien for them on client's papers, 49 ; and on funds in tran- 
 situ, 49 ; his rights, 48 ; effect of his lien on right of set-off, 49 ; fee 
 not to be refunded, though he dies, 49 ; or failed to argue cause, 49. 
 
 Attorney, power of, to confess judgment, void, 321. 
 
 Auctions, frauds on, 430 ; bid above bid, whether necessary, 430. 
 
 Auctioneer, liable if he prematurely pays over deposite, 135 ; agent for 
 purchaser, and his signing a sufficient signing, 464. 
 
 Audita querela, 326; see Motion and Injunction, and 326, 327. 
 
 Averment, want of, when cured, 315 ; when not, 315. 
 
 Avowry, see Replevin. 
 
 Award, how entered up under rule of court or submission, 29 ; how and for 
 what cause set aside, 29; who may take advantage of, 30 , time should 
 be limited for. 32 ; how enlarged from time to time, 32, 33 ; how 
 many must concur, 33; must be final, 34 ; within time, 34 ; within 
 the submission, 34; good in part, though void for residue, 34; must 
 not be of part only, 35; nor against law, 35; nor impossible, 35; 
 nor unreasonable, 35 ; must be of something advantageous, 35 ; and 
 must be certain — -final — ^and mutual, 36 ; construed liberally, 36, 40 ; 
 form of, 36 ; what a good performance, 37 ; remedy by action at 
 3aw to compel performance, 37; remedy by bill in equity, 39; by 
 attachment, 39; action at law, when proper — how brought, and 
 proceedings in, 37, 38, 39 ; awards, for what set aside, 40 ; in re- 
 gard of arbitrator's conduct, 40; or the award itself, 40 ; these last 
 must appear on its face, 40; when not disturbed, 40 ; when other- 
 wise, 40, 41 ; when set aside for the misconduct of parties, 41 ; 
 relief against erroneous awards, 41 ; whether real estate can pass 
 by mere award, 29; conveyance maybe awarded, or release of title, 
 29 ; statutory provisions as to awards, 29 ; see Subtnission — Refe- 
 rence — Umpire. 
 
 Bail, in civil cases, wlien and how demanded, 233 ; endorsement that bail 
 is required necessary, 233 ; consequence of omission, 233; when 
 required upon affidavit, 234; requisites of affidavit, 234 ; defendant 
 may be ruled to give bail, 234 ; appearance bail abolished, 235 ; spe- 
 cial bail, 235; see Sheriff, and 237; insufficiency of, at what time to 
 be objected, 238 ; proceedings by bail for his own exoneration, 240 ; 
 proceedings against, by the creditor, 240, 241, 359; bail in detinue, 
 84, 313 ; nature of his recognizance, 84; proceeded against by scire 
 facias, 84. 
 
 Bankruptcy, plea of, 1«08 ; a good plea in bar, 157.
 
 yi INDEX. 
 
 Battert, when justifiable, 52; justification as to innrincrs, 53 ; justifica- 
 tion of, by officer under process or otherwise, 53; battery includes 
 assault', 53 ; battery of wife, 73; or child, 74. 
 
 Bidding, retracted, 135. 
 
 Bill of particulars, 105, 147, 133. 108, 160. 
 
 Bill in equity, 490. 
 
 Bill or peace, 464. 
 
 Bill or interpleader, 484. 
 
 Bill for prescrva(io7i of contesa^ property, 485. 
 
 Bills of exchange, and prom^ory notes, 136; payment of debts by, 27; 
 see Indeb. Assumpsit, and 144. 
 
 Bills of exception, "293; principles respecting, 293, 294; see Instruc- 
 tion, and 293; one cannot be looked into to aid another, 293; 
 should set (orih facts, and not evidence on question of new trial, 294 ; 
 never can have effect of demurrer to evidence, 294 ; signing of, bow- 
 coerced, 294. 
 
 Blanks, in declaration, when cured, 315. 
 
 Bond, sec collateral condition, and 322 ; cannot be discharged before breach 
 without deed, 28 ; aliter, after breach, 28. 
 
 BovNDs noND, 351 ; how broken, 352 ; to be assigned to the creditor, 352. 
 
 Breach, must allege nonpayment by all of the obligors, 102; insufficiently 
 set out, 315. 
 
 Capiai ad respondendum ; sec Writ original. 
 
 Casa, nature of it, 345 ; how levied, 346 ; who privileged from arrest by, 
 344; aged person, 344; infant maybe taken on, 344; and feme 
 covert, 344 : but not executor or administrator, except for devastavit, 
 344, 345; satisfied by delivery of property by one, 345; although 
 there be several taken, 356, 357 ; refusal to discharge after tender of 
 property, gives cause of action, 345; property delivered, how dis- 
 posed of, 346 ; escape from custody — sheriff liable — see Escape, and 
 316; whether casa levied is a satisfaction, 355; how where more 
 than one def., 356 ; lien of the casa, 354, 355 ; examination of a 
 recent statute as to this, 358 ; debtor discharged from casa cannot 
 be retaken, 355; bond condition to recommit him, void, 355; new 
 execution, if def. dies in custody, 357; lien of casa, 378 ; compared 
 with that of elegit, 378 ; debtor in execution, under several casas, 
 may prefer one of the creditors to others, 380. 
 
 Case, origin of action on the, 93 ; sur-assumpsit, 93 ; see Assumpsit ; case 
 for torts, see Trespass on the Case ; various actions on the, 162 ; lies 
 aguinst attorneys, bailees, carriers, innkeepeers. Sec, 162. 
 
 (^'ase agreed, 300. 
 
 Caveat, 18(j ; its object and function, 186; equitable relief after failure to 
 cavf-at, 187, 402 ; statute giving it, not retro-aciive, 187 ; who can 
 maintain a caveat, lh7 ; effect of dismission of, 187; grounds of 
 caveat, 187; mode of proceeding in, 188. 
 
 Certainty, 260, 261 ; time, place, value, persons, 261,262; what need 
 not be set forth, 262. 
 
 Challenges to the array, 2'^6 ; to the polls, 286 ; for what causes, 286, 287. 
 
 Cheating, money paid may be recovered back, 132. 
 
 Choseh in nclirm, not liable to execution, but reached in equity, 383. 
 
 Cognovit artionim, 255, 321 ; for pnrt and defence as to residue, 255 ; see 
 Tender. 
 
 Collateral i-romtsf., 13"^, I.'}9. 
 
 Collateral condition, jmlginent on bond with, 322. 
 
 roMPOf«iTiON with cre(iitf)ri set uMde if fraudulent, ^427 : wlien and when 
 not binding, 25, 26.
 
 Common order, 238. '' 
 
 Conditions, precedent and subsequent, aee Accident, and 401. 
 
 Confession of guilt by one not party, not evidence, 92. 
 
 Confession of the action, 255, 321 ; of judgment is equivalent to a r»leas« 
 of errors, 317. 
 
 Confession of prayer, wlien not evidence against indorsee, 488. 
 
 CoNFUsio BONORUM ; 366 Agent. 
 
 Confusion of boundaries, when relieved in equity, 400. 
 
 Consideration, not implied from promise, 130 ; but always from specialty, 
 101; failing, money recovered back, 131; so if frirolous, 137; of 
 promise to pay debt of another, 140; whether it must be inserted in 
 the writing, 140 ; inadequacy of ground to vacate contract, when, 
 425; of bond, must be shewn in equity, if the circumstances are 
 suspicious, 425, in note. 
 
 Conspiracy, indictment for, 63 ; action for, when only does it lie, 63 ; must 
 be brought against several, 63 ; case in nature of lies against one or 
 more, 63 ; the first lies only for criminal prosecutions, 63 ; the lat- 
 ter for maliciously suing, and demanding bail also, 63; see Malicious 
 Prosecution, and 63. 
 
 Consultation, 204. 
 
 Continuance, 270 ; plea puis darrein, 271. 
 
 Continuando, laying trespass with, 192. 
 
 Contract is an entire thing, 134, 150 ; party may refuse partial perform- 
 ance, 150; but may bind himself by accepting part, 150, 151 ; con- 
 tract of hazard, 404; never partially rescinded, 425. 
 
 Contracts, executed and executory, see Rescission, and 425, 465. 
 
 Contribution between heirs in a court of law. 111, 113; in equity, 
 
 Contribution, 490 ; known to common law, 490 ; enforced in equity, 490 ; 
 on what principles, 490 ; and in what variety of cases, 490, 491 ; 
 never decreed between wrong-doers, 491 ; not founded on contract, 
 but on equity, requiring equality of burden, 491 ; but parties must be 
 in equalijiire, 491 ; where parties may be bound rateably only, 490 ; 
 surety of surety, 490; supplemental security, 490 ; between heirs, 
 491 ; by dovveress or life-owner, 491 ; case of party walls, 491 ; be- 
 tween tenants, 491. 
 
 Costs, 323 ; general law of, 323 ; on plea of plene ad. 118; when not a- 
 gainst executors de bonis propriis, 120, 143 ; in equity, 324 ; costs 
 on reversal, 323 ; of motions, 323 ; against executors, 323 ; securi- 
 ty for, 324 ; payment how enforced, 324 ; see Pauper Suits, and 324, 
 325 ; judgment for, how rendered where there are several pleas, 325 ; 
 when no costs, or no more costs than damages, 325, 326, 247. 
 
 Count, 247; in equity, 504 ; general, 146; when they cannot be resorted 
 to, 149. See Faulty count. 
 
 Court, 44 ; of record, 45. 
 
 Coverture no excuse for fraud, 430. 
 
 Creditors, insolvent debtor may give preference to one of many, 442. 
 
 Criminalitur, equity cannot proceed in cases, 418 ; modification of the 
 principle, 418. 
 
 Custody, defendant may plead in, 273 ; or confess judgment in, or swear 
 out, 273. 
 
 Covenants for title which vendee may require, 466 ; rule in England where 
 vendor delivers over his own title deeds, 466 ; how where he him- 
 self was but devisee or donee, 466 ; what covenants heirs are requir-^ 
 ed to enter into, 466. 
 
 CoviNANTs of seizin and for good title, when broken, 466.
 
 nil INDEX. 
 
 CovrNANT, action of, ICO ; covenant real, ancient remedy for breach of, 120 ; 
 gov! express or implied, real or personal, joint or several, 121 ; dis- 
 tinguished from a condition, 121 ; express cov. bind abbolulcly, 121 ; 
 nerer extended beyond the words, 121 ; cov. to pay rent, 121 ; for 
 quiet enjoyment, how broken, 122 ; to save harmless, how broken, 
 122; not to assign or underlet, 122; this cov. not broken by act of 
 law, 122; cov. for repairs, 122; cov. of seizin, of right to convey, 
 against incumbrances and for further assurance, 122 ; cov. secured 
 by bond or jjcnalty sued for in debt or covenant, 122; consequen- 
 ces of the one or the other course, 122; liquidated damages, 123; 
 COY. mutual and independent, dependent, simultaneous, 123 ; con- 
 strued dependent or not according to intent and nature of case, 123; 
 general rules as to this, 123, 124; breach of, 125; affirmative and 
 negative, how broken, 125; joint and several cov. 125; action of 
 against heir or executor, 125 ; by and against assignees, 126 ; plead- 
 ings, 12G; declaration, setting out contract, averments, and breach, 
 120, 127; pleas alhrmative and negative, 127; general or special 
 tion est /actum, defeasance, eviction, release, accord, 8cc. 127; evi- 
 dence, 127 ; verdict, 127 ; measure of damages, in cov. to repair, 
 127; and in contracts for sale and delivery of stock, &.c. 128; or in 
 contracts to replace stock, 128; reason of difl'erence, 128. 
 
 Damages, to what time estimated in detinue, 82 ; generally nominal in debt, 
 10:2; how laid where the debt is sterling, 
 
 Damagi: fkasant, 5 ; dilliculties attending distress for, 5. 
 
 DtBT, 1)5; legal acceptation of the term, 95; action of, when it does or 
 does not lie, 90; wager of law in, 90; when plaintiff may or may 
 not recover less than his demand, 90 ; does not lie against executor 
 on simple contract, and why, 97; nor, semble, against the acceptor 
 of a bill, 97 ; lies on judgment, 97 ; interest in such case how reco- 
 vered, 98; other cases of debt, 98 ; see Declaration, Prof ert, Breach, 
 Instalments, Plea, and Heir. 
 
 Debet axd dktinkt, when proper form of declaring against executor or for 
 him, 100; how against the heir, 100, 111. 
 
 Dkckit, money obtained by recovered back, 131, 137, 162, 163. 
 
 Dlci-akation in debt, 98 ; on bond need not set out consideration, 101 ; 
 alitcr in action on simple contract, 98 ; form of, 98; analysis of, 98, 
 he. ; see Venue, Variance, Slerlin^' money. Foreign currency, and Pe- 
 nalty ; should demand the whole of bond, though part paid, 100; 
 on several bonds, 100; when it should demand interest, 100; see 
 Detei and D etinct, aiwl 100; how to declare where name is mis- 
 ppelt, Js.c., 101 ; on specialty, must shew it to be scaled, 101; what 
 is equivah-iit, 101 ; see Profcrl, Breach, Damages, Assignee, Evi- 
 dence, and 110; Verdict, and 117; Interest, and 117. 
 
 Declaration in assumpsit, 113; see Executors, and 148; special con- 
 tract must be declared on, 144 ; averments in, 144; notice and re- 
 quest, wlien and when not necessary to be specially set forth, 144; 
 performance or readiness, when to be averred, 145; promise is the 
 gibt, and must be set forth, 145; so, also, the consideration, 145; 
 omission whether cured, 140; see Counts, General, and 140; must 
 Bct out for wli.it the debt became due, 147; day of promise immate- 
 rial, I4H; breach, 147; dec. on promise to pay debt of another, 
 need not «e//or//t that it was in writing, 148. 
 
 Declaration, its objec tand function, 244, 245, 247; form and constitu- 
 ent parts of, 217 ; analysis of, 248 ; see Venue, and 248 ; must con- 
 form to the writ, 250; variance how objected, 250; rule for, 251; 
 Bee Non-suit, Discontinuance, and lietraxit, and 251.
 
 Deed, when good in part though void in part, 443 ; when not, 443 ; when 
 as to some creditors, though void as to others, 443. 
 
 Default, 251 ; where there is judgment by, for want of appearance, the 
 writ is part of the record, 250. 
 
 Defective execution aided, 403 ; but not defect in privy examination, 406. 
 
 Defective title laid in declaration never cured, 311, 312; aliter Osgood 
 title laid defectively, 311-'12. 
 
 Defects in pleading cured by statute, 313; cured by verdict at common 
 law, 310, 311, 312. 
 
 Defence to the action should answer to the whole, 256, 262. 
 
 Defendant — See Custody, and 273. 
 
 Deficiency in quantity of land sold, 404. 
 
 Deforcement, 166; various species of, 166. 
 
 Delivery bond — -See Forthcoming bond. 
 
 Delusion, generctl, as to matter of law, made a ground of relief, 403. 
 
 Demurrer, object of, 266 ; form of, 267 ; always advisable where defence 
 is intended, 274; general and special, 267; to dec. in whole or in 
 part, 267; judgment against demurrant if he has committed the first 
 fault, 267; judgment for plaintiff if there be a good count, 267; sO 
 for defendant if there be a good plea, 267; leave to amend, 268; 
 failure to amend is a waiver of leave, 269; judgment on dem. is pe- 
 remptory, 268; dem. admits facts well pleaded, 269; when to de- 
 mur or plead, 270; dem. how tried, 271 ; must be decided before 
 trial of issue in fact, 268 ; special demurrer, 267, 268. 
 
 Demurrer to evidence, form of, 295 ; object of, 298 ; when proper, 296 ; 
 verdict, how found, 296 ; when is a party compelled to join in, 296; 
 when not, 297 ; what admitted by, 296, 297 ; whole evidence must 
 be inserted, 297 ; how joined, 297 ; recent decisions respecting, 
 297; always hazardous, 297; errors or omissions, how corrected, 
 298 ; new trial allowable, 298 ; on trial of, no objection lies to the 
 pleadings, 298 ; but the party may move in arrest afterwards, 298. 
 
 Departure in pleading, 263, 264. 
 
 Depositions in law courts, 301 ; de bene esse, 301. 
 
 Description, see Variance, and 99, 101, 102, 272. 
 
 Detinue, 79, 80 ; for what it lies, 80 ; though possession obtained tortious- 
 ly, 80 ; essentials to the action, 80 ; v^hat right of possession or pro- 
 perty in plaintiff, 80 ; identity of goods, 80 ; declaration, 80 ; omis- 
 sion in, cured, 315; separate values laid, why, 80; value may be 
 exceeded, why, 80 ; request general and special, 81 ; how should 
 executor declare, 81 ; or be sued, 81; pleas, 81 ; general issue, 81 ; 
 five years' possession gives title, when, 81 ; how to proceed, where 
 suit abates by death, 81 ; verdict, 81, 82, 83 ; should find separate 
 values, and why, 82; omission to find value remedied, 317; other 
 omissions cured, 317 ; may find damages, generally, 82 ; must an- 
 swer to all the issues, 82 ; and find damages for detention, 82 ; to 
 what time, 82 ; hires subsequent to verdict, not recoverable, 82 ; 
 proceeding against purchaser penc?en<e lite, 82; death or destruction 
 of the subject, on whom falls the loss, 82, &.c. ; how must defen. 
 avail himself of that fact, 83 ; distringas in detinue, 83 ; how su- 
 perseded, 83 ; when may casa or fifa issue, 83 ; how awarded, 83 ; 
 defect of the execution at law, 83 ; probable remedy in equity, 84 ; 
 bail in detinue, see Bail, and 84 ; detinue, where property is of less 
 value than twenty dollars, 84 ; wager of law, 84. 
 
 Devise for payment of debts, when it removes the bar of the statute of 
 limitations, 414 ; keeps alive debts not barred, 415 ; qiictre, if it re= 
 vives those already barred, 415. 
 2
 
 X fxNDEX. 
 
 DLnsEE, his liabiluy on bond of testator, 113 ; may maintain writ of rigKf; 
 
 DiFFEKr.NvE between defective title and good title defectively laid, 311, 312= 
 
 l)iL\TORY ;y/ert», i2o3 : to jurisdiction — in disability — in abatement, 253; 
 liow to conclude, 255 ; order of pleading, 254 ; judgment upon 
 them, 255; plaintift' confessing error pays no costs, 255. 
 
 Discovery, 431 ; ground of eq. jurisdiction, 431, 435 ; but it must not be 
 only colorable, 435 ; mere bill of, dillers from bill also praying re- 
 lief, 431 ; the latter requires affidavit of loss of bond, &.C.— the for- 
 mer does not, 433.. 431; mere bill, for whom, against whom, and' 
 of what it lies, 431, 432 ; for what not, 432 ; never to compel pur- 
 chaser for value without notice to impeach his own title, 4i2, 433 ; 
 nor against tort-feasor to enable the party to maintain an action, 433 ; 
 nor where it will subject defendant to penalties, 439; lies for disco- 
 very of lost bonds, deeds, 8cc., 433; essentials to bill of, 433, 434 ; 
 form of it, 431; parties to, 431; at what time it may be brought, 
 431; how finally disposed of, 431; plaintitf must pay costs, 434 ; 
 bill for discovery and relief, 435. 
 
 DiscovNT, see Ollset. 
 
 Discontinuance, IGG, 251, 313; by improperly demurring, 105. 
 
 Disseisin, 1(>5; of incorporeal hereditaments, 1G5 ; by election, 1G5; what? 
 constitutes disseisin, 1()5. 
 
 DisTCRBANCE, 199; of right of way, 199; right how to be set forth, 200; 
 justification under right of way, must be pleaded, 200. 
 
 Distringas, 342 ; issues received under, how disposed of, 312 ; how to be 
 levied, 343; how superseded in part, 313; remedy, when it is in- 
 effectual, 313. 
 
 Distringas nuper vice comitem, 370. 
 
 Distress, remedy by, 5; for what, 5; for rent, 5 ; for taxes, Sec, 5 ; for 
 damagc-fcasant, 5 ; distress, by grantee, of part, 8 ; distress for too 
 much, 8 ; damages in such case, 8 ; distress for too little, effect on 
 further demand, 8 ; what may be distrained, 8 ; what exempt, 8, 9, 
 10; goods of stranger, 9 ; his remedy, 10; disposition of distres- 
 ses, 10 ; how and by whom made, 1 1 ; not for more than five years' 
 rent, 11 ; how, if goods arc carried off, 11 ; doors cannot bo broken, 
 11; distress must be reasonable, 11; rescue, when justifiable, 12; 
 goods distrained to be sold, 12; see Pound, and 12; replevy bond, 
 and 12, 13 ; olficer alone can make distress and sale, or take bond, 
 13 ; irregular distress, void ab initio, 1 1 ; statutory remedy for wrong- 
 ful distress, 14 ; judgment in replevin, 14 ; rent not merged by bond 
 or note, 14 ; unless there be judgment thereon, 14 ; distress must not 
 be till the day after due, 15; nor after tender, J5; tenant's remc^ 
 dies, 79 ; see Rent. 
 
 Divorces, jurisdiction in cases of, 495. 
 
 Drln KEN NESS, when a ground for vacatins^ a contract, 425. 
 
 Dli'licitv, 2.5S, 2G1 ; what not, 258, 259, 2G0, 2G8. 
 
 Ejectment, object of this action, 170 ; original nature of it, 171 ; present 
 fictitious character, 172; how commenced, 173; service of dec. — 
 notice common order— and other preparatory ste])s, 173; declara- 
 tion, 173 ; no exception to be taken to, 31G ; who must join in, 174 ; 
 joint demises, when proper, 174 ; several demises, 174 ; ej. by one 
 tenant in common against another, 174 ; infant may maintain, 174, 
 and corporation, 175; lies against several, 175; limitation, 175; 
 proof of tiile, 170; pi. must recover by strength of his own, 17G ; 
 proof by def. of outstanding title, 170, 177; verdict, 177; dama- 
 ges; 177; effect of judgment, 177; execution, 177-
 
 INDEX. XI 
 
 Elegit, 372; binds from date of judgment, 373 ; reaches trust estates, 874 , 
 and freehold rents, 375 ; and pledges, 374 ; but not mere equities, 
 374, 375 ; nor a dry reversion, 375 ; binds goods from delivery of ex- 
 ecution to sheriff only, 375 ; beasts of plough ])rivileged, 375; goods 
 taken delivered at value, 375 ; elegit only extends moiety of land, 
 375 ; how two elegits may cover the whole, 375, 378 ; lien of, how 
 preserved, 375; efl'ect if judgment is not kept alive, 37G; lien how 
 revived, 376 ; effect of revivor on intermediate rights, 377 ; as to 
 the debtor, 377 ; or purchaser, 377 ; when superior to casa-lien, 
 378; effect of death of defendant in execution, upon the Hen, 380; 
 elegit — how proceeded in, 381 ; may issue on decree in equity, 337; 
 see Execution. 
 
 Embezzlement, 132. 
 
 Enquiry, writ of, 321. 
 
 Entry, remedy by, 167; how tolled, 168 ; barred by time, 168, 169; how 
 to be pursued, 169 ; forcible entry and detainer, remedy for, 169. 
 
 Entry and location, how made, 187 ; imperfect — subject to caveat, 187; 
 general and particular description in, 187. 
 
 Equal equities, between, the law prevails, 395. 
 
 Equities, barred by time, 417; not subject to levy, but reached in equity, 
 361, 382 ; see Execution and Fieri Facias. 
 
 Equity, 387 ; Mr. B.'s view of eq. jurisdiction, 387 ; power to mitigate ri- 
 gor of law, 387 ; to construe statutes by equity, 388 ; fraud, acci- 
 dent, and trust, 388 ; mode of proof, 391 ; of trial, 391 ; of relief, 
 392; construction of securities for money, 392; trusts or second 
 uses, 392 : maxims of equity — see Equitas sequitur legem, and 393 ; 
 see Equal Equity, and 395 ; he who asks must do equity, 395 ; must 
 have clean hands, 395, 396 : advantages of the system, 397, 398 ; 
 subjects of, classified, 397 ; difficult to define boundaries, 397 ; ju- 
 risdiction not taken away by extension to law courts, 398-'9 ; con- 
 siders that done which ought to have been done, 460 ; jurisdiction 
 in avoiding illegal contracts, 489; never will lend them its aid, 489; 
 jurisdiction in ecclesiastical cases, 495. 
 
 Equity, courts of, mode of proceeding in, 496 ; see Practice in Equity. 
 
 Equitas sequitur legem, 393 ; in construction of statutes, of wills and 
 limitations, and in descent of trust estates, 391-5 ; and in admi- 
 nistration of legal assets, 395 ; see Merger of Equity, 395. 
 
 Error, writ of, 327; how obtained, 329; terms of allowance, 329; who 
 may sue out, 330 ; must be party or privy, 330 ; case of feme sole, 
 331 ; all parties must be joined at law, 331 ; see Summons and Se- 
 verance, 331 ; when it operates as a supersedeas, 332; effects of it, 
 332; pleas to, 332-3 ; how procured on, 332-3; when dismissed, 
 333; assignment of errors, 332 ; judgment in, 333; never allowed 
 till final judgment, 329; lies even after judgment executed, 329; and 
 money recovered back, 329; bond on obtaining, 331. 
 
 Error coram nobis, 328 ; granted ex debito justitiae, 328 ; disused and 
 superseded my motion, 328-'9. 
 
 Errors clerical, 329 ; when and how amendable, 329. 
 
 Errors in final judgment amendable by statutory provision, 45. 
 
 Escape, 347; what amounts to, 347; constructive, 347 ; actual, 348; vo- 
 luntary, 349 ; negligent, 349 ; voluntary return before action, effect 
 of, 350 ; fresh pursuit, 350 ; excuses for negligent escapes, 349 ; form 
 of finding required by statute, 350 ; proceedings on escape warrants, 
 350 ; analysis of the statute of escapes, 350, 351 ; see Prison Rules, 
 and 351 ; see Bounds Bond, and 351 ; new casa against debtor, 352; 
 officer when liable for escape on mesne process, 352 ; extent of li-
 
 Xii INDEX. 
 
 ability for escape on final process, 353, 351 ; how officer is to be 
 proceeded nfraint^f, 358 ; oilicer liable in case for escape before judg- 
 ment, and in'^dcbt for escape after jndginent, 1G2, 
 EsTorrEL, 257; effect of, 257; varions, 258; by record, deed, or in pais.. 
 258 ; recital does not work, 258 ; must be neutral, 258 ; how to be 
 replied, 258 ; demurrer to, or avoidance of, 258. 
 
 EsTROPEMEXT, 198. 
 
 Evidence, 2S8 ; written, 288 ; records, 268 ; ancient deeds, 269 ; recent 
 deeds, 289 ; other writings, 289 ; best evidence must be produced, 
 289; rule explained in note, 289; hearsay, 289; books of account, 
 289 ; entries in books, how made evidence, 290 ; see Witnesses, 
 and 290. 
 
 Evidence in action of debt, 116 ; on plea of 7ion est factum, 116 ; see Sub- 
 scribing- Witness, and 116; on \i\ca. of plene ad. for plaintiif, 116; 
 for defendant, 117 ; jurors evidence, how produced, 298. 
 
 Examination of witnesses, course of, 298. 
 
 Execution, 337 ; only on final judgment at law, 337 ; alitcr in equity, 
 337; must issue within the year, 337 ; how revived and in what 
 cases, see Judgment, and 337 ; what excuses the failure to issue, 
 338,342; variance from judgment fatal, 338; how objected, 339; 
 irregular ex. how quashed, 339; from what court ex. must issue, 
 339 ; to what county, 339 ; good, thougli not directed to any sheriff, 
 317; in whose name, 339 ; effect of death of either party after judg- 
 ment, 310; or of defen. in execution, 380; see Scire Facias, and 
 340; when not arrested by death, 341 ; W'hen plaintiff may sue se- 
 cond nxccution, 341 ; there cannot be at the same time two ex. of 
 different kinds, 34], 356; see Hub. Fac. Seisinam, and 342; Deti- 
 nue, and 342; Distringas, and 342; Casa, and 343 ; suing out se- 
 cond ex. is a waiver of the first, 365; should be quashed if d. bond 
 is quashed, 36(J ; motion to quash, 381; proceeding on, 382; sale 
 under execution, 369; relief in equity on executions, 382, 383; 
 against mere equities, 382; against fraud, conveyances, 382 ; when 
 only afforded, 386; in what manner, 385; see Fifa and Casa, Le- 
 vari Facias, Elegit ; execiition against heirs, 114. 
 
 ExECiTORY AGREEMENT without Consideration is nudum pactum, 25 ; effect 
 of injunction upon an execution, 472; before, 472; or after, 472; 
 or where money has been made, 472. 
 
 Executor, |)leas by, in debt, 114; ne unques executor, 114; when mat- 
 ter of abatemont or of bar, 114 ; what tried under it, 114 ; see Re- 
 tainer, and 115 ; how he should ])lead, 115 ; not chargeable beyond 
 the assets, 115 ; what amounts to admission of assets, 115 : verdict 
 against on jilenc ad. conclusive in action of devastavit, 115 ; indul- 
 gence to, 115; sec Pknc ad., and 115: replication per fraudem, 
 115; assumpsit against them, 143; when and when not liable to 
 costs, 143, 161 ; joinder in action in reference to executors, 206, 
 207; when chargeable on promise to answer out of their own es- 
 tate, 138, 139; how they should declare, 148; what promises they 
 may join in assumjjsit, 148; what may not be joined in actions 
 against tliem, 148; |)laintiff must prove his debt, though the only 
 plea be plcne ad., 151 ; when only liable to arrest on casa, 345; re- 
 lieved in equity against accidental depreciation, 401, 402. 
 
 ExTECTANriEs, sales of discounlonanced, 426. 
 
 Extortion cannot be enforced, 137; money paid by recovered, 132. 
 
 Factors, when to sue in their own names, 141 ; when not, 141 ; cannot 
 pawn goods, Ml ; how answerable, 141 : how they should sell, 141.
 
 INDEX. Xlll 
 
 FaLSB IMPRISONMENT, wliat Constitutes, 66 ; as it respects the nature of the 
 detention, 66; or its unlawfulness, 66; either for want of authority ' 
 or abuse of it, 66; arrest on Sunday illegal, 66; exception, 66 ; re- 
 medy for false impr. 66, 70 ; mainprize, 66; homine replegiando, 
 66 ; see Habeas Corpus, and 67 ; see Arrest, and 71 ; action lies not 
 if writ be not void, 71 ; lies for arresting wrong person, 71 ; or against 
 one not an officer for arresting a suspected but innocent person, 
 71 ; not so as to peace officer, 71 ; officer not responsible, though 
 process is irregular, 71 ; aliter, if no jurisdiction, 71 ; lies for wrong- 
 ful continuance of imprisonment, 71 ; or for oppression and cruelty, 
 71 ; lies not against a judge or justice, 72 ; plaintiff and officer may 
 sever in defence, 72; consequence if they do not, 72; law of costs, 72. 
 
 Faulty count, see Jeofails, and 317 ; motion to disregard, 268. 
 
 Federal court, judgment in, its effect in State tribunals, 284. 
 
 FsiEs, action for, 133. 
 
 Feme covert, defective privy examination of, not aided, 406. 
 
 Fieri facias, 359; how levied, .359, 360 ; sheriff's power, 359; on whoso 
 property, 360 ; not on a stranger's — nor specific legatee's — nor tes- 
 tator's goods for executor's debt — nor separate property — nor debt 
 due from sheriff, 360 ; but he may return "ready," 360; execution 
 of is an entire thing, 360 ; may be levied on lease for years, 361 ; on 
 growing crops, 361 ; not on mere equities, 361 ; but may on trust 
 property, 361 ; when ordered to be satisfied oat of defen. money in 
 sheriffs hands ; 360 ; lien of, 360, 363 ; continues till forth, bond 
 forfeited, 360 ; in what manner sheriff may take property, 362 : ex- 
 tent of lien, 363 ; how lost, 363 ; by collusion or negligence, 363; 
 by release of the property, .363, 364 ; or plaintiff's direction to leave 
 it with defendant, 364 ; aliter, if it be the act of the sheriff, 364 ; 
 effect of giving up the property, upon the judgment, 364, 365 ; su- 
 ing out second execution is a waiver of the first, 365; proceedings 
 after a levy, 367 ; fifa should be quashed, if the bond taken under it 
 be quashed, .366. 
 
 Forbearance, unspecified, no consideration, 137. 
 
 Forcible entry and detainer, remedy for by statute, 169. 
 
 Foreign currency, how declared for, 99. 
 
 Foreign law, how proved, 283 ; unwritten, how proved, 28.3. 
 
 Foreign judgment, see Judgment, and 278, 279, 280. 
 
 Foreign, States of the Union whether foreign to each other, 280, 281. 
 
 Forfeiture, see Penalties and Forfeitures. 
 
 Forthcoming bond, 357, 365 ; a barrier while in force to farther execution, 
 357; not a satisfaction, 357, 366 ; if quashed, new ex. may issue, 
 357 ; see Appeals, and 336 ; effect of forfeited f. bond or lien of 
 execution, 365, 366 ; quashing, 366,367; ex. should be quashed, 
 also, 365, .366; faulty, -367; must fix day and place of sale, 368; 
 property at debtor's risk, 368 ; consequence of failure to deliver any 
 part, 368 ; when property is to be delivered, 368 ; when is the exe- 
 cution on appeal a part of the record, 368; when notice of motion 
 will be presumed on appeal, 368 ; various other matters respecting, 
 369. 
 
 Fraudulent transaction, action will not lie upon, 137. 
 Fraudulent conveyance, in the way of execution removed, 382 ; see Cho- 
 ses in Action, and 383; donees, how proceeded against in equity, 385. 
 
 Fraud, general jurisdiction of equity in cases of fraud, 419; what cogniza- 
 ble at law, 419 ; fraud in relation to wills, how tried with us, 419; 
 eq. jurisd. whose will is procured by fraud, 419 ; or suppressed, 420 ; 
 essentials in this case, 420 ; suppressor how dealt with, 420 ; deli-
 
 Xiv INDEX. 
 
 cacv of this jiirisdictioB, 421 ; fraudulent devises, 421 ; frauds in re- 
 lation to deeds, 421 ; in their execution, 421 ; or suppression, 421 ; 
 or preventing execution of, 421 ; frauds in contracts, generally, 421 ; 
 see Sug^gestio falsi, and 421; sec Oppression and Undue Influence, 
 and 422, 423 ; see Incapacity and Imbecility, 424 ; see Drunkenness 
 — Old Age — Inadequate Consideration, and 425 ; see Contracts, ex- 
 ecuted and executory, and 425 ; see Underhand Agreements, and 427 ; 
 see Notice, and 428 ; Lis pendens, and 42S, 429 ; fraud in obtaining 
 judgments, 430 ; frauds on auctions, 430 ; infancy and coverture no 
 excuse for fraud, 430 ; interests obtained through fraud of third per- 
 sons, 430, 431, 443. 
 
 Fkeigut, mother of wages, 142; when due, 142; what excuses failure to 
 deliver cargo, 142. 
 
 Gamixg, money lost at, recovered back, 132. 
 
 Genkral issue, 25G ; special defence not evidence under general issue, 250. 
 
 Gist of action, 310. 
 
 Giving color, 2G3. 
 
 Governor, how to be sued, 241. 
 
 Gross, sale in, 404. 
 
 Guardian may sue for abduction of ward, 74. 
 
 Haleas CORPUS ad respondendum, 67 ; ad satisfaciendum, 67 ; ad testifi- 
 candum, 67; when awarded, 67; on what terms, 67 ; provision ia 
 case of probate of wills, 67 ; hub. cor. ad faciendum and recipiendum^ 
 67 ; eiTcct of it, 67 ; when to be refused, 68 ; hab. cor. ad subjicien- 
 dum, 68; provisions of the act, 68, 69; commentary on it, 68, 69, 
 70 ; extends to restraints of husband or father, 70. 
 
 flxuERE facias seisinam, 342; hab. fac. possessionem, 342. 
 
 Health, injuries affecting and remedies for, 56, 57. 
 
 Heir, must be charged in debet and detinet, 111 ; declaration against the 
 heir of the heir. 111 ; in actions against the heir, all should he 
 parties, HI; contribution between, how com])elled, 111, 113; prin- 
 ciples of the action against the heir. 111 ; why bound. 111 ; bound 
 by reason of assets descended. 111 ; land bound from teste of the 
 writ only, 111; the manner of his pleading at common law. 111; 
 how he must now plead, 112; what his best course, 112; whether 
 relief to one where others have wasted, 113 ; sec Devisee, and 113; 
 judgment and execution against him, 114 ; never liable beyond the 
 assets, 111; guardian not bound to apply rents and profits to pay- 
 ment, 114 ; when decree for sale instead of extent, 114 ; purchaser 
 before suit and without notice protected, 114 ; contribution betweea 
 heirs, 1 13 ; cxccu. not to be levied on one only, 113 ; see Expectan- 
 cies, and 426 ; relief in equity on judgment against him, 383 ; lands 
 of, whether subjected before personalty is exhausted, 384 ; infancy 
 of, does not impede decree for sale, 384 ; when the whole, and 
 when a moiety only, extended, 384 ; execution on judgment against 
 him, 3S7. 
 
 Husband n)ay submit f(jr his wife, 30 ; may maintain trover for wife's goods, 
 87; when she must join, may join, or must not join, 67; trover lies 
 against him for her conversion 
 
 iLLtcAL cont.-act, money paid on, when recovered back, 132; when not, 
 132 ; not made good by rci)eal of statute, 132. 
 
 Imdecilitv, 421. 
 
 Imparlance, 252. 
 
 Implied assumpsits, when only raised, 133 ; raised where no express ngree- 
 mcnt — or it hn? been rescinded — or is otherwise at an end — or the 
 contract has been pciforincd and a simple debt remains, 134 ; does
 
 INDEX. XV 
 
 not lie where presumption of contract is excluded, 13G ; or for vo- 
 luntary curtesy, 136; or for sei-viccin expectation of a legacy, 13G; 
 or on an illegal transaction, 136, 137 ; or for demand due by spe- 
 cialty, 137 ; distinctions as to this, 137 ; does not lie on contract 
 obtained by fraud, 138. 
 
 Imprisonment, false, see False Imprisonment. 
 
 Inadequacy of price, 425, 426, 427. 
 
 Incapacity, 424. 
 
 Indebitatus assumpsit, when it lies, 130, 146 ; its form and character, 
 146 ; see Implied Assumpsit, and 133, 131 ; lies- when express 
 agreement is at an end, 133, 134; but not if it be still open and 
 subsisting, 134, 147; lies only for money, 134 ; never for stock, 138; 
 lies not for money paid voluntarily or in consequence of suit, 138; 
 or in consideration of moral obligation, 138; will it lie for indorsee 
 against indorser, 144. 
 
 Indemnifying bond, 369. 
 
 Infancy, plea of, 158; what may be replied, 158, 159 ; no excuse for fraud, 
 430. 
 
 Injunction, 467; has sup^erscded audita querela, 326; terms on which it' 
 is granted, 467; to judgment at law — sales under trust deeds, 468 j 
 effect of injunction, 468 ; how enforced, 468 ; vA\o\\Gi\ pendente lite, 
 469; remedy in case the chancellor refuses it, 469,489; to stay 
 waste, 469 ; or prevent nuisance, 470; to restrain negotiation of 
 negotiable securities, 471 ; to restrain infringement of parties, 471 ; 
 or pleading an iniquitous plea, 471 ; or proceeding by another tri- 
 bunal, 471 ; to stay a trial, 472 ; after trial, 472 ; to stay execution,. 
 472 ; acts not on the court, but the party, 472 ; in cases of gaming,, 
 usury, &c., 472 ; not on the ground of right to unliquidated dama- 
 ges, 472 ; of purchaser to restrain recovery of purchase money, seo 
 Purchase Money, and 473 ; either by enforcing deed of trust, or by 
 execution, 473 ; distinction herein, 473, 474 ; difficulties in exercise 
 of this jurisdiction in these cases, 474 ; injunctions to judgments 
 on the ground of surprise, 475 ; principles settled on this subject, 
 475, 476, 477; whether allowed on the ground of new evidence, 
 478, 479, 480 ; on the ground of appeal to defendant's conscience, 
 480 ; excessive damages, 480 ; injunction allowed to party claiming 
 property taken in execution, 480; rules as to this matter, 480 ; seo 
 Quia Timet, and 481 ; see Bill of Peace, and 484 ; see Bill of In- 
 terpleader, and 484 ; how injunction is dissolved, 486 ; sec Answer, 
 and 486 ; when defendant may move, 487, 468; rules in equity as 
 to this matter, 488; motion to dissolve does not determine the cause, 
 488; motion to reinstate, 489 ; remedy if refused, 489 ; appeal from 
 dissolution revives injunction, 489 ; security required on such ap- 
 peal, 489 ; effect of injunction, see Execution, and 472. 
 
 Injuries, with force and without force, 51 ; see Personal Security. 
 
 Insimul computassent, 129; exact sum need not be proved, 151; evi- 
 dence of amount current improper, 151. 
 
 Insolvent debtors, 354 ; may prefer one creditor to others, 442. 
 
 Instalments, action for money due by, 103; how brought, 103. Sec 
 Index to Book 2. 
 
 Instruction should never be given as to the weight of evidence, 293. 
 
 Interest, purchaser chargeable with, 467. 
 
 Interest on rent, see Rent; in action of debt, 117 ; office judgment for, 
 239, 275 ; in debt on judgment, -337 ; payments made, set-off against 
 principal, 337 ; when docs interest begia to run, 408. 
 
 Intrusion, 164=
 
 Xvi INDEX. 
 
 Issuable plea, 237; demurrer so considered, 239; and stat. of limitations, 
 ii3*J ; but not a i)lca in abatement, 239. 
 
 Issue, what, 215, 2(35; its object, function, and advantage, 215 ; its qual- 
 ities, 24() ; materiality, singleness, and certainty, 216 ; made up by 
 atlirmativc and negative, 200, 266; see Certainty, and 260; how 
 made up, 265; must be single — certain, 265 ; material, 266; dis- 
 tinction between material and immaterial issues, 266, 314 ; informal, 
 how cured, 313 ; issue in law, or fact, 266; in fact, 272; issue in 
 fact admits pleading to be good, 269; see General Issue, and 256. 
 
 Issues must all be answered to by the verdict, See Venire denovo, and 314. 
 
 Jeofails, 313; what defects cured by verdict, 313; see Fariancc, and 313 ; 
 inisplcadhtg, and 313 ; discontinuance, and 313 ; similiter, and 313; 
 issue informal, and 313 ; gist, and 310 ; mistakes in name, &c. 314 ; 
 amendments considered as made, 314 ; see Averment, want of cured, 
 and 315 ; sec Breach, and 315 ; detinue, and 315 ; recital and quod 
 cum, and 315; blanks, and 315 ; Jurisdiction, and 315; averments 
 omitted and cured, 315; mistake of action cured, 316; and all de- 
 fects of, form, or substance, 316 ; see Nihil Dicit, and 316 ; default, 
 and 316, and the note tiicrc ; faulty count how treated, 317; con- 
 fession of judgment cures, 317; see Execution, and 317; errors 
 cured as to all defendants if cured as to one, 317. 
 
 JoiNDEU OF actions, 201 ; of different iorms, 204; trust of property in, 
 201, 205 ; joinder of several rights of action or liabilities, 205 ; when 
 not admissible, 206 ; sec Executor, and 206, 207 ; misjoinder, how 
 to be objected, 207 ; consequence of, 207 ; how consequences avoid- 
 ed in some cases, 207, 20« ; see Parties, and 208 ; all parties to as- 
 sumpsit must join, 151 ; distinction between contract and tort where 
 parties are not joined, 151. 
 
 Joint action, 215, 275; judgment must also be joint, 216; proceeding 
 where process is only executed on part, 275, in note. 
 
 Joint defendants, error cured as to one, cured as to all, 317. 
 
 Joint-tenants, join in trover, 87 ; one can support the action against the 
 other, only where the chattel has been destroyed by him, 88. 
 
 Journey's AtcouNTs, 156. 
 
 Judgment, 321 ; interlocutory and final, 321,323 ; its incidents, 301, 320 ; 
 how suspended or arrested, 302; causes of suspending, see New 
 Trial, and 302 ; arrested, 309, and Chitty's note there ; for intrinsic 
 canses, 309; relates to first day of the term, 373 ; by confession 
 equal to release of errors, 317; waiver of plea equal to confession, 
 317; confession of judgment on d. bond, releases errors in first 
 judgment, 317; if judgment reversed, money paid under it maybe 
 reclaimed, 132; unless voluntarily paid, 138; judgment of restitu- 
 tion, 336 ; plea of former judgment when a bar, 159 ; joint may be 
 revived against decedent's representatives, 341,357; jud. of respon- 
 deat ouster, 321 ; runs out of date if not kept alive, 337, 37C> ; how 
 kept alive, 377 ; how revived, 376; clfcctof revivor, 376; when and 
 when not prcsutned to be satisfied, 376 ; is an entire thing 333; 
 whether reversible in part, 333 ; not amendable after the term, 45 ; 
 cxce|)t under the statute, 45; in debt, how rendered, 117, 118; 
 where money is due by instalments, 118; or on bond with collateral 
 condition, 118; how rendered on plea oCplcne.ad., 119; judgment, 
 quando accidtTint, 119. 
 
 Judgment of domestic court, conclusive, 278 ; plea to debt on, 278. 
 
 Judgment ov foreign <;ouut, only conclusive in rem,, 279; or when a- 
 gainst plaintiff, 279, 280 ; or when its existence only is the question, 
 280 , Us force m other caacs, 279 , plea to action on, 278, 279.
 
 INDEX. xvn 
 
 Judges, how to be sued, 241 ; proceedings where a judge is interested in a 
 cause depending in his own court, 309. 
 
 Judicial sales not lightly set aside, 426. 
 
 JuRisDicTiOxN, in personal actions, 231; want of averment that cause of 
 action is within, 315 ; equitable always exists as to accounts against 
 stewards, &c., 417. 
 
 Jurors, who may be, 2S6 ; see Challenges, and 286. 
 
 Jury, trial by, 284 ; how summoned and impanelled, 284, 288 ; see Chal- 
 lenges, and 286 ; their province, 293, 295 ; confined till they agree, 
 299; see Verdict, and 299; withdrawal of, 299. 
 
 Laches, no relief where there is, 402. 
 
 Law, foreign, how proved, 283. 
 
 Legacy, restriction against suing inefficient, 31. 
 
 JjEvari facias, 371. 
 
 Libel, action for, 62; what actionable, 62; an indictable offence, 62; 
 truth of, a good justification in civil suit, 62 ; limitation to actions 
 for, 63 ; what amounts to publication, 63 ; libel by pictures, inuen- 
 does and averments necessary, 63. 
 
 Lien, 86; to what extended, 86; express or implied, 86; general or spe» 
 cial, 66 ; factors, manufacturers, innkeepers, carriers, and attorneys 
 lien, 86 ; see Fifa, and 363; see Elegit, and 377. 
 
 Life, security of, one of the personal rights, 51. 
 
 Limbs, injuries to, 52; how remedied, 52; when justifiable, 52; limit to 
 the right of self-protection, 52; when previous request is necessa- 
 ry, 52 ; see Battery. 
 
 Limitations, statute of, 152, 257; use of, 257 ; lex fori governs the plea 
 of, 152 ; against what demands it runs, 152; items within five years, 
 152; exception in the statute as to merchants' accounts, 153; re- 
 tail dealers, 153 ; statute must be pleaded, 154 ; " beyond sea," its 
 meaning in the statute, 154 ; Vvhat cases not within the exceptions 
 of the statute, 154; absconding debtor cannot plead the act, 154; 
 effect of statute on executors as plaintiffs, 154 ; or as defendants, 
 155; commencement of its running, 155, 157; what prevents its 
 attaching, 155; acknowledgment or new promise, 155; acknow- 
 ledgment by one of several partners, 156; or by executor, 156; bill 
 for discovery of new promise will not lie, 156; effect of suing out 
 process upon the bar, 156; bill inequity insufficient, 156, 157; sta- 
 tute how to be pleaded, 157; when a bar to demand for rent, 7 ; 
 vvhat time a bar to right of entry and in real actions, 168 ; once run- 
 ning never stops, 175; disabiliiies cannot be tacked, 175; does not 
 run against continuing trust, 176 ; runs in favor of tort feasors even 
 in equity, 176; only runs where possession is adverse, 176; does 
 not protect squatters, 185 ; binds in equity as at law when the juris- 
 dictions are concurrent, 412, 413; see Presumption and Stale De- 
 mand, and 413; does not run against a trust, 413; what kind of 
 trust excepted, 413 ; it must be continuing, 414 ; exception does 
 not apply except between the c. q. t. and his trustee, 414 ; effect of 
 devise for payment of debts on the bar of the statute, 414, 415, 416; 
 does not run against a fraud, 413, 416; but it runs against a mere 
 equity by analogy, 416; see Stale Demands, and 417. 
 
 Liquidated damages, no relief against, 409. 
 
 Lis pendens, 428, 448; what constitutes, 428, 448; rationale of the rule, 
 428, 429, 448 ; from what time it exists, 429, 448 ; terminates with 
 the suit, 429, 449; does not amount to notice of unrecorded mort" 
 gage, 429, 449. 
 
 Local actions, what are, 249. 
 3
 
 Xviii INDEX. 
 
 Lost bond. 398, 399, -lOO ; set up in equity, 398 ; even against surety, 399 ; 
 lost promissory notes and bills, 399; oilier lost instruments, 400 ; 
 bill to set up must be sworn to if relief be jprayed, 400 ; aliter if it 
 be not, 400. 
 
 Malicious i>rosecution, G3: remedy for, C3 ; see Conspiracy, and (33 ; 
 lies for demand of excessive, 63 ; or for suit without any cause what- 
 ever, and damajrc therefrom, 04 : former suit must be at an end, 64 ; 
 so as to indictments, 64 ; what must concur to sustain the action, 
 63, 61 ; malice implied from want of probable cause, but not e con- 
 tra, 64 ; wiiat is probable cause is a question for the court, 64 ; this 
 action lies for malicious attachment, 64 ; or search warrant, 64 ; 
 but not for prosecution by a superior before a court martial, 64 ; de- 
 claration in this action, 64 ; plea, 64 ; evidence, 64 ; copy of re- 
 cord necessary, 64 ; how procured, 65 ; good evidence though pro- 
 cured without order, 65; onus probandi on the plaintiff, 65; what 
 he must prove and ynay give in evidence, 65 ; def. may give in evi- 
 dence his own evidence on the prosecution, 65 ; what hetnust prove 
 or may give in evidence, 65 ; verdict is for damages, 65. 
 
 Mandamus, 201 ; its object and function, 201 ; when it lies, 202 ; proceed- 
 ings in, 201, 202. 
 
 Marriage, agreement in consideration of, 140; promise to marry not with- 
 in statute of frauds, 140. 
 
 Marriage brokage bonds, 427. 
 
 Marriage settlements, 441 ; moulded and reformed by articles, 441, 403. 
 
 Marshalling securities, 492, 493. 
 
 Mayhem, 53 ; damages de incremento, 54. 
 
 Merger of simple contract, 137, 138; of equitable title in legal estate, 395, 
 435. 
 
 Mill cases, roads, wills, Sec. tried per testes, 284. 
 
 Mispleading cured, 313. 
 
 Mistake, money paid by, recovered back, 131. 
 
 Mistakes, in names, dates, sums, &c. cured by verdict, 314; and by judg- 
 ment upon nil dicit, 316 ; in judgment how amended, 317 ; even in 
 the court of appeals, 318. 
 
 Mistake, equitable, relief on the ground of, 402; in matter of law not re- 
 lieved, 402; exceptions, 403 ; see compromise, and 402; mistake 
 as to fact, 403, 405, 406; in conveyances, 403 ; see Marriai!;c Set- 
 tlements, and 403: mistake of (pianlity of land, 404; see Sales in 
 Gross — More or J^ess — Deficiency — Contract of Hazard, and 404 ; 
 mistakes in ri-lation to wills relieved, 406; mistakes of arbitrators, 
 406. 
 
 Mosey directed to be laid out in land, and rice versa, 154 ; rules of equi- 
 ty on this subject, l.')o. 
 
 Money had and received, 129; paid, laid out, Sec. 129, 132 ; see Judgment 
 Reversed, and 132; paid as surety, 133. 
 
 More ok less, 404. 
 
 Moral OBLIGATION supports express promise, 137; no implied promise 
 from it, 137. 
 
 Motion, 255 ; substituted for audita querela, 326: and for error coram no- 
 bis, 328. 
 
 Mortgage, goo<I to indemnify against negotiable note and its rcneicals, 444. 
 
 Ne exeat, 4b5; when only allowed, 4S5 ; how and on what terms, 486. 
 
 New trial, 302: for whai'c.iiiscs and when allowed, 302, 304, 305, 306; 
 at large — for misdirection, .305 ; verdict against evidence, 305; or 
 rendered through mistake, 305 ; rules for granting, 306 ; never 
 ed where justice is done, 307 .; court should not invade jury' 
 
 or 
 grant- 
 s pro-
 
 INDEX. ^IX 
 
 vincc, 307; nor decide on weight of evidence, 307 ; rarely allowed 
 if cv. is contradictory, 307 ; nor when damages are matter of senti- 
 ment and opinion, 307; except for flagrant excess, 307; allowed 
 for mistake in calculation, 307 ; when refused, 308; distinguished 
 from venire de novo, 306; party obtaining must pay costs, 308; be- 
 fore the second trial, 308; consequences of failure, 308; dismissal 
 by plaintiff after award of new trial should not be allowed, 309; 
 what should be done, 309; new trial refused to one where ano- 
 ther is acquitted, 92; see Verdict set aside, and 303, 305; advanta- 
 ges of new trials, 303; ground for, how laid, 304 ; not allowed af- 
 ter motion to arrest, 305; when it must be to the same court, 305; 
 refused in doubtful cases, 305 ; rarely allowed to plaintiff in eject- 
 ment, 306 ; allowed for excessive or inadequate damages, 306; for 
 discovery of new evidence, when, 306. 
 
 Nil digit, 251; 316; judgment on, placed on ground of judgment after 
 verdict, 316 ; see Default, and 316. 
 
 NoN ASSUMPSIT, evidence under, 160. 
 
 NoN OBSTANTE VEREDICTO, judgment, 269. 
 
 Nonsuit, 251, 299; judgment of, no bar, 299; not even in writ of right, 
 186; in assumpsit, 161; never compulsory here, 251; except for 
 want of jurisdiction, 251 ; when it must be suffered, if at all, 251, 
 299; judgment of, 323. 
 
 Notice, 428; what amounts to, 428, 446; actual and constructive, 428, 
 440, 449 ; see Recording, and 428, 447 ; see Lis Pendens, and 
 428,448 ; private statutes do not constitute, 447 ; whatever is suffi- 
 cient to put a party on inquiry is notice, 447 ; notice to counsel 
 or agent, 447; suspicion of fraud not notice, 448; when inferred 
 from witnessing deed, 449 ; possession is notice, 450 ; see Purcha- 
 chaser without notice, and 450. 
 
 Novel assignment, 264. 
 
 Nuisance, 194; to corporeal inheritances, 194; affecting dwelling, 194; 
 or lands or watercourses, 195 ; or incorporeal hereditaments, 195 ; 
 remedies for, 195; see Presumption of Right, and 195, 196; also, 
 Book 2, Index ; private remedy when given for public nuisance, 196, 
 and the note ; execution upon the judgment in the action, 342. 
 
 NuL TiEL RECORD, plea of, how to conclude, 281; how tried, 278. 
 
 Obligees, sued by surviving, 273. 
 
 Obligors, suit against survivor, 273; and the representative of decedent, 
 273; they can't be joined, 273; joint obligors, how only to be su- 
 ed, 273; joint and several, how they may be sued, 273; see Joint 
 Action, and 274, 275. 
 
 Office JUDGMENT, 238, 275; confirmed, 238, 275; how and when set 
 aside, 238, 239, 275 ; on what terms, 239. 
 
 Off-set, 256; all discounts allowed, 108: items of to be filed, 109, 160; 
 how considered, 108; object of, 108; discounts allowed up to the 
 trial, 108; subject to what rule, 108, 109 ; what may be set-off, 108, 
 109; how barred by limitation, 109; when not allowed in suit by 
 executor, 109 ; debts must be mutual and in same right, 109; so in 
 equity, 109; so as to partnership demands, 109, 110; judgments, 
 how off-set, 110; off-set how pleaded, 110; off-sets in equity, 110; 
 a good plea in assumpsit, 160. 
 
 Old age, when ground to vacate contract, 425. 
 
 Omission of words " that he render," cured in debt, 98 ; and detinue, 315; 
 omission in verdict of price or value cured, 317. 
 
 Oppression, 422. 
 
 Order of pleading, 254.
 
 X% INDEX. 
 
 Ouster of the freehold, IGl ; remedy for various kinds of, 167 ; by en- 
 try, 107 ; by action, 170. 
 
 Papers, production if compelled, 300. 
 
 Pari delicto, l'S'2. 
 
 Parol evidence, how far admissible in bills for specific execution, 463. 
 
 Parties to action, 208 ; in actions, ex contractu, 208 ; who should be 
 plaintiffs in reference to their interest as original parties to the 
 contract, 208 ; number of plaintiffs, 210 ; assignees, 21 1 ; surviving 
 obligees, 211 ; executors, &c., and heirs, 212; husband and wife, 
 212 ; parties defendant, 211 ; original parties to the contract, 214 ; 
 number of defendants, 215 ; defendants, not originally parties to con- 
 tract, 216; surviving obligor, 217; executors, &c., 218 ; heirs and 
 devisees, 218; husband and wife, 219. 
 
 In actions ex delicto, 220 ; plaintiffs in reference to their in- 
 terest, 220; number of, 220; where interest is transferred, 222; 
 death of part, 223 ; death of party injured, 223 ; marriage, 224 ; con- 
 sequences of mistake, 225; defendants in tort, 225 ; original par- 
 ties, 225; number of, 226; assignees of the estate, 228; death of 
 wrongdoer, 228 ; husband and wife, 229. 
 
 Particeps cri.minis, 1-32. 
 
 Partners, 142 ; all must join in action, 143 ; all contracts of, are joint and 
 several, 143 ; if one is beyond sea, the plaintiff may proceed against 
 the other, 143, 275 ; see' Joinder. 
 
 Patent, irregularity of proof of, not admissible at law, unless appearing on 
 its face, 177; repeal of, 188; effect of repeal, 189; mode of pro- 
 ceeding, 189. 
 
 Paupers, suits of, 32^1, 325. 
 
 Payment, plea of, what it admits, 102; payment pleaded generally, 104; 
 pleaded at an'd before the day, 101,105; presumption of, 105 ; see 
 Application of Payments, and 106; doctrines on this subject, 106. 
 
 Penalties and forfeitu.-es relieved, 407 ; instances in case of bonds, and 
 mortgages, and forfeiture for non-payment of rent, 407; when re- 
 lief granted for breach of covenant, 407 ; not unless compensation 
 can be made, 408; delicate jurisdiction, 408; see Time, and 407; 
 penalty for failure to pay punctually, 408; tenant when not relieved^ 
 408, 409; no relief against legislative penalties, 409; see Liquida- 
 ted Damages, and 409. 
 
 Penalty, uond in a, how declaretl on, 100. 
 
 Permanent improvements, compensation for, when and to what extent 
 allowed, 411. 
 
 Personal sEcrurrY, 51. 
 
 Physician in England can mnintain no action for his fees, 49. 
 
 PLEADiNfJs, their object and function, 243; sec Declaration, and 244; or- 
 der of pleading, 25 J ; various rules as to, 253, 264 ; see Issue.' 
 
 Pleas, defendant may plead several, 260; or plead and demur, 260, 268; 
 dcfen. has judgment where any plea is found for him, 260, 268- 
 plamtiff cannot demur and reply, 26(h sec Certainty, and 260261 •' 
 various rules as to pleading, 253 to 261 ; what a plea is taken to con- 
 fess, 262; how to conclude 263; no special plea of what amounts 
 to general issue, 263 ; sec Dilatory Picas, and 253 ; plea to the ac- 
 tion, 255 ; see Confession and Cognovit, and 25^3 ; see Special Pleas, 
 beneral Issue. 
 
 Pleas in assumpsit, 151 ; must answer the wlioir-, 151,256- sec Defence ■ 
 matter of discharge must be pleaded, 151 ; accord and sat.— pay- 
 ment— payment of lesser sum brfbre the dav— and mer<rrr 152- 
 Sec Limitations, and 152, sec Bankruptcy, and 157; Tender, and
 
 INDEX. XXI 
 
 158; Infancy, and 158; Use and Occupation, and 159; Judgment, 
 and 159; Attachment, and 159; plea of release, 159; of arbitr. 
 and award, 160 ; of alienage, 160 ; general issue, 160. 
 
 Pleas in debts on bond, 103; delivery as escrow, 103; nil debet, bad to 
 debt on specialty, 103; aliter, as to debt on simple contract or for 
 rent, 103; or on foreign judgment, 104; non est factum, 103; lu- 
 nacy — coverture — infancy — escrow — gambling — usury, &.C., how 
 pleaded, 104; accord, 104; tender, 104; payment, 104; what ad- 
 mitted by plea of payment, 102 ; payment generally — and payment 
 at and before the day, 104, 105; defence and plea as to part, and 
 cognovit for the rest, 105, 262 ; plea only as to part is bad where de- 
 fence is as to the whole, 105, 262; defence as to part only, and plea 
 as to so much, how to be treated by plaintiff, 105, 262 ; consequence 
 of demurring to such plea, 105, 262; see Bill of Particulars, and 
 105; Presumption of payment, and 105; Solvit ad diem, and 105; 
 Attachment, and 107; Non damnificaius, and 107; Rent, and 108; 
 Bankruptcy, and 108; Off-set, and 10'8; Heir, and 111; Executor, 
 and 114; Assignee, and 115; Declaration, and 98; Pleading, 243, &c. 
 
 Plea, its object and function, 245; conditions and qualities of, 258; see 
 Special Pleas, and 258 ; see Duplicity, and 258. 
 
 Plene administravit, when to be pleaded generally, 115 ; when and liow 
 specially, 115; how to plead debts of superior dignity and judgment 
 confessed for, 115; replication per /rauc/em, 115. 
 
 Pound, what, 12 ; common, special, covert, and overt, 12. 
 
 Power of appointment, distinguished from trust, 438, 439 ; equity will 
 aid if power is imperative, but not if merely discretional, 439; de- 
 sertion where object is determinate, not considered as mere power, 
 440. 
 
 Practice in equity, see Bill, and 496; must bring all necessary parties 
 before the court, 496; exceptions, 496; who must join, 496; if 
 one refuses, how to proceed, 496 ; bill dismissed if no jurisdiction 
 appears, 496; when to be filed, 497 ; subpcena, 497; proceeding 
 when defendant does not appear, 497 ; compulsory process, 498 ; 
 against a corporation, 498 ; against absent defendant, 498 ; defence 
 how to be made, 498; demurrer, 498; plea, 499; answer, 499; 
 form of, 499, 505 ; exceptions to, 499; supplemental bill, 499; bill 
 of interpleader, 499; matter confessed, plaintiff takes'decree,'499i 
 if not admitted must be replied to, 499, 503; depositions, proof by, 
 500; how taken, 500; within what time, 500 ; testimony perpetu- 
 ated, 500; cross causes, 500; decree, interlocutory or final, 501 ; 
 feigned issue, 561 ; accounts, 501 ; opinion of general court asked, 
 501 ; bill taken pro confesso, 498 ; against one no evidence against 
 another, 498; and if the other answers and defeats the plaintiff as 
 to himself he defeats him as to both, 498; deposition of delendant 
 taken by plaintiff, and vice versa, when, 503, 504; costs in equity, 
 504; in cases of injunction, 504; in the case of heir, 504 ; decree, 
 how enforced, 504; rehearing, 505 ; bill of review, 505; appeals, 
 505. 
 
 Presu:«ption of right to easement, 195, 196; see Book 2. 
 
 Presumption from length of time, 401, 413 ; against stale demands, 417. 
 
 Presumption of payment ; see SoWit ad diem, and 105; differ from sta- 
 tutory bar, 105; and may be rebutted, 105; how rebutted by pay- 
 ment of interest, 106 ; endorsement of such payment, when good 
 evidence, 106. 
 
 Presumption, violent, probable, light, and rash, 291 ,292. 
 
 Prison rules, 351, 352.
 
 Xxii INDEX. 
 
 Proceedin'gs in suits, 229 ; prosecution of suit, 272. 
 
 Process subsequcut to the capias, 23(5. 
 
 Prodi-ctiox of papers compelled, 300. 
 
 Profert of deed, 101, 2G8 ; its object, 101 ; of letters testamentary, 250 ; 
 profert when dispensed with, 101 ; how set forth, 101 ; excuse for 
 want of, liow set out, 102. 
 
 Prohibition, object and function of the writ of, 203; when appropriate, 
 203; mode of proceeding, 203 , sec Consultation, and 204. 
 
 Promise to pay debt of another, 139, 1 10 ; whether consideration is neces- 
 sary, 140 ; and must be inserted in the agreement, 140. 
 
 Promises, what suflicient to maintain action, 141 ; general declarations of 
 intention not sufficient, 141. 
 
 Proof, positive and circumstantial, 291. 
 
 Protestation, 2G5. 
 
 Puis darrein continuance, pica of, 271 ; hazard of pleading, 271. 
 
 Purchase money, payment of, when restrained, 473, 474 : when not, 473, 
 474 ; actual eviction or superior title must be shewn, 473 ; threat un- 
 der claim of title has been deemed sufficient, 474. 
 
 Purchase money, application of, when is purchaser bound to see to, 451 ; 
 when not, 431 ; course to be pursued by him, 451. 
 
 Purchaser cannot be compelled to take defective title, 465; see Vendee. 
 
 Purchaser with notice is a trustee, 446; personally liable if he sells to 
 purchaser without notice, 451. 
 
 Purchaser without notice protected, 450; must be complete purchaser, 
 450 ; why, 450 ; how he must plead or answer, 453 ; purchaser with 
 notice from a purchaser without, protected, 450 ; purchaser for value 
 without notice may plead that in bar of discovery of title, 432. 
 
 Quantum meruit, 129, 133, 146, 149, 150. 
 
 Quantum valebat, 129, 146. 
 
 Quia timit, 481, 485; bills q. t., when appropriate, 481, 485; sec Surety, 
 and 481, 482; see Testimony, bills to perpetuate, and 483 ; see Ne 
 Exeat, and 485. 
 
 Quo WARRANTO, 201. 
 
 QuoD CUM, 54, 263,315. 
 
 Kecai'tion, right of, 2; how to be exercised, 3. 
 
 Recital, trespass laid by way of bad, 192, 315 ; but cured by verdict, 192, 
 315. 
 
 Record, 271, 278 ; how authenticated, 281, 282, 283 ; sec Nul ticl record, 
 and 281 ; tried only by itself, 278 ; nothing to be averred against it, 
 45; mistakes, how amended, and when, 45; existence of, how tri- 
 ed, 45; plea to debt on domestic judgment, 278 ; on foreign judg- 
 ment, 278. 
 
 Recording, when notice, 428, 4 17. 
 
 Recovery, iormimi, good bar, 159. 
 
 Re-entry, right of, -3; how to be exercised, 4. 
 
 Reference to arbitration, see Arbilramenl — what may be referred, 30; 
 questions as to realty may, 30; causes involving immorality or in- 
 decency cannot, 3(), 31. 
 
 REHEAUINf;, 505. 
 
 Rejoinder, 261. 
 
 Relator should be named in the doclaration, ?)9. 
 
 Remedies, specific, 93 ; case, remedy by action on the, 93. 
 
 Remitter, rnncdy of, 43. 
 
 Rent, H«;c TJj.f/rcjrvcs ; reinodios for, 5, 6, 15 ; to whom 15; lessor who as- 
 signs loses part of his remedies, 15; remedies of ex. and adm. by 
 debt, distress, or covenant, 15; or attachment, 16; remedy of heirs,
 
 fi^M INDEX. XXIII 
 
 16; how one coparcener should avow, 16; husband's remedy, 16; 
 remedy of assignees, 17; of joint-tenants and tenants in common, 
 17; remedy aga'mst ex. and adm. 17; against lessor after assign- 
 ment, 18; against assignee of lease, 18; he is liable only while he 
 holds, 18; distinction between assignee and derivative lessee, 19; 
 remedy against heirs, 19; covenant, when it lies, 19; or debt, 19; 
 or assumpsit, 20; assumpsit for use and occupation, 20; remedy 
 by attachment, 20; by re-entry, 21; demand in this case essential, 
 21 ; alitor as to distress, 21 ; parties may by contract dispense with 
 demand, 21; time of demand, 22; amount, 22; place, 22; after 
 demand ejectment lies, 22 ; waiver of forfeiture for non-payment, 
 22 ; leases, what avoided ipso facto, 22 ; what not, 22 ; forfeiture 
 for non-payment relieved in equity, 23 ; fifa levied on goods on the 
 premises, rent must first be paid, 23 ; sheriff, how responsible, 23 ; 
 rent-seek, remedy for in equity, 24 ; interest on rent, how allowed 
 by statute, 6, 7 ; recoverable in various actions, 6, 7 ; not to be dis- 
 trained for, 6 ; See Distress ; when distress is barred by stai. of lim. 
 7; when rent is apportioned, 7 ; how, 7, 8 ; pleas to debt for rent 108; 
 remedy for rents in equity, 400. 
 
 Rents and profits^ how far back allowed in equity, see Account, and 410 ; 
 sale decreed when they will not keep down interest, 457. 
 
 Replevin, action of, 76; its object and eifect, 76; when it lies, 76, 77; 
 how to be sued out, 77 ; on what terms, 77 ; writ de proprietate pro 
 banda, 77; avowry, 78 ; cognizance, 78 ; judgment for plaintift', 78 ; 
 or defendant, 78 ; how where the action is brought by a stranger, 
 78 ; judgment in case of nonsuit, 78 ; suit on replevin bond, 78 ; 
 dec. in replevin, 78 ; pleas — or avowry, 79 ; strictness in avowry, 79 ; 
 pleas to avowry, 79; who may join in replevin, 79 ; or in distrain- 
 ing, 79; remedies for improj)er distress, 79; see Distress ; action 
 of replevin to be promptly tried, 79. 
 
 Replevy bond for rent, 12; how disposed of, 13 ; remedy on, 13; though 
 faulty, yet good as common law bond, 13; no motion on, against 
 executors, 13. 
 
 Replevy laws, 371. 
 
 Repleader, 318, 319, 320; when necessary, 318; refused to him who 
 commits the first fault, 318 ; not allowed if result must be the same, 
 318; may be awarded up to the declaration, inclusive, 319; rules 
 as to repleaders, 320, Chitty's note. 
 
 Rescission of contracts, 465, 425 ; never in part, 425. 
 
 Respondeat ouster, judgment of, 321. 
 
 Retainer, remedy of, 42 ; not extended to executor de son tort, 43 ; may 
 be pleaded or given in evidence, 115. 
 
 Reversionary interests., sales of, 426. 
 
 Review, bill of, 505. 
 
 Revisor, bill of, when allowed, 479. 
 
 Rule book, form of, 277. 
 
 Rules, 275 ; proceeding at the, 272, Stc. 
 
 Sale by court of equity, see Rents and Profits, and 457. 
 
 Sale, contract of, 134; warranty of title on, 134; printed conditions of, 
 135; frauds on sale, 135; risk of delivery, 135; rescission of for 
 good cause in reasonable time, 135. 
 
 Sale AT AUCTION, when complete, 135; puffers at, 1-35; credit on sales, 
 135 ; resale at vendee's risk, 135. 
 
 Sale by the acre, 404 ; in gross, 404. 
 
 Sale by sheriff, 369. 
 
 SALEf3 or LAND, contract for, must be in writing, &,c., 13S.
 
 XXIV INDEX. 
 
 Scire facias, 254 ; against bail, 241, 359; quashed if not made properly 
 returnable, 241 ; how executed, 241, note ; how returned, 241 ; sur- 
 render of principal, when to be made, 241; scire facias where par- 
 ty marries after judgment, 341. 
 
 Scire facias to recover judgments, 340 ; limitation to, 376, 377; sugges- 
 tion of death of one of several, the cause proceeds without, sci. fa., 
 340; does not lie against heir until nihil returned against executor, 
 340; in detinue, 81, in note; against \)urcha.sei pendente lite, 82; 
 how it issues, if plaintiff chooses to proceed against deceased de- 
 fendant, 341 ; not necessary if there has been a levy, 341. 
 
 Seduction of wife, see Crim.Con. ; of daughter, 73; remedy for either tres- 
 pass or case, 73, 94; when only sustainable if daughter be adult, 
 73; new trials in case of, rare, 74; daughter, a good witness, 74; 
 what may be shewn in aggravation or mitigation, 74. 
 
 Seizin explained, and the diiferent kinds of, illustrated, 181. 
 
 Servant, action for retaining hired servant, 74; scienter material, 74; 
 aliter as to slaves, 74 ; penalties for harboring, 75 ; battery of, reme- 
 dy for, 75 ; servant and master may both sue, 75. 
 
 Set-off, see Off-set. 
 
 SuERiFF, action against for failure to take bail, 238 ; his duties under exe- 
 cution, 3G9 ; how to i)rocecd if the property is claimed by a stranger, 
 369; bound to sell if indemnified, 370: liable for false return, 370 ; 
 his duty when money is made, 370 ; purchasing at his own sale, how 
 far is the sale good, 459. 
 
 Ship masters and owners, 141 ; when liable for general charges — for re- 
 pairs — for wages, 141, 142. 
 
 Signing, what sufficient under the statute of frauds, 141, 463; auctioneers 
 signing purchaser's name sufficient, 463. 
 
 Similiter, 265, 313. 
 
 Slander, 58 ; what writ actionable in Vir., 59; baron and feme only can 
 join in action or be joined, 59 ; words how construed, 59 ; must be 
 charged not by way of recital, 59; with proper iimendos and aver- 
 ments, 59 ; pleas, 60 ; justification, 60 ; and excuse for, 60, in note ; 
 evidence in this action, 61 ; lor defendant, 61 ; truth of words not 
 evidence under not guilty, 62; nor probable grounds of suspicion, 
 62 ; damages and costs, 62. 
 
 Slaves, injunction to sale of", 463. 
 
 Solvit ad diem, plea of, — presumption good defence under, 105. 
 
 Si'EciAL asslmi'sit, 130; sp. contract must be declared on, 144 ; and tru- 
 ly stated, 149; and jjroved as stated, 149 ; on failure, whether plain- 
 tiff can resort to the general counts, 149, 150. 
 
 Special case, 300. 
 
 Special pleas, 257, 258; how concluded, 258. 
 
 SpEciFn; performance, 460; not decreed in case of gross inadequacy, 
 426; foundation of this jurisdiction of equity, 460; effect of con- 
 tract on the rights of property in equity, 461 ; death of parties when 
 only it affects the contract, 461 ; how enforced, 461 ; in what cases 
 decreed, 461 ; in reference to the parties, 461 ; infants, lunatics, and 
 femes covert, 462; licirs, 462 ; in reference to the subject matter of 
 the contract, 462 ; will not lie for chattels, 462 ; exception as to 
 blaves, 463 ; in reference to the evidence of the contract, 463 ; see 
 Slat, of Frauds, and 463 ; of the character of the contract, 464 ; 
 must be clear, certain, fair, not illegal, mutual, on valuable consider- 
 ation, and not grosf^ly niK!(|iinl, 464 ; never decreed for volunteer — 
 nor if grossly un<<pKil. or unreasonable, 464.
 
 tNDEX. XXV 
 
 Specific performance, never decreed to the backward, 464 ; nor a party 
 unable to perform, 465 ; nor where the title is defective, 465 ; or tho 
 purchaser cannot get what he contracted for, 465 ; when variance 
 is held immaterial, 465; yet vendor may be compelled to convey such 
 as he has, 466; even if afterwards obtained, 466; decree for new- 
 deed when first deed is defective, or runs out of date, 466; in con- 
 sidering validity of title, moral certainty sometimes suffices, 467. 
 
 Stated demand, 413, 417. 
 
 Stale ACCOUNT, 129, 412, 418; mistake in relieved, 412; but amount 
 must be surcharged and falsified, 412, 418; onus on the party sur- 
 charging, 412, 418 ; defendant may plead stated account, 412; and 
 then the plaintiff may surcharge and falsify, 412; stated account 
 should not be referred to a master without evidence of error, or er- 
 ror apparent, 412. 
 
 Statute of frauds, 1-38, 1-39, 463 ; see Agreement and Signing, and 140, 
 141, 463; effect of part execution, 463. 
 
 Sterling jioney, see Declaration in Debt, and 99, 100. 
 
 Stewards, must keep regular accounts, 417; jurisdiction in equity against 
 them, 417; confounding their goods or money with principal's, hovf 
 dealt with, 417; 
 
 Stipulated damages, 322. 
 
 Submission, who may submit, 29; who not, 29; husband may, 30; and 
 executor, 30 ; but he may thereby make himself liable, .30 ; sub. how 
 made, 31 ; may be verbal, 31 ; actual submission only can be enfor- 
 ed, 31 ; and even actual sub. is no bar to action, 31 ; though party 
 is liable for breach of submission bond, '31 ; see Legacy, and 31 ; 
 statute — submissions under, .31 ; it does not extend to pending suits, 
 31; awards under, must lie two terms, .31 ; it must be agreed to make 
 sub. a rule of court, .31 ; sub. as revoked by marriage, death, or deed, 
 before award, 31 ; yet party is liable on his bond, 32; sub. should 
 fix time for award, 32 ; matters not decided may be subject of fu- 
 ture action, 32; sub. may be altered by the parties, 33. 
 
 Substitution, 492; marshalling securities, 492; subst. as between surety 
 and creditor, 144; as between surety and obligor, or his representa- 
 tives, 493 ; as between sureties, 494 ; as between assignees and as- 
 signors, 494 ; when does the sur. rank as specialty ere., 493 ; and en- 
 titled to preferable right to payment, 493 ; or to charge the heir, 494. 
 
 SUGGESTIO FALa^I, 421. 
 
 Suits, redress by, 44 ; proceedings in, 229 ; against gov., judges, &c. 24L 
 
 Summons and severance, 3.31. 
 
 Summary remedies, by motion, 242; 
 
 Supersedeas, 332-4 ; nature of it, 334 ; when it lies, .334 ; effect of it, 3.32; 
 on d. bond, 332 ; confined to errors on the face of the record, 334. 
 
 SuppREssio vERi, 422; what amounts to, 422. 
 
 Surcharge, 418. 
 
 Surety, when absolved by new contract with, or credit given to the prin- 
 cipal, 482 : basis of this doctrine, 483 : creditor must have tied his 
 hands, 48-3. 
 
 Surprise on trial at law, relief in equity in cases of, 475. 
 
 Tenant, when not relieved in equity, 408, 409. 
 
 Testimony, bill to perpetuate, 483. 
 
 Time, sometimes of the essence of contract, 407. 
 
 Title, what constitutes complete, 168. 
 
 Trial, 278 : sev. species of, 278 : by rec, 278 : by inspec, 281 : in case of 
 death suggested, 282: by certificate, 282, 283; by witnesses, 284 i 
 see Mill Cases, &c. and 284 : by wager of law, 284: by jury, 284^ 
 4
 
 XXVI INDEX. 
 
 Trespass de bonis asportatis, 90 : judgment for plaintiff changes pi«- 
 perty in the goods, 90 : ownership and right of possession sufficient 
 to maintain the action, 90 : therefore executors may maintain it, 90 : 
 and letratees after assent, 90: does not lie where right is reversion- 
 ary, 91: case is then the remedy, 91 : lies not for things in which 
 there can be no property, 91 : lies not against defendant who came 
 lawfully into possession, 91: exceptions — ^joint-tenants and tres- 
 passers ab initio, 91: dec. in trespass, 91 : must lay property or 
 possession in plaintiff, 92 : pleas — general issue, former recoverj?, 
 accord, release, and limitations, 9-2: evidence, 92 : verdict, 92: 
 jury cannot sever in damages, 92 : but one or more may be acquit- 
 ted : see New Trial : costs, 93. 
 
 Trespass on the case, 53: distinguished from trespass vi et armis, 53 : il- 
 lustrations of the distinctions between trespass and case, 57, 89 : 
 case the universal remedy for injuries without force, 57: there must 
 be damnum et injuria, 93 : injuries for which it lies, 94 : by defendant 
 or his servants or cattle, 94. 
 
 Trespass for jnesne profits, 178 : limitations to recovery, 178. 
 
 Trespass quare clausum, 190 : what amounts to, 190 : what aggravates, 
 191, note : property necessary to maintain trespass q. c. 191 : and 
 possession, 191 : guardian in possession must sue, 191 : tr. for da- 
 mage by cattle, 191 : when action must be brought, 192: declara- 
 tion, 192 : see Recital and Quod cum, and 192 : when justifiable, 
 192; defences to, 193 : may try title to land, 193: evidence of title 
 in def. good under general issue, 193 : verdict, damages, costs, 193 : 
 what tr. deemed wilful and malicious, 193. 
 
 Trespass /or injury to personally, 89: when the action should be case, 53, 
 57, 69 : lor wrongs by def. servants, 89 : or his dogs or other ani- 
 mals if there be a scienter of the mischievous habit, 89. 
 
 Trover, 84 : for what and when it lies, 84 : the conversion is the wrong, 
 81 : demand and refusal, when evidence of conversion, 84 : when 
 not, 86, 89 ; why substituted for detinue, 84 : damages only recov- 
 ered, 85 : distinguished from tres. de bon. aspor. and from case, 85: 
 differs in principle from detinue, 85: loss by death or destruction of 
 property after conversion, falls on def., 65 : his sale pendente lite, va- 
 lid, 85: judgment for pi. vests property in def. when and when not, 
 85: in this action may be tried validity of sales — title to property 
 levied on — questions of lien and stoppage, 85, 86; see Lien, and 
 86: for what property trover lies, 66: plaintiff's right of property 
 and of immediate possession, 87 : when and against whom may 
 bailee maintain trover, 67 : joint-tenants and tenants in common 
 join in, 87: see Abatement, and 87, and 151: husband and wife, 
 and 67: joint-tenants, and 87: dcclar. in trover, 68: conversion 
 the gist, 68 : how declare for as against husband and wife, 68: pleas 
 — general issue — release — limitations — former recovery — right to re- 
 tain, 66 : limitation runs from conversion, 88 : evidence, 68 : finding 
 not traversable, 68: evidence of conversion, 89: defence, 89: mea- 
 sure of damages, 69 : where value is liaudiilently concealed, 89 : de- 
 livery of goods in discharge, 69 : jurisdiction, where value is less 
 than $20, 69. 
 
 Trusts, 435 : follows legal estate, 435 ; and merges in it, 435: when not, 
 436: c. q. t. the real owner of the estate, 436 : how estate passes 
 and is enjoyed, 436: subject to dower, curtesy, and debts, 436: 
 power of trustee, 436: cannot prejudice c. q. t., 436: except by 
 sale to purchaser without notice for val. consideration, 4.37: eq. 
 jurisdiction, in all cases of, 437 : what constitutes a trust, 437 : dis- 
 Ijnguishcd from common law cases of confidence and trust, 436;
 
 INDEX. XXVIl 
 
 •trusts are express or implied, 438: express, 438 : what essential to, 
 438: ceases when its purposes are fulfilled, 438: what words cre- 
 ate, 438: distinguished from naked power, 438: and differently 
 construed, 438: reason of this, 439, 440: never fails for want of 
 trustee, 438: see Index, Book 2, recommendatory bequests: trust 
 for payment of debts, 442: when void, 442: acceptance of when 
 sufficient, 442 : who excluded from, 442 : trust by will for payment 
 of debts, 444 : implied trust, 445 : resulting, 445 : various instances 
 of, 445, 446 : see Purchaser with notice, and 446. 
 
 Trustee, no act of can prejudice c. q. t.,436, 457: exception, 437, 457: 
 see Application of purchase money, and 451, 452: duties and pow- 
 ers of, 457 : remedies of c. q. t., 457 : power to convert the estate, 
 457: may do without suit what he is compellable to do, 457 : must 
 comply with the deed, 458 : effect of violation of the terms of, at 
 law and in equity, 458 : trust never fails for want of trustee, 458 
 or for his refusal to act, 458: purchase by trustee from c. q. t., 458 
 after he is SMi jwrts, 459 : purchase by, under his own sale, 459 
 rules of equity as to such purchase, 459, 460 : effect of acquiescence, 
 460 : remedy of c. q. t. 460. 
 
 Umpire, how appointed, 28, 32 : may be appointed before the arbitrators 
 have heard the case, 32 : exception, 32. 
 
 Undue influence, 423. 
 
 Underhand agreements, 427. 
 
 Use and occupation, 136: see Rent, and 20 : nil habuit not a good plea 
 to action for, 159. 
 
 Usury, surety paying usurious bond without collusion may compel con- 
 tribution, 490. 
 
 Variance, in name, sum, or date, 99, 101, 102: see Declaration in Debt, 
 and 101, 272 : variance between declaration and writ, cured after 
 verdict, 313: or nil dicit, 316: variance fatal on oyer and demurrer, 
 267: matter of substance, 267. 
 
 Vendee, considered in equity the owner before conveyance, 461 : liable for 
 interest, 467 : see Purchaser entitled to profits, 467. 
 
 Venditiona exponas, 370: seeDistringasNuper Vicecomitem, and370. 
 
 Venire de novo, when awarded, 308 : differs from new trial, 308 : award- 
 ed if verdict does not answer all the issues, 314, 317. 
 
 Venue, how changed, 309: from one circuit to another, 309. 
 
 Venue, 98, 248; origin of, 248: where laid, 249: how laid in debt, 99: 
 when with a videlicit, 99 : in actions in courts of limited jurisdiction, 
 99 : omission cured after verdict, 249. 
 
 Verdict, 300: public and privy, 300 : special. 300 : for what causes set 
 aside, 299, 303: mistake of jury, 303, 305: how to be found in va- 
 rious cases, see the Various Actions, and 117 : how found on plene 
 administravit p]eaded, 118, 119: see Costs, and 118: how found on 
 plea of payment, before notice of assignment, 120 : cures defects 
 in many cases independent of the statute, 310. 
 
 Vendor's lien, 453 : respects realty, 453 : principles in relation to this 
 lien, 454: clearly exists where title is retained though security be 
 taken, 454 : exception, 454 : exists if conveyance be made provid- 
 ed no security is taken, 454 : but will be lost as against purchaser 
 for value without notice, 454 : is waived by taking security, 454 : 
 but not by bond without surety, 454 : taking mortgage is waiver of 
 general lien, 454 : unless it loses its validity for want of being re- 
 corded, 454: vendee with notice, personally liable if he sells to 
 purchaser without notice, 454 : the lien is said not to extend to third 
 persons, 454 : yet surety may have advantage of it, 454. 
 
 Void writ, see False Imprisonment,
 
 XXviil INDEX. 
 
 Void authoritv, money paid under recovered back, 132: what is not void 
 authority, 132. 
 
 Wager of law, 284. 
 
 Wagering contracts, 1.32. 
 
 Wages, seaman's, freight the mother of, 142: when no wages, 142: when 
 forfeited, 142. 
 
 Wages, servants, see Book 1. 
 
 Warranty of title impHed on sale, 134: reclamation when title is de- 
 fective, 134. 
 
 Waste, 19G : who may sue for, 197: tenant in fee never liable for, 197: 
 what writ tenant for life in remainder may have, 107 : who alone 
 can maintain the writ of waste, 198: redress for waste, 198; see 
 Eslropement, and 198: remedy in equity, 198: writ of waste, its 
 character and the mode of proceeding and judgment thereon, 198: 
 see Injunction, and 469: meliorating waste, 470. 
 
 Wife, battery of — remedy for, 73: action joint, when and why, 73, see <S'e- 
 duclion and Crim. Con. : wife may be taken in execution, when, 87, 
 see Husband: trover may lie against wife with her husband, but not 
 detinue, 88, 290. 
 
 Witnesses, joint trespassers if sued separately, are good witnesses for each 
 other, 92 : infamous, interested, competent, credible, 290: not com- 
 pellable to prove their own infamy, 29. 
 
 Wounding, injury, by, 53: see Mayhem. 
 
 Writ of error, see Error. 
 
 Writ original, 229: what first process here, 231 : form of it, 232: sec 
 Jurisdiction, and 231: analysis of the first process, 232: proceed- 
 ings under it, 233: officer's duty, 233: see Bail, and 233: must be 
 endorsed, 233 : officer's duty thereupon, 2-35: when returnable, 2-35: 
 when to be executed, 235 : oyer of, when and for what prayed, 250: 
 when refused, 250 : when and when not part of the record, 250, 
 251, .314 : always so to amend by, 314 : irregularities, how correct- 
 ed, 251, note: part of the record of necessity where there is judg- 
 ment by default for tcant of appearance, 319. 
 
 Writ of enquiry, 228, 321 : wlica is a reference to an accountant sub- 
 stituted for it, 322. 
 
 Writ of error, see Error. 
 
 Writ of rumit, 178: is a local action, 160, 249: lies only of an estate in 
 fee, 179: against tenant of the freehold at least, 179: forms of sim- 
 plified, 175: plea of non-tenure and judgment thereon, and effect 
 of it, 180: and prayer by tenant for life, 180: form of writ and 
 count, 180: analysis of the count, 180, 181 : demandant must shew 
 seizin, 181 : patent gives seizin — so, also, a bargain and sale, 181 : 
 form of plea, 182: and replication, 182: mise what, 182: tenant 
 may plead other matters, 182 : matter of abatement not evidence on 
 the mise joined, 182: plea in abatement, essoigns, views, and vouch- 
 ors, 183: non-tenure of the parcel, abates only for so much, 183: 
 pleadings must be in writing, 183, 314: plea should offer full de- 
 fence, 183 : evidence, 183, 181, 185 : tenant has aflirmative in issue, 
 181 : devisee may maintain, 181 : defence by proving title in third 
 person, 181, 185: statute of limitations, 185 : no saving as to writs of 
 rilht until the late act, 185: time allowed infants, 8cc. to bring new 
 action, 185: special verdict and case agreed in, 185 : damages, 186: 
 judgment, form and eflcct of, 16G: in case of non-suit, 186: exe- 
 cution, 186: proceedings in case of default, 186. 
 
 Wrongful detainer, 169. 
 
 Wrosc.s, private, how redressed, 1 : by act of party grieved, 2; by joint act 
 of parties, 24: by act of law, 42: by suit, 44.
 
 BOOK IIL 
 
 OF PRIVATE WRONGS. 
 
 CHAPTER I. 
 
 OF THE REDRESS OF PRIVATE WRONGS. 
 
 " At the opening of these commentaries municipal law is defined to be, 
 * a rule of civil conduct, prescribed by the supreme pov/erina state.' The 
 primary objects of this law are the establishment of rights,- and the prohi- 
 bition of wrongs. And this occasioned the distribution of these collec- 
 tions into two general heads ; under the former of which we have already 
 considered the rights that were defined and established, and under the lat- 
 ter are now to consider the wrongs that are forbidden and redressed by the 
 laws of the land. 
 
 " In the prosecution of the first of these enquiries, 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, to- 
 gether with the means 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 ne- 
 cessarily prior to what may be termed injuria, and the definition of fas pre- 
 cedent 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 vi- 
 olation of public rights and duties, which affect the whole community con- 
 sidered 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. 
 
 " 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, and wrongs prohibited. This 
 remedy is therefore ^^rinci/jaZ/^ to be sought by application to these courts 
 of justice ; that is, by civil suit or action. For which reason our chief em- 
 Vol. 2—1
 
 2 SELF-DEFENCE RECAPTION. [book 3. 
 
 ploymcnt in this volume will be to consider the redress of private wrongs, 
 liV suit or action in courts. But as there are certain injuries of such a na- 
 ture, 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 7ncre act of the jjarties themselves ; se- 
 condly, that which is effected by the mere act and operation of law; and, 
 tiiirdly, 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 parlies. 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 tliat 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 
 s"uch' as stand in the relations of husband and wife, parent and child, mas- 
 ter and servant." It is said, indeed, that a master cannot justify a battery 
 in defence of a servant; though this appears to be questionable, and opin- 
 ions have been divided on the subject. See 1 Esp.314, citing 1 Lord Ray. 
 H2, Bac. master and servant. This right of defence, if it does exist, is 
 however sufficiently limited and guarded to prevent its abuse. For the ser- 
 vant cannot justify striking one who has already stricken his master, unless 
 lio shows that it was done as a prevention to further injury. 2 Str. 1)53. 
 There seems, therefore, little reason for the opinion that a master cannot 
 justify an assault to prevent a battery of his servant. See the form of this 
 plea of justification, 2 Cliitty, 5'24. In truth, any man who sees two oth- 
 ers fighting, or about to fight, may prevent it, and justify his doing so. See 
 form of plea, Chitty, bid. But he must use no more force than is neces- 
 sary for prevention. 
 
 '• In those cases in which the right of self-defence is recognized as ex- 
 isting, if the party himself, or tliose standing in the above mentioned rela- 
 tions to him, be forcibly attacked in his person or property, it is lawful for 
 him to repel force by force ; and the breach of the peace, Avhich happens, 
 is chargeable upon him only who began the affray. For the law, in this 
 case, respects the passions of the human mind ; and (when external vio- 
 lencf; is oflTered to a man himself, or those to whom he bears a near con- 
 nnxion,) 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 con.>idcrs that the future process of law is by no 
 means an adequate remedy for injuries accompanied with force ; since it 
 is iinj>0S3ibIc to tay, 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, ta- 
 ken away by the law nf society. By the common law, j)articularly, it is 
 held an excuse fur breach^'s of the peace, nay even for homicide itself: but 
 care must be taken, that the resistance dues not exceed the bounds of mere 
 defence and prevention ; for Oion the defender would himself become an 
 aggressor. 
 
 " II. Recaption or reprisal is another species of remedy by the mere act 
 of the party injured. Thi"; happens, when any one hath deprived auothc:-'
 
 CHAP. 1.] RECAPTION. 3 
 
 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 hns- 
 band, parent, or master, may lawfully claim and retake them, wherever he 
 liappens to find them ; so it be not in a riotous mannef, or attended with a 
 breach of the peace. The reason for this is obvious ; since it may frequent- 
 ly 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 favors 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 ase 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 rea- 
 sons it is provided, that this natural right of recaption shall never be ex- 
 erted, 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 seize 
 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 felo- 
 niously stolen ; but must have recourse to an action at law." But herein 
 there is a difference between indictments and private actions. In the case 
 of Long vs. Hite, in the superior court of law at Winchester, September, 
 1823, it was decided, that where the right of recapture of the defendant's 
 horse was exerted in a forcible manner, and the horse was taken from the 
 plaintiff's wagon, although no more force was used than was absolutely ne- 
 cessary to regain the possession of the property, the recaptor was liable to 
 the action of the party having the property in his possession, for stopping 
 his wagon. From this decision there was an appeal on the ground of a 
 supposed distinction between a prosecution for a breach of the peace, and 
 the action of the party from whom the property was retaken. For though 
 the commonwealth might punish the violence, whether it exceeded what 
 was necessary for the recapture or not, the wrongdoer, it was said, could not 
 complain of an injury which flowed from his own conduct. The court 
 of appeals reversed the judgment of the court below, deciding that the 
 defendant's plea of justification was a good plea in bar of the plaintiff's 
 action, though it admitted the force, since it was alleged that no more forc<? 
 was used than the plaintiff's conduct rendered necessary to enable the de- 
 fendant to regain his possession. 6 Ran. 457. See 8 T. R. 78- But 
 farther than this the recaptor cannot go. For, in 8 T. R. 299, it-=s said by 
 the court, that though the plea of mollitur manus hnposuit would justify 
 what the law considers an assault, yet it never was considere-* 'is an answer 
 to a charge of beating, wounding, and knocking the party down : and they 
 adverted to a case where the defendant overturned a bdder on which the 
 plaintiff was standing, and threw him to the ground, '^''le defendant plea- 
 ded that the plaintiff was trespassing upon hi"s property, and was forbidden 
 by him, but that he persistsd, wherefore he gen-'<'y shook the ladder and 
 overturned it, and gently threw the plaintiff' (iJwn with as little damage as 
 possible. The plea was held bad on demv-irer. For it is observable that 
 beating is not that kind of force which '^ necessary to enable the party to 
 retake his property, however it mio-ht'*^ calculated to make his adversary 
 surrender it. 
 
 III. " As recaption is a remedy given to the party himself, for an injury 
 to his personal property, so, th-^dly, a remedy of the same kind for injuries 
 to real property, is by entn/ on lands and tenements, when another person
 
 4 ABATEMENT. [BOOK 3. 
 
 without any rinrht has taken possession thereof.* This depends in some 
 measure on like reasons with the former ; and like that, too, must be peace- 
 able and without force. There is some nicety required to define and dis- 
 tinguish the cases in which such entry is lawful or otherwise ; it will there- 
 fore be more fully considered in a subsequent chapter ; being only mention- 
 ed 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 nuisancesA What nuisances are, and their 
 several species, we shall find a more proper place to enquire under some 
 of the subsequent divisions. At presept I shall only observe, that whatso- 
 ever unlawfully annoys or doth damage to another is a nuisance ; and such 
 nuisance may be abated, that is, taken away or removed, by the party ag- 
 grieved thereby, so as he commits no riot in the doing of it. If a house 
 or wall is erected so near to mine that it stops my ancient lights, which is 
 n private nuisance. I may enter my neighbor's land, and peaceably pull it 
 down. Or if a new gate be erected across the public highway, which is a 
 common nuisance, any person passing that way may cut it down and des- 
 troy it. And the reason why the law allows this private and summary me- 
 thod of doing one's self justice, is because injuries of this kind which ob- 
 struct 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. 
 
 ' Willi respect to land and houses, also, resumption of possession by the mere act of the party is 
 frequently allowed. 'I'hus, if a tenant omit, at tlie expiration of Ills tenancy, to deliver up possession, 
 the landlord may legally, in liis absence, fereak open the outer door and resume possession, though 
 some articles of furniture remain therein ; and if tlie landlord put his cattle on the land, and the te- 
 nant diiirain them ns damage-feasant, he may be sued. 1 Bing. R. 158. 7 T. 11. 431, 2. J Price It. 
 &j. Andr. 109. 6 Taunt. 202. If the landlord, in resuming possession, be guilty of a forcible entry 
 ■with strong hand, or other illegal breach of the peace, he will be liable to an indictment. 7 T. R. 
 Ail 3 T. R. ao. 6 'iaun. 302. 8 T. R. 3G4, 403. But the circumstance of the owner of properly 
 ming loo much force in regaining possession, but taking care to avoid personal injury to the pany re- 
 sisting, will not enable the latter to sue him. But if any unnecessary violence to the person be used 
 in rescuing or defending possession of real or personal properly, the parly guilty of it is liable to be_ 
 sued. 3 T. R. til*. Id. 78. I tsaund. 296, n. I. tio, as tlie law allows retaking of the possession of 
 the land, it also sanctions the due defence of the possession thereol ; and, therefore, tliougii if one 
 cnicr into my ground, I must request him to depart before I can lay hands on him to turn himout, yet 
 if lie refuse Imay then push him out, and if he enter with actual force 1 need not first request him to 
 be gone, but may lay hands on him immediately. 8 T. R. 73. 11 C. L. R. 297. I Salk. Gil.— Cliiity. 
 
 t 'i'hus, in case of a public nuisance, if a house be built across a highway, any person may pull it 
 down; and, it is said, he need not observe particular care in abating it, so as to prevent injury to the 
 rnaieri.ilp. And though a gate, illegally fastened, might have been opened witlieut cutting it down, 
 vet ihecutiiiig would be lawful. However, it is a general rule, that the abatement must Be limited 
 i<y lis necessiiy, and no wanton or unnecciwary injury must be committed. 2 Salk. 458. As to pri- 
 vate nuisances, tiiey alsj may be abated ; and therefore it was recently held, that if a man in his own 
 8*'l erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the wa- 
 ter ii.»,| [jy iiie latter for his cattle, the party injured may enter on the soil of the other and abate the 
 iiuisanj^ and justify the trespass : and this right of abatement is not confined merely to a house, mill, 
 or land. > Hinith's Rep. 9. 2 Rol. Ab. 565. 2 Ixon. 202. Com. Dig. Pleader. 3 ft I. 42. 3 Lev. 92. 
 fco 11 Hecm».i,a( a libcllouB print or paper, affecting a private individual, mav be destroyed, or, which 
 IS the salLr co.rgc, mkcn and delivered lo a magi.'iirate. 5 Coke, 1'25, b. 2"(>amp. 511. Per Best, J. 
 in the Karl Lonw^if ,.,, Nelson, i! Bar. & Cres. 31', "nuisances, by an act of commisiion, are com- 
 mitted in deliancc .filiose whom such nuihances injarc, and the injured parly may abate them with- 
 out notice to Uic pc«o,j ^ho commitlcd ihejn; but there is no decided ca«e which sanctions tlio 
 abatrment, by an iiidiv.li,;,|^ of nuisances from omission, except that of cutting the branches of irees 
 winch overhang a public „,ad, or the private properly of the person who cuts iheni. The permitting 
 these branclicii to exlonrl ijof^r beyond the soil of the owner of the Irccs, is an unequivocal act of nc- 
 Cligencc, which diHiinguisheg i,ja pase from most of tlie other cases that have occurred. The securi- 
 ty ol lives and properly may Hoi.,.jj^pg require so speedy a remedy as not lo allow time to call on the 
 person on whose property the mi>.|,ieri,a.s arisen to remedy it; in such cases, an individual would 
 be judiihed III .-Jl,aiin/ a nuisance fro., omission without notice, in all oilier cases of .^uch nuisances, 
 persons nhould not lake the law into iIki,. own hands, but follow the advice of Lord Hale, and appeal 
 to a court of jugticc. And sec farther oi)owl. At it. .W,. And it wa.- held in the same case, that 
 
 i »ie abater ol a private nuisance cannot remove the ..aterials further than neces.sary, or convert 
 them to his own iigc. Halt. c. 50. And so mucli only of .Se thing as causes the nuisaii<e should bo 
 removed ; as if ni house be bin t too high, only so ranch of it <„ ig too high should be pulled down. 'J 
 ilcp. 53. Ood. 2J1. 2 bua. 686. ClUUy.
 
 CHAP. 1.] DISTRESSES. 5 
 
 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 distraining cattle or goods for 
 non-payment of rent, or other duties ; or, distraining another's cattle f/ar 
 mage-feasant, that is, doing damage, or trespassing upon his land. The 
 former intended for the benefit of landlords, to prevent tenants from secre- 
 ting or withdrawing their effects to his prejudice, the latter arising from 
 the necessity of the thing itself, as it might otherwise be impossible 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 enquiring, first, for what inju- 
 ries a distress may be taken ; secondly, what things may be distrained ; and 
 thirdly, the manner of taking, disposing of, and avoiding distresses. 
 
 1. " And, first, it is necessary to premise, that a distress, districtio, is the 
 taking a personal chattel out of the possession of the wrongdoer into the 
 custody of the party injured, to procure a satisfaction for the wrong com- 
 mitted. 1. The most usual injury, for which a distress may be taken, is 
 that of non-payment of rent." It was observed in a former book, that 
 distresses were incident by the common law to every rent-service, and by 
 particular reservation to rent-charges also ; but not to rent-seek by our law. 
 So that the rule to be laid down with us, is that a distress may be taken for 
 rent in arrear in all cases, where the party distrained holds an estate for lifo 
 or any less estate, and the distrainor hath the reversion dependant thereup» 
 on ; and also in all cases of rent-charges, when the rent is in arrear.* 
 Hence, where the party has not the legal estate or a reversion, he shoul4 
 reserve a power of distress. Co. Litt. 47, a*. 
 
 2. Distresses are authorized by particular statutes in a variety of cases % 
 es for taxes and poor rates — for militia fines- — for oflicers' feebills, &c. but 
 of these we shall say nothing here, except to remark, that in all such cases, 
 the statutory remedy must be pursued with the utmost strictness. 
 
 3. 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 the grass, or the like ; in 
 which case the owner of the soil may distrain them, till satisfaction be made 
 Iiim for the injury he has thereby sustained. We have few instances of this 
 species of distress in Virginia. I have never known but one in the course 
 of my practice, and the difficulties which attended that case, incline me to 
 think that it is a remedy rarely advisable, as the properly^distrained must be 
 impounded and not used. Moreover, there being no common pound, the 
 landholder, if he impounds in a special pound overt, must give the owner 
 notice ; or if he impounds in a pound covert, he must also provide the beasts 
 with necessaries, and for doing so he will be entitled to no satisfaction 
 against the owner. Co. Litt. 47. 2 Inst. 106. Besides this, there are so 
 many niceties with respect to the disposition of common law distresses, all 
 of which exist in relation to distresses damage-feasant at this day, that the 
 remedy will probably become obsolete unless adapted to modern times by 
 legislative provision. See Bac. Distresses, D. F. 
 
 To entitle a person to destrain for non-payment of rent, it must be due under n demise, and for 
 vent fixedAwA certain in its nature ; and, therefore, if a person ije let into possession under an agree- 
 ment for a lease which does not contain words of immediate demise, no distress can be made, unless 
 from a previous payment of rent, or other circumstance, a tenancy from year to year can be inferred, 
 and theonly remedy is by action for use and cccupation. 2 Taun. IIS. 5 B. &A. 322. 13 East, 19. 
 So, as Lord Coke quaintly says, (Co. Lit. 06, a,) it is a maxim in law, that no distress can be taken for 
 any services that are not put into certainty, nor can be reduced to any certainty, for iV certum est quod 
 certum reddi potest, but yet in some cases there may be a certainty in uncertainty. Tiiercforc, if a 
 man hold land, paying so much per acre, alihough in the terms of the demise the number of acres bo 
 not fixed, the lord may distrain. Vin. Ab. Distress, E. See form of avowry. 3 Cliitty on V\. 'lih cd. 
 105L But where an estate has been let without in any way fixing the amount of rent, the only re- 
 medy js by action. Chitiy.
 
 <) DISTRESSES. [book 3. 
 
 Having thus succiuctly stated the injuries for wliich a distress may be ta- 
 ken, I sliall recur to the subject of the first species of distresses above men- 
 tioned, viz. for rent in arrear, in order to bring before the student some im- 
 portant considerations which are omitted by the Commeniator. 
 
 1. The first matter of enquiry to which it behoves us to direct our atten- 
 tion, rebates to the amount of rent which the suiter may be entitled to re- 
 cover, and herein of the right to interest on arrears of rent ; of tlie opera- 
 tion of the statute of limitations; of the apportionment where apportion- 
 ment is to be made, and of the landlord's demanding too much or too little, 
 and the effect thereof". 
 
 Interest on rent. — It is abundantly clear that no interest upon rent due 
 can be distrained for. Whether the landlord is entitled to recover interest 
 upon the arrears of rent due from the tenant in any other mode, appears to 
 Jiave been indeed vexata qucEStio, nor is it perhaps entirely settled by a re- 
 cent decision of the court of appeals. There is no doubt that in early 
 times, for certain quaint reasons, as well as on some sound and practical 
 grounds, interest was not allowable upon rents in arrear. It is not won- 
 derful that it should have been alleged that rent was interest of itself, and 
 therefore interest could not grow out of it, when we recollect that even in- 
 terest upon money was once thought unreasonable, because, as was said, 
 money could not breed money. But in ancient times much practical good 
 sense and consistency are to bo found in the principles of law obscured 
 and concealed by quaintness and conceit ; and accordingly in the present 
 ■instance we find that besides the unsubstantial reason which has been 
 mentioned, there was another which really did prevail ; that as the landlord 
 •was bound by law to demand the rent upon the land, and the tenant was not 
 hound to seek him elsewhere, it was the fault of the lessor if he suffered 
 the rent to be in arrear, and particularly as he had a right of distress, and 
 often a right of entry. This principle has continued to prevail even in very 
 late days, and in our own courts ; and accordingly it has been decided that 
 a decree allowing interest upon rents was erroneous ; Skipwith vs. Clinch, 
 2 Call, 257 ; because if the amount due was certain and ascertained, the 
 lessor might have distrained, and should not have lain by and suflered the in- 
 terest to accumulate ; and if uncertain and unascertained, then on other prin- 
 ciples interest was not deinandal)le. In Cooke vs. Wise, (3 H. &M. 463,) 
 more recently decided, the same question came on before the court of ap- 
 peals in an action of debt for rent where interest had been allowed in the 
 court below by way of damages. For that cause the judgment was reversed, 
 the appellate court thus aflirming that no interest was allowable on rents. 
 So in Newton vs. Wilson, (3 H. &, M. 470,) which was also an action of 
 debt, the rjuestion was elaboratnly argued both by the bar and by the bench, 
 and the same ])rinciple was again aflirmed by amiijority of the court. The 
 opinions of the judges may be couhullcd with advantage as giving a general 
 view of the cases which have occurred upon the subject. It will there be 
 ibund that in some cases our courts had allowed interest upon rent, and 
 had manifesled some dispo>ition to unfetter themselves from the rule by dis- 
 tinctions and oxcej)lions. Thus, in the case of Graham vs. Woodson, (2 
 Call, 'ili),) interest had been allowed under particular circumstances upon 
 rent, by a court of equity ; and in Watson vs. Alexander, (1 Wash. 340,) 
 ■which was an action of covenant, Judge Pendleton is supposed to have ta- 
 ken a distinction between an action of covenant and an action of debt, and 
 to have aliirmod the power of the jury in the former to allow interest, but to 
 deny it in the latter. On a reference, indeed, to the case, this inference 
 does not seem fairly deducihle from that opinion, nor is the dictum relied on 
 by .Judge Roane, who tlisscnted from the decision oi the court in Newton 
 vs. Wilsou. To this diseent, and to the yet undefined character of the rule
 
 CHAP. L] DISTRESSES* 7 
 
 upon the subject, is to be attributed the speedy recurrence of the question 
 before the same tribunal, in the case of DoW vs. Adams's ackninistrators. 
 5 Mun. 21. That was an action of covenant, but no distinction was taken' 
 by the court in its decision, between the different species of action. The 
 kinouage of the judgment is general, that "althougli interest ought not to 
 be given as of course, in actions for the recovery of rent in arrear, it may 
 nevertheless be given under circumstances, to be judi^ed of by the jury ; 
 and that in case of a general verdict allowing interest, it shall be intended 
 that sufficient circumstances existed to justify the allowance." (5 Kan. 
 571, accord.) In that case, however, the court did not think the circum- 
 stances sufficient to justify it, and therefore reversed the judgment. Those 
 circumstances were stated by the jury in a conditional verdict, submitting 
 the question of law to the court. They were, on the one hand, that there 
 was always sufficient distress on the premises, and on the other, that the 
 rent was demanded but not satisfied. Thus this case yet left the doctrine 
 unsettled, as must always be the consequence where questions are made to 
 depend on circumstances. Happily, however, in all actions of replevin, the 
 act of assembly has now removed the difficulty, by declaring that in cases 
 of replevin, interest shall be allowed upon the rent from the time it became 
 due ; Scss. acts, 1823, ch. 29 ; and though the terms of the law seem to 
 confine the provision to the case of distresses, yet it is probable that the 
 other remedies for the recovery of rent will be deemed by the courts to be 
 within th€ equity of the statute. The case above cited from 5 Ran. 571, 
 arose prior to the act of 1823, and therefore does not affect this opinion. 
 
 Secondly. Of the operation of the statute of limitations. By the act of 
 assembly it is provided that no distress for rent shall be made in any case 
 whatsoever, but within five years after it siiall have become due and unpaid ; 
 1 R. C. ch. 113, § 21 ; and herein it mast be observed that there is no sa- 
 ving- of the rights of infants, /ernes covert^ persons 7wn sane, imprisoned, or 
 beyond sea, (i, e. out of the country,) as is usual in the statutes of limita- 
 tion. It is also, by another statute, enacted that actions of debt for arrear- 
 ages of rent shall be sued for within five years next after the rent became 
 due and unpaid ; 1 R. C. ch. 128, § 4 ; but there is as to this, a saving of 
 the rights- of infants and others mentioned above. The English statute 
 from which this is taken, has been decided, however, not to extend to rents 
 due by indenture of lease. Freeman vs. Stacy, Hutt. 109, cited 1 Esp. Ni. 
 Pri, 23(?. Certain it is that in such case its effect is avoided by an action 
 of covenant for the rent upon the indenture, which is not within the act. 
 But where a lease is by parol, i. e. by oral contract or writing not under 
 seal, no rent can be recovered which has been more than five years in ar- 
 rear, if the defendant insists upon the statute. This it has been said he 
 may do, even upon nil debit pleaded, (Salk. 278. 1 Esp. 262,) though that 
 may well be doubted, I think, both upon principle and the authority of ad- 
 judicated cases. See 6 Mun. 356. See also Bac. Lim. of Act. F. 1 Saun. 
 283, n* 2. Of this, however, more elsewhere. 
 
 Thirdly. As to cases of apportionment. It will be recollected that this 
 term is used in the books in two senses ; first, a« signifying abatement ; 
 secondly, as applying to the case of a rent divided among several. Where 
 for any cause the tenant is entitled to an abatement or apportionment of the 
 rent, we have seen that it is the province of the jury to ascertain the amount 
 to be abated, and the duty of the tenant to insist upon his right by plea, or 
 at least by offisring evidence on the trial under the general issue. The plain- 
 tiflfof course in such case demands the whole rent; the defendant shews 
 forth the matter of abatement, and the apportionment is to be made by the 
 jury : not in proportion to the number of acres, but according to the value
 
 8 DISTRESSES. [ BOOK 3. 
 
 of the land surrendered, forfeited, or purchased, compared with the part re- 
 tained. Vent. 27G. Roll. Ab. 237. Bac. Rents, M. 3. 3 H. & M. 472. 
 Gilb. on Rents, 1S9. But where the plaintiff claims as grantee of part of 
 the rent only, he should, I presume, sue or distrain for his part alone, set- 
 ting out, however, the whole matter, shewing forth the whole rent, and how 
 he is but grantee of part. Certain it is he must sue alone, and cannot join 
 others entitled to the residue of the rent, and though the tenant may thus 
 be vexed with several actions, yet as there is a great convenience in family 
 settlements, and in the various transactions of lil'e in allowing this partibility 
 of rents, and as in many cases by act of law a rent descends or is thrown 
 upon several persons, the law has permitted a rent so to be granted to sev- 
 eral ; nor can the tenant justly complain of being vexed by several actions, 
 since punctuality on his part would absolve him from all. 2 Inst. 504. Co. 
 Litt. 148, a. Cro. Eliz. C37, Col, 771, cited Bac. Rents, M. 1. 
 
 Fourthly. Of the landlord's demanding too little or too much. If the 
 landlord demand too little, he cannot, I presume, in any form of action, 
 recover by that action more than the amount of his demand; 2 Inst. 504; 
 but I do not find it decided whether he may sue again, though he may dis- 
 train a second time for the deficiency. On the other hand, he ought not to 
 demand too much ; 2 B. C. 12. 4 13ur. 590 ; for though in debt and cove- 
 nant, if he declare for more than is due, he may release the overplus, and 
 take judgment for what is really in arrear ; and though even in the case of 
 a distress, if he avow for too much, he may, before judgment, abate his 
 avowry for part of what is distrancd for, and have judgment de retorno ha- 
 hendo for the residue; Bac. Rent, M. 3. 1 Rolls, R. 351. 3 Buls. 155. 
 1 Esp. 310; yet after judgment he cannot do this ; and yet a judgment ren- 
 dered for the whole would be reversed. 2 Salk. 580. 5 Mod. 303. Com. 
 R. 42. 1 Lord Ray. 256. Moreover, by statute the landlord is liable to be 
 amerced for an excessive distress, so that in all cases it behoves him to be 
 circumspect as to the amount demanded. 1 R. C. ch. 1 13, § 31. And now 
 by a late statute it is provided that in all cases of replevin, the jury shall en- 
 quire of the amount of rent which is in arrear and unpaid, and judgment 
 shall be entered accordingly for the amount, with interest from the time it 
 became due, besides damages and costs. Sess. acts, 1823, ch. 29, § 3. 
 
 Having tiius expatiated on the nature and extent of the demands for 
 which a distress may be made, we proceed to consider, 
 
 ".Secondly, the things which may be distrained; and as to this we may 
 lay it down as a general rule, that all chattels personal are liable to be dis- 
 trained, unless jiarticularly protected or exempted. Instead, therefore, of 
 lucnlioning what things are distrainable, it will be easier to recount 
 tlios(; whicii arc not so, with the reason of their particular exemptions. 
 And, 1. As everything which is distrained is presumed to be the property 
 of the wrongdoer, it will follow that such things wherein no man can have 
 an absolute and valuable ])roperty (as dogs, cats, rabbits, and all animals 
 fcra natuTcf,) cannot be distrained. Yet if deer (which are fcra natura) 
 are kept in a private enclosure for the purpose of sale or profit, this so far 
 changes their nature, by reducing them to a kind of stock or merchandise, 
 that they may be distrained for rent. 2. Whatever is in the personal use 
 or occupation of any man, is for the time privileged and protected from 
 any distress ; as an axe with which a man is cutting wood, or a horse while 
 a man is riding him," even though he be damaixe-fcasant, though Mr. 
 Blackstone says otiierwise. See G T. R. 138; for if such distresses were 
 permitted, it would perpetually lead to a breach of the peace. 
 
 3. Valuable things in the way of trade shall not be liable to distress. As 
 a horse standing iu a smith's tiiop to be sliced, or in a common inn; or
 
 «»AP. 1.] DISTRESSES. 9 
 
 cloth, at a tailor's houae ; or corn sent to a mill or a market. For all theso 
 are protected and privileged for the benetit of trade; and are supposed in 
 common presumption not to belong to the owner of the house, but to his 
 customer. So are the horses and goods of a guest at an inn ; and from 
 motires of public advantage, goods of a principal in the hands of a factor 
 or carrier, and droves of cattle driving to market and put into the land for 
 the night to rest. See 3 Bur. 149S. 2 Saun. -290, n. 7. 2 Vern. 130. 
 Christian's and Chitty's notes. But horses and carriages at livery, or the 
 goods of persons dwelling in an inn as tenants or boarders, arc not pro-* 
 tected. 3 Bur. 14i)S. 1 Bia. Rep. 4S1. Generally speaking, however, 
 according to the common law, " whatever goods and chattels the landlord 
 finds upon the premises, whether they in fact belong to the tenant or a 
 stranger, are distrainable by him for rent; for otherwise a door would be 
 open to infinite frauds upon the landlord : and the stranger has /u's remedy 
 over by action on the case (but not assumpsit. 3 Barn. &, Cres. 780,) against 
 the tenant, if by the tenant's default the chattels are distrained, so that he 
 cannot render tliom when called upon. V/ith regard to a stranger's beasts 
 which are found on the tenant's land, the following distinctions are howev- 
 er taken. If they are put in by consent of the owner of the beasts, they 
 are distrainable immediately afterwards for rent-arrere by the landlord. So, 
 also, if the stranger's cattle break the fences, and commit a trespass by 
 coming on the land, they are distrainable 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. But if the lands were not sufficiently 
 fenced, so as to keep out cattle, the landlord cannot tlistrain them till they 
 have been levant a.nd couchant (levanlcs et cubantes) on the land; that is, 
 have been lonij enouirh there to have lain 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 delault of the owner; in this 
 case, though the cattle may have been levant and couchant, yet they are not 
 distrainable for rent, till actual notice is given to the owner that they are 
 there, and he neglects to remove them : for the law will not sulTcr the 
 landlord to take advantage of his own or his tenant's wrong. See 2 Saun* 
 289. 2 Lutw. 1580. 
 
 The rule we have been just considering has been altered in \ irginia, it 
 being declared by statute that no goods or chattels on the demised premises, 
 except such as belong to the tenant, or to some other person liable for the 
 rent, or some part thereof, shall be subject to distress. 1 R. C. ch. 113, § 
 15. But if the tenant or person bound for the rent have a limited interest 
 in the property, it may be distrained, and such interest sold. 
 
 The owner of goods distrained contrary to this act, may sue out a writ 
 of replevin upon giving bond and security in double the amount of the va- 
 lue of the property, to be ascertained by tv.-o freeholders, with condition to 
 satisfy the judgment of the court if he be cast in the suit. 1 R. C. ch. 1 13, 
 § 15, 24 — ^^imended, sess. acts, 1822, ch. 29, § 4. If he fail in his action, 
 he is to pay damages not less than ten per cent, upon the value of the 
 goods, and all costs. The first of those acts further provides, that the 
 owner shall have no relief under it, except by replevin. But observe, that 
 though in no other way can he have the benefit of the act, yet he may as- 
 sert his eonvjwn law remedies, mentioned in the next page of the commen- 
 taries, if his case can be brought within the protection of the common law 
 principles : for the act in question is cumulative ; it adds to his remedies ; 
 it takes away none ; so that in excluding the owner from the advantages o9 
 VOL. 2—2
 
 10 DISTRESSES. [ book 3. 
 
 the act, unless he sues out a writ of replevin, it did not design to take from 
 him his common law privileges.* 
 
 It must further be remarked, moreover, that though the common law 
 rules no longer apply to the case of the goods of a stranger who is not 
 bound for the rent, yet they still apply in strictness to one who is so bound. 
 But even his goods arc 720/ liable if they fall within anij of the common law 
 privileges on the subject, for they arc not taken away. 
 
 "4. There are also other things privileged by the ancient common law ; 
 as a man's tools and utensils of his trade, [if in actual use, and other suf- 
 ficient distress can be found. Co. Litt. 47, a. 4 T. R. 565,] the axe of a 
 carpenter, the books of a scholar^ and the like : which are said to be pri- 
 vileged 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 lav/ ; while dead goods, or other sort of beasts, which Bracton 
 calls catalla otiosa, may be distrained. But as beasts of tlie plough may 
 be taken in execution for debt, so they may be for distresses by statute, 
 which partake of the nature of executions. And perhaps the true reason, 
 why these and the tools of a man's trade were privileged at the common 
 law, was because the distress was then merely intended to compel the pay- 
 ment of the rent, and not as a satisfaction for its non-payment : and, there- 
 fore, to deprive the party of the instruments and means of paying it, would 
 counteract the very end of the distress. 
 
 "5. Nothing shall be distrained for rent, which may not be rendered 
 again in as good plight as when it was distrained : for wjiich reason milk, 
 fruit, and tlie like, cannot be distrained, 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." Money, unless in a bag, cannot be distrained. 
 Rolls Abr. G67. " So, anciently, sheaves or shocks of corn could not be dis- 
 trained, because some damage must needs accrue in their removal ; but a 
 cart loaded with corn might ; as that could be safely restored." But now, 
 by a late statute conforming somewhat to that of 2 Wm. & Mary, ch. 5, it 
 is provided that hay in slacks, or grain loose or in the straw in any barn or 
 house, and wheat or other grain in stacks, ricks, or otherwise secured, may 
 be distrained, so as such distress be not removed, by the officer making the 
 same, out of the place where it is found and seized, but be kept there as 
 impounded, until tlio same be replevied or sold ; but the officer is not to be 
 responsible to the landlord, in case the same be wasted or eloigned without 
 his default. Sess. acts, lH.ixJ. 
 
 6. Goods in the custody of tlic law cannot be distrained. See Willes, 
 131. Co. Litt. 47, a. 
 
 Lastly, things fixed to the freehold cannot be distrained, as caldrons, 
 windows, doors, and chimney pieces, for they savourof the realty. So if a 
 millstone be removed to be picked. See 4 T. R. 507, &. Chitty's note here, 
 as also the books cited by him as to what are fixtures. 
 
 " Let us next consider, thirdly, how distresses may be taken, disposed of, 
 or avoided. And first, I must j)rcmisc, that the law of distresses is greatly 
 altered within a few years last past. Formerly, they were looked upon in 
 no rjther light than as a mere pledge or security, lor payment of rent or 
 other duties, or satisfaction for other damage done. And so the law still 
 continues with regard to distresses of beasts taken dumage-feasant, and for 
 other causes, not altered by act of parliament; over which the distrainor 
 lias no other power than to retain llirm till satisfaction is made. But dis- 
 
 ' rjoodn of lliinl persons wprn nnver lialilr lo (iiglre.-'S unlcHP found upon the rrrniisfs, fn lliat if dri- 
 ven otT before (lie diplrefs lliey were abifilved; and even whpd thev aro found llicic now, the did- 
 tr««a is taken anay bj att of I8i3, 1 K. <v. cli. IJ:!, ^ 15. S«ce 1 Kaii. 'J3v.'.
 
 CHAP. 1.] DISTRESSES. 11 
 
 tresses for rent-arrerc being found by the legislature to be the shortest and 
 most effectual method of compelling the payment of such rent, many bene- 
 ficial laws for this purpose have been made in the present century ; \vhich 
 have much altered the common law, as laid down in our ancient writers. 
 
 '•' In pointing out, therefore, the methods of distraining, 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 ; 7 Rep. a. ; 
 unless in the case of damage-feasant ; an exception being there allowed, 
 lest the beasts should escape before they are taken. And, when a person 
 intends to make a distress, he delivers a warrant of distress to the sheriff, 
 constable, or other officer, directing him to distrain for so much rent as is 
 due. The officer must then enter on the demised premises ; formerly dur- 
 ing the continuance of the lease, but now, if the tenant holds over, the 
 landlord may distrain within six months after the determination of the lease, 
 provided his own title or interest, as well as the tenant's possession, con- 
 tinue at the time of the distress. If the lessor does not find sufficient dis- 
 tress on the premises, formerly he could resort no where else ; and there- 
 fore 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 the landlord may distrain any goods of his ten- 
 ant, carried oiT the premises clandestinely,* wherever he finds them within 
 thirty days after," or (where the lease is determined) within thirty days after 
 its termination; Sess. acts, 1832; " unless they have been bona fide sold 
 for a valuable consideration." 
 
 By the common law, which is herein unchanged in Virginia by any sta- 
 tute, the officer cannot break open a house to make a distress, for that is a 
 breach of the peace. Dalton, 350. But where he is once peaceably in the 
 house it is held that he may break open an inner door. Distress may be 
 made through a window, if open. Com. Dig. Distress. 
 
 No distress for rent due more than five years is lawful. 1 R. C. oh. 113. 
 
 By the common law, the landlord himself, or his private bailiff, might dis- 
 train in person ; but from the whole structure of our act, I am inclined to 
 think that every distress in Virginia should be made by an officer of the lav/ 
 (either a sheriff, sergeant, or constable) under a warrant or authority from 
 the landlord. See 1 Mun. 596. 2 Wash. 57. 
 
 " Where a man is entitled to distrain for an entire duty, he ought to dis- 
 train for the whole at once ; and not for part at one time, and part at anoth- 
 er. But if he distrains for the whole, and there is not sufficient on the 
 premises, or he happens to mistake in the value of the thing distrained, and 
 so takes an insufficient distress, he may take a second distress to complete 
 his remedy. 
 
 " Distresses must be proportioned to the thing distrained for." By the 
 act, 1 R. C. ch. 11.3, 315, if any man takes a great or unreasonable distress, 
 for rent-arrere, he shall be heavily amerced for the same. As if the land- 
 lord distrains two oxen for twelve-pence rent; the taking of both is an un- 
 reasonable distress ; but, if there were no other distress nearer the value to 
 be found, he might reasonably have distrained one of them. The remedy 
 for excessive distresses is by a special action on the statute, for an action of 
 trespass is not maintainable upon this account, it being no injury at the 
 common law. 
 
 " When the distress is thus taken, the next consideration is the disposal 
 of it. For which purpose the things distrained must in the first place be 
 carried to some pound, and there impounded by the taker. But, in their 
 
 * Where the lease is determined, there may be a distreaa withia thirty days, tliough tliQ tenant doei 
 not remove fraudulently, fcress. Acts, 132~, § 6, ch. '12.
 
 12 DISTRESSES. [book 3. 
 
 ivay thither, they may be rescued by the owner, in case the distress was ta- 
 ken 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 lawful- 
 ly make rescue. But if they once be impounded, even though taken with- 
 out any cause, the owner may not break the pound and take them out ; for 
 they are then in the custody of the law. 
 
 " A pound (parrus, which signifies any inclosure) is either pound-orer^, 
 that is, open overhead ; or pound-corer/, that is, close." By the statute 1 
 K. C. ch. 113, § 15, " no distress of cattle can be driven out of the county 
 where it is taken. This is for the benefit of the tenants, that they may 
 know where to find and replevy the distress. If a live distress, of animals, 
 be impounded in a common pound-overt, the owner must take notice of it 
 at his peril ;* but if any special pound-overt, so constituted ibr this particu- 
 lar purpose, tlic distrainor must give notice to the owiier: and, in both these 
 cases, the owner, and not the distrainor, 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 distrainor must feed and sustain tliem.t A dis- 
 tress of household goods, or other dead chattels, which are liable to be sto- 
 len or damaged by w'eather, ought lo be impounded in a pound-covert, else 
 the distrainor must answer for the consequences. 
 
 "When impounded, the goods were formerly, as was before observed, only 
 in the naiurs of a piedge or security to compel the performance of satisfac- 
 tion ; and upon this account it hath been held, that the distrainor is not at 
 liberty to work or use a distrained beast. And thus the law still continues 
 with regard to beasts taken damage-feasant, which must remain impounded, 
 till the owner makes satisfaction ; or contests the right of distraining, by 
 replsvying the chattels. 
 
 " This kind of distress, though it puts the owner to inconvenience, and 
 is therefore a punishment to hvr., yet if he continues obstinate and will 
 make no satisfaction or payment, it is no remedy at all to the distrainor. 
 But for a debt due to the crown, unless paid within forty days, the distress 
 was always saleable at common law. And so, in statute-distresses, which 
 are also in the nature of executions, the power of sale is likewise usually 
 given, lo efiTectuate and complete the remedy." So by 1 R. C. ch. 113, 
 § 1, a sale of jjroperty distrained for rent, is directed, if the tenant or own- 
 er of the goods distrained, shall not within ten days after such distress ta- 
 ken, and notice thereof, and the cause of such taking left at the chief 
 mansion house, or other most notorious place on the premises, charged 
 with the rent distrained for, replevy the same, by sufficient security given to 
 the sheriff or officer serving such distress, to pay the money or tobacco, 
 find all costs, with lawful interest for the same, at the end of three months. 
 The interest, it seems, must be from the date of the bond, not from the time 
 of payment of the rent. () Mun. JJ19. 3 Mun. 277. A personal notice 
 though oral is sufficient to warrant the sale. 1 Ld. Ray. 53. 12 Mod. 
 76. lino replevy bond be given according to this provision, the officer who 
 makes the distress is directed to fell the goods by public auction to the 
 higliPBt bidder, on three months' credit, taking bond and security to the 
 landlord. 
 
 If the tenant give a replevy bond, it must recite that it was entered into 
 for goods or estate distrained for rent and restored to the obligor ; 1 R. C. 
 ch. 113, § 1, 2; or if the goods be sold, the purchaser's bond shall state that 
 it was given for goods sold for rent ; — and in either case the bonds shall be 
 
 'I am not nware that we Iiave any common poundi in Virginia. Sec Jac. L. Diet. " Pound." 
 tThft diptminor rsnnoi ijo up rattle impoimilfrf, and if lie lie a hcnn and it if ctranjled, lie will lie 
 Tiablft in darpapPF. ] Salk.24^. Ff t|io f1i«ir»n^ he lo»( hy the act of (iod, a» by death, the diflrainor 
 iway di»irain ugain. JIFam, 51. IJurr, J738. Chi'ty,
 
 CHAP. 1.] DISTRESSES. 13 
 
 delivered to the landlord within three months, (§ 3,) and if not paid, he may, 
 upon motion before the justices of the court " where such bond shall be 
 lodged," have an award of execution thereon, provided he give ten days' no- 
 tice of his motion : on such execution no security is to be taken, and for 
 the direction of the sheriff the clerk shall so endorse. Where the distress 
 is made for tobacco between the last of September and the last of October, 
 the sale is directed to be on a credit to the ist of January thereafter, (§ 3.) 
 The officer's commission is to be included in the replevy bond, and the a- 
 mount allowed him is the same as on an execution, (§ 4.) 
 
 On this act it has been decided that a replevy bond taken under it, must 
 be returned to the court to which the officer levying the distress belongs, or 
 to the court of that county in which the land lies, and if the bond be deliv- 
 ered to the landlord, the motion for execution must be made in the same 
 court which would have had jurisdiction if it had been returned according 
 to the rule above mentioned. 2 Wash. 57, 58. 
 
 If the replevy bond includes interest from a day anterior to its dale, it is 
 erroneous, (3 Mun. '277,) but the erroneous interest may be deducted and 
 judgment rendered for the balance, or an action of debt may be brought on 
 the bond, for though not good under the statute, it is good as a common 
 law bond. 6 Mun. 319. 1 Wash 367. 1 Call, 243, 249. 3 Call, 253. A 
 replevy bond signed by the lessee, though not the owner of the property 
 distrained, is good under the act of assembly. 2 Wash. 57. 
 
 The act of assembly does not give the remedy by motion on a replevin 
 bond against executors. ] R. C. ch. 113, § 2. The case of Glassford and 
 Henderson vs. Hackett, (3 Call, 193,) though decided on a replevy bond ta- 
 ken on an execution under the laws then in force, is strictly applicable in. 
 principle here. In such case the party must resort to his common law rem-« 
 edy of action of debt. And it would be the same thing if the obligee were 
 dead, as for the same reason his executors or administrators would be in- 
 capable of proceeding by motion. 
 
 At common law a distress might be levied by any private person autlior- 
 ized by the landlord ; but such person has no right to sell or to take a re- 
 plevy bond. 2 Wash. 57. A duly qualified officer alone can do it. 1 
 Mun. 59S. Constables are empowered by law to levy attachments for 
 rents, (1 R. C. ch. 113, § 16,) and have always been in the habit of levy- 
 ing distresses and taking replevin bonds ; with what propriety may be 
 doubted when the sum exceeds the ordinary jurisdiction of a justice of the 
 peace. 
 
 Though the statute authorizes the replevy within ten days, yet may the 
 party replevy at anytime before a sale. See 5 Taun. 451. 1 Marsh. 135. 
 
 The student will observe that the replevy bond, spoken of in the forego- 
 ing passages, is given where the tenant acknowledges the justice of the dis- 
 tress, but is desirous of some delay for the purpose of raising the amount 
 due to his landlord. But in this sense the word replevy is not known to the 
 common law. By the common law it applied only when the party denied 
 the right of the distress, and sought to try its validity by an action called re- 
 plevin, which he was allowed to do on certain terms. In the common law 
 sense of the word, in which sense also it is still used with us, "to replevy 
 (replegiare, that is, to back the pledge) is, when a person distrained upon 
 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 
 Buit of law, and, if that be determined against him, to return the cattle or 
 goods once more into the hands of the distrainor. This is called a replevin, 
 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 
 daraages done, a replevin answers the same end to the distrainor as the dis-
 
 14 DISTRESSES. [ book 3. 
 
 tress itself; since the party replevying gives security to return the distress, 
 if the right be determined against hiin. 
 
 " Before I quit this article, I must observe, that the many particulars which 
 attend the taking of a distress, make it a hazardous kind of proceeding: 
 for, if any one irregularity is committed, it vitiates the whole, and renders 
 the parties trespassers ab inillo ; a rigorous principle which has been soften- 
 ed in England by a statute never in force in Virginia. On the contrary it is 
 provided, 1 R. C. ch. 11-i, that in case any distress and sale shall be made, 
 under colour of the act, for rent pretended to be in arrear and due, where 
 in truth no rent is in arrear or due to the person or persons distraining, or to 
 him, her, or them, in whose name or names, or right, such distress shall be ta- 
 ken as aforesaid, tiien the owner of the goods and chattels so distrained or 
 sold, his executors or administrators, shall have remedy, by action of tres- 
 pass, or upon the case, against the person and persons so wrongfully dis- 
 training, or either of them, his, her, or their executors and administrators, 
 and shall recover double the value of the goods and chattels so distrained 
 and sold, together with full costs of suit. 
 
 Observe, this section applies only where there is no rent due ; for if one 
 cent be due, the landlord is not within the penalty. Observe, also, that the 
 remedy for the wrongful distress is only by action of trespass, or upon the 
 case ; and therefore there cannot be judgment under this clause against the 
 landlord in an action of replevin. The judgment in replevin where the ten- 
 ant succeeds in shewing that there is not any rent in arrear, or that the dis- 
 tress is, for any other cause, wrongful, is for such damages as a jury shall as- 
 sess, together with full costs. See Lilly's Entries, 373, 374. Where the 
 landlord succeeds, the judgment, as has been already said, is in Virginia, for 
 the arrears of rent, with interest, and damages, and costs. 
 
 It is material, also, to observe, that the above action of trespass, or upon 
 the case, does not abate by death, as actions of tort generally do ; for the 
 act above referred to expressly gives it for and against executors and admin- 
 istrators, as well as for and against the parties themselves. 
 
 In connection with this head it may also be proper to take notice of cer- 
 tain acts which do, and others which do not, bar the remedy by distress, and 
 of course render it illegal. Thus, accejjting a note of hand, and giving a 
 recei[)t for the rent, does not, till payment, preclude the landlord from dis- 
 training ; and so if the landlord accept a bond, for these are not of higher 
 dignity than rent reserved even by parol, and are therefore no satisfaction 
 till paid ; but a judgment, obtained on either of such instruments, would 
 
 Notes of Mr. Cliilhj and Mr. Christian : 
 
 It rrniy he as well here to observe, that if a landlord come into a house and seize upon some goods 
 as a dislro-H, in ilie name of all the noadtf of the house, that will be a good seizure nf all. G Mod. 215. 
 '.I Vin. Ab, l',7. ISiit a fresh dislrei^s may be made on the same good.-!, which have been replevied, 
 lor subsequent arrears of rent. 1 Taunt, 1213, So if the catlle dislr. lined die in the pound, the I083 
 will fall o!i the parly distrained on, and not upon the distrainor. lUnr. 173S. 1 Salk. 218, 11 EasI, 54. 
 
 It is no bar to this action, that between the distress and sale of the goods distrained, the parties 
 ramn to an amntcment respeciinj; the sale; 1 liine- -101. 4 1). &, R. 5;3!l. 21J, &C. 821, S. C. ; 
 and tln! artioi) is sm-lainablc ihoiiah ihcre was a lender of the rent before the distress was made. 2 
 I). A: K, 2."y), Where more rent is distrained lor than is due, the remedy is at common law, and is 
 not founded on the 52 Hen, 11, r. 4, nor on the 2 \V. .St M. c. 5, s. 5. rSira, f'.5l. Where no rent is 
 due, the owner of the U'lrids rbslrainml may, in an action of trespass on the case, lecover double the 
 \jlne o( the t>oo(ls and full costs, 2 W. &, .M. i-ci^s, J, c, 5, s. 5. Chitty. 
 
 Trover will not lie w here the distress has been merely irregularly conducted. J II. Bla. 13. Nor 
 treKpass, (I iJurr. .VJ(J, Fit/.. !G, 2 Sira. i;51, S. C) unless tor some act which of itself mijiht be the 
 Bubject-malU'r of that form ol aclion ; an if the distress were illegal in its inception, as in bre.iking an 
 outer-door, iic, ante II, n., or if the distrainor conlinue too long in possession after the live days, 
 ante 11, u,, or sells corn before it in ripe, <^c,, '■} 15, it A, 470, or distrains afler a tender of the rent, 
 anie 'J,n,, nespasiimay be siip|Mjrled, liui ihotenaut may in these cases waive the trespass and declare 
 inca.se, 4 U. Ac A, 2<V!. 3 15, &•. A.TO, ;j Stark, 171," 1 15, & C, 115. 2 0. iV 11,250. If a party 
 pay money 10 redeem his gooils from a wrongful distress for rent, he may afterwards maintain tiover 
 against the pernon vvho distr.iined them; 6 '1'. R,298; and we have before seen tliatitis no bar to an 
 aclion for an excessive distress, that between ihc distress and sale of the goods the parties came to 
 an airangement re.- petting the sale. 1 Bing, 40J. 4 D. A: K. 531?. 23 13, & C. pi. 21, S. C 
 
 Chiisiian,
 
 CJIAP. 1.] REMEDIES FOR RENT. 15 
 
 preclude the right of distress. See Bull. N. P. 182. An agreement to take 
 interest on rent in arrcar, does not take away the right of distress. 2 Chit, 
 R. 245. 
 
 On the other hand, the distress cannot be made till the day after the rent 
 falls due, unless, indeed, there be any ngreement or local cnstom to the 
 contrary. Gilb. Dis, 56, £tc. Hargrave's Co. Litt. d7, b. n. G. The dis- 
 tress must not be made ailer tender of payment of the entire rent due. Ac- 
 cording to 8 Co. 147, a. Gilb. Dist. by Hunt, 7G, &c. 3 Stark. 171. 1 
 Taunt. 261, tender upon the land before the distress, makes the distress 
 tortious : tender after the distress and before the impounding makes the de- 
 tainer, and not the taking, wrongful ; tender after the imi^ounding makes 
 neither the one nor the other wrongful, but in the case of a distress for rent 
 upon the equity of the 2 W. & M. c. 5., a sale of the distress, after ten- 
 der of the rent and costs, would be illegal. Chilty. 
 
 Before we quit the subject of distresses, I think it advisable to lay before 
 the student the other remedies which the law has afforded for the recovery 
 of rent ; some of which, arising under our own statutes, would find no more 
 appropriate place in this course of lectures. We shall advert to these re- 
 medies. 
 
 First, in relation to the parties to whom they are given ; secondly, the par- 
 ties against whom they lie ; thirdly, the nature of the remedies themselves. 
 
 First. In relation to the parties to whom they are grven. 
 
 As to the lessor himself; it is material to observe that if he grants away 
 his reversion, he can neither distrain nor have an action of debt, for these 
 grow out of the privity of estate which he has destroyed. 3 Co. 23, a. 1 
 Saun. 141, c. in note. Yet he may have an action of covenant. 
 
 Executors and administrators, by the statute of H. 8, (see 1 Saun. 282,^ 
 n. 1,) and also by our law, may have an action of debt for the arrearages 
 of rent which accrued in their testator's lifetime, against the tenant, his- 
 executors or administrators: 1 R. C. ch. 113, § 23; and furthermore they 
 may distrain as he might have done, and avow thereupon so long as the 
 lands continue in the possession of the tenant, or any person claiming 
 from him, either by purchase, gift, or descent. And it is now further pro- 
 vided, (ibid, § 30,) that the executors or administrators of a person having 
 rent in arrear due on a lease for life or lives, for years or at will, although 
 it be determined, may distrain as the testator might have done if living. 
 How in such case he might have distrained, will be seen hereafter. 
 
 Executors and administrators have also of course a right to bring cove- 
 nant for rent reserved by indenture or agreement sealed by the lessee, whe- 
 ther it be for rent accrued in the testator's lifetime, (which, as we have seen, 
 belongs to them,) or for rent accrued after his death, where the reversion is 
 itself a chattel ; as where the testator being tenant for fifty years, made an 
 under lease for ten years : for in snch case, after the testator's death, this 
 reversion passed to the executors or administrators. It became their pro- 
 perty, and they to all intents and purposes became the landlords. So for 
 the same reason they have in such case a right to distrain or bring cove- 
 nant, or to re-enter for non-payment, if there be a clause of re-entry in 
 the lease. So, too, if the lease be by parol, they may bring assumpsit upon 
 an express agreement to pay rent, and also upon an implied agreement 
 where the testator could have done so, for the yearly value of the premises. 
 For upon principles of common law, as well as by statute, executors may 
 sue and be sued upon all contracts in writing of their testator, whether they 
 bo named or not in the writing evidencing the contract ; and also "upon 
 all their /jcrsona/ contracts." 1 R. C. ch. 104, § 62. 
 
 For the security of landlords against fraudulent acts of tenants who 
 might remove their property from the premises and from the county be-
 
 16 REMEDIES FOR RENT. [ book 3. 
 
 fore the rent bccarrre due, (the landlord having no remedy at common law 
 until pay-day,) the act has provided a remedy by attachment, which, under 
 circumstances, is authorized to be issued before the day of pavment. 1 R. 
 C. ch. 113, §9, 10. Sess. acts, passed January 1, I8-20. 1 R. C. page 
 opposite to the errata. This remedy may be resorted to by executors or 
 administrators in the character ol" landlords, where a reversionary chattel 
 comes to them as above stated. So wiiere they are ihe owners of a lease 
 for years, and underlet the land, reserving rent, for in both these cases they 
 are landlords, and come within the express meaning of the act. But it is 
 sufficiently obvious that it has no application to their right to a rent which 
 accrued on a lease by the owner of a fee : for, as has been seen, they can 
 have no right to any such rent, except such as was due in the testator's life- 
 time, and to a rent already due, the attachment law is neither necessary 
 nor applicable. 
 
 Heirs. — The persons in relation to whom we shall next consider the re- 
 medy by distress, are the heirs of the lessor or former landlord. And as 
 to them this general remark may be made, that where the reversion with 
 the rent incident thereto, descends upon them, they are in effect ihe land- 
 lords ; and all the rights and remedies of their ancestor (not omitting the 
 remedy by attachment which has been mentioned) are immediately vested 
 in them. But it is important here to advert to the descent of a reversion 
 to parceners in England, and to the heirs here, who, whether male or fe- 
 male, take in parcenary. In respect to their ancestor they are considered 
 as making but one heir ; Co. Litt. 161 ; and therefore, before partition, al- 
 though their inheritances are several, yet one cannot make avowry for his 
 or her proportion of the rent alone ; 5 Mod. 141. Carlh. 364. Lord Ray. 
 61; but in such case he or she should avow in her own right, and as bailiff 
 of his or her coparcener, for the entire rent. Salk. 390. Bac. Coparc. B. 
 
 Husband in right of his wife. The rights of the husband to rents be- 
 longing to his wife, depend upon principles which have been already fully 
 exammed and developed. So far as respects rents incident to reversions, 
 and not due and in arrear during the wife's life, he will, after her death, be 
 entitled to them or not, according as he is entitled to the reversion or not: 
 and where he is entitled, he has all the rights of landlord. As respects 
 those rents which are due and unpaid at his wife's death, if they were inci- 
 dent to a reversion, in fee or for life, it is provided by statute that the hus- 
 band, his executors or administrators, shall have an action of debt for the 
 arrearages,, and n'ay likewise distrain and avow as if his wife were living. 
 1 R. C. ch. 1 13, § '2d. During the wife's life, the husband has in her right 
 all the remedies which landlords usually have, whether she be the owner of 
 a reversion in fee, or for life, or years, to which the rent is incident : and 
 where he distrains for rent due before or after marriage, he may avow alone, 
 setting out the truth of the case, and that the rent was due to him and hia 
 wife, and aver that she is living, whereby he hatli right to demand and have 
 the rent^^ Bac. Replevin, K.^ 1 Sann. 197. Chilty, 6-2. Cro. Ja. 44->. 
 1 Esp. 375. See Bac. Bar. & Feme, K. The better opinion, indeed, would 
 Beem to be, that where the rent accrues after marriage, the v.'ife cannot join 
 in avowry ; and this is in analogy to the established principle in other cases. 
 Sec 2 Saiin. 47. 
 
 Where rent is due to the wife before marriage, it is a chose in action, and 
 governod by the law a[)plicable thereto, whatever may be the character of 
 the reversion, whether realty or a chattel interest. Where it becomes due 
 after the marriage, it becomes at once, in the case of the reversion being a 
 chattel interest, a debt dnv. to the husband, as I conceive, and survives to 
 him if his wife dies before him, and goes to his representatives if he dies 
 first. The case of a reversion in fee is provided for by statutCj as I ha\'«
 
 CHAP. 
 
 1] REMEDIES FOR RENT. 17 
 
 said. In all these cases, during the coverture he may, and it would seem! 
 ought to, sue and avow alone. 
 
 Assignees of the reversion or of rent. The better opinion seems to be, 
 that at common law an assignee might bring an action of debt for rent in' 
 arrear, (1 Saun. 241, c. in note ; 5 Barn. & Cres. 512. 11 C. L. R. 292,) 
 but that he was incapable of maintaining an action of covenant until the 
 statute 32 H. VIll. ch. 34, from which our act is taken. 3 Mod. 338. 1 
 Wils. 165. 3 T. R. 401. 1 Saund. 240, n. 3. By that act ihe grantees 
 or assignees of a reversion, and their heirs, executors, administrators, and 
 assigns, shall have the same remedy against the lessees, their executors, 
 administraters, and assigns, by entry, for non-payment of rent, or for waste 
 or other forfeiture, and the same benefit of the covenants and agreements 
 in the lease, &.c. as the lessors themselves or their heirs might have had 
 against the lessees, their heirs, executors, administrators, or assigns. 1 R. 
 C. ch. 113, § 26. 
 
 Under the above mentioned statute of Hen. VIII. from which ours has 
 been taken, it has been decided that the statute transferred the privity of 
 contract to the assignee of the reversion in the same manner as the lessor 
 had it. 1 Saund. 240. 3 Mod. 337, 338. 1 Show. 199. Carth. 182, 
 cited in n. 1 Saund. 241, c. And while, on the one hand, the assignor 
 cannot distrain for rent due before the assignment, because he has parted 
 with the reversion ; so, on the other, it seems he cannot bring an action of 
 covenant after he has parted with the reversion, for any breach of covenant 
 accrued subsequent to the grant thereof; for the statute has transferred the 
 privity of contract, together with the estate in the land, to the assignee of 
 the reversion. See 1 Lev. 154, cited 1 Saun. 241, c. in note. But yet I 
 apprehend that in the case of rent in arrear at the time of the assignment, 
 as it does not' pass to the assignee, it may be recovered by the assignor by 
 covenant, but not in action of debt; and this even though it be not reserved 
 on tlie grant of a fee for which debt will not lie ; for the action of debt is 
 only given by reason of the privity of estate which the lessor has himself de- 
 stroyed. 3 Co. 23. See 1 Saun. 211, c. in note. Debt, however, now lies 
 for a rent if reserved on a lease for life or lives. Bac. Rents, K, 6. 1 R. 
 C. ch. 113, § 19. 
 
 I am not aware that there is any difference in the cases of an assignee 
 by act of the parties, and an assignee by act of law, as tenant by elegit, or 
 the purchaser of a reversion in a chattel interest sold under an execution. 
 
 Joint-tenants, as well as coparceners, are to join in an avowry for rent, 
 for they have at common law but one title ; Lord Ray. 64; but 
 
 Tenants in common must sever in their avowries, for they are in by several 
 titles. Ibid. Bac. Replevin, K. 
 
 We come next to consider the remedies given by law in relation to the 
 persons against whom they may be used. 
 
 And here we may pursue the same course as under the last head, con- 
 sidering the several parties in succession. 
 
 Executors and Administrators. It is, as I have already said, a general 
 rule, that where the testator is chargeable on a personal contract, his exe- 
 cutors and administrators are chargeable after his death, whether they be 
 named or not named in the contract. This responsibility is yet more ex- 
 plicitly declared in certain cases of rents. 1 R. C. ch. 113, § 28, 29, 30. 
 So that it may be laid down as a general rule, that where the tenant dies, 
 his executors and administrators are responsible so far forth as he was him- 
 self liable. The liability of the tenant himself is in the general sufficiently 
 obvious, but it is important to ascertain how far his, and of course his exe- 
 cu-tors' and administrators' liability is removed by the assignment of the' 
 Vol. 2—3
 
 18 REMEDIES FOR RENT. [ book 3. 
 
 lease by the tenant, accompanied by an acceptance, by the lessor, of the 
 assignee as tenant. 
 
 The tenant himse}/ crinnot, it is obvious, by las own mere act, absolve 
 himself from responsibiHty by assigning his term, for tliis would be to ena- 
 ble him to pass it to some insolvent person who would be incapable of pay- 
 ing the rents. 3 Co. 2*2. Hence, though the lessee assign over his term, 
 the lessor may refuse to accept the assignee as his tenant, and may sue the 
 lessee for the rent and for breaches of the covenants; 1 Wash. 57 ; and in 
 the event of his death, may in like manner pursue his executors and admi- 
 nistrators. 1 Saun. 241, in note. 3 Mod. 32G. 
 
 But if the tenant transfers the whole of his term, which alone amounts 
 to an assignment, and the landlord accepts of the assignee as his tenant, 
 by receiving rent from him, then these distinctions are to be noted. 
 
 The lessor by such acceptance discharges his own lessee from an action 
 of debt or distress for the arrears of rent, for these grow out of the privity 
 of estate which is gone by the acceptance of a new tenant. Cro. Ja. 334. 
 Esp. 291. 1 Saun. 241, c. in note. 
 
 But though the action of debt and the distress are gone, the lessor, where 
 the lease is by indenture, may nevertheless bring an action of covenant 
 against the first lessee for the breach of any express covenant, though com- 
 mitted by the assignee after the assignment : and this is by reason of the 
 privity of contract which still continues as to the lessor, because it has not 
 been destroyed by any act of his, since the acceptance of the rent does not 
 operate to traiisfer it. Cro. Ja. 309. Cro. ch. 418. Esp. 291. Bac. 
 Cov. 535, 530. 
 
 But the action of covenant lies against the lessee after assignment and 
 acceptance of the assignee as tenant, only upon express covenants. For it 
 seems to me that the implied covenants are raised by the law by reason of 
 the privity of estate, and not of contract; and as by the acceptance the 
 lessor has assented to the destruction of the privity of estate, the lessor 
 shall not have the action which grew out of it. Therefore, the covenant 
 for non-payment of rent will lie against the lessee after assignment and ac- 
 ceptance of assignee as tenant, where there are express words binding the 
 lessee and his assigns to pay the rent, (3 Lev. 233,) yet where there is only 
 a covenant in law for payment of rent, such as is implied from the words 
 yielding and payinf^, (hmise and grant, (which are covenants in law both 
 by the lessor and lessee, 1 Saun. 241, b. in note,) no action of covenant 
 will lie after assignment and acceptance. 1 Sid. 447. Sir W. Jones, 223. 
 4 T. R. 98. 1 Saun. 241, b. in note. Cro. ch. 188. 
 
 These distinctions equally hold against the executors and administrators* 
 of the lessee for years. 1 Saun. 241, a. in note. But 
 
 The assignee of the term, whether by act of law or of the parties, stands 
 in a very dilfercnt situation ; for in leases, the lessee being a party to the 
 original contract, continues always liable under his express covenants, not- 
 Avillistanding any assignment: but the assignee is only liable in respect of 
 his possession of the tiling. l\v. bears the burden while he enjoys the be- 
 nefit, and no longer. Doug. [413.] Lev. 215. Lord Kay. 308. Salk. 81. 
 He is liable, indeed, after assignment over, for the rent which accrued dur- 
 ing his enjoyment ; but in covenant for non-payment of rent, he may plead 
 that before tluj rent was due and payable, he assigned to another, and this 
 is a good plea without an allegation that the lessor accepted that other as 
 tenant. Cartli. 177. Salk. 80. 4 Mod. 71. 3 Lev. 295. But while he 
 retains possession he is liable to the action of the lessor in debt or in cove- 
 
 *SeeGill).on Renin, 3V7, where it i« remarkprl ilmt llie statute of Anno, which is the original of 
 our act, I K. C cli. 113, ^\ 19, hx^ not, by express wonis, eiven an action lo the executors of lessor 
 for rent in arrear upon lijases for lives; hut thai case in in efitecl provided for by the 26lli eection of 
 the ac*, 1 R. C. ch. il3, concpjionding with the '■ii H. 8.
 
 CHAP. 1.] REMEDIES FOR RENT. !§ 
 
 nant for rent, or for not repairing, &c. and this by reasoii of the privity of 
 estate. 3 Rep. 22, b. 1 Saun. 241, c. in note. 
 
 It is not my purpose here to go at large into the distinctions respecting 
 the assignee's liability to the various covenants in the lease ; as they will 
 more properly be enquired into hereafter. It is suflicicnt here to have shewn 
 how far he is liable to the lessor for the rent, and we must remember that 
 he is in like manner liable to the assignee of the reversion in covenant or 
 debt, or by distress, by the operation of the statute before cited. See 1 
 Saun. 241, b. c. in note. 
 
 It is necessary, however, to advert to the distinction between an assignee 
 who ex vi termini has the assignment of the whole term, and a derivative 
 lessee (who has transferred to him) the leased premises for a less number of 
 years than that for which the original lessee held : for such derivative les- 
 see is not in any wise liable, for the rent reserved, to the original lessor, ex- 
 cept so far as his cattle are liable to distress as other strangers' cattle are ; 
 Bac. Leases, 1, 3 ; nay, not even though he take the whole term save one 
 day. And since the statute which exempts from distress the property of all 
 persons other than the tenant or such as are liable for the payment of the 
 rent or some part thereof, it would seem that even the remedy by distress 
 was gone, so far as respects his goods. Hence it is the more necessary to 
 introduce into leases clauses against underletting, or subtenancy. 
 
 The heir is liable of course in the case of a reservation of a rent on a 
 feoffment in fee, or the grant of a rent by the owner of a fee ; for upon the 
 descent of the land to the heir, he becomes tenant, and by reason both of 
 his privity of estate and the privity of contract made with his ancestor, he 
 is liable. 
 
 The remedies. — Let us now consider the remedies themselves which are 
 afforded by the law. 
 
 The first is the action of covenant, which has this advantage, not only 
 that it will lie where others do not, but that the statute of limitations is no 
 bar to the recovery. Thus it will lie for a rent reserved on the grant of a 
 freehold, or even a fee simple, which at common law was not the case with 
 the action of debt, (Co. Lit. 162. 4 Co. 45,) and is not now the case as 
 to an action of debt for rent reserved on a fee, as that is not within the 
 provisions of the statute. 1 R. C. ch. 113, § 19. So, as we have seen, it 
 will be in some cases against the assignor where the debt will not lie, and 
 where the remedy by distress is also gone. It is therefore, perhaps, the 
 best remedy, except where the expeditious mode of distress is required by 
 the urgency of the case, and is appropriate to it. 
 
 Secondly. The action of debt for rent lay in many cases at the common 
 law, and is, as we have seen, now given in others. It did not, however, at 
 common law, lie for the arrears of a freehold rent, as I have stated above, 
 until after the determination of the life estate, in case of a lease for life. 
 Gilb. on Act. of Debt, 372. Co. Lit. 162, a. In that case, the sum due 
 became a personal charge, and the debt therefore would lie. And now, by 
 the act of assembly above cited, it is provided that any person having any 
 rent in arrear or due upon any lease or demise for life or lives, may bring 
 an action of debt for such arrears of rent in the same manner as if it was 
 reserved on a lease for years ; I R. C. ch. 113, § 19; for debt always lay 
 for rent reserved upon leases for years, as also for arrears of rent on a lease 
 at will. Litt. § 59, 72. But it did not lie against tenants by sufferance, 
 for the action of debt implies a contract, whereas tenants by sufferance 
 hold over by wrong. I Esp. 187. 
 
 The student is referred to Gilbert's treatise on the action of debt, where 
 the whole doctrine of debt for rent is treated in the usually able and perspi- 
 cuous manner of that author.
 
 20 REMEDIES FOR RENT. [ BOOK 3. 
 
 The remedy by assumpsit for rent lies upon a parol lease, whether oral 
 or written, where there is an express contract to pay the rent; for upon 
 every express contract not evidenced by indenture or deed under seal, as- 
 sumpsit lies. 
 
 Such cases occur more frequently among us than the action of debt, 
 though that action lies not less upon a parol lease than upon a lease by in- 
 denture ; for it is given by reason of the privity of estate. Moreover, debt 
 -will always lie upon simple contracts, where the amount is ascertained, 
 with a few exceptions, which will be noticed in the course of this work. 
 •Slade's case, 4 Co. 94. 
 
 It is material, however, here to advert to the question once held doubtful 
 but now settled, how far the action of assumpsit will lie for the use and oc- 
 cupation of land where there is no express promise or contract for payment 
 of rent, or where, if there was any promise, it was indefinite as to amount. 
 Mr. Espinasse says (1 Xi. Pri. 20.) that the action for use and occupation 
 was given by the statute 11 Geo. II. ch. 10 ; and that statute never was in 
 force here. But Judge Buller says (Bull. Ni. Pri. pa. 1-38,) that an action 
 at common law would lie on an express promise, but not on an implied 
 promise, though he afterwards decided that it lay in either case. I T. R. 
 387. Waiving a minute examination of the grounds of these opinions, 
 suffice it to say that it is now settled that assumpsit for use and occupation 
 of land by the assent and permission of the plaintiff, lies either on an ex- 
 press or implied promise, and whether a certain sum be (in the case of an 
 express promise) agreed on or not. 4 Hen. &, Mun. 161. 1 Mun. 407. 
 In the case of implied promise, the declaration states a promise of the de- 
 fendant to pay so much as the landlord reasonably deserved to have for such 
 permission, which promise the law implies; See 3 Woodes, 152; for as 
 there is no certain rent reserved, the plaintiff could neither distrain nor 
 bring an action of debt; and yet as it is obvious that it must have been the 
 understanding of the parties that the tenant should not hold the landlord's 
 property by his permission for nothing, so the law on this, as on various 
 other occat^ions, implies or presumes that the defendant did that which com- 
 mon justice required ; that is, did promise to pay a reasonable rent. But 
 we must not omit to observe that the assent or permission of the landlord 
 forms a term in the proposition ; for without it the holder is a wrongdoer, 
 and a contract cannot be implied out of a wrong, but the party injured must 
 pursue the appropriate remedy prescribed by law. 1 T. R. 378. 2 H. B. 
 320.* 
 
 The next remedies I shall speak of, are the summary remedies given by 
 the law, to wit, attachments, distress, and re-entry. The first of these is 
 given to the landlord by acts of assembly, and is provided to prevent the 
 fraudulent removals of tenants with their property, before the rent becomes 
 due. The acts provide (1 R. C. ch. 113, §9, also act January 1, 1820, in- 
 serted 1 R. C. opposite to the errata,) that where any landlord or lessor or 
 his agent shall have sufficient grounds to suspect that his tenant will re- 
 move his eflccts from the leased tenement before the time of payment, and 
 shall, before any justice of the peace of the county or corporation where 
 the leased lands lie, make oath thereto, as also to the amount of the rent 
 that is to be j)riid, and the timo of payment, the justice shall issue an attach- 
 ment against the goods and chnttels of the tenant, returnable to his next 
 county or corporation court. If the tenant does not, upon the levy of the 
 
 ' See I5ook 2, page 23. in note, and (he nutlioriiics ihere cited. From these 1 infer lli.it tlie action 
 upon the promine, wlieiher express or implied, doc':< not lie where there is a lease. But where ihe 
 parties agree for a lease which is not tnade, or the lescee is put into posgcsgion upon an express pro- 
 mise to pay a certain rent, with an underslandiiii; that the terms of" the lease as to other matters shall 
 be afiTwards adjufied, ascumpfil lies. See Green va. ilarrington, lirowidow's Reports, 14. Hotj. 
 2?4. In liriggsj-v. Hale, which will probahlv appear in .'jth Leigh, these questions were much con- 
 sidered Bee also 2 Taun. J43. 5 Jjani. & AW. 3i.'. VS East, 19.
 
 CHAP. 1.] REMEDIES FOR RENT. 21 
 
 attachment, or before, or at the said next court, enter into recognizance 
 with one or more sufficient securities for payment of the rent when it becomes 
 due, the court shall order a sale for money or tobacco, (according to the 
 character of the reservation,) payable at the time the rent shall become due, 
 the purchasers giving security for payment ; and so many of the bonds shall 
 be assigned to the landlord as are adequate thereto ; and the overplus, after 
 deducting the charges of attachment and sale, shall be returned to the own- 
 er. A like remedy is given within thirty days, where the tenant has actu- 
 ally removed his effects, and has hot left sufficient distress upon the pre- 
 mises. 1 R. C. ch. 113, § 10. Sess. acts, 1822, ch. 29, § 1. And where 
 the rent reserved is, as is very usual, payable in wheat, corn, &c. the same 
 act provides for ascertaining the value thereof in money, and the order of 
 sale issues for such value accordingly. 1 R. C. ch. 113, § 12, 13. 
 
 On these provisions these remarks are material to be made ; — 1. That 
 the remedies here given are summary proceedings unknown to the common 
 law, and therefore the strict letter of the statute ought in all cases to be ad- 
 hered to. This rule particularly applies where the remedy is susceptible of 
 abuse, and of being converted into an instrument of oppression, which 
 seems to be particularly the character of attachments. 3 Call. 415, 416. 
 2 H. & M. 48, 308. 
 
 2. It is to be observed that the act of assembly has not provided for a 
 summary judgment on such bonds against the purchasers of the attached 
 effects, nor upon the defendant's recognizance, if he should enter into one, 
 in order to recover possession of his property under the law. On these, 
 therefore, the landlord must pursue the usual, but slow redress of the law, 
 to wit, a scire facias on the recognizance, or an action of debt on the sale 
 bonds. This was probably an oversight in the legislature, as their general 
 policy has been in such cases to give a right to judgment and execution 
 upon short notice. 
 
 3. The provisions of the attachment law allowing any person claiming 
 the property attached to interplead, do not extend to attachments for rent, 
 so that in such case the party claiming must resort to the ordinary remedies. 
 1 R. C. ch. 113, § 12. Gil. 142. 
 
 The last summary remedy for non-payment to which I shall advert, is the 
 right of entry, which is a remedy, as we have seen elsewhere, that can only 
 be reserved to or enjoyed by the lessor, feoffor, donor, or their heirs, (or 
 assigns by virtue of the statute.) 
 
 To the assertion of this remedy a previous demand is essential, and here- 
 in there is a difference between re-entry and distress : for in the latter no 
 demand is generally necessary, though we shall see that the rule has its 
 modifications. But as to re-entry for nonrpayment of rent reserved upon 
 a freehold or lease, for years, there must be a demand made previously, oth- 
 erwise it is tortious to enter: for the condition of re-entry is in derogation 
 of the grant, and the estate, if once defeated by re-entry, can never be re- 
 stored by subsequent payment : wherefore it is reasonable that the tenant's 
 default shall be clearly ascertained by a demand and refusal or failure to pay : 
 without such demand, indeed, it cannot be known that he was 7iot ready, 
 since he is not obliged to go off the land in search of the landlord. Co. 
 Litt. 201. The demand, indeed, may be dispensed with by express agree- 
 ment of the tenant, who thereby puts himself voluntarily under the neces- 
 sity of proving that he was ready to tender and pay the rent at the day. 
 Dyer, 6S. 2 Barn. & Cres. 490.' 9 C. L. R. 158. There is, moreover, a 
 distinction between a condition of re-entry and a limitation ; as where te- 
 nant for life with power to make leases for twenty-one years, so long as the 
 lessee, his executors, and assigns, duly paid the rent, leased accordingly.
 
 22 REMEDIES FOR RENT. [book 3. 
 
 This was considered a limitation, and the estate ceased on failure to pay 
 without demand. Vaughan, 31, 32. 
 
 Leases, indeed, sometimes provide that if the rent be behind, they shall 
 be void for non-payment. See 1 Bac. App. C93. This can only be in the 
 case of a lease less than a freehold ; for such a provision would be ineffec- 
 tual in the grant of a freehold lease. For as the freehold estate passes only 
 by livery, or by what the law considers equivalent, so it cannot be defeated 
 but by the public and notorious act of entry. But leases for years may be 
 declared void upon condition, and if the event happens on which the lease 
 is agreed to be void, it is ipso facto void accordingly. Hence, it seems to 
 be thought most adviseable in leases for years, to reserve a power of re- 
 entry rather than declare the lease void, since the former leaves it to the op- 
 tion of the landlord to avoid it or not. Bac. Rents, I. 1. 
 
 As to the demand to be made, to entitle the landlord to re-enter, the time 
 and place are material. 
 
 The time of demand of the rent is the day fixed and appointed by the 
 contract for payment, and the demand must be made in such convenient 
 time before sunset of that day, as will be suilicient to have the money coun- 
 ted. Plow. 17:2, 173. 10 Rep. 129, a. Co. Litt. 202, a. and Margrave's 
 fiote. 1 Saun. 287, a. note 16. But if the tenant meet the landlord on or 
 off the land at any time during that day, he may make a tender, and the 
 tender is good, since the money is payable indefinitely on that day ; Co. 
 jLitt. 201, b. 202, a. 7 Rep. 28. 7 T.R. 117. Saun. ubi supra; if, how- 
 ever, particular hours of the day of payment are prescribed by the parties, 
 the contract herein must be pursued. Cro. Eliz. 15. The demand may be 
 made by attorney, though the power should be special. It must be proved 
 by witnesses, and ought to be of the precise sum due ; and if the demand 
 be of a penny too much or too little, it will be ill; Leon. 179; nor can 
 the strictness of the law herein be condemned, since it is hard that a poor 
 tenant should forfeit his whole estate because he is unable to pay his rent 
 at the precise moment : and though the law with scrupulous exactness 
 gives to the landlord his right, yet as he demands the penalty of his bond 
 like the Jew in the drama, he must take care to be as accurate and precise 
 in his demands from others, as he expects them to be exact in their perform- 
 ance to him. 
 
 An erpial strictness, for the same reason, is prescribed as to the place of 
 demand ; for though a demand any where upon the land will suflice, to 
 justify a distress for rent, yet to enable a landlord to take advantage of a 
 condition of re-entry, the demand must be made upon the most notorious 
 place on the land ; Co. Litt. 153, 201 ; as if there be a house on the land, 
 the demand must be at the front door thereof, though it is neither necessa- 
 ry nor proper to enter the house without permission : as the house is, in 
 English law, to many purposes held sacred. If there are two places, at 
 either of which payment may be made, the demand must be made at both ; and 
 so if there be a lease of two barns, — for both are equally proper as places 
 of payment ; and to save the penalty, the law gives the tenant the election 
 at which to be ready to make it : therefore, lest he should miss of him, the 
 landlord must be at both to demand : for we must bear in mind that the ob- 
 ject of the demand is to fix conclusively a default on ihe tenantj which the 
 landlord must do to defeat the estate. 
 
 It is essential that the demand should be made upon the land, unless 
 another place is ap])ointc(l for pavmfiit, in which case it must be made at 
 such place. Co. Litt. 201, 202. ' 7 T. 11. 117. 1 Saun. 267, a. n. IG. 
 
 If, after these previous stej)s have been duly taken by the landlord, the 
 tenant neglects or refuses to pay, the reversioner is entitled to enter. No 
 actual entry is necessary, but the demand is sufficient to enable him to bring
 
 CHAP. 1.] REMEDIES FOR RENT. 23 
 
 an ejectment; 3 Bur. 189G. Si S nun. ubi supra ; for by it he evinces his 
 election to determine the estate, which he might have waived doing, as has 
 already been said ; and an acceptance of rent by the landlord after the 
 lease has been forfeited, has been held to be a waiver ; for the forfeiture is 
 a penalty, and by accepting the rent, the penalty is waived. Bull. 96. 
 Cow. 247. 
 
 The acceptance of rent; however, after a forfeiture, is an equivocal act, 
 and may or may not amount to a waiver of the forfeiture, according to the 
 quo animo with which the rent was received. 3 H. & M. 436. 
 
 And after all, a court of equity interferes for the protection of the tenant 
 against this forfeiture of his estate, and will relieve him on payment of the" 
 rent with interest and all expenses ; for it is the general principle of that 
 court to give relief to the party against a forfeiture, where complete com- 
 pensation can be made. 12 Vez. 289, 475. 18 Vez. 58, &c. 1 Mad. 31. 
 How far the principle of certain cases decided in Virginia, which have re- 
 fused relief of a different kind to tenants who have committed waste and 
 other injuries, would apply here, I cannot say. In Hillrs. Barclay, it seems 
 to have been admitted that relief would be given against a forfeiture for non- 
 payment of rent, but not for breach of other covenants; 18 Vez. 56; but 
 the question for solution is, whether, where the tenant has broken his co- 
 venants otherwise, though not amounting to forfeiture, equity will relieve a- 
 gainst the forfeiture for non-payment of rent. 
 
 Lastly ; in the consideration of the remedies afforded by the law for re- 
 covery of rent, it is proper to remark, that no goods or chattels whatsoever, 
 on any messuages, lands, or tenements, which are leased for life or lives, 
 for years, at will, or otherwise, shall be taken in execution, unless the party 
 so taking the same shall, before removal of the goods, pay the rent due at 
 the time of the taking of the goods in execution ; provided it does not 
 amount to more than one year's rent: and the officer is empowered and 
 required to levy enough to pay both the rent and execution money. I R. 
 C. ch. 113, § 7, 8. And by a late act it is provided, that if there be rent ac- 
 cruing and unpaid, tho tenant, at the time of the levy of an execution upon 
 the goods and chattels on the leased premises, shall tender to the officer 
 bond and security for payment of the rent when it becomes due ; and if he 
 fail, the party suing out the execution may proceed to execute his judg- 
 ment, and the sheriff shall sell, in the first place, so much of the goods as 
 will suffice to pay the rent, on a credit corresponding Vv'ith the time of 
 payment — taking bonds with security from the purchasers, and assigning 
 such bonds to the landlord, and as to the residue, proceeding as in other 
 cases of execution. But no more than one year's rent is allowed to the 
 prejudice of the execution, in any case. Sess. acts, 1821, ch, 29, § 7. 
 
 It has been decided that the property must be on the premises when an 
 execution or attachment is levied, or the landlord will not have a preference. 
 3 Call, 439. 
 
 If the sheriff remove the goods without payment of the rent, and after 
 notice and a formal demand of the rent, an action on the case lies against 
 him. Vin. Ab.Dist. c. 3. Stra. 97: 3B. &A. 440. But no specific and 
 formal notice is necessary. 3 B. & A. 645. 4 Moore, 473. 2 B. & B. 
 67, S. C. The action lies though part only of the goods be removed, 4 
 Moore, 473. 2 B. & B. 67, S. C. ; but the landlord's consenting to the 
 removal waives his remedy. 3 Camp. 24. An executor or administrator, 
 1 Stra. 212, or a trustee of an outstanding satisfied term to attend the in- 
 heritance may sue. 4 Moore, 473. 2 B. & B. 67, S. C. Instead of an ac- 
 tion the landlord may move the court out of which the execution issued, 
 that he may be paid what is due to him out of the money levied, and in the 
 sheriff's hands ; Cas. Temp. Hardw. 155. 2 Wils. 140 ; and the court will
 
 24 ACCORD. [book 3. 
 
 grant the motion, though the sheriff liad no notice of the rent due till after 
 the removal. 3 B. & A. 440 ; and see farther, on this point, Tidd's Prac. 
 8th edit. 1053, 4, 5. Chitty. 
 
 Remedy in Equity. — Before we dismiss the subject of the remedies for 
 the recovery of rent, we must advert to the relief sometimes given in equity 
 in such cases. For where there is no remedy at all at law, equity will cer- 
 tainly grant one ; 1 Fon. 144 ; as in case of a reiit-seck, it will decree seisin ; 
 or give relief where the deeds are lost ; and so if it be uncertain what kind 
 of rent it was ; or from length of time the remedy at law is lost or be- 
 come very difficult, the court of chancery has interfered and given relief 
 • upon the foundation only of payment of rent for a long time. 1 Mad. 144. 
 1 Ch. Ca. 121. 4 Br. P. C. 139. G Br. P. C. 368. 3 P. Wms. 257. 1 
 Atk. 598. 1 Br. Ch. Ca. 200. 1 Vez. 171. 4 John. C. 287. These bills 
 are called bills founded upon the solet. And though in England rents-secfc 
 are put on the same footing with others, and may be demanded by action 
 of debt, or distrained for, yet it is otherwise in Virginia, there being no sta- 
 tute here corresponding with the statute of Anne. It is, therefore, through 
 the courts of equity, I presume, that the claimants of rent-sec7c must ex- 
 pect relief with us. 
 
 CHAPTER II. 
 REMEDIES BY THE JOINT ACT OF THE PARTIES. 
 
 " Having thus treated of 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 joiiit act of all the parties together. And these are only 
 two, accord and arbitration. 
 
 1. " 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 ahorse, and fail 
 in it ; this is an injury for which the sulFerer may have his remedy by action ; 
 but if the party injured accepts a sum of money, or other thing, as a satis- 
 faction, this is a redress of that injury, and entirely takes away the ac- 
 tion." 
 
 The subject of accord and satisfaction, thus cursorily treated by Mr. Black- 
 stone, requires to be somewhat further investigated by the student. Let 
 us therefure enquire, 
 
 1. AVhat is a good accord and satisfaction ? First, in respect of the debt, 
 duty, demand, or action to be satisfied : second, in respect to the value and 
 kind of satisfaction : third, its acceptance as such. 
 
 An accord and satisfaction is in general a discharge of any precedent 
 debt or duty, demand or personal action, provided it be accepted as such, 
 and appear to be a reasonable and good satisfaction. Hence an accord 
 and satisfaction must be of something certain and dciinite, or it will be void. 
 4 Mod. 88. 3 Lev. 189. Yel. 124. In 1 Chitty, 480, iniiote, it is said, 
 on the authority of 7 East, 150, that accord and satisfaction is no plea 
 to debt on a money bond. But the authority is conceived not to support 
 this |)ositioii, and it seems to liave been decided that jKiyment of a les- 
 ser sum than was due on the bond, if made before the time of payment of 
 the bond, and accepted as a satisfaction, is a good discharge. See 5 Co. 
 117. 2 Lev. 61, cited Bac. Accord, A. Hardcastle vs. Howard, cited ibid. 
 So, I presume, a collateral satisfaction may be good, if executed and 
 not executory. 
 
 In real actions, accord and satisfaction cannot be pleaded. 4 Rep. 1, 9; 
 70. 9 Rep. 77. But it jnay to an ejectment, for that is but trespass.
 
 CHAP. 2.] ACCOKD. 25 
 
 Where accord and satisfaction is relied on, there nuist be an cxistiiin- 
 debt, duty, demand, or rii;ht ol" action, at the time of" tlie accord ; for ac- 
 cord and sutisfaction made before Ineach of covenant, cannot be pleaded 
 in bar ol" an action for breach of the covenant. 1 Taunt. 428. But this 
 decision rcstin;T upon merely legal and technical principles, I presume that 
 a court of equity in such case would relieve and stay })roccedings in the ac- 
 tion of covenant. 
 
 If several persons arc bound or liable, accord and satisfaction from one< 
 is a satisfaction as to all. Thus accord and satisfaction by one copartner, is 
 a bar to any action against the others. Sec 9 Rep. 79, cited by Chitty. 
 So if several are bound in a covenant which is broken, an accord and sat- 
 isfaction made by one, the rest may avail themselves of. This is founded 
 in justice, for where the party has been once satislied, it would be unjust 
 that he should be permitted to seek another satisfaction. It is also the re- 
 sult of a general principle, that where several arc jointly bound, a discharge 
 of one is a discharge ol'all, since an action in such case can only be brought 
 jointly, and in a joint action the judgment must also be joint, that is, the same 
 judgment must be rendered against all the del"endants. Nor is this doctrine 
 confined to contracts ; for in cases o\' lorls, the party injured is iir like manner 
 denied more than one satisfiiction, even though it be expressly provided 
 that the release, or accord and satisfaction, shall not operate in favor of the 
 other trespassers; 2 H. &M.. 39. 3 Taunt. 117. Bac. Tresp. J. 9 Rep. 
 79; so that if there be several trespassers, and one make satisfaction, tha 
 others are discharged. 
 
 2. In respect of the value and kind of compensation. However techni- 
 cal some of the doctrines on this subject may seem, we shall, upon a nice 
 scrutiny, discover that they arc generally founded on principles of justice 
 and good sense. 
 
 We must first observe, that an agreement which is executory ^xxd yet to be 
 performed, can never ill law be pleaded as an accord and satisf"action. As 
 where the defendant pleaded payment of part bel'ore the day the bond be- 
 came due, and a i)romisc made and accepted to pay the rest at a day to 
 come. This was held no satisfaction until payment made, because the 
 bond being the highest security, could notbe discharged by a mere promise 
 to pay. So where the defendant to an action brought by one of his credi- 
 tors, pleaded that the creditors, and among others the plaintiff, had come to 
 an agreement to accept a composition in satisfaction of their debts, to be 
 paid within a reasonable time, which he tendered and was ready to pay, this 
 was held no bar to an action for the whole demand, for it was unexecuted, 
 and the promise a nudum pactum for want of consideration. 2 T. R. 24. 
 2 H. B. 317. If, however, the defendant had made an actual assignment 
 of his effects for the purpose of distribution among his creditors, it might, 
 it is said, have been a good plea. 2 T. R. 24. Sec Sci. & Barn. 103. 
 See, also, 11 East, 390. 2 Barn. &. Cr. 481. Upon the same principle, 
 where tlie plaintiff" and defendant agreed to settle ail matters in dispute, and 
 to bind themselves in a penalty not to sue each other, the court held the 
 agreement executory, and rvo sufficient accord and satisfaction. 5 T. R. 
 141. 
 
 The principle on which this distinction rests, is the distinction explained 
 in the f(n'iner volume between a contract executed and executory ; the former 
 being held good whether there be a consideration or not, but the latter be- 
 ing regarded as nudum pactum unless there be a consideration. This was 
 avowedly the ground of decision in Heathcotc vs. Crookshanks, (2 T.R. 
 2t,) and the agreement to give up 15s. in the pound on receiving 5s. was 
 regarded as a nude pact, and so no bar to the plaintiff's action. But if a cre- 
 ditorj by hi3 undertaking to accept a composition, induce the debtor to 
 Vol. 2—1
 
 26 ACCORD. [ BOOK 3. 
 
 part witli his property to hit creditors, or induce other creditors to discharge 
 the debtor, to enter into a composition-deed, or deliver up securities to him, 
 such creditor would be bound by such undertaking. '2 Stark. Rep. 407. 
 2 M. & S. 1-20. 1 Esp. 230. And where several creditors, with the know- 
 ledge of each other, agree on the faith of each other's undertaking to give 
 time to, or accept a composition from, a debtor, the agreement will be bind- 
 in o- on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 
 16 Vez. 374. 
 
 Another princijjle as to accord and satisfaction seems to be, that tlie par- 
 ty cannot exchange one cause of action for another of the same nature: — 
 said arguendo, 2 T. R. 25. See Chitty on Bills, 95. Accordingly it is ad- 
 judged that one simple contract canitot be pleaded in bar of another. Nor 
 can one bond be so pleaded, even though to the last bond there are securi- 
 ties. 1 Stra. 426, citing Brownlow & Roll. So where several small pro- 
 missory notes are given for a large one ; they are no satisfaction unless 
 paid. 3 Call. 231. So where upon a settlement of accounts a promisso- 
 ry note is given for the balance, the note is no bar to an action on the ac- 
 count. 1 Bur. i). 1 Bl. Rep. 65. For the law looks to the essence of the 
 transaction, and as the money yet remains unpaid, will not intercept the 
 plaintiff in the prosecution of the remedy which he has elected for the re- 
 covery of what is due to him. See 3 Call, 237. Where, however, a bond 
 is given upon the settlement of accounts, that is a satisfaction and dischrarge 
 of the account, and may be pleaded in bar of an action of assianpsit. For 
 this many reasons may be given. The bond is deemed by the law a liigh- 
 er security, and the simple contract is merged in it : the bond is regarded 
 as importing a consideration, whether there be one or not, and therefore is 
 binding : the bond gives an action of another and an higher nature, in which 
 the consideration cannot be enquired into ; the bond is an estoppel to the 
 obligor by reason of his seal, and to the obligee by reason of his acceptance, 
 (for estoppels are always mutual,) and neither party is permitted to contest 
 (in a court of law) th« truth a)id verity and justice of the demand, or to 
 ravel up the transactions which were closed by it. But these reasons do 
 not apply to the case of a promissory note given for the balance of an- ac- 
 count. In 2 Chitty, 435, it is said, indeed, that such a plea is sustainable, 
 but the case of Kcarslake vs. Morgan, there cited, does not maintain the po- 
 sition. That case was an assii:;nmvnt of the promissory note of a third 
 person, and not an execution of a note by the del'endant himself. This 
 brings me to another principle : 
 
 There is a distinction where the thing given or done in satisfaction differs 
 from the debt, duty, or thing demanded, and where it does not. Where it 
 js of the same nature with the thing demanded, nothing less than the debt 
 or duty can be held a satisfaction. Hence, in 1 Str. 426, it is laid down 
 that payment of a less sum is no good satisfaction for a debt due at the 
 lime of accord, though accepted as such ; and though this case is alleged 
 to have been denied to the law, (5 T. R. 515. 2 T. R. 26.) yet the same 
 principle is alhrmed, 5 J'ast Rop. 230 ; see, also, 4 Mod. 88 ; and the reason 
 seems to be, that tlie giving up the residue being without consideration, the 
 defendant can no more avail himself of the nnilc pact to do so by plea, than 
 he could sue upon such void agreetnent; and having left the bond in the 
 |)lainlifrs hands without taking a release, it is in eflect not an executed, bat 
 a mere executory contract. 
 
 But where the satisfaction made diflers from the debt or duty, there it 
 may be a good satisfaction ; as where in salislaction for a debt due by bond 
 a horse is given ; Co. Lilt. 212, b. 2 T. R. 21 ; for the court willintcnd 
 or presume that there was some circumstance that in the eye of the party 
 elarnped a value upon it cr]ual to that at which it has becu estimated, Bac,
 
 CHAP. 2.] ACCORD. 27 
 
 Accord, A, P'ormerly, indeed, it was decided that it must appear to the 
 court to be a good and reasonable satisfaction; 1 St. 426; but this case 
 has, as to this point, been so far overruled, as that it is now only necessa- 
 ry that the contrary should not appear. It was also formerly held (9 Co. 
 79,) that if a contract not under seal was made for delivery of goods, 
 a sum of money paid might be a satisfaction : but not if the contract was 
 under seal. Mr. Blackstone, however, does not advert to the distinction, 
 though he quotes the authority : and at this day, I presume, it would not 
 be attended to, as money is the best measure of damages. 
 
 Again : — where the satisfsclion is of the same nature with the debt, yet 
 where any circumstance may make a less quantity of equal value with the 
 greater, it may be a good satisfaction. As where a less sum is paid before 
 the day at which the bond is due, or at a different place, because prompt 
 payment, or varying the place, might be a sufficient consideration for abat- 
 ing the demand. 5 Co. 117. 2 Lev. 81. Co. Litt. 212, b. 
 
 To one of these two last heads are reducible the cases of promissory 
 notes and bonds, or bills of exchange, &c. assigned or negotiated in satis- 
 faction of a debt. We have seen that where the party gives his owri pro- 
 missory note, it is no satisfaction. But where he transfers the promissory 
 note of a third person in satisfaction, or a third person guarantees, (11 E. 
 390. 10 C. L. R. .396,) the plea of accord and satisfaction is good. 5 T. 
 R. 513, 518. So, too, if the defendant has accepted a bill of exchange 
 drawn by the plaintiff for the amount, it is a bar, for that is, in fact, a pay- 
 ment: per Lord Mansfield, cited 5 T. R. 518. So if the defendant drew 
 a bill of exchange in favor of the plaintiff on a third person, which was ac- 
 cepted ; here, as in the case of the promissory note, the bill would prima 
 facie be taken as satisfaction ; for in both cases the security may have been 
 passed over to some other endorsee, so that the plaintiff would no longer 
 have a right to the money from the defendant. (Yet in Drake vs. Mitchell, 
 3E. 251, a bill of exchaqge drawn by one of three joint covenantors, was 
 not regarded as a satisfaction, though it had been sued on and judgtnent re- 
 covered, but the amount had not been received.) So in the case of a bond 
 assigned^ the assignment, if accepted as a satisfaction, is so prima facie. 
 In the cases of hills of exchange, however, it would seem that the plaintiff 
 may reply that the bill was not paid when due, or was not transferred over, 
 &c. or that it was dishonored, &c. ; 2 Chitty, 602, in note ; and upon ten- 
 dering it with his replication, and shewing that he had used due diligence to 
 receive payment, the plea would be avoided. This is, I presume, on the au- 
 thority of the case of Kearslake vs. Morgan, in which the court recommend- 
 ed to the plaintiff to reply to the plea ; — and if the plea was good, it could 
 only be avoided by taking issue on its truth, — or avoiding it by alleging that 
 the note assigned had, without default of the plaintifi', proved unsatisfactory. 
 The same law would prevail in England as to promissory notes, under the 
 statute of Anne, which puts them on the footing of bills of exchange. But 
 in Virginia, as to bonds and promissory notes, the replication must shew 
 due diligence to the extent required by our law of all assignees of such pa- 
 per, in order to avoid the plea, and therefore obviously the plaintiff in such 
 case where the note or bond is taken in satisfaction, cannot sue til! he has 
 failed in his pursuit on the assigned bond. See 1 Cranch, 191.* 
 
 We must here attend to the distinction between bonds, &c. assigned in 
 satisfaction, and those transferred as collateral security only. The former 
 being considered as payments, they discharge the original bond, debt, or 
 duty, or at least suspend it until their fate is determined ; and we have 
 
 * Wlietlier the bond of one partner will pxlinEuiah a partnership deniaud. See Bac Abr. Ex- 
 ting.D. 3 F. Wins. 407. 1 P. Wins. 632. 1 Ran. 301. J2C.L.R.203. 2 John. Re p. 213. 3 John. 
 Kep. 70. A case Jius ic.ceijtiv bee;) decided on ihiis point in the court of cippcals. 4 Leigh.
 
 28 ARBITRAMEJJT. cook 3. 
 
 seen tliat tlic assiirnoc is often com]ielled to await the termination even of 
 an injuiictio)! suit, hofoie lie can have rcooursc to the assifrnor. But where 
 a bond is taken as collateral security only, the creditor who takes it may ne- 
 vertheless proceed upon his original demand, niiless expressly withheld by 
 conventional stipulation. G T. 11. 17(), 177. Hence, in the transaction 
 of business, counsel should be very cautious in receiving bonds, Sec. in pay- 
 ment, and wherever it can be eflccted, should take them as collateral secu- 
 rity only. There is, indeed, particular reason for this caution where there 
 is 'a security in the l)ond thus paid or satisfied ; for by the assignment of 
 other bonds iu satisfaction or payment, the security will be absolved ; unless, 
 indeed, the decision in Kearslake vs. Morgan, is considered as establishing 
 the position that such assignment is no satisfaction till payment. 1 cannot 
 help thinking that this doctrine does not follow from the decision there, that 
 it would not prevail here, and that an accepted bill ol" exchange, or an as- 
 signed bond, bill, or note, received in satisfaction, would be regarded as 
 payment. Such appears to be the generally prevailing practice of the 
 country. 
 
 Thirdly. As it is of the essence of every contract tliat it should liave the 
 assent of both parties, so in the case of accord and satisfaction, the satis- 
 faction must be accepted as such, or it will not avail. 
 
 The mere consent of a party to accept a satisfaction, without an actual 
 satisfaction, is not sufficient to discharge the other; the accord and satisfac- 
 tion must be perfect, complete, and executed, for were it otherwise, it would 
 be only substituting one cause of action lor another, which might go on to 
 any extent. 9 Jlcp. 79, b. 5 T. R. 111. Satisfaction must be made to the 
 ■whole of the original demand, and a party will not be discharged upon per- 
 formance of a satisfaction to part of such demand, the residue remaining 
 unperformed. 1 Taunt. oiC}. 5 East, -230. The ])crformance of one of 
 two things stipulated for by an accord is nugatory. Lord Raym, 203. 
 
 We have already seen how far a contract may be varied, released, or dis- 
 charged by another contract. A deed before breach cannot be discharged 
 by accord and satisfaction without a deed. 1 Taunt. 428. Com. Dig. 
 Pleader, 2 v. 8. But after breach accord and satisfaction without deed is a 
 <T()od plea, lor there the satisfaction is of the breach, and not of the deed. 
 Com. Di-r. Accord, A. 1, & C. 7 East, loO. 1 J. B. Moore, 358, 400. 
 Cro. Eli7..4(). 2Wils. 8(). Rep. 13, b. Chilly. 
 
 2. Having thus seen what is a good accord and satisfaction, Ave come 
 next to enquire how it is to be ])leaded. And here the rule of ])lcading as 
 in other cases, is afforded by the princi})le of the plea. For as it is essen- 
 tial that there should be an accord — that there slK)uld be a satisfaction, and 
 that it should be (LcccpU-d as a satisfaction, so all these things should appear 
 and lje jjropcrlv averred in the ])lea. Bac. Accord. C. 1 Str. 23, 573. 3 
 f-^ast, 251. If it be the case of a bond, it is said the proper form is to jdead 
 that the payment or other thing was received in satisliiclion of the mvncy 
 <!ue l)y the bond, and not of the boiul itself, which bring sealed, can only 
 be discharged by writing unihirseal. Cro. .Ta. 251, (>50. For the forms ot 
 pleas of accord, sec 2 Chitty, 433, 431, 435, 43G. 
 
 In actions of trespass r/Hrtre clausum, if the defeiulaul disclaims title, and 
 I an shew that the tresj)ass was by negligence <u iinolmiliiry, and that he 
 lendered suflicient amends before aclion brnught, ihe aclion will be barred. 
 I R. C. ch. 128, § 22. 
 
 II. " Ajbiiration is whore ihe parties, injtiring and injured, submit all 
 matters in di.'^pule, concerning any personal chattels or jjcrsonal wrong, to 
 the judgment of two or more nrhilralors ; who are lo decide the contro- 
 versy: and if they do not agree, it is usual to add, that another person be 
 called in sl^ umpire, (iiupcrulor or iir.jiur,) to whose sole judgment it is then
 
 CHAi'. -2.] ARBITRAMENT. 29 
 
 referred: or frcqiicnlly (here is only one arbitrator originally aj)pointcd. 
 This decision, in any of lliese cases, is called an mcard. And thereby the 
 question is as fully determined, and the rinlit transferred or settled, as it 
 couhl have been by the agreement of the parties or the judgment of a court 
 of justice. But the right of real ])ropGrty cannot thus pass by a mere award : 
 which subtility in point of form (for it is now reduced to nothing else) had 
 its rise from feodal principles ; for, il'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." And experience 
 having shewn the advantage of such references, it is now provided, 1 R. C. 
 eh. 114, that it shall be lawful for merchants, and others desiring to end 
 any controversy, for which there is no other remedy but by personal action 
 or suit in equity, by arbitration, to agree, that their submission of the suit 
 to the award or umpirage of any person or persons shall be made a rule of 
 any court of record which the parties shall choose, and to insert such their 
 agreement in their submission or the condition of the bond or promise, 
 whereby they oblige themselves, respectively, to submit to the award or um- 
 pirage of any person or persons ; and upon the production of such bond 
 or agreement sustained by the testiniony of the witness or witnesses, it is 
 enacted that a rule shall be made thereupon by the said co)irt, that the par- 
 ties shall submit to and finally be concluded by the arbitration or umpirage, 
 which shall be made concerning them by the arbitrator or umpire pursuant 
 to such submission. 
 
 The award made in pursuance of such submission is to be entered up as 
 the judgment or decree of the court, and the same execution or process 
 may issue thereupon as on other judgments or decrees, and the court shall 
 not invalidate such award, arbitrament, or umpirage, unless it be made ap- 
 pear to such court, that such award, arbitrament, or umpirage was procured 
 by corruption or other undue means, or that there was evident partiality or 
 misbehaviour in the arbitrators or umpires, or any of them. And any award, 
 arbitrament, or umpirage, procured by corruption or other undue means, or 
 whore tlicre shall have been such evident partiality or misbehaviour as 
 aforesaid, shall be deemed and judged void and of none effect, and accord- 
 ingly set aside by the court in which the submission shall be made, so as 
 complaint of such corruption or undue means, or evident partiality or mis- 
 behaviour as aforesaid, be made before the end of the second court of quar- 
 ter sessions in the case of a county court, or at the end of the second term 
 of any other court next after such award, arbitrament, or umpirage be made 
 and returned to such court. 
 
 Provided, nevertheless, That nothing in the act contained shall be con- 
 strued to take away from courts of equity their power over awards, arbitra- 
 ments, or umpirages. 
 
 The subject of awards, having now become an imi)ortant part of tlie bu- 
 siness of the tribunals of justice, seems to demand a further consideration 
 than Mr. Blackstone has given to it. In pursuing the several members of 
 iiis definition, we shall find the subject naturally divide itself into the fol- 
 lowingheads: I. The parties. II. Tiie matter in dispute. III. Thesub- 
 mission. IV. The arbitrators and umi)ire. V. The award. 
 
 Here, I. As to the parties. Generally, whoever can contract, may sub- 
 mil a dispute to arbitration. But those who cannot contract, are incapa- 
 ble of such submission, lijr it is a contract. See G Mun. 15-J. Yet a luis-
 
 30 ARBITRAMENT. [ book 3. 
 
 band may submit for his wife any thing which he lias a right to dispose of, 
 see Stiles, 351. 5 Vez. 81G, but nothing else; audit has been said an 
 infant's guardian, or a third person, may bind himself that an infant shall 
 stand to an award. Kyd, 39. 3 Caines' Rep. 253. So the submission 
 of an executor or administrator is valid, though if the arbitrator do not 
 award him the full amount of what his testator was entitled to, he will be 
 responsible for the difference to creditors, legatees, and distributees. Toll. 
 4'25. Kyd, 39. 7 T. R. 453, GUI. No such submission should there- 
 fore be advised, and the rather as the executor is even estopped to allege 
 that he has fully administered the estate, by giving a bond expressly bind- 
 ing himself to perform such award as may be made on the matter of liti- 
 gation between his testator and another ; though a mere submission with- 
 out bond is not an admission of assets. Kyd, 40. Nor would a submis- 
 sion by bond in which the question of assets or no assets was included, as 
 well as the original matter of dispute, be considered as an admission of as- 
 sets. 
 
 It is a general rule that the parties to the submission alone are bound, 
 even in the case of partners. Kyd, 42. Watson, 445. 3 Bing. Rep. 101. 
 And where some of a number of distributees submit, the award will bind 
 Uhem, 4 Ran. 95, but them only. Yet a man is bound by a submission en- 
 tered into by his agent or attorney in fact by his authority ; and then the 
 agent or attorney is not bound : though if without authority an attorney en- 
 jter into bond with condition that the principal shall perform an award, the 
 tttorney is liable, but the principal is not. Yet an attorney at law may, it 
 is said, agree to refer a cause depending in court, for the power is implied 
 under his general authority, (Kyd, 45,) nor will the court set aside the refer- 
 ence, although before the award the party made affidavit that it was an un- 
 authorized act. 3 Taun. 486. 
 
 All who would be bound by an award if against them, shall have the 
 advactage of it if it be in their favor. Thus an executor may take ad- 
 vantage of an award made in favor of his testator before his death. Kyd, 
 48, 49. 
 
 II. The matter in dispute, or subject of reference. The rule is general 
 as laid down by Mr. Blackstone, that any matters in dispute concerning 
 personal chattels, debts, or |)ersonal wrong, maybe submitted to arbitration ; 
 as debt on a simple contract, a demand for use and occupation, and doubt- 
 less a dispute as to tiie balance due on a bond. So complaints of slander, 
 assault and battery, and trespass of every kind, whether personal or on the 
 land of the party injured, may be submitted : and so may disputes as to 
 real property, and the award made under such submission is binding on the 
 parties whenever, by their own act, they might transfer the property, or ex- 
 ercise acts of ownership concerniug it, and it is conclusive as to the title. 
 
 3 East, 15. In such case, however, where it is awarded that the freehold 
 shall pass from one to the other, it is most proper to award conveyances, 
 since in strictness without a conveyance the award will not pass the title. 
 Kyd, Gl. Yet it may be used as an estoppel in an ejectment. 3 East, 15. 
 
 4 Dall. 120. And wliere a conveyance is awarded, a bill will lie for a spe- 
 cific performance of the award. 1 Wash. 290. It is said that a submission 
 by the act of lUe parties (not a submission by rule of court) must be made 
 by deed in order to justify an award that a deed be made. Kyd, 62. No 
 authority is cited, and I should question the position, since a writing signed 
 by the party and not sealed, is a good contract to bind the contractor to con- 
 vey land. 
 
 A matter involving a public crime cannot be submitted to arbitration so 
 as to bar the public prosecution ; though so far as the personal wrong goes, 
 it may be submitted, unless merged. Kyd, G3(i.. &c. So, causes which
 
 CHAP. 2.] ARBITRAMENT. Si 
 
 involve an indecent or immoral transaction, or a question by which tfib 
 peace, character, or feelings of others may be affected or wounded, cah 
 no more be the subject of arbitration than of action. See Cow. T'iii), Kyd, 
 C8. 
 
 III. We come next to speak of the submission. This may be either by 
 the act of the parties alone, or with the intervention of the court. The first 
 may be either verbal or in writing ; but as there is great difficulty oft-times 
 in ascertaining the precise terms or subject-matter of a verbal submission, it 
 is always prudent to reduce it to writing. Yet, if verbal, it is good though 
 there is no express promise of performance, nor the mention of any con- 
 sideration. When the submission is in writing, it is usually by mutual 
 bonds given by the parties each to the other, in a penal sura, with condition 
 to be void on performance of the award. So it may be made by indenture 
 or an agreement between the parties, sealed by them. But though parties, 
 on entering into a contract, agree that if a difference should arise between- 
 them they will refer it to arbitrators ; yet a bill for specific performance of 
 such agreement does not lie. 6 Vez. 818. 19 Vez. 431. And it seems 
 an action at law will not lie for refusing to nominate an arbitrator in pur- 
 suance of a covenant to refer. 2 Bos. &. Pul. 13. Nor is an agreement to 
 refer, a bar to a suitor action, though if the party sues con-trary to his bond 
 of submission, he is liable to an action for damages. 2 Vez. 132. Nor 
 can a party by an agreement to refer, deprive himself of the right to apply 
 to a court of equity. 14 Vez. 271. Indeed a mere agreement to refer, 
 without an actual consequent reference, is no bar to an action in any case. 
 2 Vez. jr. 1-32. Nor can parties be deprived of the right to submit their 
 disputes to the ordinary tribunals, by any restriction laid upon them by those 
 under whom they claim ; as where a testator directs that if a controversy 
 arises among his legatees, the dispute shall be referred, and any legatee re- 
 fusing, shall lose his legacy ; Kyd, 20 ; this condition is repugnant and void : 
 for it is an inherent and indestructible right attached to all property, that the 
 owner shall have the privilege of asserting his title to it in courts of justice. 
 To restrict this, is to limit the essential powers of the owner, and moreover 
 to interfere with the jurisdictional powers of the courts. 
 
 Thus much for submissions independent of the act of assembly, 1 R. C. 
 ch. 114, formed upon the statute of William 3, (here recited by Mr. Black- 
 stone,) and nearly in the same words. Under this act it may be observed, 
 1. That it does not apply to references to arbitration of suits depending in 
 any court, but only to cases where, no suit being in existence, the parties 
 enter into arbitration bonds, agreeing to have their submission made and 
 entered as a rule of some court to be named in the bond. 6 Taunt. 111. 
 1 Call, 379. 2 Call, 443. 2. Awards made under the act must lie two 
 terms, including that to which they are returned. One made nnder an or- 
 dinary reference, in the progress of a cause, may be entered as the judg- 
 ment of the court at the term at which it is returned. 3. If it be not a- 
 greed by the bond that the submission be made a rule of court, the award 
 will not be within the act; 1 Saun. 327, a. ; but it will be so if the agree- 
 ment to make it a rule of court be endorsed on the bond, for then it is part 
 of it. The submission cannot be by parol. 7 T. R. 1. 17 Vez. 419. 
 
 The death of either party, or of the arbitrators, (4 Moore, 3,) or the mar- 
 riage of a. feme before the award, is a revocation of the submission. 1 Marsh. 
 366. 2 Barn. &, Aid. 394. And it seems thateven since the above statute 
 either parly may revoke by deed the agreement to make the submission a 
 rule of court at any time before it is so entered. 7 East, 608. And if the 
 submission was by parol, the revocation may be so too, but if it be by deed 
 so must be the revocation, and notice to the arbitrators is essenjiul. Sec
 
 32 ARBITRATOIIS. [ book ii. 
 
 Chilty's notes. Hut in cither case the party ia lioI)lc to an action for dam- 
 a'^es for l)roach of iiis contract of submission. Kyd, 32. ■ 
 °Tlicre is a (lilfcrence between submitting "all matters in dispute in the 
 cause between the parties," and a submission of "all matters in dispute 
 between the parties in the cause;" the first bcini,^ confined to the dispute 
 in that i)articular cause, whereas the latter is not. '2 T. R. 615. 3 T. R. 
 G-26. But yet if any particular matter of dispute is not actually brought 
 before the arbitrators, and of course is not decided, the party may afterwards 
 have iiis action for it, notwithstanding the award. I T. R. 11(5. 
 
 It is usual and oven necessary to lix a time within which the arbitrators 
 shall pronounce their award. Kyd, 20, 27. 
 
 IV. Of the arbitrators and umpire. An arbitrator should not consider 
 himself as the agent of, or lean towards the person by whom he was nomi- 
 nated. 1 Vcz. jr. 22G. Rut wliere tlie arbitrators are agreed on, it seems 
 to be a waiver of an objection to an arbitrator tliat he is of kin to the other 
 party. Kyd, 75. Yet this may be (piestioued, I presume, where there was 
 a mere agreement that the parties would ap[)oint arbitrators ; for then to ap- 
 point an interested person, wouhl not be acting in good faith. 
 
 " Of the umpire." The umpire is sometimes named by the parties them- 
 selves at the time of the submission, and sometimes he is directed to be 
 chosen by the arbitrators. Kyd, 70. If neither is provided for, and the 
 arbitrators disagree, equity cannot supply the defect. 1 Wash. 29U. 
 Mun. 212. 11 Vez. 400. 17 Vez. 242. 19 Vez. 431. See, however, 1 
 Wash. 32(5. The choice of the umpire sliould be fair and impartial: it 
 has been said it should not be left at all to chance ; so that where each ar- 
 bitrator named an umpire, but agreed on neither, and decided by lot which 
 nominee should prevail, it was held a bad appointment. 2 Vern. 485. 
 Though this decision seems to have been overruled in a very late case. 16 
 East, 51. Sed vide, 3 Barn. & Cr. 405. 
 
 The submission or agreement of the parties being the law of each par- 
 ticular case, it furnishes the rule as to the time and manner of appointment 
 of the umpire, and must be strictly pursued. Much uncertainty seems to 
 liave prevailed on this subject, but I think it may at last be considered as 
 settled, that unless the submission ])rovides otherwise, the arbitrators may 
 nominate the umpire even before they proceed to consider the subject re- 
 ferred ; 2 T. R. (515. Kyd, 87; see, however, 4 Taun. 232, where it is 
 said that if the l)ond be " that if the arbitrators do not make their award 
 by a day named, ih'^n they shall appoint an umpire," the power to choose 
 commences when that of their making an award ends. But even in such 
 a case it seems that after their disagreement, though before their time ex- 
 pires, they may ap])oint an umpire : 3 M. 8c S. 550 : and so even after their 
 time expires, provided it be before the time limited for iiini to act. Kyd, 
 88. 15 East, 55G. 
 
 It sometimes happens that a time is limited for the award with a power 
 in the arbitrators to enlarge it. In such case they may enlarge it, and the 
 award is good if made within tlie enlarged time, though it docs not recite 
 
 " II in ;i nilp of \nw, lliat every species of .■iiillioiily, l)cii)K ;i ilele[;;ileil power, alllioiiyli hy express 
 words iii:i>l<; irr(;vi)c;il)le, is ikjvimiIicIcks in i;iiici:il rcvociiMc. Se<' u Co. iJJ. A siihiiiit-sioii to arlii- 
 Iruliun rii;iy he revoUed liy ilie :i(!i of (iod, liy (iper;ilioii id' hiw, or l)y tlio act of tlio parties. 
 
 'I'lie </e<itli of cither or any id' tin- parlies Ijcfore llic award in delivereil, in aeiierai vacates lliesiil)- 
 inission, nidc.».s it coiitaJii a siipiilalion m llie conlriiry ; sec I iMarsli. iiliC. 7 Taiin. 571. I IMoore, 
 :io7, S. C L' 15. vV A. .'JUt ; Iml wlii-rc all mailers in rllflcii'iice in a canse arc reli^rrcd l)y order of 
 nisi priilK to nrl)ilralioii, llicilealli nfmie (d llic (larties, at any tinu; before award made, is a revo- 
 cation of till' ai liilralorV ;iMlli>ir>lv. anil lli<; <:onrt will set aside an award made after Iiis deatli ; or, 
 in other wonl.s, it .-Imnld scrm, il ihc r.an.^e of action is referred, the ilcalli aliates the aciimi, Liiit not 
 bo if other inaltcrd l)c."iile.'' l!ie canse of aelion are referred. 3 I). iV, II. COo. ~ I>. <& A. ."J'J I. 
 
 If a feine-HolcHuhmit to ailiilralion, and many l)clbre llic awrnd i". ddivcied, sneli ni(irri(tne if: in 
 (•fleet a revocation, withoui iioiiee lo tin: ailiiiralorii; 'J Keb. ;>ii.!i. Jones, 3uJ. Roll. Arb. ;ttl ; but 
 llic liusbaiitl and wife iiiav be sued on their bond forsugli icNoliinij. Euct, 'XC. CltUli/,
 
 CHAP. 2.} ARBITRATORS. O^ 
 
 that the time was enlarged. 8 East, 13. It seems, also, they may enlarge' 
 the time more than once ; 7 Taun. 599 ; unless restricted, I presume, by 
 the submission : and where they were authorized to enlarge it " to any 
 other day,'" the court expounded it to mean " to any other days." 4 Taun. 
 658. So the parties may themselves, by subsequent agreement, enlarge the 
 time ; 1 Wash, 11, 14; for the submission may be by them yet more ma- 
 terially altered; as where a suit pending was referred, and the parties by 
 agreement under seal afterwards agreed to substitute another person for one' 
 of the arbitrators, and that the award to be made by him and the other re- 
 ferees should be made the judgment of the court, the award was so enter- 
 ed without any previous order confirming his appointment. 5 Mun. 493. 
 But it must be observed, that in case of submission by bond, though the time 
 is enlarged by consent of parties, an action will not lie on the bond if the 
 award be made after the original time limited. Kyd, 311. 3 T. R. 592. 
 
 Though, as we have said, the submission is the law of each case, and 
 must govern, yet if a case be referred in general terms to three or more per- 
 sons, the majority of those nominated may decide ; Kyd, 106; though all 
 should regularly be present, unless any one or more refuse to attend. Kyd, 
 107. 1 Dall. 364. But according to the maxim modus et conventio vincunt 
 legem, the contract of the parties may control these principles ; for where,- 
 in a suit pending, tliere was a reference by rule of court to four arbitra- 
 tors, whose award, or that of any three of them, was to be final, and at a 
 subsequent court two others were added : an award by two of the first 
 named and one of the last, was adjudged good, though it might thus have 
 happened that two conflicting awards might have been made. 2 Call, 106. 
 If there be a submission to four and the umpirage of a fifth, a joint award 
 by the five is good. Kyd, 105. The arbitrators joining with the umpire in 
 the award does not vitiate it. 4 Taun. 432. 
 
 " Proceedings by the arbitrators." 'Where the arbitrators have consent- 
 ed to serve as such, a time and place of trial should be appointed, and no- 
 tice given to the parties, (Kyd, 95,)* and then they may proceed in the ab-' 
 sence of either. Kyd, 100. 12 Vez. 412. Where the submission or re- 
 ference is by rule or order of court, the parties may procure subpoenas for 
 their witnesses from the clerk of the court, and if they do not attend, they 
 are subject to fine, or if they attend and refuse to give testimony, they may 
 be imprisoned by the referees. 1 Pt,. C. ch. 131, § 4, 5, 8. But there seems 
 to be no power to compel the attendance of witnesses except in such ca- 
 ses. The arbitrators examine the witnesses and documents as far as they 
 find necessary, and may examine either party if they please, where the sub-' 
 mission so provides, (2 Taun. 324,) or call for any oth'er information they 
 deem impoxtant, and adjourn from time to time, giving notice of the time 
 and place of each subsequent meeting ; provided, nevertheless, that their" 
 award be made within the time required by the submission. Eyd, 95, G6. 
 If they disagree, and have power to appoint an umpire, they must do so, 
 and when he is appointed, his duties are the same as their's, anterior to his 
 appointment. And though it has been decided, (4 T. R. 539,) that it will 
 suffice if he make up his award on hearing a detail of the evidence from 
 the arbitrators themselves, unless the party applies to him and requests him 
 to hear the witnesses, yet this opinion- has been questioned in the Penn- 
 sylvania courts, and seems inconsistent with general principles. The courts 
 in England, indeed, have also decided that though arbitrators examine 
 witnesses without swearing them, it is no valid objection to the award 
 unless the objection be made at the time. 1 Bos. & Pull. 91. These de- 
 cisions have not yet been directly the subject of examination in our courts ;- 
 
 •This, though admitted to be a general lule, is said not to be universal. 3 Kan. 6. 
 VOL. 2—5
 
 34 AWARD. [noOK 3. 
 
 though it has been decided in general terms, that if an arbitrator admits il- 
 legal ovidGnce, his award may be set aside. 1 Wash. 193. 
 
 When the award is made, if the submission is not by bond, but by parol, 
 or if it be by bond and the condition requires the delivery of the award to 
 the parties by a certain day, notice must be given to the party ; and as it 
 has been a matter of much litigation, whether, in the case of a submission 
 by bond without such express terms in the condition, notice be necessary, 
 it is always prudent and proper so to provide. Kyd, 115. 
 
 After the award has been once made and ready to be delivered or pro- 
 nounced, it cannot be changed by the arbitrator, for heis functus officio. 6 
 East Rep. 309. And it ought to be final and certain, and without a reser- 
 vation of farther power over the subject, either to himself or a stranger. 
 For an award to A of a horse, and if he cannot be had, then of so much 
 as B shall say he was worth, is bad, for the act to be performed by B is it- 
 self of a judicial character. But an award that A shall pay $10 for every 
 acre of land he bought of B, the quantity to be ascertained by the surveyor 
 of the county, is good, for the act is ministerial. Kyd, 125, 127. So, too, 
 the power of an arbitrator is incapable of being delegated ; yet if he settles 
 the principle, and leaves only the form to be settled by another, or the a- 
 mount of a sum to be calculated, it is good : as where he awards a deed to 
 be made. Kyd, \-29. And it has been decided that an award will not be 
 set aside because the arbitrator makes use of the judgment of another per- 
 son. 5 Vcz. 84S. So, though it is now clear that where a suit is referred, 
 arbitrators may award costs, (2 T. R. 044,) yet the costs of the court are 
 to be taxed by the proper officer of the court, and need not be ascertained 
 by the arbitrator. See 1 Call, 575. The costs of the reference, if award- 
 ed, ought to be ascertained by the award. Kyd, 135, 136. If the award 
 says nothing of costs, the court will adjudge them to the prevailing party. 
 2 Call, 106. 
 
 The award must be made within the time limited by the submission. 
 It may be made on the day of the submission, or at any time before midnight 
 of the day preceding that before which it is limiled to be made. Kyd, 
 137. 
 
 V. We come lastly to the subject of the award, which we shall consider 
 in several aspects as they are presented by its essential properties. It must 
 be within the submission, yet not of parcel only of the things submitted. 
 It must be something beneficial to the one party, and possible, legal, and 
 even reasonable, as it respects the other: and it must fulfil the end and ob- 
 ject of the submission by being certain and final, while it accomplishes the 
 purposes of justice by being mutual. 
 
 1. It must be wilhin the sulimission : for a reference of a particular con- 
 test does not justify an award as to other things. Kyd, 141. Yet it has 
 long been settled, that where the award is good as to part, and void as to the 
 residue, the performance of that which is good may be enforced ; Ibid, 243 ; 
 provided it is not so connected with the residue as to produce injustice, for 
 then the whole is void. Ibid, 216. So, also, the whole will be void if mat- 
 ters within the submission are blended with other matter, and an aggregate 
 sum is awarded to be paid, or an entire act to be done, on account and in 
 consideration of them. Ibid, 219. As if A, executor of B, submit a dis- 
 pute between his testator and C to arbitration, and the arbitrator awards 
 $100 in full of all claims of A in his own right, or as executor against C, 
 without distiiiLruishing the amount of each, the whole award is void. Yet 
 where the suljinission is of things real, an award of a sum of money in sa- 
 tisfaction may be good. Ibid, 147. If two partners refer all matters in 
 difference between them, the arbitrator may award a dissolution of the 
 partnership. Ibid. MU. IBl.Kcp.475. And so he may order indentures
 
 CHAP. 2.] " AWARD. 35 
 
 to be delivered up, on a dispute between master and apprentice. An arbi- 
 trator may also award costs without express authority ; 2 T. R. 644 ; and 
 as well the costs of the arbitration, as tlie costs of the cause, but the former 
 he must himself ascertain by his award, though the latter may be taxed by 
 the clerk. 
 
 We have thus seen that an award must not embrace a matter that is out 
 of submission. Neither, it has been said, should it embrace a person not 
 within it, if it award an act to be done by or to him ; unless in the latter 
 case the act is to benefit the other party to the award, for then it is good. 
 As where it is awarded that A shall pay to C, a stranger, |.50 for B, the 
 other party to the award. Yet a distinction has since been reasonably ta- 
 ken between the award of an act to be done by a stranger, and of some- 
 thing to be done to him, the latter being held good upon the presumption 
 that the act to be done to him by one party, is for the benefit of the other. 
 Ibid, 156, 159, 160. 1 Call, 575—578. 
 
 2. The award must not be of parcel only of the things submitted ; as 
 where there are several matters of contest submitted specifically, and the 
 arbitrator decides one without deciding the rest, this is void ; 7 East, 81 . Kyd, 
 175; for if connected together, then injustice must have been done; and 
 even if unconnected, yet the decision of those which are omitted might havo 
 balanced those on which he has pronounced judgment. As where there is 
 a reference of mutual trespasses, the arbitrator may award that each party 
 shall be quit against the other, because the trespasses were equal ; Kyd, 
 193 ; and the purpose of the submission is defeated unless the arbitrator 
 decides on all. But where there is a general reference of all matters of 
 difference, although there be many subjects of controversy, yet if the parties 
 bring only one before the arbitrator, it is good. And this will be presumed 
 till the contrary is shown. Kyd, 176. Indeed, the decision of an arbitra- 
 tor, though apparently only on a single point, may in effect be on more than 
 one, as the judgment on that may be a negation as to others. Thus, if A 
 and B have cross actions of assault and battery for the same fight, an award 
 to A is in effect a negation of the right of action of B. See 1 Saun. 32. 
 So of accounts. 2 Call, 106. If, however, the arbitrator really omit to de- 
 cide on any point or matter in dispute, though the award may be good, 
 yet may the party have his action, 4 T. R. 146, 147, in notes. 
 
 3. An award must not be of any thing against law, for if so, it is void, 
 and the parties are not bound to perform it. Kyd, 184. So 
 
 4. An award of ivhat is impossible, either physically or morally, is void : 
 as an award that the party shall deliver up a deed which is in the power of 
 one over whom he has no control : or that he shall compel a third person to 
 an act ; unless, indeed, the third person is under his control, or can be 
 compelled by suit to do it, as in the case of a trustee. Kyd, 185, 188. . So 
 it is said an award that he shall procure a stranger to join him in a bond, is 
 void, since he cannot compel the stranger. Kyd, 185. Yet, I should pre- 
 sume, an award that the party should enter into bond with security, is good. 
 And even in those cases where the award would not be good, because of its 
 requiring an act to be procured to be done by a stranger, yet if it be in the 
 alternative it would be good. Kyd, 203, 204. As an award that A shall 
 procure B to make a good title to land on or before a certain day, or in de- 
 fault thereof that he shall pay $100. 
 
 5. The award must be reasonable. To award that one party shall serve 
 the-otheras a menial, or shall do an act which would subject'him to an ac- 
 tion, is void. Kyd, 189, 190. 
 
 6. The award must be of something advantageous; for if it be a mere 
 charge on one without benefit to the other, it is void. Mutual releases, how-
 
 86 AWARD. [book 3. 
 
 ever, are advantageous to both, and an award of them is therefore good. 
 Kyd, 191, 192. 
 
 7. The intention of all judicial decisions is to ascertain the rights of 
 the parties ; hence an award must be certain or it will be void. Kyd, 194. 
 It is scarcely necessary to enter into a detail of the cases in support of this 
 obvious principle. It must, however, be remarked, that if the supposed un- 
 certainty can be removed either by the context of the award, or from the 
 nature of the thing awarded, or by obvious reference to something con- 
 nected with it, the objection will not prevail. Kyd, 198. Nor is an award 
 in the alternative subject to an objection for uncertainty, nor an award of 
 payment of money where no time or place is fixed for payment ; for 
 the place is immaterial, and a demand in a reasonable time will entitle the 
 party to recover. In some cases, too, an averment v/i\\ help the uncer- 
 tainty ; as in an av/ard that the party shall pay the legal costs of a certain 
 suit, an averment in the declaration tiiat they amounted to so mudi, will 
 gupport it. 
 
 8. The award must be final ; for a termination of the litigation is the 
 chief object. An award that the party shall suffer a nonsuit, is therefore 
 said to be void ; for that will not prevent his suing again. Sed Qiimre : for 
 not only is an award that the plaintiff shall enter a retraxit, a good award ; 
 but an award that he shall discontinue his suit, or that all suits shall cease, 
 or that a bill in chancery shall be dismissed, is also considered final and 
 therefore valid. Kyd, 208, cic. And so where a suit pending is referred, 
 an award that judgment shall be entered against the plaintiff is sufficient- 
 ly final. 
 
 9. The tward must he mutual; not that it is necessary that money or 
 other thing should be awarded to each ; for it appears by the general tenor 
 of the award, that the thing awarded to be done, or the money awarded to 
 be paid to one party, is in satisfaction of injuries done to him by the other, 
 this is mutual : since, while one recovers damages for the injury, the other 
 upon payment of them is discharged of an action to which he was liable. 
 Thus there is an equivalent. Nor is it now deemed necessary that a re- 
 lease of actions should be awarded to be given by the parly injured, or that 
 any words of discharge should be used in the award, since that will be im- 
 plied if it appears that the thing awarded was a recompense for injury. 
 Kyd, 2-25, 226. 
 
 Indeed, in modern times, the ancient strictness in the construction of 
 awards on all these points, is deservedly discountenanced, and the rule at 
 this day is to construe all awards with great liberality. 1 Bur. 277.- So 
 that if any necessary matter is omitted, which yet appears manifestly by 
 implication, it shall be supplied. Kyd, 230. And if there be any ambiguity 
 in the language, it is to be so construed as to give effect to the award; Kyd, 
 2^33 ; or if there be a misrecital of the submission, it will not vitiate, provi- 
 ded it be suiTicicntly ascertained, and the award is within it; though a mis- 
 recital of the date of the order of reference seems to be fatal. 2 Wash. 
 70. To direct a release up to the date of the award, is in strictness not 
 good; for tli.it might include matters subsequent to the submission, which 
 .ire not referred by it; yet where such release is awarded, it will be presu- 
 med (unless the contrary appears) that there has been no dispute between 
 the j)arties since the submission ; or even if that ap))cars, the arbitrator's 
 meaning will be controlled so far as it is void by construction of law. Kyd, 
 242. 
 
 Form of the ovard. ^Vhore the submission is verbal, unless there be a 
 provision that the award shall be in writing, a verbal award will suflice. 
 Kvd, 261. The same, indeed, is said if the submission be by bond ; Ibic|, 
 262; but it must not be forgotten, tliat whatever the submission requires
 
 CHAP. 2.] AWARD. 87 
 
 should be done, whether it respects the time or manner of delivery, or the 
 form of the award, or the siffuing or sealing, or any other matter. The 
 form of the award seems not important if it be substantially in conformity 
 with the requisitions of law and of the submission. See "2 H. &, M. 544. 
 4 H. & M. aG3. 
 
 Performance of the award. An exact performance according to tlie very 
 words of the award, is not necessary ; for an acceptance by the other par- 
 ty of a different performance is good, and indeed a substantial performance 
 is always sufficient. Thus a discontinuance of a suit is a sufficient perform- 
 ance of an award that the party shall enter a retraxit ; for though it is not a 
 retraxit, it will be a good performance unless he recommence his action ; 
 and if he does so, there will then be a breach of the award. Kyd, 264, 
 207. So an award to pay money to A, is well satisfied by payment to his 
 executor in case of his death. It may sometimes be a question who shall 
 do the first act ; but as this generally depends upon principles similar to 
 those which govern in cases of covenant and conditions, I shall not here 
 enter into the enquiry. I shall only observe, that generally where it is 
 awarded that one party pay a sum of money to the other as a compensation 
 for an injury done, and that the other release the action, the money must 
 be first paid. If money be awarded and no day of payment limited, it must 
 be paid within a reasonable time, nor is a request necessary before the par- 
 ty to whom it is payable can bring his action for it. Kyd, 268. 
 
 The remedy to compel performance. This is, I. By action at law. 2. By 
 bill in equity. 3. By attachment. 
 
 I. By action at law. This varies according to circumstances. If the 
 submission be by parol, the party may either bring debt upon the award 
 itself where it is for payment of money, even though it be verbal, or he may 
 bring an action of assumpsit ; but in all cases of verbal awards, except for 
 payment of money, assumpsit is the most proper action. In either case, care 
 must be taken to state the submission with substantial correctness, (Kyd, 
 291,) for if there be any material variance between the agreement to sub- 
 mit, as set out in the declaration, and the evidence in support of it, the 
 plaintiff will be nonsuited. Equal care must be taken, as has been said, 
 that the award corresponds with the submission, for unless they concur, the 
 plaintiff must fail, otherwise the defendant would be subjected to an arbi- 
 tration without his assent. The difficulty of sufficiently ascertaining by 
 oral testimony the character of a submission, renders it extremely impru- 
 dent to enter into arbitrations without a written submission ; and the like 
 reason prevails in behalf of a provision in all submissions, that the award 
 shall be delivered in writing, though less exactness is necessary in setting 
 forth verbal than written awards and submissions. Kyd, 291. 
 
 Where the submission is by bond, and the award is for payment of mo^ 
 ney, assumpsit will not lie to recover the amount awarded, as the simple 
 contract is merged in the specialty ; but debt must be brought on the bond, 
 or on the award itself; for that also will lie. But \{ money is not award- 
 ed, the action must be on the bond ; and as many breaches of the award 
 may be assigned as the plaintiff can show, for he is entitled to damages for 
 all. This assignment of breaches is indeed the essence of the action. Kyd, 
 292. The action on the bond is more usual than on the award, even where 
 money is awarded. In this action the declaration may be in the usual form 
 of declarations on ordinary bonds, taking no notice of the condition : or 
 the condition may be set out and the breach assigned. In the former case, 
 the defendant, if he wishes to contest the recovery, prays oyer of the con- 
 dition, which being set forth, he may plead a variety of matters; such as 
 " performance of the award ;" or " that there was no award ;" or "that it 
 )vas not made before the day assigned ;" or (where notice is necessary tp
 
 38 AWARD. [ BOOK 3. 
 
 entitle the plaintifT to his action,) (sec 2 Saun. G3, a. n. 4,) he may plead 
 "he had no notice ;" and by our law he may plead all these several incon- 
 sistent pleas at the same time. If he pleads "no award," the plaintiff in 
 his replication sets out the award at large, and assigns the breach. If the 
 defendant denies that the award as set out has been made, he rejoins that 
 the arbitrators "made no such award," and here the plaintiff must join 
 issue. If the award set out varies from the submission, the defendant de- 
 murs and sets out the variance, and the plaintiff joins issue upon the legal 
 question. If the defendant pleads the award was not made in time, the 
 plaintiff in his replication alleges that it was, and the defendant takes issue 
 on the fact. If the defendant denies notice, (where notice is necessary,) 
 he must do it by his plea, and cannot be permitted to allege want of notice 
 in his rejoinder, after having in the pica, in that branch of the pleading in 
 which he files a rejoinder, denied the award itself — for this is a departure 
 from the plea, which denied the very existence of the award. Where the 
 plea denies notice, the plaintiff may demur if he thinks it a case in which 
 notice is unnecessary; or if the defendant had notice, the plaintiff replies 
 that he had, and on this the defendant takes issue. If in such case the ver- 
 dict is for the defendant, yet it will not bar a future action after notice given. 
 (Kyd, ^^97.) 
 
 In the plaintiff's replication he must always show that the award is pur- 
 saant to, and made in conformity with, the requisitions of the submission ; 
 and in like manner if by the award any pre-requisite is to be performed by 
 him to entitle him to his action, he must aver and set forth performance, or 
 a tender, where that will sutRce. There is some nicety as to this, which 
 ivill furnish a subject for the student's investigation. See Kyd, 260, Sec. 
 
 " If the plaintiff sets forth the award with a profert in curia, the defen- 
 dant craves oyer, and demurs for the variance ; if the plaintiff set forth the 
 award without the profert, the defendant answers " no such award," on 
 which issue is joined : if, on the demurrer, the award set forth vary mate- 
 rially from the real award, judgment will of course be given against the 
 plaintiff: if, on the issue joined, the award set forth differ materially from 
 that given in evidence the judge will direct the jury to find for the defen- 
 dant ; if there be no material variance, in the one case judgment, and in 
 the other a verdict, will be given in favor of the plaintiff. In the case of a 
 general verdict in his favor, it must be presumed that there was no material 
 variance ; if, at the trial, it be doubted whether the variance be material or 
 not, a special verdict may be taken, and the question argued in court, as on 
 a demurrer." Kyd, 269. 
 
 Where the award is verbal, the defendant to an action of debt or assump- 
 sit on the award may plead "that he did not submit ;" but in an action on 
 the bond he cannot, for he is, in the law phrase, estopped to deny what the 
 bond and the condition of it prove. If, indeed, he never scaled and deliver- 
 ed the bond, he may plead " non est factum,^' but to the truth of this plea 
 he must make oath ; or if he thinks that the arbitrators have decided upon 
 a matter not submitted, he must, instead of denying the submission, demur 
 for the variance, and point it out. 
 
 In assigning the breaches of an award, it may be here observed, that 
 whether in assumpsit or in an action of debt on the bond, and whether tho 
 award be for payment of money, or for any collateral matter, the plaintiff 
 may assign, and ought to assign as many breaches as he can establish. This 
 is admitted as to assumpsit jjy Mr. Kyd, pa. 271), but not so as to an action 
 on the bond where the award is not for payment of money. The reason 
 assigned is, that the bond is as much forfeited l)y one breach as by twenty, 
 and Mr. Kyd seems to think the statute of ^Villianl o, from which ours (1 
 R. C. ch. 128, § 82,) is taken, does not embrace the case of awards. No
 
 CHAP. 2.] AWARD. 39 
 
 aulhoriry is cited for this ; nor docs there seem to be any foundation for the 
 opinion. Since the case of Rolls vs. Roswell, (5 T. R. 53G,) indeed, the 
 contrary seems to be the law in England, and it is universally so understood 
 among us. See the form of the replication setting out several breaches, 2 
 Chitty, G19. 
 
 In the assignment of the breaches, however, some circumspection is ne- 
 cessary ; thus, breaches should not be assigned in a part of the award which 
 is void, and also in a part which is valid ; for then a general judgment would, 
 at common law, have been arrested ; and though, perhaps, it may be cured 
 by thd.t paimcea — our late statute of Jeofails — yet such assignment will still 
 be had on demurrer. The breach, therefore, should be assigned only in 
 that part of the award which is good. If a time and place be appointed for 
 payment of money, the plaintiff must shew that he attended between the 
 appointed hours, and continued till the last moment. If money is awarded 
 to be paid on request, a special demand must be expressly stated, and the 
 usual allegation of licet sczpe requisitus will not suffice ; and if the award 
 is in the alternative, the plaintiff must, in assigning the breach, negative the 
 performance of both branches of it. Kyd, 296. 
 
 The defendant, as has been observed, may plead performance, and in 
 doing this he need only aver performance of so much of the award as iS' 
 good, and take no notice of what he thinks bad. If the plaintiff thinks 
 that which is pretermitted is also good, he demurs to the plea, and thus the 
 legal question is brought before the court. In pleading performance, he, in 
 general, need only do so in the language of the award itself; but where the 
 award is in the alternative, he must shew specially which branch of the al- 
 ternative he has performed. Kyd, 301. He may also plead a tender and 
 refusal, but this is one of the cases in which it is essential he should add 
 that he is still ready to perform. So if a precedent act is to be done by the 
 plaintiff, he may rely upon this, and aver the plaintiff's non-performance, 
 and his own readiness to perform as soon as the plaintiff has fulfilled the 
 pre-requisite. 
 
 2. We come next to the means of compelling performance of an award 
 by a bill in equity. The aid of courts of equity in these cases is usually 
 sought where the remedy at law is inadequate ; 4 Ran, 95; or where a col- 
 lateral act is awarded, — as the conveyance of land ; for such cases partake 
 of the character of a bill for specific performance of an agreement to con- 
 vey, and will be entertained where any thing is awarded to be done in spe- 
 cie, (1 Wash. 290, 295,) provided the award is valid; and, indeed, 
 though the award may not be valid, yet if there has been a long acquies- 
 cence by the defendant, and part performance by the complainant, the award 
 will not be permitted to be disturbed, but on the contrary will be enforced. 
 1 Mad. .337. Kyd, 322. 
 
 3. Enforcing performance by attachment. This method seems to have 
 existed anterior to the statute of William III. on arbitraments, and to have 
 grown out of the practice of referring matters to arbitration under a rule of 
 court. It was adopted with reluctance at first, though it was afterwards 
 used with improper freedom. Kyd, 311, 318. It rested upon the suppo- 
 sition that a refusal to pay money awarded by arbitrators under a rule of 
 court, is a contempt of court. This is, indeed, most unsubstantial ground, 
 since the refusal to pay a debt ascertained by verdict and judgment, is a 
 case at least equally strong, but never was tortured into a contempt. In 
 chancery, indeed, such a proceeding is adopted for disobedience of a de- 
 cree ; but it is rarely used with us except where an execution will not lie 
 from the nature of the thing to be done. In England the statute 9 & 10 of 
 William III. ch. 15, expressly authorizes this practice. Our act does not. 
 In our courts I have heard of no instance of an attempt to enforce an award
 
 40 AWARD. [book 3. 
 
 by attacliment, and there are with us, from the peculiar character of some 
 df our laws, strong reasons against it, independent of the express provision 
 that the award shall be entered up as the judgment of the court, and en- 
 forced as other judgments. 1 li. C. ch. 114. The English cases on this 
 subject, therefore, may now be considered as irrelevant, and this mode of 
 enforcing an award as unauthorized. 
 
 For what objections an award ma%j he set aside. Here we may mention, 
 First, objections to the arbitrators, as where it is discovered they have ail 
 interest in the award ;— or to their conduct, (see 2 John. C. 339. 6 Ran. 
 529. 4 Leigh, 362, 436,) as where they have been partial, or have had pri- 
 vate meetings on the subject of the arbitration with either party ; or have ad- 
 mitted improper evidence, or excluded what is proper; or have refused to 
 hear evidence at all, or excluded the parties during the examination of the 
 witnesses ; or have taken either party by surprise by agreeing to postpone 
 their decision on account of the sickness or absence of a party or witness- 
 es, and then making up their award unexpectedly, and within the time a- 
 greed on ; or receiving other evidence after giving notice that they would re- 
 ceive no more ; 6 Vcz. 70 ; or taking compensation from one party for their 
 services, when the other refused to give any ; or, in short, any collusion or 
 gross misbehaviour of the arbitrators or any of them. Kyd, 346, &.c. Par- 
 tiality and improper conduct in'the arbitrator in makii>g his award, is said 
 to be only matter of equitable jurisdiction, and cannot be pleaded to an ac- 
 tion of debt on the bond. 8 E. R. 344. 
 
 Secondly. Objections to the award itself, (see 4 Ran. 95.) We have 
 already touched on this part of the subject, observing on the liberality which 
 has of late years prevailed in supporting the decisioi;s of these tribunals of 
 the parties' own choice. The leaning in favour of arbitrations has induced 
 the courts in some cases to lay it down as a rule, that collusion or gross 
 misbehaviour in the arbitrators, furnishes the only adequate ground for set- 
 ting aside awards. Yet it has been often decided, that gross error in fact 
 or in law plainly appearing upon the face of the award, will be deemed suf- 
 ficient to vacate the decision of the referees. Kyd, 450. See 2 Bos. & 
 Pull. 371. The following principles may suffice to guide the student on" 
 this subject. 
 
 1. Objections to the award itself must appear on its face, or they will not 
 be available to the party. 1 Wash. 11, 14. 2 Vez.jr. 24. And no calcu- 
 lations or grounds for an award which are not incorporated in it or annexed^ 
 to it at the time of delivery, can be received as reasons or grounds to avoid 
 it: 1 H. & M.67. 2 Mun. 7, 8: for affidavits can in no case be admitted 
 to prove that the arbitrators erred. 1 AVash. 156, 159. To this the cases 
 of admission of improper evidence, or rejection of what is proper, may 
 perhaps be considered as exceptions, because they imply improper conduct 
 in the arbitrators ; 1 Wash. 193. 4 Mun. 281. 5 Mun. 10; in which ca- 
 ses extrinsic evidence was admitted. 
 
 2. Awards are to be Aivorably and liberally construed, and are not to be 
 set aside unless they appear to be founded on grounds clearly illegal. 2 
 Call, 433. 4 Mun. 114. 1 Vez. jr. 369. 2 Vez. jr. 15. For a court in 
 examining an award, pught not to consider itself as silting in an appellate 
 character, and reverse the award of arbitrators merely because it differs from 
 them in opinion on a doubtful (juestion. It ought to interfere only in cases 
 of plain mistake. 3 Call, 309, 319. 2 H. & M. 408. 13 East. Rep. 357. 
 2 John. C. 361, 551. And where a naked question of law is referred, the 
 award thereupon made cannot be disturbed for mistake. 6 Vez. 282. 9 
 Vez. 364. 4 Ran. 95. And by a reference, the court, whether of law or 
 equity, divests itself of all judgment as to t\m facts. 2 Vez. 21. Where, 
 however, upon a general reference, the arbitrator m.eans to decide according
 
 CHAP. 9.] AWARD. 41 
 
 to law, but mistakes it, the court will set it right; and this has been decided 
 both at law and in equity. 9 Vez. 364. 3 East Rep. 18. 
 
 3. The award of the umpire is not vitiated by the arbitrators' joining in 
 it. 4Taun.232. 2 John. C. 339. 4 Ran. 275. Nor even by a stranger's 
 signing it. Id. 
 
 4. An award will not be set aside because the arbitrator omitted to act on 
 part of the matters submitted, unless the omission appears to have been in- 
 jurious to the party complaining. 7 Cranch, 171. 
 
 5. Nor will an award be considered void because it is alternative or con- 
 tingent, or becar.se one of the alternatives requires the party to do an act in 
 conjunction with a stranger. 7 Cranch, 596. 1 Taun. 54i,\ 
 
 Thirdly. Conduct of the parties. If facts fire concealed from the arbi-*- 
 trators which were calculated to have induced a different award, the award 
 may be set aside in like manner and upon like principles, I presume, as a 
 judgment at law obtained by surprise. Kyd, 35G, 357. ~ Vez. 132. Sa 
 ill any other case where the award has been obtained by fraud or improper' 
 conduct of either party, it maybe set aside in equity on t'le application of ths 
 other. Yet a court of equity refused to interfere on the declaration of one 
 of the arbitrators, that his opinion v/ould have been changed had he seen a 
 letter which was mislaid at the time of the av/ard, but was afterwards found. 
 IS Vez. 447. 
 
 Of the means of procuring relief against an erroneous av/ard. Where a 
 submission is by the mere act of the parties, as in the case of an agreement 
 to refer, the party cannot be relieved at law against the award on account 
 of any extrinsic circumstances, whether the action be on the award itself^- 
 or on the bond or agreement of submission. He may plead, indeed, that 
 the award does not agree with the submission, or that it is contrary to some 
 of those rules which the law has prescribed for the constitution of an 
 a\vard ; but he cannot give in evidence any thing to impeach the conduct of 
 the arbitrators who v>'ere judges of his own choosing ; 8 East Rep. 344 ', 
 and nothing which does not appear upon the face of that judgment, can be 
 offered in evidence to overturn it. In sach cases his only remedy is in equi- 
 ty, which often sets aside awards, and gives the relief which circumstances 
 require. Mistakes are there corrected and per.^'ormance decreed according 
 to the award so corrected. 1 Mad. 65. 4 John. C. 405. 3 Ran. 7. 
 Where such relief is sought on the ground of partiality or corruption in the 
 arbitrators, they may be made defendants, I presume, notwithstanding the 
 decision in Shermer & Beall. 1 Wash. 11. 2 Atk. 396, 412. And where 
 they have combined with either party, or been partial or corrupt, costs will 
 even be decreed against them. 2 Vez. jr. 451. But an arbitrator who has 
 acted fairly, ought not to be made party and exposed to the costs of a suit.- 
 If he errs, the error may be corrected without joining him in the litigation. 
 1 Wash. 11. 
 
 Vfhere a submission is by rule of court, whether in a cause depending of 
 not, I apprehend it is within the power of the court to set aside the award, 
 not only for error upon the face of it, but for partiality, corruption, impro- 
 per conduct in the arbitrators, &c. 2 Lord Ray. 857. And generally, 
 where the injured party has failed to avail himself of his remedy at law, he 
 cannot have relief in equity. 2 H. &, M. 34. Yet, if it appears that the 
 proceeding under the authority of a court of law, v/culd be or has been in- 
 competent to afford complete relief, or where the complaint is of partiality 
 or corruption, a court of equity will give its aid, though a previous effort 
 at law has been unsuccessful. Kyd, 334. See 18 Vez. jr. 419. 
 
 The act of assembly (1 R. C. ch. 1!4,) on the subject of submissions io 
 be made a rule of court where no cause is depending, provides that no- 
 award shall bo set aside but for com^pticn, partialitr/, misbehaviour of \he 
 Vol. 2— G
 
 42 REMITTER. [ BOOK 3. 
 
 arbitrators, or other undue 7neans, and that tliis must be shewn before the 
 end of the second term next after its return to court. See 1 Call, 379. 
 Yet this law is construed to permit any objections which would lie to other 
 awards ; 14 Vez. 271. 3 East, 18; and though they cannot, after the ex- 
 piration of the appointed time, avail the party on a rule to set aside the 
 award, yet they furnish a good defence to an attachment, in England, for 
 non-performance of the award, though it be after the time allowed. Kyd, 
 34^. It may also be remarked, that though amotion to set aside an award 
 for corruption and other causes mentioned Im the act, must be made within 
 the time prescribed, it has been decided to be otherwise where the ground 
 for creating it is a plain mistake, and the award was made under a reference 
 in a cause pending. G Taun. 111. 
 
 Where a submission is by consent under an order of a court of equity in 
 a cause depending there, though the arbitrators must make a report, yet the 
 court will not require a statement of particulars, but a general award of the 
 balance due will sufiice. 2 Vez. jr. 23. Nor will exceptions lie to their 
 award, as to a master's rejwrt. 1 Br. Ch. R. 339. 3 Br. 1G3. 2 Vez. jr. 22. 
 
 CHAPTER III. 
 
 OF REDRESS BY THE MERE OPERATION OF LAW. 
 
 " The remedies for private wrongs, which are effected by the mere opera- 
 tion of the law, will i'all 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 ex- 
 ecutor, or if such creditor obtains letters of administration to his debtor ; in 
 this case 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 tlie mere act of law, and grounded up" 
 on this reason ; that the executor cannot, without an apparent absurdity, 
 commence a suit against himself as representative of the deceased, to re- 
 cover 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 
 ill the rest of the world besides. For, th.ough a rateable payment of all the 
 debts of the deceased, in equal degree, is clearly the most equitable me- 
 thod, yet as every scheme for a proportionable distribution of the assets 
 among all the creditors halh been hitherto found to be impracticable, and 
 ])roductive o^ more mischiefs than it would remedy ; so that the creditor 
 v/ho first commences his suit is entitled to a preference in payment; it fol- 
 lows, 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 
 rttainer is therefore the necessary consequence of that oilier 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 sup- 
 posed to have done, while debts of a higher nature subsisted. Neither 
 shall one exocutor be allowed to retain his own debt, in prejudice to that 
 of his co-executor in equal degree ; but both .shall be discharged in propor-
 
 CHAP. 3.] REMITTER. 43 
 
 tion. Nor shall an executor of his own wrong be in any case permitted to 
 retain. 
 
 " II. Remitter is where lie, who hath the true property or jus proprietatis 
 in lands, but is out of possession thereof, and hath no right to enter with- 
 out 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 ancient and more 
 certain title. The right of entry vvliich 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 de- 
 scends to C the son of A, and B is barred from entering thereon till he 
 proves his right in an action : now, if afterwards C, the heir of the dissei- 
 sor, makes a lease for life to D, with remainder to B the disseisee for life, 
 and D dies ; hereby the remainder accrues to B, the disseisee : who thus 
 gaining a new freehold by virtue of the remainder, which is a bad title, is 
 by act of law remitted, or in of his former and surer estate. For he hath here- 
 by gained a new right of possession, to which the law immediately annexes 
 his ancient 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 right. Therefore it is to 
 be observed, that to every remitter there are regularly ihese incidents ; an 
 ancient 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 Littleton, why this re- 
 medy, 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 possession 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 sucji plight as if 
 he had lawfully recovered the same land by suit. For, as Lord Bacon ob- 
 serves, 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 desliluitur, ipsa re valet, si culpa absit. But there shall 
 be no remitter to a right, for which the parly has no remedy by action : 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 
 ancient estate, he shall not recover it by remitter. 
 
 " And thus much for these extrajudicial remedies, as well for real as per- 
 sonal injuries, which are furnished or permitted by the law, where the par- 
 ties 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."
 
 44 COUHTS. [ nooic 3. 
 
 CHAPTER IV. 
 
 REDRESS BY SUIT.-OF COUIiTS IN GENERAL. 
 
 "The next, .and principal object of our enquiries is the redress of inju- 
 ries by suit in courts : wherein tlic 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 se- 
 veral cases of redress by the act of the parties mentioned in a lormer chap- 
 ter, 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 vio- 
 lence, I yet am afterv/ards 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 de- 
 tinue ; 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 nuisance 
 by my own autliority, or call upon the law to do it forme : I may distrain 
 for rent or have an action of debt, at my own option : if I do not distrain 
 iliy neighbor's cattle damagc-feasant, I may compel him by action of tres- 
 pass to make me a fair satisfaction ; if a heriot, or a deodand, be withheld 
 from me by fraud or force, I may recover it though I never seized 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 ; v.hich is given up by such agree- 
 ment.* But as to remedies by the mere operation of lav.', those are indeed 
 given, because no remedy can be ministered by suit or action, vi'ithout 
 running into the palpable absurdity of a man's bringing an action against 
 himself: the tv.'o 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 
 suit in courts, I shall pursue the ibllowing method : first, I shall con- 
 sider 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 pro- 
 per 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 acknowledged by the laws. 
 
 "A court is defined to be a place wherein justice is judically adminis- 
 tered." In Englr.nd, (we are told by Sir, Blackstone,) all courts of jus- 
 tice derive their pov/ers froin the crown ; but in this commonwealth, they 
 can h;ive no other source than the constitution and the lavvs made in pur- 
 euancc of it. A variety of these tribunals are erected for the mere speedy 
 
 • Anfl n^i efirnciilB of ilii.-- naluixi caniiol oiipI ihc court* of law or pqiiilv of ilieir juri?<Ji(iion. f»ee 
 2 V'cz. l-2;». 1 Wiln. l-i:! 3 T. K. lo'J. J5 Voz. 10. .'inlit is a rule of Ihw, that a riglit of aclion 
 once vested can only be ilcsiroytil liy a reliMPc under seal, or by il;c actual receipt of icinciliing in 
 (a;isfuctiaii of the w lony done, tee ',' D. ii (.'. L'-'l. 1 Bingli. lOJ. 1 D, 6:. iC. 5^1*.
 
 CHAP. 4.] ATTORNEYS AT LAW. 45 
 
 and impartifil administration of justice, some with more limited and others 
 with more extended jurisdiction : some constituted for enquiry only, others 
 to hear and determine : some to determine in the first instance, others upon 
 appeal. Of these, the student will find a full account in the Revised 
 Code of 1819, and the supplement thereto. 
 
 In England, there is a distinction between courts of record and courts 
 not of record. In Virginia, there is no court not of record, unless we con- 
 sider in that light our justices of peace, who try actions for small debts, but 
 are not courts of record. 
 
 "A court of record is that, where the acts and judicial proceedings are 
 enrolled [or entered in a book] for a perpetual memorial and testimony : 
 which rolls [or books] are called the records of the court, and are of such 
 high and super-eminent 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 con- 
 trary. And if the existence of a record be denied, it shall be tried by noth- 
 ing but itself: that is, upon bare inspection whether there be any such re- 
 cord or no ; else there would be no end of disputes. But, if there appear 
 any mistake of the clerk in making up such record, the court will direct 
 him to amend it ;" for those errors which are merely clerical may at any 
 time be amended upon motion, or by writ of error coram nobis. [As to 
 what is a clerical error, see 1 Ran. 25.] But if there be error in the judg- 
 ment of a court of law, the amendment can only be made while the proceed- 
 ings are in fieri ; that is, before a final judgment, or during the term when 
 such judgment is rendered; for no court of law can reverse, alter, or amend, 
 any final judgment given at a former term, which had been entered on the 
 order book, and signed by a judge in open court. 1 H. & M. 25. (Yet 
 see 4 Mauie &, Sehv. 94, 101.) ''And the same doctrine is admitted as a 
 general rule also as to courts of equity, though mistakes in entering decree3 
 are there set aside upon motion ; and in like manner a decree by default 
 has been set aside upon good cause shewn, at a succeeding term. See 1 
 H. & M. 204. 6 Mun 207. 
 
 By the act (1 R. C. ch. 128, § 108, 109,) moreover, mistakes of sums or 
 names in any judgment at law or decree in equity maybe rectified, if there 
 be in the proceedings any verdict, bond, bill, note, or other writing, whereby 
 the correction can be made. So where a verdict is rendered for more dam- 
 ages than the plaintiff claims by his suit, or a judgment is rendered for the 
 full amount of a fortlicoming or replevy bond conditioned for more than is 
 due. As to the mode of proceeding in such cases (which should be strictly 
 pursued) the student must consult the statute itself. In Bent vs. Fatten, I 
 Ran. 25, the court was of opinion that this act did not enlarge the subjects 
 amendable, and of course embraced only clerical errors. 
 
 In every court there must be at least three constituent parts, the actor, 
 reus, and judex; the actor or plaintiff", who complains of an iiijury 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 its officers to apply the remedy. It is 
 also usual in the courts to have attorneys, and advocates or counsel, as as- 
 sistants. 
 
 " An attorney at law answers to the procurator, or proctor, of the civilians 
 and canonists. And he is one vvho'is put in the place, stead,, or /wrn 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,) unless by special license under the king's letters pa- 
 tent. And an idiot canpot to this day appear by attorney, but in person,
 
 46 ATTORNEYS AT LAW. [ book 3. 
 
 for he hath not discretion to enable him to appoint a proper substitute : and 
 upon his bein^ brought before tlie court in so defenceless a condition, the 
 judges are bound to take care of his interests, and they shall admit the best 
 plea in his behalf that any one present can suggest." 
 
 Leaving to the student to pursue in Mr. Blackstone's work, his account 
 of attorneys in England, I shall proceed to some remarks on the subject 
 under our own laws. 
 
 In Virginia the functions of attorney, solicitor, proctor, counsel, and ad- 
 vocate, are united in the same person, who is called a lawyer. See 1 Mun. 
 468, 478. 
 
 All persons have the privilege of prosecuting their suits, or being defend- 
 ed by counsel, nor does our law deny it to a prisoner prosecuted by the 
 commonwealth, whatever may be the charge exhibited against him. In 
 England the attorney usually receives a warrant from the party retaining 
 him. In Virginia a parol retainer is not only sufficient, but the warrant is 
 unknown in practice, however, here, as well as in England, though an at- 
 torney takes upon him to appear without being retained, the court looks 
 •no farther, but proceeds as if the attorney had sufficient authority, and 
 leaves the party to his action against him; 1 Salk. 86; unless, indeed, 
 where he appears to be an irresponsible person. 1 Salk. 88. So, too, in 
 «quity. See I Vez. jr. 200. 1 Mad. 140, 413. It is true that the attor- 
 ney by such conduct renders himself not only liable to reprehension for un- 
 gentlemanly behaviour, but he may be proceeded against for mal-practice. 
 Bac. "Attorney," H. An attorney, ho.vever, may by endorsement on the 
 writ, engage to appear for a person sued, and this, where bail is not re- 
 quired, is a sufficient appearance by our law, and must be entered as such. 
 1 R. C. ch. 128, § 42. Where an attorney undertakes to appear, he is 
 bound to do so, and as at law he cannot be discharged against his will, with- 
 out an order of court, (Bac. Attorney, E,) so neither can he recede without 
 his client's consent. 1 Salk. 87. 6 Mod. 86. Str. 693. 12 Mod. 251. 
 And if he fail to appear according to his undertaking, he is moreover liable 
 to forfeit $8 to the defandant. 1 R. C. ch. 76, § 10. Still less can the at- 
 torney justify receding with a view to becoming counsel on the other side. 
 For, as no man can be attorney on both sides, except perhaps in a friendly 
 suit where there is no real litigation, and as counsel are not permitted to 
 reveal the confidential communications of their clients, it follows, a/or<iori, 
 that no man who has been of counsel for one of the parties, can afterwards 
 become the advocate of the other. See Coop. Ch. Ca. 80, 89. Per Lord 
 Eldon. 
 
 The authority or power of an attorney over his client's cause, continues 
 regularly until the judgment, and for a year and a day afterwards. If, in- 
 ■deed, the judgment not being satisfied, is continued in force by the issue of 
 execution, his authority is prolonged accordingly. His powers are not in- 
 considerable. He is the proper person ^;e?/(/t«/e /(7c to receive paynient, and 
 a tender to him is properly made, 10 C. L. R. 272, and though he cannot 
 enter a retraxit, (8 Co. 58,) or execute a release for his client, either of the 
 debt or of errors in the proceedings, (see 2 H. Si M. 268, 288,) yet he may 
 submit the suit to arbitration, (Cartli. 412. 7 Crauch, 449,) or enter a re- 
 millit dnmna, (2 Lord Ray. II 12,) either where it is necessary, because of 
 the damages assessed exceeding those laid in the writ, or where, on a mo- 
 tion by the o|)posite party for a new trial, the court is not disposed to grant 
 it, unless there is a release of part. It is advisable, however, in all such 
 cases, that he should consult his client, and obtain his assent. 
 
 In England, payment of money to the plaintiff's attorney by the defend- 
 ant, is a good payment if made within a year and a day after judgment ; but 
 in Virginia, by the custom of the country, a payment to the attorney on re-
 
 CHAP. 4.] ATTORNEYS AT LAW. 47 
 
 cord, of the money recovered, is good, though the year and day have elapsed. 
 1 Call, 147. This principle, however, resting upon the ground of an impli- 
 ed authority in the attorney, does not apply where the defendant is forwarn- 
 ed against making such payment, for thereby the implication is rebutted. 1 
 Wash. 10. 
 
 It must be observed, however, that as the attorney represents his client 
 only in court, he has no right to enter into private, executory, or collateral 
 contracts or engagements for him. 2 Call, 503. Nor in strictness can he 
 make a compromise for his client, though, as we have seen, he may refer his 
 cause to arbitration. 7 Cranch, 449, 452. Nor can he without authority 
 receive the bond of a third person from his client's debtor in discharge of his 
 demand. If he does he is considered quoad such bond, the defendant' s 
 agent. 5 Ran. 6-39. 
 
 For neglect of duly, an attorney is unquestionably liable ; 1 R. C. ch. 76, 
 § 8; and bound to make retribution to his client for the injury which he may 
 have sustained by reason of it. 2 Wash. 211. But it is said that to make 
 attorneys liable upon a charge of this sort, gross negligence should appear; 
 ibid, 212; and that they ought to be protected when they act to the best of 
 their skill and knowledge, and without culpable negligence. Burrow, 2061. 
 But the omission to file a declaration would be culpable negligence, and if 
 the judgment was for that cause arrested, the attorney would doubtless be- 
 responsible for all damages and costs occasioned thereby. The remedy in 
 these cases is generally by action, (2 Bl. R. 780. Burr. 2060,) but where 
 the negligence is gross, courts have sometimes, upon motion, compelled 
 attorneys to indemnify their clients. 1 P. Wms. 593. There is one spe- 
 cies of breach of duty which is so disgraceful and flagrant that our law has 
 provided a summary remedy for its redress. I mean the refusing to pay to 
 a client money which has been collected by the attorney for him. The cli- 
 ent in such case may, upon motion, before any court, on ten days' notice^ 
 recover the sum due, with damages in lieu of interest not exceeding 15 
 per cent, per annum from the time of the receipt of the money until pay- 
 ment. 1 R. C. ch. 75, § 9.* 
 
 For mi&behaviour in his office, attorneys are by common law liable to be 
 punished in a summary way, either by attachment or by having their names 
 struck from the court roll. Both of these remedies, however, have been 
 generally sparingly used, and it may now be doubted how far it is in the 
 power of the court to make use of the latter. For it seems superseded by 
 oar statute, which provides that the judges of the general court, either in 
 the general or circuit courts, may, upon their own detection of malpractice 
 of any attorney, or upon complaint made to them in writing of such mal- 
 practice in said courts, or any county or corporation court, summon him to 
 shew cause why an information should not be tiled against him. This in- 
 formation, if directed, is to be tried by a jury, and if the attorney be convict- 
 ed he may be suspended, or his license may be vacated. The court of ap- 
 peals, and courts of chancery, have similar powers over the counsel at their 
 bars, but the county and corporation courts have no such power, though 
 they may fine attorneys for misdemeanors and contempts, and compel them 
 to give security for their good behaviour. 1 R. C. ch. 76, § 6. 
 
 It would be difficult to enumerate the various acts which amount to mal- 
 practice in an attorney.! Appearing without a retainer, protracting suits by 
 disingenuous artifices, dealing unfairly with their clients in the way of bu- 
 siness, colluding with them in deceiving the court, putting them to unne- 
 
 * It is lite duty of an attorney receiving money to keep it safely and ready to he paid on demand : 
 nor is lie chargeable with interest unless he neglects for a lang time to inform his client that it is rea- 
 dy, or is otherwise in default, 6 John. 358, or makes profit of it by dealing with it. Id. 
 t An attorney is chargeable with a debt lost by negligence but not with interest upon it- ~ Leigh, KO.
 
 4& ATTORNEYS AT LAW. [book 3. 
 
 cessary expense for the purpose of raising their fees, demanding fees for 
 business that was never done, refusing to pay money collected, or to deliver 
 np writings entrusted to them in the way of business, without cause for de- 
 taining them, are all set down as instances of malpractice. So, too, are 
 maintenance and champerty, and every species of barratry and stirring up 
 suits.* Much more is an attorney liable to have his license vacated where 
 he is convicted of a felony ; Cow. 8-29. 1 R. C. ch. 76, § 5; for such an 
 one must be unfit for a profession which, however frequently degraded, 
 ought to be among the most honorable, as it certainly is among the most im- 
 portant in society. Courts have, therefore, been ahvays ready to correct 
 abuses by these ofiicers of the law, and anxious to render them fit minis- 
 ters in the temple of justice, instead of being the " fomenters and conduc- 
 tors of the petty war of village vexation." 
 
 The prevalence of the same spirit, together with a jealousy of all trans- 
 actions where one of the parties may be presumed to have an influence 
 over another, has induced courts of equity to be very scrutinizing in the 
 examination of contracts between attorneys and their clients. Transactions 
 which between others vvould not be disturbed, may be overturned when they 
 have taken place between parties standing at the time in that relation to 
 each other ; though when it has completely ceased, no objection will then 
 exist to the manifestation of liberality to his attorney by a client. 2 Vez. 
 jr. 201. 4 Br. P. C. 2o, 245. IS Vez. 127. 2 Vez. 259. 13 Vez. 42. 2 
 Atk. 29S. 
 
 Among the other duties of an attorney, is that of fidelity in keeping the 
 secrets entrusted to him. This, as has been elsewhere intimated, is the 
 privilege of the client, and not of tlie counsel. It is a principle adopted 
 with a view to leave the party in a cause perfectly fearless in those commu- 
 nications to counsel which may be essential to justice and to his defence. 
 Hence an attorney can neither be forced, 'nor will he be permitted to reveal 
 the secrets of his client confided to him in his professional character ; nor 
 to produce his papers ; (6 Vez. 280. 18 Vez. 484. 15 Vez. 408. 1 Meri- 
 vale, 113. 3 Ibid, 292,) and this obligation of secrecy continues always 
 and extends to consultations with counsel, and to communications to a scri- 
 vener about to prepare a deed for the party, as well as to matters respecting 
 suits in court. 4 IMun. 273, 285. 2 Mun. 122. And although the coun- 
 sel declines the duty on account of the fraudulent designs of the client, he 
 is not at liberty to betray him. 2 Erod. £c Bin. 4. This rule is extended 
 to interpreters between the counsel and client, but no farther. 4 Mun. 
 287. It has been attempted, indeed, in other states, to extend it to the 
 case of a student in a lawyer's office, but the attempt has failed. A like 
 effort was made in New York to excuse a priest from giving evidence of the 
 confession of a party. In one of the inferior tribunals of that state the ef- 
 fort succeeded, but I have not learnt that the principle has received any coun- 
 tenance from the superior courts.! 
 
 The ris^hts of counsel. In Virginia every lawyer hath a right to demand 
 the fee allowed by law for the service performed. For these see 1 R. C. 
 ch. 76, § 14. The penalty of $150 is denounced against those who at any 
 time Ijefore the termination of the suit take more than the legal compensa- 
 tion or fee, and all contracts therefor are declared void. § 14. Another 
 penalty of $60 is denounced against any counsel prosecuting^ an appeal where 
 he was attorney for the plaintifi" in the court below. §7. A penalty of 
 $1500 is also denounced against any attorney who appears under a power 
 of attorney to confess judgment, made before action brought. 
 
 _*I_f an attorney purcliiiscs the sulycct of controversy for liis own benefit it is champerty. 5 John. 
 t What comraunicalions are not pi ivilegeil. Sec '2 Barn. &. Cics. 745. 9 C. L. R. 233.
 
 CHAP. 
 
 4.] ATTORNEYS AT LAW. 49 
 
 On the other hand, attorneys have many rights secured to them by law. 
 They have a right to a free examination of all the papers of the clerk's of- 
 fice, without fee or reward to the clerk. Though their fees are not collecta- 
 ble by the sheriffs, they may retain them out of moneys which they receive 
 for their client. Doug. 233. 3 Atk.72(). They may withhold their papers 
 until they are paid what is due. 4 T. R. 123. They have a lien also upon 
 the funds or amount of recovery iii transilu : for if an attorney applies to 
 the court, it will prevent the payment over, till his demand is satisfied, and a 
 payment by the sheriff or the party at\er notice, would be in his own wrong, 
 if notice not to pay be previously given by the attorney. Ibid. 1 H. B. 122. 
 6 T. R. 351. The same doctrines prevail in equity ; and the lien of the 
 attorney has preference to the claim of specialty creditors; 3 Atk. 720; 
 for they have only a right to nett proceeds after deducting expenses. Nor 
 will the courts permit the attorney to be defrauded of his lien by collusion 
 between the parties, as by a release by his client to his adversary of the a- 
 mount of his judgment. 2 Vez. 25. 
 
 There is one point on which there is some conflict between the courts. 
 It respects the equitable right of set off. Where A and B have mutual 
 judgments, either may move to set off the judgments against each other. 
 The question then arises whether the attorney's lien sliall have preference 
 to the set off. Thus, if each has judgment against the other for £100, their 
 demands would be exactly balanced. But the counsel of A (who is insol- 
 vent) has a lien for £10. If he gets this allowed, then B v^ill have the ben- 
 efit of a set off of only £90, or in other words will have to pay the £10 to 
 the attorney. In the king's bench and exchequer in England, the attorney's 
 lien seems to have preference. 6 T. R. 456. 4 T. R. 123. In the com- 
 mon pleas (2 H. B. 441. 2Bos.&Pui. 28. 4 Bos. & Pul. 22,) and in the 
 court of chancery it seems otherwise, the latter court never interposing the 
 lien farther than upon the clear balance, which is the result of the equity 
 between the parties. 2 Mad. 435. See 8 John. 355. 6 John. C. 317. 15 
 Vez. 79, 541. Yet observe that where there are costs in equity and at law, 
 due from opposite parties to each other, the court of equity will not set them 
 off to the exclusion of the attorney's lien. 1 Anst. 61. 
 
 A solicitor in chancery ought to carry on the business to a hearing, and if 
 he does not, he loses both lien and right of action. 14 Vez. 272. 8 \ ez. 
 2. On the other hand he maybe discharged, but may retain the papers in 
 his possession till he is paid ; though the party may proceed without them if 
 he can. 13 Vez. 161, 195. 1 Sch. & Lef. 315, 316.* 
 
 If an attorney dies before the business is completed, yet I conceive he is 
 not bound to refund. The engagement as an attorney is the consideration 
 of the fee : the attorney is excused for not performing the contract because 
 he has been prevented by the act of God ; and there can be no apportion- 
 ment in such a case. See what is said in Evans' Pothier, 2 vol. 43. 
 
 * In England it is snifl a physician cannot maintain an action for liis fees. 4 Term Rep. 317. [With 
 us the usage and understanding of tlie country woulii lead, I presume, to a difliMeiit decision. Edi- 
 tor.'] It lias also been held, that no action lies to recover back a fee tiven to a barrister to argue a 
 cause which he did not attend. Peake's R. l'-2i2. Formerly it was considered, that if a counsel dis- 
 closed his client's case or neglected to attend to it, he was liable to be sued. See Vin. Ab. Actions of 
 Assumpsit, P. But in more modern times, it has been considered that no such action is sustaina- 
 ble. Pealte's R. 96. CUitCy. 
 
 VOL. 2—7
 
 50 REMEDIES BY ACTION. [book 3. 
 
 CHAPTER V. 
 
 OF WRONGS A.\D THEIR^IIEMEDIES RESPECTING THE RIGHTS OF PERSONS. 
 
 We come now to consider the " remedies in the public and general 
 courts of common law,* for injuries or private wrongs of any denomination 
 whatsoever. And herein I shall, first, define the several injuries cogniza- 
 ble by the courts of common law, with the respective remedies applicable to 
 each ])articular injury : and shall, secondly, describe the method of pursuing 
 and obtaining these remedies in the several courts. 
 
 " First, then, as to the several injuries cognizable by the courts of com- 
 mon law, with the respective remedies applicable to each particular injury. 
 And, in treating of these, I shall at present confine myself to such wrongs 
 as may be committed in the mutual intercourse between subject and subject ; 
 which the king, as the fountain of justice, is officially bound to redress in 
 the ordinary forms of law ; reserving such injuries or encroachments as may 
 occur between the crown and the subject, to be distinctly considered here- 
 after, as the remedy in such cases is generally of a peculiar and eccentrical 
 nature. 
 
 '•■ Now, since all wrong may be considered as merely a privation of right, 
 the plain natural remedy for every species of wrong is the being put into 
 possession of that right, whereof the party injured is deprived. This may 
 either be efTected by a specific delivery or restoration of the subject-matter 
 in dispute to the legal owner; as when lands or personal chattels are un- 
 justly withheld or invaded : or where that is not a possible, or at least not an 
 adequate remedy, by making the sufferer a pecuniary satisfaction in dama- 
 ges ; as in case of assault, breach of contract, &,c.: to which damages the 
 partv injured has acquired an incomplete or inchoate right, the instant he 
 receives the injury ; though such right be not fully ascertained till they are 
 assessed by the intervention of the law. The instruments whereby this 
 remedy is obtained (which are sometimes considered in the light of the rem- 
 edy itscjf) are a diversity of suits and actions, which are defined by the 
 mirror to be 'the lawfiil demand of one's right :' or, as Bracton and Fleta 
 express it, in the words of Justinian, jus proseqiicndi injudicio quod alicui 
 debctwr. 
 
 " Actions are by us distinguished into three kinds ; a.cUons personal, real, 
 and mixed. 
 
 " Personal actions are such whereby a man claims a debt, or personal 
 duty, or damages in lieu thereof: and, likewise, whereby a man claims a 
 satisfaction in damages for some injury done to his person or property. The 
 former are said to be founded on contracts, the latter upon torts or wrongs: 
 and they are the same which the civil law calls ' actiones in personam, quae 
 adversus cam intenduntnr, qui ex contractu vel delicto obligatus est aliquid 
 dare vtl concedere.' Of the former nature are ail actions upon debt or pro- 
 mises ; of the latter all actions for trespasses, nuisances, assaults, defamato- 
 ry words, and the like. 
 
 " Real actions, (or as they are called in the mirror, /eorfaZ actions,) which 
 concern real ])roperty only, are such whereby the plaintiff, here called the 
 demandant, claims title to have any lands or tenements, rents, commons, or 
 other Iicreditnnionts, in fee-simple, foe-tail, or for term of life. By these 
 actions formerly all disputes concerning real estates were decided; but they 
 are now ])rctty generally laid aside in ])ractice, upon account of the great 
 nicety required in their management, and the inconvenient lenglh of (heir 
 process: a much more expeditious method of trying titles being since in- 
 troduced, by other actions personal and mixed. 
 
 'The rcnicdieB.Tffoi-ded liy courts of equity will he the suhject of enquiry hercaflcr. Tiie subjects 
 of admiralty and m;uiiime jurii-diclion arc invested in the United Stales' Courts by the C. U. S.
 
 CHAP. 5.] REMEDIES BY ACTION. 51 
 
 " Mixed actions are suits partaking of the nature of the other two, where- 
 in some real property is demanded, and also personal damages for a wrong 
 sustained. As for instance an action of waste : which is brought by him 
 who hath the inheritance, in remainder or reversion, against the tenant for 
 life, who hath committed waste therein, to recover not only the land wasted, 
 which would make it merely area/ action ; but also treble damages, in pur- 
 suance of the statute of Gloucester, which is a personal recompense ; and 
 so both, being joined together, denominate it a mixed action. 
 
 '•■ Under these three heads may every species of remedy by suit or action 
 in the courts of common law be comprised. But in order effectually to ap- 
 ply the remedy, it is first necessary to ascertain the complaint. I proceed 
 therefore now to enumerate the several kinds, and to enquire into the res- 
 pective natures of all private wrongs, or civil injuries, which may be offered 
 to the rights of either a man's person or his property ; recounting at the 
 same time the respective remedies, which are furnished by the law for every 
 infraction of right. But I must first beg leave to premise, that all civil in- 
 juries are of two kinds, the one without force or violence, as slander or 
 breach of contract ; the other coupled with force or violence, as batteries 
 or false imprisonment. Which latter species savour something of the crim- 
 nal kind, being always attended with some violation of the peace ; for 
 which in strictness of law a fine ought to be paid to the king, as well as a 
 private satisfaction to the party injured. And this distinction of private 
 wrongs, into injuries iwi^A and without force, Ave shall find to run through all 
 the variety of which we are now to treat. In considering of which, I shall 
 follow the same method that was pursued with regard to the distribution of 
 rights: for as these are nothing else but an infringement or breach of those 
 rights, which we have before laid down and explained, it will follow that this 
 negative system, ofivrongs, must correspond and tally with the former po- 
 sitive system, of rights. As therefore we divided all rights into those of 
 persons, and those of things, so we must make the same general distribu- 
 tion of injuries into such as affect the rights of persons, and such as affect 
 the rights of property. 
 
 "The rights of persons, we may remember, were distributed into absolute 
 and relative : absolute, which were such as appertained and belonged to 
 private men, considered merely as individuals, or single persons ; and rela- 
 tive, which were incident to them as members of society, and connected to 
 each other by various ties and relations. And the absolute rights of each 
 individual were defined to be the right of personal security, the right of 
 personal liberty, and the right of private property, so that the wrongs or in- 
 juries affecting them must consequently be of a correspondent nature. 
 
 I. " As to injuries which affect the personal security of individuals, they 
 are either injuries against their lives, their limbs, their bodies, their health, 
 or their reputations. 
 
 1. " With regard to the first subdivision, or injuries affecting the life of 
 man, they do not fall under our present contemplation : being of the most 
 atrocious species of crimes, the subject of the next book of our commen- 
 taries.* 
 
 2, 3. "The two next species of injuries, affecting the limbs or bodies of 
 individuals, I shall consider in one and the same view. And these may be 
 committed, 1. By threats and menaces of bodily hurt, through fear of 
 which a man's business is interrupted. A menace alone, without a conse- 
 quent inconvenience, makes not the injury : but, to complete the wrong, 
 
 * For injury tn life, in general, cannot be the subject of a civil actio?) ; the civil remedy being mer- 
 geH \n the ofience lo the public. [See ante, master and servant. Editor.] Therefore no ^g''°" ^''' 
 lie for battery of wife or servant, wherebv death ensued. Styles, 317. 1 Lev. 247. "i elv. uJ, JU. I 
 h<L. Ravun. 339.
 
 52 ASSAULT AND BATTERY. [ BOOK 3. 
 
 there must be both of them together. The remedy for this is in pecuniary 
 damafres, to be recovered by action of trespass vi et armis ; this being an 
 inchoate, though not an absolute violence. 2. By assault ; which is an at- 
 tempt or oiTer to beat another, without touching him : as if one lifts up his 
 cane, or his fist, in a threatening manner at another ; or strike at him, but 
 misses him ; this is an assault, insultus, which Finch describes to be •' an 
 unlawful setting upon one's person.' This also is an inchoate violence, 
 amounting considerably higher than bare threats ; and therefore, though 
 no actual suffering is proved, yet the party injured may have redress by ac- 
 tion of trespass vi et armis ; in which he shall recover damages' as a com- 
 pensation for the injury." 
 
 Whether the act does or does not amount to an assault, must generally 
 be collected from the intention. Thus it is no assault or battery to take 
 hold of persons with a view to part them. So abusive words alone cannot 
 constitute an assault, and indeed may sometimes so explain the aggressor's 
 intent, as to prevent an act, prima facie an assault, from amounting to such 
 an injury; as where a man, during assize time, in a threatening posture, 
 half drew his sword from its scabbard, and said, if it were not that it is as- 
 size time, I would run you through the body ; this was held to be no as- 
 sault, the words explaining that the party did not mean any immediate in- 
 jury. 1 Mod. 3. Bnl. N. P. 15. Vin. Ab. Trespass, A. 2. 
 
 3. By battery ; " which is the unlawful beating of another. The least 
 touching of another's person wilfully, or in anger, is a battery ; for the law 
 cannot draw the line between different degrees of violence, and therefore 
 totally prohibits the first and lowest stage of it; every man's person being 
 sacred, and no other having a right to meddle with it, in any the slightest 
 manner. And therefore, upon a similar principle, the Cornelian law de i?i- 
 juriis prohibited pitlsation as well as verberaiion ; distinguishing verberation, 
 which was accompanied with pain, from pulsation, which was attended 
 with none. But battery is, in some cases, justifiable or lawful : as where 
 one who hath authority, as a parent, or master, gives moderate correction 
 to his child, his scholar, or his apprentice. So also on the principle of 
 self-defence : for if one strikes me first, or even only assaults me, I may 
 strike in my own defence; and, if sued for it, may plead son assault de- 
 mesne, or that it v.'as the plaintiff's own original assault that occasioned it. 
 In like manner, a man mny justify an assault or battery in defence of his 
 wife, child, or servant, and they may justify the like act in his defence. But 
 the assault and battery justified must not be in revenge or retaliation for an 
 injury already done, but in prevention only of what is anticipated. See 1 
 Selw. 25. 
 
 " So likewise in defence of my goods or possession, if a man endeavors 
 to deprive me of them, I may justify laying hands upon him to prevent 
 him ; and in case he persists with violence, I may proceed to beat him 
 away." If A enter the close of B unlawfully, B may lay his hands en him 
 to put him out, but he must first request him to go out; Salk Gil ; and 
 even then he should not strike, but lay his hands on him only to put him 
 out. o T. R. 7G. If A then resists forcibly, B may oppose force to force, 
 and any degree of violence which self-defence then renders necessary, will 
 be justifiable. If A's entry is forcible, as by breaking open a gale or door, 
 a request is unnecessary, for acts of violence do not always admit of par- 
 leying. 11 C. L. R. 297. Nor is a request necessary in the case of per- 
 sonal property before the exercise of ti;e right of delence. If the defen- 
 dant pleads mollitur manus, whereas in truth he used excessive and unne- 
 cessary violence, ihe plaintiff may set that out in his replication by way of new 
 assignment. 3 T. R. per Kenyon. And where the declaration charged a 
 striking with repeated blows, and knocking plaintiff dov/n, a mere plea of
 
 CHAP. 5.] ASSAULT AND BATTERY. 53 
 
 mollitur manus was not considered sufficient. So where an injury was done 
 to plaintiff by defendant's throwing down a ladder which the plaintiff v/as 
 on, a plea that he was in the act of trespassing on defendant, and that the 
 defendant gently shook the ladder, and gently overturned it and threw the 
 plaintiff down, doing as little damage as possible, was held no justification 
 of the excessive violence charged. That should have been traversed. 8 
 T. R. 299, 300. 
 
 " In the ercercise of an office, also, (as that of a church warden,) a man 
 may lay his hands on another and turn him out of the church, to prevent 
 his disturbing the congregation. And if sued for this or the like battery, 
 he may set forth the whole case, and plead that he laid hands upon him 
 gently, moUitur manus imposuit, for this purpose." 
 
 So officers of the law or of the army may justify arrests, imprisonments, 
 and bodily punishment, under the orders of competent authority. Bui. N. 
 P. 19. In like manner the noted John Anderson, who was takg n in cus- 
 tody by the sergeant at arms of the house of representatives, having sued 
 for the trespass and imprisonment, the officer was held justified by the or- 
 der of the house. The case is reported by Wheaton. See also 14 E. 1. 
 
 In these cases, however, the officer who makes the arrest cannot justify 
 violence unless it is rendered necessary by resistance. See 1 Saund. 296. 
 1 Selw. 29. 
 
 A mariner may be corrected with moderation by the captain for refusing 
 to do duty. 1 Peters's Adm. Cases, 172. 
 
 " On account of these causes of justification, battery is defined to be the 
 unlawful beating of another; for which the remedy is, as for assault, by ac- 
 tion of trespass vi et armis ; wherein the jury will give adequate damages. "^ 
 
 Whether the act is wilful or not, if an injury is done, and the party from 
 whom it proceeds was in the commission of an unlawful or imprudent ac- 
 tion, or one calculated to produce mischief; or was even careless in the 
 performance of some lawful act, so that it produced injury to another, he 
 is liable. Str. 596. 2 H. & M. 423. This last was the case of a person 
 who was uncocking a gun, v/hich went off and wounded another. The 
 wounded man was considered entitled to his action. Nor is it material 
 what is the degree of violence with which the act is done. 3 E. 602. Nor 
 whether the plaintiff assented to it or not, if it was unlawful : as if two 
 men fight by consent, this consent is no bar to the action ; 1 Esp. 313; 
 though it generally makes the damages nominal, unless the defendant has 
 acted unfairly. The injury, however, must be immediate, and not conse- 
 quential : 2 H. &, M. 423. 3 E. 601 : for if consequential, an action on 
 the case is the proper action. Where, however, A threw a squib, which 
 falling near B he threw it away lest it should hurt him, and it struck C in 
 the eye and put it out, this action was held maintainable against A. So 
 where A pushes a drunken man against B, and hurts B, it is a battery. The 
 nice distinctions on this subject may be seen in the case of Scott vs. Shep- 
 herd. 2 Bl. R. 892. 3 Wils. 403. See 1 Sel. 359. It is however clear, 
 that if A commands B to beat C, A is a trespasser as well as B, for in tres- 
 passes all who are at all guilty are principals. 
 
 Every battery includes an assault, but every assault, as we here see, does 
 not imply a battery. And yet if a man in his declaration alleges both an 
 assault and batterv, he will recover, thounh he proves the assault only. 4 
 Mod. 405. 
 
 4. "By Kcuncllng ; which consists in giving another some dangerous 
 hurt, and is only an aggravated species of battery. 5. By mcyhevi ; which 
 is an injury still more atrocious, and consists in violently depriving another 
 of the use of a member proper for his defence in fight. This is a battery, 
 attended with this aggravating circumstance, that thereby the party injured
 
 54 ASSAULT AP^D BATTERY. [ book S. 
 
 is forever disabled from making so good a defence against future external 
 injuries, as he otherwise might have done. Among these defensive mem- 
 bers are reckoned not only arms and legs, but a finger, an eye, and a fore- 
 tooth, and also some others. But the loss of one of the jaw-teeth, the ear, 
 or the nose, is no mayhem at common law : as they can be of no use in 
 fighting. The same remedial action of trespass vi et armis lies also to re- 
 cover damages for this injury, an injury which (when wilful) no motive can 
 justify, but necessary self-preservation. 
 
 One remarkable property is peculiar to the action for a mayhem, viz. that 
 the court in which the action is brought have a discretionary power to in- 
 crease the damages, if they think the jury at the trial have not been suffi- 
 ciently liberal to the plaintiff; but this must be done super visum vuheris, 
 and upon proof that it is the same wound, concerning which evidence was 
 given to the jury. 1 Wils. 5. Barnes, 106, 153. 3 Salkeld, 115. 1 
 Ld. Rayoi, 176, 339. I have never known this practice pursued in Virgi- 
 nia, By the act, 1 R. C. ch. 15G, § 2, persons convicted of certain descrip- 
 tions of mayhem, are sentenced among other things to pay a fine of $1000 
 to the party grieved, besides being liable to his action. "And here I must 
 observe, that for these four last injuries, assault, battery, wounding, and may- 
 hem, an indictment may be brought as well as an action ; and frequently both 
 are accordingly prosecuted ; the one at the suit of the crown for the crime 
 .against the public ; the other at the suit of the party injured, to make him 
 a reparation in damages," for the public prosecution is no bar to the action 
 for damages; 1 Bos. & P. 191 ; though it is said it will mitigate damages 
 in the civil action. Chitty. The converse, I think, has been usually held 
 with us: — that recovery of damages in the civil action will mitigate the 
 fine. 
 
 Here I shall offer to the student a few remarks on tlie pleadings and evi-» 
 dence. 
 
 1. Of the declaration. The declaration should state the offence as a 
 single and complete act, and not with a continuando, that is, " at divers 
 days continually from day to day," for each assault and battery is a distinct 
 act. Cow. 8"28. G E. 395. If the plaintiff sues for more than one as- 
 sault, he may have several counts in his declaration. If he has but one 
 count and there are several assaults, he may go for which he pleases, but 
 after he has made his election, he can give no evidence of the other. 1 
 Camp. 47*2. If there were several assaults, and the defendant justifies one, 
 the plaintiff may in his replication make a new assignment of the other. 1 
 Selw. 32. The day on which the trespass is laid is generally immaterial 
 where the defendant pleads not guilty, and though a wrong day be set 
 forth, the plaintiff may recover on proof of another day. provided it be be- 
 fore suit brought. 1 Saun. 24, n. 1. Sec 3 H. & M. 268. 2 Chitty, 368, 
 n. 1. 
 
 The offence should be charged positively, and not by way of recital, as 
 "ir/iereas the def(3ndant," &c. This is called declaring with a quodcum, 
 which in trc^^pass and assault and battery is vicious. 2Stra. 021. 2 H. 
 & M. 595, 603. 3 M. & M. 127. But the error is now cured after ver- 
 dict, unless the declaration was demurred to. 1 R. C. ch. 128, § 103. 
 The court will, however, at any time, give leave before trial to correct the 
 error, and even after verdict I have known a new trial awarded on payment 
 of costs, in order to enable the party to amend, before the late act cured 
 llie error. 
 
 Where the battery has been done by several, they may be sued separate- 
 ly, or be joined as def(>ndanls. But two persons cannot join in bringing 
 such an action, though the batteries on both may have been simultaneous, 
 that i?, in the same fight, for the injuries are distinct. Husband and wife,
 
 CHAP. 5] ASSAULT AND BATTERY. 55 
 
 however, must join for a battery of the wife ; the husband because he is in- 
 jured in the person of his wife, and must pay the expenses of the action,-^ 
 the wife because if the husband dies before judgment, the right survives to 
 her. 2 Lord Ray. 1208. Hence the declaration states the injury to have 
 been ad damnum ipsorum. So too the husband must be joined in an aciion 
 brought for an assault committed by the wife, and they should join in the 
 plea put in for the wife. 1 Esp. N. P. 318. 
 
 The plaintiff may lay as an aggravation, any matter which would not 
 support a distinct action, but not that which would. Salk. 642. 
 
 2. As to the plea. The general issue is " not guilty;" for this denies 
 tlie charge in toto, and is the proper plea if the party has not committed 
 the injury. There are various special justifications, as has already been 
 shov/n, and there are other defences not yet mentioned, such as t^ie statute 
 of limitations, a former recovery, a recovery with satisfaction against one 
 of several trespassers, for the plaintiff can have but one satisfaction ; 1 
 John. 290. 2 H. 8c M. 355 ; so too a release to all or one of several tres- 
 passers, is a bar to an action against any, notwithstanding any agreement or 
 proviso that it shall only avail the person to whom it was given. 2H. &M. 
 38. In all cases of justification, the defendant must plead the matter of 
 defence specially. Thus he must always plead the defence of son assault 
 demense, and however justifiable he may have been in the battery, he can- 
 not, on the plea of not guilty, give evidence of his justification; for that admits 
 the act which his plea denies. Indeed the plea of justification must admit 
 and confess the act, or it will be liable to demurrer ; and therefore, where 
 a man's horse ran away with him without his default and against his will, 
 and hurt another, this matter was held to be improperly pleaded as a justi- 
 fication, though it would have been good evidence to prove him not guilty ; 
 
 1 Lord Ray. 38; for by alleging it was against his will, he in fact denied 
 the trespass. 
 
 In like manner if the defendant pleads son assault demesne, and the plain- 
 tiff has any justification for the assault alleged by the plea, he must reply 
 that matter specially. Carth. 281. Where, however, the plaintiff denies 
 the assault which the defendant pleads as his justification, he replies that 
 the defendant committed the trespass of his own wrong, and without the 
 cause alleged in the plea. This is called a replication de injuria sua pro- 
 pria absque tali causa. 
 
 The plea should always go to the whole offence, unless where there is a 
 matter of special justification as to part, in which case it may be so plead- 
 ed, but unless the defendant pleads not guilty as to the rest, the plaintiff 
 will have judgment. Thus where the declaration charged assaulting, beat- 
 ing, and wounding, and the defendant as to the assault and battery pleaded 
 that he was a constable and arrested the plaintiff, but said nothing about 
 the wounding, the court gave judgment for the plaintiff. 1 Esp. 318. 
 And a general traverse will not do. 1 Lord Ray. 229. 
 
 By our law the defendant may plead inconsistent pleas, as not guilty and 
 justification. 2 Mun. 101, 104. 4 H. & M. 277. See 4 Mun. 4G6. 5 
 Mun. 1. So he may both demur and plead to the same count in the decla- 
 ration. 
 
 Where there are several defendants, they may join or sever in their pleas. 
 But if they plead jointly, they cannot then set up separate justifications. 
 
 2 Caine'sRep. 108. 
 
 3. As to the evidence. On the part of the plaintiff. A conviction on an 
 indictment is no evidence in a civil suit for the same trespass, for the verdict 
 not being between the same parties, the defendant could not have used it 
 against the j)laintiff, had he been acquitted: the plaintiff, therefore, cannot 
 use it against him, since the rule of evidence is, that it must be mutual. 1
 
 56 ASSAULT AND BATTERY. [ book 3. 
 
 Str. GS. A confession of the indictment, however, is evidence, and con- 
 clusive, for it is said it estops the defendant from pleading not guilty. 2 
 Hawk. 333. 
 
 Though where not guilty is pleaded, the time and place is immaterial ; 
 yet where son assault demesne is pleaded, and the plaintiff replies de injuria 
 sua propria, the plaintiff is not permitted to give evidence of a battery at 
 another time and place : for that would be out of the issue. 
 
 Matter amounting to justification cannot be given in evidence on the 
 plea of not guilty : matter of provocation at the time of the assault may be 
 given in mitigation of damages, and previous threats to increase them. 
 
 4. As to the trial, verdict, judgment, damages, and costs. If there be se- 
 veral defendants, although they sever in their pleas and issues, yet in Eng- 
 land the same jury tries the whole, and assesses damages for all.* And 
 if all the issues are found for the plaintiff, the jury should find joint dama- 
 ges and not several, for each is liable for the whole ; though in criminal 
 prosecutions for an assault and battery, &c., the damages should be several 
 and not joint. 1 Call, 555. If, therefore, in the civil case a judgment be 
 entered for separate damages, it is erroneous. But before judgment the de- 
 fect of the verdict may be cured by the entry of a nolle prosequi against all 
 but one, and taking judgment against him. 1 H. & M. 488. This, how- 
 ever, is not advisable, unless that one be solvent, for the responsibility of 
 the others is thereby lost. See Selw. 33. 6 T. R. 199. The jury, in es- 
 timating their damages, should give what they think the most culpable 
 ought to pay. 4 Esp. Ca. 158. They may, however, find some guilty 
 and others not guilty, and where no part of the plaintift's evidence applies 
 to one, he must have a verdict, and the plaintiii" must go on against the 
 rest. 
 
 When there are various defendants, some of whom only have appeared 
 and pleaded, and the jury find them guilty and assess damages, the plain- 
 tifi' may go on against the others and assess damages against them, and 
 finally take judgment de meliorihus damnis, i. e. for the highest damages as- 
 sessed against any one, entering a nolle prosequi against the rest. Carth. 
 19. 6 T. U. 199. 1 H. & M. 488. In England, it seems, the some jury 
 assesses damages as to all, but with us where some have appeared and 
 pleaded to issue, whilst others have not, it is very usual to try the issues 
 which are made up. If the plaintiff is satisfied with the amount of dama- 
 ges found against them, he niay enter a nolle prosequi as to the others. If 
 he is not, he proceeds against them without taking judgment against the 
 first, tries the issues in succession as they are made up, and finally takes 
 judgment de melioribus damnis. See 1 H. & M. 488. If, however, he takes 
 judgment against the first, lie gives up all future proceedings against the 
 others, except for costs. See 1 H. & M. 497, 498. 
 
 If in an action of assault and battery in the superior courts, the damages 
 assessed do not amount to $lG.6o, the plaintiff recovers no costs. And if 
 in a like action in the county court, he recovers less damages than $6.66, 
 he recovers no costs. 1 R. C. ch. 128, § 20. And when there are several 
 defendants, some of whom are acquitted, they shall recover costs unless the 
 court certifies there was reasonable cause for making them defendants, and 
 shall order otherwise. Ibid. 
 
 4. "Injuries affecting a man's health are where by any unwholesome 
 practices of another, a man sustains any apparent damage in his vigor or 
 constitution. As by selling him bad provisions, or wine, [2 E. 314,] by 
 the exercise of a noisome trade, which infects the air in his neighborhood, 
 [of which we shall speak under the head of nuisances,] or by the neglect 
 or unskilful management of his physician, surgeon, or apothecary. For 
 
 • See Tidd, 591. 592. WiU. Dae. DamagcJ, D.
 
 CHAP. 5.] CASE. $7 
 
 it hath been solemnly resolved, that »ia/a /jraxfs is a great misdemesnor and 
 offence at common law, whether it be for curiosity and experiment, or by 
 neglect; because it breaks the trust which the party had placed in his phy- 
 sician, and tends to the patient's destruction. Thus, also, in the civil law, 
 neglect or want of skill in physicians or surgeons, ' culpae adnumerantur, 
 veititi si medlcus curationem derdiquerit, male quempiam secuerit, aut perpe- 
 ram ei medicamentum dederit.' These are wrongs or injuries unaccom- 
 panied by force, for which there is a remedy in damages by a special action 
 of trespass upon the case." [See 1 Saun. 312, n. 2. 1 Lord Ray. 213. 
 8E. 348. 2Wils.359.] 
 
 In England, it seems, a distinction is taken between surgeons and physi- 
 cians, the profession of the latter being deemed honorary, and its professors 
 neither liable to action nor entitled to recover fees. Peake's C. N. P. 9G, 
 123. 4 T. R. 317. With us, I should think the general usage and under- 
 standing of the country would place physicians in both respects on the foot- 
 inor of surgeons. 
 
 " The action of trespass, or transgression, on the case, is an universal re- 
 medy, given for all personal wrongs and injuries without force ; so called 
 because the plaintiff's whole case or cause of complaint is set forth at length 
 in the original writ. For though in general there are methods prescribed, 
 and forms of action previously settled, for redressing those wrongs, which 
 most usually occur, and in which the very act itself is immediately 
 prejudicial or injurious to the plaintiff's person or property, as battery, non- 
 payment of debts, detaining one's goods, or the like ; yet where any spe- 
 cial consequential damage arises, which could not be foreseen and provided 
 for in the ordinary course of justice, the party injured is allowed, both by 
 common law and the statute of Westm. 2, ch. 24, to bring a special action 
 on his own case, by a writ formed according to the peculiar circumstan- 
 ces of his own particular grievance. For wherever the common law gives 
 a right or prohibits an injury, it also gives a remedy by action : and, there- 
 fore, wherever a new injury is done, a new method of remedy must be pur- 
 sued. And it is a settled distinction, that where an act is done which is ire 
 itself an itiimediate injury to another's person or property, there the remedy 
 is usually by an action of trespass vi et armis ; but where there is no act 
 done, but only a culpable omission ; or where the act is not immediately 
 injurious, but only by consequence and collaterally ; there no action of tres- 
 pass vi et armis will lie, but an action on the special case, for the damages 
 consequent on such omission or act." 
 
 There are few subjects which have given rise to more discussion than the 
 question, whether for certain wrongs, an action of trespass vi et armis, or 
 an action of trespass on the case, is the proper remedy. It is admitted on 
 all hands, that for any direct and immediate injury, occasioned by the act of 
 the defendant at the time the injury is sustained, the prosecution is trespass, 
 and that case only lies where the injury is consequential. But what is di- 
 rect and immediate, or only consequential, is often the matter of dispute. 
 The subject is usually illustrated by the following case. If a log be impro- 
 perly thrown into the highway, and in the act of falling it hit the plaintiff, 
 the injury is immediate, and the proper action trespass. But if after it has 
 been thrown there he had tumbled over it and was hurt, the injury is con- 
 sequential, and the proper remedy is case. This matter was much discuss- 
 ed in Scott vs. Shepherd, (2 Bl. Rep. 892,) where the defendant threw a 
 lighted squib, which falling near A, he in self-defence caught it up and threw 
 it from him, and it struck and injured B. It was in this case decided that 
 trespass was the proper action. Judge Blackstone himself dissenting. The 
 true criterion seems to be, however, whether the injury received is by a 
 force impressed bv the defendant. If it be the result of the original fores' 
 ■ Vol. 2— 8
 
 58 SLANDER. [ BOOK 3. 
 
 applied by him, trespass lies, and it is iinmaterial wiiether the injury be 
 willul or not, if the act be unlawful, or if a lawful act is done without d-ue 
 care. 3 E. 599. Thus if a man in the night drives his carriage so negli- 
 gently that he runs against another, though he did not intend it, trespass 
 lies ; but if he had placed it in the road, and the plaintiff was injured by 
 running against it, case would be the proper form of action. See 1 Selw. 357, 
 fvc. 3 Bur. 1556. 5 T. R. 619. 1 B. &. P. 47-2. 2 N. R. 117. 8 T. 
 R. 188. See also 2 H. &, M. 423, where this subject is examined- much 
 at large. 
 
 5. "Lastly, injuries affecting a man's reputation or good name are, first,: 
 by malicious, scandalous, and slanderous words, tending to his damage and 
 derogation. As if a man maliciously and falsely utter any slander or false 
 tale of another ; which may either endanger him in law, by impeaching, 
 him of some heinous crime, as to say that a man hath poisoned another, 
 or is perjured ; or which may exclude him from society, as to charge him 
 with having an infectious disease; or which may impair or hurt his trade 
 or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a 
 lawyer a knave. Words spoken in derogation of a peer, a judge, or other 
 great officer of the realm, which are called scandalum magnatum, are held- 
 to be still more heinous," in England, and give rice to a peculiar action 
 which seems to have arisen from two ancient statutes not in force with us; 
 so that I presume this offence is not recognized by our laws. Yet words 
 tending to scandalize a magistrate or person in public trust, " are reputed 
 more liighly injurious than when spoken of a private man. [Lord Kay. 
 1369.] It is said, that formerly no actions were brought for words, unless 
 the slander was such as (if true) would endanger the life of the object of it. 
 But too great encouragement being given by this lenity to false and mali- 
 cious slanderers, it is now held that for scandalous words of the several 
 species before mentioned, (that may endanger a man by subjecting him to 
 the penalties of the law, may exclude him from society, may impair his trade, 
 or may affect a peer of the realm, a magistrate, or one in public trust,) an ac- 
 tion on the case may be had, without proving any particular damage to 
 have happened, but merely upon the probability that it might happen. But 
 with regard to words that do not thus apparently, and upon the face of 
 them import such defamation as will of course be injurious, it is necessary 
 that the plaintilf should aver some particular damage to have happened; 
 which is called laying his action with a per a,uod. As if I say that such a 
 clergyman is a bastard, he^annotfor this bring any action against me, un- 
 less he can shew some special loss by it ; in which case he may bring hia 
 action against me, for saying he was a bastard, per quod he lost the presen- 
 tation to such a living. In like manner, to slander another's man title, by 
 spreading such injurious reports, as, if true, would deprive him of his estate, 
 (as to call the issue in tail, or one who hath land by descent, a bastard,) is 
 actionable, provided any special damage accrues to the proprietor thereby; 
 as if he loses an opportunity of selling the laud. But mere scurrility, or 
 opprobious words, which neither in themselves import, nor are in fact at- 
 tended with, any injurious effects, will not support an action. So scandals, 
 which concern matters merely spiritual, as to call a man heretic or adulte- 
 rer, are cognizable only in the ecclesiastical court ; unless any temporal da- 
 mage ensues, which may be a foundation for a per quod. Words of heat 
 and passion, as to call a man a rogue an J rascal, if productive of no ill con- 
 sequence, and fiot of any of the dangerous species before mentioned, 
 are not actionable : neither are words spoken in a friendly manner, as by 
 way of advice, admonition, or concern, without any tincture or circumstance 
 of ill-will : for, in both these cases, (hoy are not inaliciously spoken, which. 
 ii part of the definition of slander."
 
 CHAP. 5.] SLANDER. 59 
 
 The law of Virginia which was framed for the suppression of duellincr, 
 with a view of affording a remedy for ordinary insuhs, provides that " all 
 words which, from their usual construction and common acceptation are 
 considered insults, and lead to violence and breach of the peace, shall be 
 actionable, and the jury are declared to be the sole judges of Irhe damages 
 sustained ; saving, however, to the court, the power of granting a new tri- 
 al." 1 R. C. ch. 157, § 8. This clause of the act has had no good effect, 
 since those for whom it was intended never avail themselves of it, and it has 
 proved highly injurious by multiplying petty and vexatious actions of slander. 
 Before its passage it was often a matter of question whether the words 
 charged in the declaration were actionable or not, and the books are full of 
 cases on the subject.* 
 
 There can only be one defendant in an action of slander, except in the 
 case of a slander by a wife, in which case she and her husband must both 
 be joined. 
 
 The doctrine which formerly prevailed, that words spoken are to be un- 
 derstood in mitiori sensu, has long since been exploded. The rule now is 
 to interpret them as they were understood by the by-standers. 1 Wash. 
 152. 2 Mun. 193. 9 E. 93. The whole of what is said must be taken 
 together, for one part may explain or mitigate the enormity of the other. 
 4 Co. 19. 
 
 Of the declaration. It must contain a direct charge that the words were 
 spoken of the plaintiff by the defendant, a mere recital not being suffi- 
 cient to sustain a verdict. 4 Mun. 261. This may, perhaps, be now cur- 
 ed by the verdict, by an interpolation made in the act of Jeofails at the re- 
 visal of 1819. 1 R. C. ch. 128, § 103. Yet it is still bad upon demurrer. 
 The. student will observe, however, that the declaration in slander usually 
 begins with a recital of the good character of the plaintiff, &.c. And if it 
 then proceeds to a direct averment of the charge, saying " nevertheless the 
 defendant not regarding the premises, spoke, &c. of and concerning the 
 plaintiff, &c." it is good. But if it be only recital throughout, it is defec- 
 tive. It must also clearly appear that the words were spoken of the plain- 
 tiff, and for this purpose the introduction to the charge usually states a col- 
 loquium, or a " conversation of and concerning the plaintiff." If this be 
 not done, or if the words do not, without it, clearly import that they relate 
 to the plaintiff, the declaration is defective. 2 Mun. 143. If they do im- 
 port it, it is not so. 1 Wash. 150. 
 
 The declaration should also set forth the words spoken ; yet after a ver^ 
 diet, a declaration charging certain words, " or words of the like import,^' 
 was held good. 4 Mun. 2G0. And where the words do not of themselves 
 contain a charge of a slanderous nature, without words of reference or ex.- 
 planatory meaning, it may be supplied by proper imiendos. The inueudo, 
 however, can never be permitted to extend the meaning beyond the /air im- 
 port of the words themselves ; nor can it ever make the person certain, 
 where it is uncertain from the words themselves who is meant. As if the 
 slander were, "one of the witnesses in such a suit was perjured," no imi' 
 endo could explain which was meant, unless something farther was said to 
 point out the person intended. 
 
 Where the action is brought for a slander by which the plaintiff has sus- 
 tained a particuar damage, as for loss of preferment, loss of business, loss 
 of marriage or of service, it should be always laid with a p^r quod, — " tchere- 
 byhe lost his business." And in such actions for injury to a person in his 
 trade or business, it is also necessary to set forth the plaintiflF's business, 
 and that the words were spoken " in a conversation concerning the plain- 
 
 * I presutno sucli qnostlon? cnn now scarcely arisR. Vet the ftiulent may consult Mr. Cliilty'siiote 
 to Uiis portion of tli'j Coinmeutarics, v.ijereJie will liud much matter thrown together oi) the subji'Ci.
 
 60 SLANDER. [book 3. 
 
 tiffs trade or business ; Salk. 694 ; though this is dispensed with where the 
 words themselves clearly refer to it. '2 Lev. 6'2. 1 Wash. 150. See 2 
 Saun. 307, a. 1 Saun. 242, n. 3. 1 Lev. 280. 
 
 0/ the plea. The general issue is " not guilty," or a denial of the 
 charge. I3esides this plea, the defendant may plead various justifications, 
 but they must always be pleaded specially, and cannot be given in evidence 
 on the general issue. Thus the defendant may plead that tlie words spo- 
 ken were true, and if he proves it he is absolved from damages. So he 
 may plead that they were spoken by him as counsel or witness in a cause, 
 provided they appear to have been pertinent to the matter in question. So 
 if words are spoken without malice or intention to defame, but confiden- 
 tially and merely from motives of friendship to the person to whom the com- 
 munication is made, they may be justified : as where one, being asked, 
 warned a friend not to trust the plaintiff in the sale of a horse to him, 
 saying his circumstances were failing, and he would soon be a bankrupt ; or 
 where the defendant, in reply to an enquiry as to the character of a servant, 
 spoke disadvantagcously of her. 2 Esp. 502. A defendant moreover may 
 plead that he heard the v/ords from another person, a7id that, at the time of 
 speaking them, he gave up his author. 7 T. R. 17. But both these matters 
 must be alleged, to constitut-c a good plea. See 4 Barn. & Aid. 604, &c. 
 6 Eng. Ca. 535. See, also, 3 Barn. & Cres. 24. 10 C. L. R. 6. 4 Barn. 
 &. Cres. 247. 10 C. L. R. 324. It would seem, also, from the case here 
 cited, that the repetition of the slander must have been without malice, and 
 for some fair and reasonable cause ; and it further appears that it is not a jus- 
 tification that the party heard the slander uttered by counsel on the trial of 
 a cause ; for though justifiable in counsel on grounds of policy,* there is no 
 such reason for permitting another to repeat what the counsel has said. 4 
 Barn. & Cres. 473. 
 
 A plea that the defendant was insane when he spoke the words, it would 
 seem, ought to be supported ; for even after a verdict the defendant had re- 
 lief in equity on that ground. 5 Mun. 466. 
 
 The pleas of the statute of limitations, of a former recovery, of a release, 
 of accord and satisfaction, and aibitramcnt and award, are all good pleas in 
 bar of this action. The act of limitatious, however, it is said, is no plea to 
 
 * On somp nrcasions it If jiislifialile to titter slandpr of anotlier, in olliers it is cxnisalile, provided it 
 be uttered witliout exprci-s inaliee. I'.ac. Al). .Slander, I). 4. ] J{. <So 1'. 527. 8tvles, 4G, 2. Cro. 
 Jac. 90. 1 lioll. Al). Ii7. i2 liiirr. !;09. J Vin. Ab.SlO. Ii is justifiable lor a harrisi*!:- to use s-candHJ- 
 hltvi expressions in siippoi t ol liis client's cause, and pertinent thereto. 1 ftlaule & Sei. 230. Holt 
 L.L. 1 Holt's Rep. 531. 1 Ii.&A.ti32. And no false or scandalous inatlerconlained in nrtieles of 
 the peace exhibited to justices, or any oilier proreedings in a regular court of justice, where the 
 court has jurisdiciion, {i)yer, 285. 4 Co. 14. Holt's L. Ij. 179,) or before the house of commons, {I 
 (Saiind. J:U. 2,3, n, I. J M. & S. 280. 3 'J'aunt. 451),) will be actionable. A pelitiuu or memorial, 
 addressed by a Iradesman to the secrelary at war, complaining of the conduct ol a half-pay oflicer in 
 rot payinij his debts, and slating the fads of liis case b ma fide, is not actionable as a libel. And evi- 
 dence shewing the occasion of the writing, and his belief of ijie facts staled, may lie given under the 
 Ceneral issue. 6 I'J. >fcA. 1)12. 1 Dow. <&, Ily. 252. 'I'lie dcclarauon o( a court marlial, that the 
 charge of the prosecutor was malicious and groundless, and that his conduct in lalsely calumnialinj; 
 the accused was highlv injurious to tlie service, will not s ubjecl the presidciK to an action li>r a libel 
 
 fr.r li-,.,;nn ,tr.l I .'n..„.l ......1. .^»..l» ,.» < !» ...I I r. > I. n :.■ or.r, t^ ..n<> ..(' ........ ll f .. I ..T ll.n r,fl',,, »»..,„^ ... 
 
 grounds 01 dismissal. :j T.iunt. '3jb. Ilicse words, "the Kev. Jolm liobmsou anil !Mr. .lames Ko- 
 hinson, iiiliabilanis of ihi.^ town, not being persons lliaf the proprietors and aiintial subscribers think 
 it proper 10 lussoci.iU! with, are exclude.! ilii.-i room," published by po.>tiiig a paper on whicii they 
 were written, purporting to be a regulation of a particularsociety, were helil not to be a libel. 1 I'rice, 
 11. It is also lawful, vilhout tiiiilice, lo circiiliite a slanderous report of another, which turns out iin- 
 Irue. provided, at (he time of publishing such slander, the narrator gives up the author, and he vary 
 rot from the fust statemcnl, and be ignorant of the falsity. (2 East l{ep. 42(). 3 15. <.V V. I-jO. 7 'I'. 
 K. 17.) The reason assigned in 12 Co. 131, is, ihat if the author had been named, his credit might 
 liave been in so low fsiinialioii, llial ihepaiiy slandered mi?,ht not have sufiV-red Irom the impiitalion; 
 and Lord Ivrnjon adds, " it is jnst.llial, \» lien a pci.soii icpiMl.* any sUiider against another, he should 
 fit the same liiric declare from whom he heaid it, and give ilie very words, in order that the party in- 
 jured may sue the aiuhor of the slaiidnr." 7 T. K. J7. 5 Mast, 463. He miisi ri^peatllio precise 
 words, so asto give (he party a precise remedy .ngainst the autl)or ol tlje slaii ler, aiul it will not be :i
 
 CHAP. 5.] SLANDER. 61 
 
 an action for slander of title. 2 Esp. 519. Nor is it a good pie ain such 
 action that no injury was designed by the defendant. 3 Call, 5G8. 
 
 Of the evidence. It is sufficient if the substance of the words charged 
 in the declaration be proved. Bull. N. P. 5. And though all the words 
 stated in any one count be not proved, it is enough if some actionable 
 words set forth in it are. 2 Bl. R. 790. But a charge that words were 
 spoken of a man behind liis back, has been deemed unsupported by proof 
 of the words having been said to his face : for the latter is not so deliberate 
 or maliciouS; and therefore more excusable. See 4 T. R. 217. So words 
 laid affirmatively are not supported by proof of words spoken interrogative- 
 ly. 8 T. R. 150. 
 
 Where a colloquium is necessary, it must be proved, and the words are 
 charged to be spoken in reference to a person's business, it ought to be 
 proved that he was engaged in that business, unless the words themselves 
 imply it. 8 T. R. -305. 4 T. R. 356. 1 New. Rep. 196, 203. 
 
 Where the plaintiff lays special damage and fails in proof of it, he may 
 yet recover for the words themselves under our act, if the jury thinks them 
 actionable ; otherwise not; for the rule is, that where words are not actionable, 
 and special damage is laid, it must be proved or the plaintiff is non-suited ; 
 but if the words are actionable, he will recover though he does not prove 
 the special damage. 2 Esp. 520. 
 
 After proving the words laid, the plaintiff may, it is said, give evidence of 
 other expressions as a proof of ill will, provided they are not actionable. 2 
 Esp. 520. See, however, Phil, Evidence, [140. J How this rule will now 
 be applied since the act making all words actionable at the discretion of the 
 jury, I am not prepared to say. 
 
 The plaintif!' may give evidence of his own good character to enhance 
 damages. Phil. [145.] 
 
 Evidence for the defendant. The defendant cannot be admitted to prove 
 the plaintifFs general character as a provoking man, or that the plaintiff had 
 slandered him and his family before he slandered the plaintiff. 6 Mun. 
 465. See Phil. [147.] But he may in many cases be allowed to give ev- 
 idence of the plaintiff's general character in reference to the subject of the 
 charge in mitigation of damages ; Phil. [146;] for a person of disparaged 
 fame is not entitled to the same measure of damages as one whose charac- 
 ter is unblemished. 
 
 justifination to repeat the general efTect or pMvport of tlie wordp. 2 East, 426. And it is not lawful 
 to reduce verbal slander into writing, and pnljjish il, unless in confidence and \yithont malice. 2 East 
 R, 4-6. 1 T. R. 40. 3 15. & P. 587. And, therefore, a plea to a declaration for a iibel, that it was 
 copied from another newspaper, setting forth the proprietois of such newspaper, is no justification, 
 as it did not set forth thnt they were the original authors of ilie liljel; 4 B. &. A- 603 ; and, it seems, 
 that if they had been named hy the defendant as such, in his puldication, that would not amount to a 
 justification. Id: A servant cannot maintain an action against his former master (or words spoken 
 or written, giving him a character, even though the master make specific charges of fraud, unless the 
 latter prove the falsehood and malice oi'tlie charges. Bui. N. P. 8. 3 Esp. 201. J Camp. 267. IT. 
 R. 110. 4 Burr. 242.5. 1 Carr. 279. A master is not generally bound to prove the truth ol the cha- 
 racter he gives to a servant, yet if he officiously state any trivial misconduct of the servant to a former 
 master, in order to prevent him giving a second clmracier, and then himself, upon application, give 
 the servant a bad character, the truth of which he is not able to prove, an action is maintainable 
 against him. Id. ibid, and 3 B. &.P.587. and Holt L. L. 201. So a letter written or words spoken 
 to a father in relation to some supposed fault of his children, are excusable. 2 Brown. 151. 2 Burn 
 E. L. 126, 779. 1 Vm. Ab. 540, 60. Or if the words are innocently read, as a story out of history, 
 Qo. .lac. 91, or were spoken in a sense not defamatory, 4 Rep. 12, or confidentially, as a warning 
 against the nial-practices of another. 1 Camp. 267. The repeating or reading a libel out of merri- 
 ment, if malicious, is actionable; 9 Rep. 39 ; but if there be no malice, it is said to be otherwise. 
 Moore, 6-7. 9 Rep. 59. It is not a libel if a party deeply interested in the investigation oi any fact 
 should, as one of the means of investigation, make such a wiitten enquiry after another, as amoimls,'to 
 the imputation of a crime. Even where such enquiry should not appear to be made with a view to- 
 wards a legal proceeding, yet if done buna fide, and with an lionest intention, the law will protect 
 sucli a publication, Delflny w. Jones, 4 Esp. N. P. 191. Holt's L. L. 184; but if the legal object might 
 have l)een obtained by means less injurious, then an action is sustainable. 2 Stark. 297. [See also 
 4 B. &L C. 247.J Chilly. 
 
 If there be judgment by defjiult and a writ of enquiry, the jury may find more than nominal da- 
 mages without any evidence on the part of the plaintiff. 3 Barn. & Crcs. 423. 10 C. L. R. 139.
 
 62 LIBELS. [book 3. 
 
 It has been a matter of contest wliether the defendant can give in evi- 
 dence matters not amounting to actual proof, in order to shew a probable 
 ground of suspicion, and thus mitigate the damages. It is admitted, in- 
 deed, that the truth of the words cannot be given in evidence in mitigation, 
 or in other words, ihat what amounls to a complete justification cannot. 
 13 John. 475. 14 John. Z-^i. Phil. 146. But in Knobell vs. Fuller, it 
 was decided that circumstances of suspicion not amounting to complete 
 justification, miglit be given in evidence in mitigation of damages. Peake's 
 '£v. 287. App. xcii. This doctrine seems, however, to be decidedly con- 
 tradicted in our courts. 5 Muu. 16. 6 Mun. 465. It has therefore be- 
 come, perhaps, dithcult to decide what course is most prudent for a defen- 
 dant who can shew strong grounds of suspicion, yet not amounting to full 
 proof. 
 
 It has been decided, that on the plea of justification of a charge of per- 
 jury \n a court of record, the defendant cannot give paroi evidence of Vi'hat 
 the plaintiflf swore, without producing a copy of the record of the trial to 
 shew that the testimony was material. 3 H. & M. 388. This was before 
 the passage of the duelling act. 1 11. C. ch. 157, § 8. That act, however, 
 has not, 1 presume, changed the law upon the point. 
 
 The verdict, if for the plaintitf, in an action of slander, is for so much in 
 damages as the jury deem a compensation for the injury sustained by him. 
 
 If in the superior court the verdict is for less than $ 16.66, or in the county 
 court for less than $6.66, the plaintiff gets no costs. 1 R. C. ch. 128, § 20. 
 
 CHAPTER VI. 
 
 LIBELS. 
 
 A second way of affecting a man's reputation is by printed or written li- 
 bels, pictures, or signs, and the like. 5 Co. 125. 6 Bac. Libel. Com. Dig. 
 Libel. 1 Saun. 132, n. 2. 2Camp.511. And though the rules in relation 
 to slander apply for the most part also to libels, yet are there several impor- 
 tant distinctions between them. 
 
 1. Verbal slander was not at common law actionable unless it charged 
 an offence or imputed a contagious disorder, or related to the profession or 
 calling of the party, or induced some special damage. But written slan- 
 der or libels have always been actionable when calculated to subject the 
 party to disgrace, or even ridicule or contempt, and thereby to diminish his 
 reputation. 1 B. & P. 331. 2 Wils. 404. 1 T. R. 748. 4 Taun. 355. 
 2 B. & C. 678. 2 E. 430. Hard. 470. 
 
 2. For slander by words there is no remedy but by action on the case ; 
 but " with regard to libels in general, there are, as in many other cases, 
 two remedies; one by indictment, and the other by action. The former 
 for the public offence ; for every libel has a tendency to the breach of the 
 peace, by provoking the person libelled to break it : which offence is the 
 .same (in point of law) whether the matter contained be true or false ; 
 and therefore the defendant, on an indictment for publishing a libel, is not 
 allowed to allege the truth of it by way of justification. But in the reme- 
 dy by action on the case, which is to repair the />ar/7/ in damages for the in- 
 jury done him the defendant may, as for words spoken, justify the truth of 
 the facts,* and shew that the plaintiff has received no injury at all. 
 
 * A publication of proroodiiics liefore a manislrnle which v/cre inoffi('ir»l is nOl jiislified by proof of 
 the correctnt'usof (he siaKMiH-nl ol liicnc pioi^oiMhncs, if (he faclH tliPicin .slated be iiol pcoved and 
 be Khindci'oiisiii ihcir chaiacicr. I{ I'ain. &, Crcs. :'.\. 'I'lieic are many rases id wliieli it isiiscfiil to 
 Che ptibhe and tiieiclorc law lid to pi.bhsii what opriirs in a court of jusiicc. I5ut it ipiiot jiiftKialde to 
 pubiisii iIjc speeches oi couiistl coniaiuiug f ;vcre siriclurcs without the evidence jjiveu in liiecause. 
 /'Jem.
 
 CHAP. 6.J MALICIOUS PROSECUTION. 63 
 
 3. The clause of the statute of limitations wliich limits actions of slander- 
 to one year, does not apply to an action for a libel, which may be brought, 
 therefore, within five years after the publication of the libel. Chitty's note» 
 See 2 Saun. 63, b. 
 
 The original composition of a libel is actionable, but not the transcribing 
 without publication. So without having been the author or original writer, 
 to publish it by printing, or handing over to others, or even by repeating or 
 singing it, are held to be actionable, for they amount to pul)lication. Wri- 
 ting a libellous letter to the person libelled is a publication, and actionable. 
 
 Proof of the sale of a libel in a shop, is sufiicient to convict the owner 
 of the shop of publication. 5 Bur. SGST. 
 
 " What was said with regards to words spoken, will also hold mainly with 
 regard to libels by writing or printing, and the civil actions consequent 
 thereupon : but as to signs or pictures, it seems necessary always to shew, 
 by proper inuendos and averments of the defendant's meaning, the import 
 and application of the scandal, otherwise it cannot appear that such libel 
 by picture was understood to be levelled at the plaintiff, or that it was at- 
 tended with any actionable consequences. 
 
 " A third way of destroying or injuring a man's reputation is by prefer- 
 ring malicious indictments or prosecutions against him ; which, under the 
 mask of justice and public spirit, are sometimes made the engines of pri- 
 vate spite and enmity. For this, however, the law has given a very adequate 
 remedy in damages, either by an action of conspiracy, which cannot be 
 brought but against two at the least ; or which is the more usual way, by a 
 special action on the case for a false and malicious prosecution." 
 
 There are various distinctions on this subject to which it is necessary to 
 advert. 1. An indictment for a conspiracy, lies, though nothing hath been- 
 put in execution. An action for a conspiracy only lies where the party has 
 been actually proceeded against, and legiiimo modo acquietatus, that is, hy 
 verdict. 1 Saund. 230. 2T. 11.231. Again, an action for a conspiracy- 
 can only be maintained against several, whereas an action on the case in 
 the nature of a conspiracy may be brought against one person only, or if 
 brought against several, and only one is proved guilty, the plaintiff may 
 have judgment against him. 1 Saun. 230, a. So an action for a conspira- 
 cy lies only where the conspiracy was to indict the party of treason or fe- 
 lony, but an action on the case in the nature of a conspiracy will lie for ma- 
 liciously suing the plaintiff, and maliciously holding him to bail. 1 Saun. 
 228, 229. And though the words "per conspirationem per eos habitam" 
 be used in the declaration, it is not necessarily an action of conspiracy, but 
 may be merely an action on the case in the nature of a conspiracy. 1 
 Saun. 230. 
 
 Ah action for a malicious prosecution, which is the most usual, partakes 
 of the character of an action on the case in the nature of a conspiracy.* 
 It does not lie, indeed, against a plaintiff who brings a civil suit, though he 
 proves to have no sufficient ground of action, because every person oughtto 
 be permitted to assert his claims in a court of justice, and if he fails in them, 
 the responsibility for costs is a sufficient punishment. See 1 B. & P. 205. 
 But when he maliciously sues, and has no probable ground of action what- 
 ever; 3 Call, 451. 4 Barn. & Cres. 21. 3 Barn. & Cres. 139; or sues for 
 a greater sum than is due, and holds the party to excessive bail, he is lia- 
 ble to the action of the party grieved ; 2 Esp. 524. 1 Saun. 228; but in 
 this case, it would seem that excessive bail being required is essential to 
 create the right of action. Ibid. So though a debt be really due to A, yet 
 if B without authority maliciously sues out a writ against C, the debtor, he 
 
 * In this action four things must concur ; falsehood in the charge, want of probable cause, malice, 
 aa.l damage to the plaintiflf. GilU. L. &. E. 135. 12 Mod, SOS, 1 T. K. 493.
 
 64 MALICIOUS PROSECUTION. BOOK 3.] 
 
 is liable to an action. In these cases, however, of actions brought on the 
 ground of a civil suit having been improperly brought, some damage to the 
 party ought to appear, and the former suit should be determined. 2 Esp. 
 627. "2 T. R. 2:32. 
 
 The usual action for malicious prosecution, is for maliciously preferring 
 indictments, presentments, or informations against any one, whether they 
 are of a nature to injure his fame, to jeopardize his life, or put him to ex- 
 pense in defending himself or his wife. 2 Str. 977. 2 Esp. 520. Here, 
 although it must appear that the prosecution is at an end, and that the de- 
 fendant is discharged, yet it is immaterial whether it be by verdict of the 
 jury, (2 Str. 1G9J,) by defect in the indictment, (4 T. R. 218. 5 B. & A. 
 634,) or by the grand jury not finding the bill of indictment. 2 Term 
 Rep. 232. 
 
 In all cases, however, malice and want of probable cause must be prov- 
 ed. Both must concur. 4 Bur. 1974. 1 T. R. 5 14. 3 Call, 451. The 
 proof, indeed, that there was no probable cause, is of itself sufficient to 
 justify the implying of malice. But however decisive the proof of malice, 
 it cannot thence be inferred that there was no probable cause.* The want 
 of probable cause must therefore appear. What is probable cause has al- 
 ways in England been decided by the court, and not left to the jury. I T. 
 R. 520. It is there said to be a mixed question, indeed, of law and fact ; 
 but that the question, whether supposing the facts to be true, they amount 
 to probable cause, is a question of law. 1 T. R. 520, 534. 2 Bar. & C. 693. 
 1 Gow. 20. It is uncertain how far these decisions are altered by the case 
 of Crabtrce vs. Hester. 4 Mun. 59. I incline to think that it is not intend- 
 ed by that case to deny the right of the court to pronounce whether cer- 
 tain facts, if satisfactorily proved, amount to probable cause, but the deci- 
 sion of the inferior tribunal was reversed because it had taken upon it to 
 decide what weight should have been given to the evidence, which matter 
 belongs to the jury. 
 
 The action for malicious prosecution is the proper action for illegally su- 
 ing out an attachment. 6 Mun. 1 18. And the declaration should aver both 
 malice and want of probable cause. Gilm. 9. It lies also for maliciously 
 obtaining or executing a search warrant for stolen or smuggled goods. 1 
 T. R. 535. But it seems that it does not lie for a prosecution before a na- 
 val (or military) court martial, by a superior against an inferior officer, for an 
 offence cognizable by it. See 1 T. 11. 550, where the reasons for this opi- 
 nion are given at large. The judgment in this case was affirmed in the 
 house of lords. 1 T, R. 784. 
 
 0/ the pleadings. As to the declaration. It should appear from the 
 declaration that the prosecution is at an end. 2 T. R. 225. And it should 
 aver that it was instituted w'ahi)Ut probable cause. Neither the words "just 
 cause," or "justifiable cause," are e(iuivalent, and still less the allegation 
 that the prosecution was false and malicious. 3 Call, 3, 446. 2 Mun. 10. 
 But both these defects are now cured by a verdict. See 1 R. C. ch. 128, 
 § 103. 
 
 0/ the plea. It is said that the defendant's plea should show what 
 grounds of suspicion he had. 2 Esp. 533. But according to the practice, 
 as I have known it, this is always given in evidence on the general issue of 
 not guilty ; for the evidence of probable cause goes clearly to show that the 
 defcMidatit is not guilty. 
 
 Of the evidence. In order to maintain his action, the plaintiff must first 
 prove a prosecution and acquittal or discharge. 1 Bl. R. 385. This can 
 only be done by a copy of the record of the court before which the trial took 
 place. In case of misdemeanor the plaintiff is entitled to demand a copy 
 as matter of right ; Ph. Ev. 321 ; (it is said indeed he need not produce it*
 
 CHAP. 5.] ' MALICIOUS PROSECUTION. 05 
 
 Chitty's note :) but in cases of felony this is not so. It can only legally ht 
 had by application to the court, and it is usual in England, as Mr. Black- 
 stone says, to refuse it in cases of felony. Yet where the plaintiff obtains 
 it and produces it, it is good evidence, though it has been furnished by the 
 clerk without an order of the court: for such order is not necessary to make 
 it evidence. 2Str. 1122. 14 E. 305. Hence in Virginia the question ne- 
 ver arises, as the record is readily obtained from the clerk. The name of 
 the defendant being endorsed as prosecutor is sufficient evidence to prove 
 him such. 2 Esp. 535. The record of a foreign court is not indispensa- 
 bly necessary to prove a prosecution there. 3 Call, 4-16. 
 
 The burden of proof lies on the plaintiff. It is not sufficient for him to 
 show a prosecution and acquittal ; he must show that there was malice by 
 express evidence, or by proving want of probable cause : 1 T. R. 455, 518. 
 9 E. 361. 1 Camp. 202 : to which end he may give in evidence what was 
 proved on the trial of the indictment. 2 Esp. 535. It is not sufficient to 
 show that the plaintiff was acquitted, the prosecutor not appearing. 9 
 E. 361. 
 
 Failing to countermand a writ after the debt was paid, in consequence of 
 which the party was arrested, has been held not sufficient evidence of ma- 
 lice. 1 Bos. & P. 388. 2 Id. 129, sed qusere.* 
 
 If the declaration alleges that the plaintiff was lawfully acquitted, it is 
 not supported by proof of ci nolle prosequi; for that is no final acquittal/ 
 Yet where there is only a nolle prosequi, the action may be maintained, if 
 the declaration states the fact correctly. 
 
 Defendant's evidence. He may offer as evidence of probable cause, what 
 was sworn by himself or his wife at the trial. He may also prove what oth- 
 ers swore. If the plaintiff give evidence of malice, the defendant must 
 then show probable cause. Erroneous advice of counsel is no excuse for" 
 him.t 5 Taun. 277. 2 B. & C. 693. Or if the plaintiff give evidence of 
 want of probable cause, the defendant must then show it. If he wishes the 
 court to pronounce whether there was probable cause or not, he should 
 bring the matter before it by case agreed, or by moving the court to instruct- 
 the jury that if the evidence introduced establishes to their satisfaction such 
 and fmch facts, these facts will amount to probable cause. This I under- 
 stand to be consistent with 4 Mun. 59, 462. 
 
 A magistrate's committing a person accused for felony, or binding him in' 
 recognizance to answer the charge, is sufficient evidence, if it stands alone, 
 of probable cause, although the plaintiff was afterwards acquitted, and so- 
 is a conviction by an inferior court, though reversed. 1 Cam. 202. 9 E. 36L 
 But he may offer proof to countervail the inference from this fact. 4 Mun. 
 462. 
 
 The ?jerf?zcf of the jury, if for the plaintiff, is for so much in damages, and 
 damage to the person by imprisonment, to his reputation by tlie scandal, 
 or to his purse by his expenses, must appear. 5 Taun, 187. 1 Marsh. 12, 
 9 E. -361. Hence it is said by Mr. Chitty, that since the statute, 4 Ja. I. c. 
 3, which gives costs to a defendant in all actions in case of a nonsuit or 
 verdict against the plaintiff, and other statutes giving costs to defendant m 
 other stages of the cause, it seems that no action can be supported merely 
 in respect of a civil suit maliciously instituted, except in some cases under 
 particular legislative provisions, 1 Salk. 14, and therefore no action is sus- 
 tainable for a vexatious ejectment. 1 B. &, P. 205. To these remarks, 
 
 * See 4 Barn. & Cr. 2G. Tlie plainliiT is bound to accept from a defendant, in execution, the del)t 
 and costri when tendered, and to order his discliarge. Tlie refusal to discharge is prima facie evi- 
 dence of malice. 
 
 _ t It has been decided in a late case lo be a good defence, that the defendant, in arresting; the plain-, 
 tiff, acted bona fi'de on the advice of counsel, and from a belief tiiat he hml good cause of action. 2- 
 Barn. & Crcs. 693. 
 
 VOL 2—9
 
 66 FALSE IMPRISONMENIP. [ book 3. 
 
 however, the maliciously holding a party to excessive bail is an obvious ex- 
 ception, since the damage to the person by imprisonment in that case is the 
 ground of action. 
 
 II. "We are next to consider the violation of the right of personal liberty. 
 This is effected by the injury of false imprisonment, for which the law has 
 not only decreed a punishment, as a heinous public crime, but has also 
 given a private reparation to the party ; as well by removing the actual con- 
 finement for the present, as, after it is over, by subjecting the wrongdoer to 
 d civil action, on account of the damages sustained by the loss of time and 
 liberty. 
 
 " To constitute the injury of false imprisonment there are two points re- 
 quisite: 1. The detention of the person: and, 2. The unlawfulness of 
 such detention. P^very confinement of the person is an imprisonment, 
 whether it be in a common prison, or in a private house, or in the stocks, or 
 even by forcibly detaining one in the public streets. (See 1 Esp. N. P. 
 Rep. 431.) Unlawful, or false, imprisonment consists in such confine- 
 ment or detention without sufficient authority ; which authority may arise 
 either from some process from the courts of justice, or from some warrant 
 from a legal ofliccr having power to commit, under his hand and seal, and 
 expressing the cause of such commitment ; or from some other special 
 cause warranted, for the necessity of the thing," either by common law, or 
 act of the legislature ; such as the arresting of a felon by a private person 
 without warrant, the seizing and confining a lunatic under the influence of 
 a fit of madness. Sec. 
 
 " False imprisonment, also, may arise by executing a lawful warrant or' 
 process at an unlawful time, as on a Sunday : for the statute hath declared, 
 that such service or process shall be void: [except in cases of treason, fe- 
 lony, or breach of the peace, and cases of escape warrants. Ch. 78, § 19. j 
 This is the injury. Let us next see the remedy : which is of two sorts ; the 
 one removing the injury, the other making satisfaction for it. 
 
 "The means of removing the actual injury of false imprisonment are, by 
 sommon law, four-fold. 1. By writ o{' mainprize. 2 By writ dcodio et alia. 
 3. By writ de homine rcplegiando. 4. By writ of habeas corpus. 
 
 1. " The writ of mainprize, manucaptio, is a writ directed to the sheriff 
 (either generally, when any man is imprisoned for a bailable ofTence, and 
 bail hath been refused ; or specially, when the offence or cause of commit- 
 ment is not proj)erly bailable below,) commanding him to take sureties for 
 the prisoner's appearance, usually called mainpernors, and to set him at large. 
 Mainpernors dilfcr from bail, in that a man's bail may imprison or surren- 
 der him up before the stipulated day of appearance; mainpernors can do 
 neither, but are barely sureties for his appearance at the day : bail are only 
 sureties, that the party be answerable for the special matter for which they 
 stipulate; mainpernors are bound to produce him to answer all charges 
 whatsoever. 
 
 2. "The writ fie odio et alia, [which I presume is obsolete with us,] was 
 anciently used to be directed to the sheriff, commanding him to enquire 
 whether a prisoner charged with murder was committed upon just cause of 
 suspicion, or merely propter odium et aliam, for hatred and ill-will ; and if 
 upon the iiKiuisitiou due cause of suspicion did not appear, then there issued 
 another writ for the sheriff to admit him to bail. 
 
 3. " The writ de homine replegiando, [which is annulled by our law 1 R. 
 C. ch. 1'20, § ].'},] was formerly used, to replevy a man out of prison, or out 
 of the custody of any i)rivate person, (in the same mimner that chattels taken 
 in distress may be replevied, of which in the next chapter,) upon giving se- 
 curity to the sheriff that the man shall be forthcoming to answer any charge 
 against him.*
 
 «HAP. 5.] HABEAS CORPUS. C7 
 
 4. " The writ of habeas corpus, the most celebrated writ in the English 
 law. Of this there are various kinds made use of by the courts at West- 
 minster, for removing prisoners from one court into another for the more 
 easy administration of justice. Such is the habeas corpus ad respondendum, 
 when a man hath a cause of action against one who is confined by the pro- 
 cess of some inferior court; in order to remove the prisoner, and charge 
 him with this new action in the court above. Such is that ad satisfaciendum, 
 when a prisoner hath had judgment against him in an action, and the plain- 
 tiff is desirous to bring him up to some superior court to charge him with 
 process of execution." But in Virginia the jails of the county and superior 
 courts, and their sheriffs being the same, the writs of habeas corpus ad res- 
 pondendum, and ad satisfaciendum, are never used with us. If the person 
 to be sued is already in jail on a writ from an inferior court, a writ may yet 
 issue from the superior court in another case, and being handed to the she- 
 riff becomes instantly executed, and if he were to discharge the defendant, 
 it would be an escape. 
 
 " There are also at common law writs of habeas corpus ad prosequendum 
 iestificandum, deliberandum, S^c. ; which issue when it is necessary to re- 
 move a prisoner, in order to prosecute or bear testimony in any court, or to 
 be tried in the proper jurisdiction wherein the fact was committed." The 
 habeas corpus ad testificandum is necessary where,, by the return on a sub- 
 poena, it appears it can have no effect, as where the witness is on shipboard, 
 or in military service under the command of an officer who refuses to allow 
 his attendance. This writ then issues directed to him. But it is said the 
 witness must be willing to attend, and this seems indeed necessary where 
 he is not a prisoner, for if at large he cannot be brought up as ?i prisoner by 
 this writ, without his consent. Cow. 67*2. Phil. 12, 
 
 In Starkie's Evid. (part 2, 114, in the note,) it is made a quaere whether 
 the officer may require an indemnity against the v/itness's escape, wiiere he 
 is in custody by law process. I presume he may ; for this is but a reasona- 
 ble condition, which the judge may impose on the party praying the writ, 
 and is even required by our law in the great writ of habeas corpus ad subjici- 
 endum. 
 
 In the case of the probate of wills, where the witness is confined by pro- 
 cess, the law has made some special provisions which render this writ un- 
 necessary in such cases. Sess. acts, 1822, ch. 27. 
 
 The application for the writ must be accompanied by an affidavit of the 
 materiality of the witness : Cow. 672. Peake's Evid. 192. 2 Stark. Evid. 
 113 : and will be refused where it appears to be a mere contrivance to re-- 
 move a prisoner in execution. 3 Bur. 1440. 
 
 Another species of habeas corpus known to the common law, is " the 
 common writ ad faciendum et recipiendum, which issues when a person is 
 sued in some inferior jurisdiction, and is desirous to remove the action into 
 the superior court ; commanding the inferior judges to produce the body of 
 the defendant, together with the day and cause of his caption and detain- 
 er, (whence the writ is frequently denominated an habeas corpus cum cau- 
 sa,) to do and receive whatsoever the king's court shall consider in that be- 
 half. This is a writ grantable of common right, without any motion in 
 court, 2 Mod. 306, and it instantly supersedes all proceedings in the court 
 below." ^ ^ V a 
 
 By our statute, 1 R. C. ch. 69,§43, it is provided, that the superior courts 
 of law may issue writs of habeas corpus of this description, and that where 
 any person shall be committed in any civil action to the jail of any county 
 or corporation, for any cause or matter cognizable in the superior courts, 
 the clerk of the superior court of the county wherein such commitment 
 shall be, shall, upon the application of such person, and a certificate of his
 
 68 HABEAS CORPUS. [ BOOK 3. 
 
 £)x her being actually in jail, issue a writ of habeas corpus cum causa, to re- 
 move the body of such prisoner into the circuit court jail, and the cause of 
 his commitment into such court, returnable on the tirst day of the succeed- 
 ing court, if issued in vacation, or on the last of the term, if sued out 
 whilst the court is sitting. 
 
 The habeas corpus ad faciendum et recipiendum, cannot be granted after is- 
 sue or demurrer joined. When removed, the cause is now directed to stand 
 in the superior court in the same situation as it did in the inferior court, so 
 that little delay is now produced by it. Hence, though at one time it was 
 a good deal used for that purpose, we now seldom hear of it. See 1 R. C. 
 ch. 69, § 43, 44. 
 
 " But the great and efficacious writ, in all manner of illegal confinement, 
 is that of habeas corpus ad subjiciendum, [passed in the thirty-first year of 
 Charles II.] directed to the person detaining another, and commanding 
 J^iim to produce the body of the prisoner, with the day and cause of his 
 caption and detention, ad faciendum, subjiciendum, et recipiendum, to do, 
 submit to, and receive whatsoever the judge or court awarding such writ 
 shall consider in that behalf. This is a high prerogative writ, and therefore by 
 the common law issuing out of the court of king's bench not only in term- 
 time, but also during the vacation, by a jiat from the chief justice or any 
 other of the judges, and running into all parts of the king's dominions : for 
 the king is at all times entitled to have an account, why the liberty of any 
 of his subjects is restrained, wherever that restraint may be inflicted. If it 
 issues in vacation, it is usually returnable before the judge himself who 
 awarded it, and he proceeds by himself thereon ; unless the term shall in- 
 tervene, and then it may be returned in court." 
 
 Without detaining the student here with the particular provisions of the 
 English statute, which have been very materially departed from by ours, 
 but recommending to him, earnestly, Mr. Blackstone's remarks upon the 
 subject, together with Mr. Chitty's abstract of the adjudications in England, 
 I shall pass at once to the subject of our own act of assembly, which has 
 rendered this writ, and the proceedings under it, much more definite and 
 efficient than they were formerly. 
 
 By that act, I 11. C. ch. 120, it is enacted, 
 
 Sec. 1. That whenever any person detained in custody, whether charged 
 with a criminal offence or not, shall, by himself, or by some other person in 
 his behalf, apjjly to the general court, or any superior court of law, or su- 
 perior court of cliancery, in this commonwealth, or to any judge thereof, 
 in vacation, for a writ of habeas corpus ad subjiciendum, and shall shew, by 
 affidavit or other evidence, probable cause to believe that he is detained ia 
 custody without lawful authority, it shall be the duty of the court or judge 
 to whom such aj)plication shall be made, forthwith to grant the writ, signed 
 by himself, directed to the person in whose custody the applicant is detain- 
 ed, and returnable, immediately, before such court or judge, or any of the 
 said courts or judges : Provided, That in all cases where it shall appear 
 necessary, the court or judge, granting the writ, shall previously require 
 bond with sufficient security, executed in such manner, and in such reason- 
 able penalty, as such court or judge shall prescribe, conditioned for the 
 payment of such charges as may be awarded against the prisoner, and that 
 he will not escape by the way. Every bond so executed shall be recorded 
 with the other proceedings, as herein-after provided for, and may be sued 
 on, in the name of the person to whom it is made payable, fur the benefit 
 of any person really infercsted therein. 
 
 Sec. 2. Whenever any such writ shall be served on the officer or other 
 person to whom it is directed, or, in his absence from the place where the 
 prisoner \^^nrtncd, oij the perton having the immediate custody of the 
 
 c
 
 £HAP. 5.] HABEAS CORPUS. G5 
 
 prisoner, it shall be the duty of hira on whom the writ shall be so executed, 
 without delay, to bring the body of the prisoner, or cause it to be brought, 
 before the court or judge before whom the writ is .made returnable, or, in 
 case of the absence of such court or judge, before any of them ; and, at 
 the same time, to certify the cause of the detainer of such prisoner. 
 
 Sec. 5. The court or judge before whom the prisoner shall be brought, 
 shall, without delay, proceed to enquire into the cause of his imprisonment, 
 and shall either discharge him, adujit him to bail, or remand him into cus- 
 tody,, as the law and the evidence shall require ; and shall, moreover, either 
 award against the prisoner the charges of his transportation, not exceeding 
 seventeen cents per mile, and the costs of the proceedings, or shall award 
 costs in his favor, or shall award no costs or charges against either party, 
 as shall seem right. The clerk of the court, in the office of which the pro^ 
 ceedings shall be recorded, may issue execution for the costs and charges, 
 so awarded by a judgment rendered in vacation, in the same manner as ii" 
 the judgment had been rendered in term time. 
 
 Here observe, 
 
 1. The English statute allowed the writ to persons " detained for any 
 crime, unless for treason or felony plainly expressed in the warrant of com- 
 niitment, or convict, or in execution by legal process." This act extends 
 
 To all persons in custody whether charged with a criminal offence or not. 
 It makes no exception as to treason, felony, or conviction : yet as the 
 iifth section directs that the court shall enquire into the cause of the impri- 
 sonment, and either discharge the prisoner, admit him to bail, or remand 
 him to custody, the court or judge will, in case the party is convict, remand 
 him ; and if he is in custody on a charge of treason or felony or other of- 
 fence, will either remand him or bail him, according to the circumstances. 
 And as the first section requires probable cause of unlawful detainer, I pre- 
 sume the writ ought not to be awarded where it appears that the party is 
 convicted or charged with an offence not bailable. That the court will not 
 call in question a conviction by a competent jurisdiction, was decided by 
 myself in Fredericksburg, 1825; an opinion, sustained, I think, by princi- 
 ple and authority. See i2 John. C. IDS. 1 East, 306. 5 Dow. 199. 7 
 E. 37(3. 
 
 2. The English statute requires the petition to be attested and subscribed 
 by two witnesses who were present at the delivery. 
 
 Our statute enacts that the prisoner himself, or any person fur him, may 
 make an application by petition in writing, to be supported by affidavit or 
 other evidence ; and the afliJavit of the party himself is in this incipient 
 stage suflicient. 
 
 3. By our law it is provided th^t the petition must shew probable cause 
 to believe that the party is detained in custody without lawful authority. 
 This clause is not in the English statute. And, indeed, by collating the 
 1st and 5th clauses, I apprehend that whatever be the authority, if the war- 
 rent shows clearly no legal ground of imprisonment, or if the case is baila- 
 ble, the prisoner is entitled to sue out his habeas corpus, and will, after a 
 hearing, be discharged or bailed as the case may be ; for his case would, I 
 conceive, be within the meaning of the act, if he were either detained in 
 custody, even by a warrant, if it obviously shewed no criminal charge, or 
 after tendering bail in a bailable case, where the officer could not, or would 
 not, take it. 
 
 Sec, G. The return made to such writ shall not hereafter be taken to be 
 conclusive as to the facts stated therein ; but it shall be competent for the 
 judge or court, before whom such return is made, to receive evidence in 
 contradiction thereof, and to determine the same, as the very truth of the 
 case shall require.
 
 70 FALSE IMPRISONMENT. [ book 3. 
 
 If the return is evasive the party may be attached ; though he usually 
 amends. 5 T. R. 89. See also 1 East, 30G, as to the return upon this 
 writ. It should state distinctly for what cause the party is in custody, and, 
 negatively, " that he is detained for no other cause.'"' 
 
 To ensure obedience to the writ of habeas corpus, it is provided further 
 by the act, that on failure by the person to whom the writ is directed to re- 
 turn the writ, with the cause of detainer, or to bring up the body for three 
 days after service, or (when the prisoner is to be brought more than twenty 
 miles) for so many days more as will be equal to one day for every twenty 
 miles, he shall forfeit to the prisoner $300, and the suit shall not abate by 
 death. Moreover, a judge in vacation is invested with the powers of a 
 court in enforcing obedience ; i. e. by rule, followed up by attachment. 
 Bac. Hab. Cor. B. 8. So he may compel the attendance of witnesses, 
 though (if it be inconvenient to procure the attendance of any witness) his 
 affidavit taken w'ith due notice may be received in evidence. 
 
 "NVhen the proceedings take place in vacation, they are to be certified by 
 the judge to the clerk of his court, and there recorded. The material facts 
 must also be certified if required. The judgment is conclusive, both in 
 favor and against the petitioner, unless there be a writ of error which either 
 party may obtain from the court of appeals. Such appeals are privileged, 
 and the governor may, in certain cases, (see sec. 11,) even convene the 
 court during a recess to try them. 
 
 It is moreover provided, that a citizen imprisoned for any criminal matter, 
 shall not be removed from the custody of one officer to that of another, but 
 by habeas corpus or some other legal writ, except in certain specified cases. 
 IR. C. ch. 1-20, § 14. 
 
 Besides the efficacy of the writ of habeas corpus in liberating the subject 
 from illegal confinement in a public prison, it also extends its influence to 
 remove every unjust restraint of personal freedom in private life, though im- 
 posed by a husband or a father; but when women or infants are brought 
 before the court by an habeas corpus, the court will only set them free from 
 an unmerited or unreasonable confinement, and will not determine the va- 
 lidity of a marriage, or the right to the guardianship, but will leave them at 
 liberty to choose where they will go : and if there be any reason to appre- 
 hend that they will be seized in returning from court, they will be sent 
 home under the protection of an officer. But if a child is too young to 
 have any discretion of its own, then the court will deliver it into the custo- 
 dy of its parent, or the person who appears to be its legal guardian. See 
 3 Bur. 1434, where all the prior cases are considered by Lord Mansfield. 
 In a late case, (Moore &, Fitzgibbon,) the court refused to permit an enqui- 
 ry whether a child born during wedlock was the offspring of the former or 
 the latter, but on a writ of habeas corpus, directed that the child, an infant 
 tinder three years of age, should be restored to the former, who was the 
 liusband of the child's mother. M. T. IS"25, K. B. Christian. 
 
 " The satisfactory remedy for the injury of false imprisonment, is by an 
 action of trespass vi et armis, usually called an action of false imprison- 
 ment; which is generally, and almost unavoidably, accompanied with a 
 charge of assault and battery also: and therein the party shall recover da- 
 mages for the injury he has received ; and also the defendant is, as for all 
 other injuries committed by force, or vi et armis, liable to pay a fine to the 
 king for the violation of the ])ublic peace." 
 
 As most instances of false imprisonment arise not out of wanton vio- 
 lence, but und(?r pretext of the process of courts or authority of law, it is 
 proper to consider when such arrests or detentions are illegal, and when 
 they arc justifiable or excusable.
 
 CriAP. 5.] fALSE IMPRISONMENT. 71 
 
 Where from the nature of the subject the person is not liable to arrests at 
 all, the arrest will subject the plaintiff' who directs it, to the action of false 
 imprisonment: as where bail is required in an action against an executor, 
 not suggesting a devastavit, for no executor whatever is liable to arrest in 
 such a case, and the writ is therefore against law and void. But where 
 the arrest would in general be legal, but the person arrested claims an 
 exemption by reason of some privilege which takes his case out of the 
 general rule, this action does not lie. Such is the case of peers in Eng- 
 land, and witnesses and others in Virginia, who are privileged, for the 
 time being, from arrest. These, though arrested, cannot maintain any ac- 
 tion against the arresting officer, who is bound to execute the writ, nor can 
 they maintain this action even against the plaintiff". 2 Bl. R. 1190. Doug. 
 646. 3 H. & M. 260. If, indeed, the plainti-fF (or perhaps even the offi- 
 cer) knowing of the privilege, wantonly sets it at nought and directs the 
 arrest, he might probably be liable to an action on the case. Doug. 646, 
 &c. But as the writ is not void, it carries with it the authority of the law, 
 and upon general principles cannot, for that reason, work a trespass vi et 
 armis. 3 T. R. 183. It is otherwise where the writ is void, as we shall 
 presently see. 
 
 Where an officer executes process on the wrong person, he is liable in 
 this action ; for a writ against A furnishes no justification for imprisoning 
 B. See 8 E. 3"28.* In like manner, although the law authorizes any pri- 
 vate person to arrest a felon, even without warrant, yet if upon examina- 
 tion the person suspected turns out to be no felon, he who arrests him is li- 
 able to this action. 6 T. R. 315. It is otherwise, however, as to a peace 
 officer, for it is his duty to arrest, and if the circumstances of suspicion 
 are strong, he is justified, though the party may prove to be innocent. 
 Doug. 345. 
 
 In all these cases, however, an actual arrest is necessary; for if the par- 
 ty attend the officer upon the warrant before the justice without an actual 
 arrest, this action does not lie, (2 Bos. & Pul. 211. 1 Esp. Rep. 431. 
 Chitty's note,) though an action on the case may. 
 
 With respect to process. Where process is irregular and void, or where 
 it is irregular though not void, but is afterwards quashed or set aside for ir- 
 regularity, the plaintiff" in the suit is liable to this action ; but the officer is 
 not, for he is not to exercise his judgment as to the validity of process. 3 
 Wils. 345. 1 Str. 509. See 3 H. & M. 260. 
 
 Where a person is arrested by process out of an inferior court having no' 
 jurisdiction of the matter, and that appears on the face of the process, it 
 furnishes no justification to any one, and the plaintiff" and officer are both 
 liable in this action. t And where a court of limited jurisdiction does not 
 pursue the provisions of the law which gives it, the plaintiff" is liable to a 
 party arrested under such irregular proceeding. 
 
 Though the original arrest be lawful, yet may the officer or person ar- 
 resting be liable to this action where he wrongfully continues the imprison- 
 ment.t As when, after the plaintiff" directed the defendant to be released, 
 the sheriff" still held him in custody. I Esp. 333. And in the case of Wall 
 
 * The circumstance of an irnpriFonment being committeH under a mistake constitutes no excuse,- 
 3 Wils 3(;9. And it has ijeen decided, iIuU if A tell an officer who has a warrant against B, that 
 his(A's) name isB, and thereupon the officer arrests A, it is lalse imiirisonnient, JMoore, 457. Hard. 
 3i3; but see 3 Camp. 108 ; and this doctrine was overruled in a late case on the western circuit, on 
 the principle volenti non fit injuria, and that such a fraud upon legal proceedings cannot give a right 
 of action. Chilly- 
 
 t As to justification under an arrest by (he officer of the House of Representativps on a warrant 
 of the Speaker, see the case of Anderson vs. Dunn, in Wlieaton's Reports. See, also, Burdiie vs. 
 Abbott, 14 E. 1. 
 
 \ A plaintiff who upon lender »f the debt and costs refufes to direct the defendant's discharge, isli- 
 abk in case. 4 Barn. & Cres. 26.
 
 f^ CRIM. CON. [ BOOK 3. 
 
 vs. M'Nainaia, cited 1 T. R. 530, it was decided tliat thougli an arrest by 
 a military oiBcer be legal, yet lie may render himself liable in this action if 
 he is guilty of oppression and cruelty. 
 
 No action lies against a judge of a court of record for any act done by 
 him in execution of his office, nor for any mistake of judgment. Salk. 396: 
 Nor arc justices of the peace liable for their judicial acts, unless they pro- 
 ceed in a case coram non judice. C John. Rep. 28. 
 
 Where this action is brought against the plaintiff and the officer jointly, 
 they may sever in their defence, for otherwise the officer will not be able 
 to justify himself by the writ if it be irregular : since an irregular writ is no 
 justification fo the plaintifi", and unless a joint plea is good as to both, it is bad 
 in the whole. 1 Esp. 336. Where the defendant justifies under the au- 
 thority of a court of limited jurisdiction, he must shew that the case was 
 Avithin it, and when he justifies under an authority to imprison, it must ap- 
 pear to have been strictly pursued. The statute of limitations is also a good 
 plea in this action. 
 
 The verdict, if for the plaintiflf in this action, is in damages, and the costs 
 are governed by the same law which applies to actions of assault and 
 battery. 
 
 " Wc are next to contemplate those injuries which affect relative riglits, 
 or such as are incident to persons considered as members of society, and 
 connected to each other by various lies and relations ; and, in particular, 
 such injuries as may be done to persons under the four following relations : 
 husband and wife, parent and child, guardian and ward, master and ser- 
 vant. 
 
 1. "Injuries that may be offered to a person, considered ns ^ husband, 
 are principally three : abduction, or taking away a man's wife ; adulte- 
 ry, or criminal conversation with her ; and beating or otherwise abusing 
 her. I. As to the first sort, abduction, or taking her away, this may either 
 be by fraud and persuasion, or open violence; though the law in both ca- 
 ses supposes force and constraint, the wife having no power to consent ; and 
 therefore gives a remedy by writ of ravishmerit, or action oi trespass vi et ar- 
 mis, de uxore rapta et abducta. This action lay at the common law ; and 
 thereby the husband shall recover, not the possession of his wife, but dam- 
 ages for taking her away. 
 
 2. " Adidlery, or criminal conversation with a man's wife, though it is, as 
 a public crime, left by our laws to the coercion of the spiritual courts ; yet, 
 considered as a civil injury, (and surely there can be no greater,) the law 
 gives a satisfaction to the husband for it by action of trespass vi et amis, 
 against the adulterer, wherein the damages recovered are usually very large 
 and exemplary. But these are properly increased or diminished by cir- 
 cumstances ; as the rank and fortune of the plaintifl' and defendant ; the 
 relation or connexion between them ; the seduction or otherwise of the 
 wife, founded on her previous behaviour and character ; and the husband's 
 obligation by settlement or otherwise to provide for those children, which' 
 he cannot but suspect to be spurious. In this case, and upon indictments 
 for polygamy, a marriage in fact must be proved ; though generally, in 
 other cases, reputation and cohabitation are sufficient evidence of mar- 
 riage." 
 
 The action in tliis case is trespass vi et arinis, and the declaration char- 
 ges an assault upon the wife, &c. See 6 E. 387. Selw. N. P. 18. 2 Wils. 
 85. Bull. N. P. 28. 
 
 The plaintiff, to maintain his case, must prove a marriage in fact, either 
 by the register of marriage, or by some person present at the ceremony. 4 
 Bur. 2057. Bull. 27. To enhance the damages he may give evidence of 
 the domestic happiness existing between himself and wife ; of the defcn-
 
 CHAP. 5.] SEDUCTION. 73 
 
 dant's being his friend, and betraying that friendship; and of the wife's gen- 
 eral good character, &.c. In general the court will not grant a new trial to 
 the defendant on account of excessive damages — in so heinous a light is 
 the offence viewed by the law. Sec 4 T. R. 651. Yet the damages are not to 
 be looked on as a punishment, but merely in the light of compensation for 
 injury. 5 T. R. 360. 
 
 The defendant on his part may plead not guilty, and may give many mat- 
 ters in mitigation ; such as the plaintiff's conniving at his intercourse with 
 the wife, or her criminality with others, or her elopement on a former occa- 
 sion, or her having had a bastard before marriage, or the husband's turning 
 her away, or his neglecting her society and openly living in adultery with 
 other women. Indeed, it has been decided that the husband's permitting 
 his wife to live as a prostitute, does not go in mitigation only, but is a com- 
 plete bar to the action : and so, also, where the parties lived separate and a- 
 part, it was determined that the action did not lie. 5 T. R. 357. For it is 
 said that the ground of this action is the depriving the husband of the soci- 
 ety and comfort of his wife's company, and that this cannot exist where 
 they are parted. This dicision, however, seems to be questioned. 6 
 E. 214. 
 
 On the subject of this action, see Starkie's Ev. 2 vol. 440. Also Chitty's 
 notes on this subject. As to the plea of the statute of limitations and costs 
 in this case, see 5 T. R. 361. 3 Wood. 246. 2 Bur. 753. 
 
 •'The third injury is that of beating a man's wife, or otherwise ill-using 
 her ; for which, if it be a common assualt, battery, or imprisonment, the law 
 gives the usual remedy to recover damages by action of trespass vi et at' 
 mis, which must be brought in the names of the husband and wile jointly : but 
 if the beating or other mal-treatment be very enormous, so that thereby 
 the husband is deprived for any time of the company and assistance of his 
 wife, the law then gives him a separate remedy by an action of trespass, in 
 nature of an action upon the case, for this ill-usage, per quod consortium, 
 amisit ; in which he shall recover a satisfaction in damages. 
 
 II. " Injuries that may be offered to a person considered in the relation 
 of a. parent, were likewise of two kinds : 1. Abduction, ovtpAiing his children 
 away." It has indeed been disputed, but the better opinion is, that the fa- 
 ther has an interest in his legitimate child, sufficient to enable him to sup- 
 port an action in that character, for taking the cliild away ; he being enti- 
 tled to the custody of it. Cro. Eliz. 770. 23 Vin. 451. 2 P. W. 116. 
 3 Co. .38. 5 East, 221. No modern instance, however, of such action 
 can be adduced, and it is now usual for the father to bring his action for 
 any injury done to his child, as for debauching her, or beating him or her, 
 in the character of master, per quod sermtium amisit, in which case some 
 evidence must be adduced of service. 5 T. R. 300, 1. 
 
 The action by a father for the seduction of his daughter, may be either 
 trespass or case. Where there has been an illegal'entry on his premises, 
 (2 T. R. 167,) and the father brings trespass for breaking and entering his 
 house, he may give the seduction in evidence in aggravation. But he can- 
 not maintain an action for seduction of his daughter if she be more than 
 twenty-one years old, unless she lives with him, for the declaration always 
 charges per quod servitium amisit ; yet though she be twenty-one years of 
 age the action lies if she does live with him. See 5 E. 45, 47. And the 
 slightest evidence of service is sufficient. 2T. R. 168. 2 N. R. 476. 6 
 E. 387. HE. 23. And it is unnecessary to prove any contract of service. 
 Peake's Rep. 253. But if the seduction takes place while she is residing 
 elsewhere, and she in consequence returns to her father, he cannot maintain 
 the action, 5 East, 45, unless she be absent with his consent, and with the 
 intention of returning, although she be of age, ib. 47, n.; or if the dcfend- 
 voL. 2—10
 
 74 RETAINING A HIRED SERVANT. [book 3. 
 
 aiil engaged her as his servant, and induced her to live in Iiis house as such, 
 with intent to seduce lier. 2 Stnrkie Rep. 493. If she live in another fam- 
 ily, the person with whom she resides may maintain the action, 11 East, 
 21. 5 East, 45. 2 T. R. 4, and the jury are not limited in their verdict 
 to the mere loss of service. 11 East, 24.* This action, indeed, seems to 
 have been the creature of ihe courts, and is moulded by them so as to af- 
 ford the parent a remedy for the greatest injury that can be done him in the 
 person of his child, but for which the common law afforded no specific re- 
 medy. In these cases new trials are very reluctantly given on account of 
 excessive damages. 2 T. R. 168. 
 
 An action also lies for the father for a battery of his child ; but like the 
 action for seduction, it cannot be maintained except upon the ground of 
 loss of service, though the slightest evidence of service will suffice. But 
 if it appear that the child is of such tender years as to be incapable of do- 
 ing any service whatever, then the father cannot sustain the action at all, 
 even for an enormous injury to the child ; 10 C. Law Rep. 436 ; unless 
 perhaps for expenses necessarily and unavoidably incurred in curing him. 
 Sec Sir T. Ray. 259. Chitty's note of the case of Hale vs. Hokander. 
 The child, however, himself, it must be remembered, may sue by his next 
 friend, and recover damages for the injury he has sustained. 
 
 3. Of a similar nature to that of parent and child is the relation of guar- 
 dian and ward. And it is expressly provided by statute, 1 R. C. ch. 108, 
 § 1, that guardians shall have power, by writ of ravishment of ward, or tres- 
 pass to recover the ward, wiih damages for the taking away and detentioa 
 of him, which damages will be for the child's use. 
 
 IV. " To the relation betv/een master and servant, and the rights accru- 
 ing therefrom, there are two species of injuries incident. The one is, re- 
 taining a man's hired servant before his time is expired ; the other is beating 
 or confining him in such a manner that he is not able to perform his work. 
 As to the first, the retaining another person's servant during the time he has 
 agreed to serve his present master; this, as it is an ungentlemanlike, so it 
 is also an illegal act. For every master has by his contract purchased for a 
 valuable consideration the service of his domestics for a limited time ; the 
 inveigling or hiring his servant, which induces a breach of this contract, is 
 therefore an injury to the master; and for that injury the law has given him 
 a remedy by a special action on the case ; and he may also have an action 
 against the servant for the non-performance of his agreement." See 2 
 Saun. 169. 
 
 In the action against the hirer it is essential that the defendant should 
 have hired or retained the plaintiff's servant, roiih notice of the plaintiff's 
 right, or that after notice he has continued to keep him in his service. 2 
 Lev. 68. 6 T. R. 221. A journeyman in any trade, who has engaged for 
 a given time with a master tradesman, is a servant quoad hoc, and an action 
 lies for enticing him away. Cow. 54. 
 
 With respect to slaves the law is deemed to be somewhat difierent, for it 
 is not necessary, I conceive, to prove notice, in order to maintain an action 
 
 •In tills action thed:iu?iitpr is a competont wltnosp, 2 Strn. IOC I, and iliougli not cHsenlial.tlieoinis- 
 Bion to c:ill inr would l>e o|ii:n to ol)Si;i v.iiion. Holt's 11. 451. Expenses actuallv inclined slionid bo 
 proved, and a pliytician'ij lee, unless ai;tuiilly piiid, cannot be recoveieif. 1 Slarkie 11.287. 'i'lie 
 state and siliiaiirjn ol' the raniilv at tlic time should be proved in aggravation of damages, 3 Esp. R. 
 119; audit so, that the defendant profesHod to visit the Camily, and w,\s received as the Fuitor of tlio 
 daugliier. .0 Price, G'll. (t lias been paid, that evidence to prove that delendanl prevailed bv a pro- 
 mise of marriage, is inadmissible. 3 Camp. 519. I'eake L. K. 355. See 5 Price, Cil. Andno evi- 
 dence o(^ the danghlei-'K general cliaractei (or chastiiy is admissible, unless it is impngned. 1 Camp. 
 469. 3 Catnp. 519. The defendant may, in nii'.iga'ion of damages, adduce any evidence of the im- 
 proper, negligent, and imprudent conduct ol the plaintifT himself; as where he knew that defendant 
 was a married iivan. and allowed his visits in the probability of a divorce. Lord Ivenvon held the ac- 
 tion could not be maintained. Pcake II. 210. And evidence may I.e given on an inquisilion of da- 
 mrtf-es in an action for scdiinion, that llic defendant visitcrl at the plaintiflT's house for tlie purpose of 
 payixi J his adiiiciscs to tha daugliier, with an intention of marriaje. 5 Price, 611. Chitty..
 
 CHAP. 5] BATTERY OF SERVANT. 75 
 
 against one who employs my slave. For thougli, as to servants, a man 
 who has not notice may innocently be led to employ one to whose services 
 another person is entitled, yet as to slaves it is otherwise. For if the per- 
 son employed be a slave, the person hiring must know that by hiring him 
 he is injuring somebody. And whether slave or not is a matter easily deci- 
 ded, since by law every negro is presumed to be a slave unless the contrary 
 appears, and the slave act provides that all who are not so shall be furnished 
 with a copy of the register of their freedom. 1 R. C. ch. Ill, §67. If, 
 therefore, a man employs a negro without a copy of the register, he does it 
 in his own wrong, and if he is even imposed on by a forged copy, it is his 
 folly or his misfortune. Fitzhugh vs. Pugh, Winchester superior court. 
 
 Certain specific penalties are also prescribed by law for harboring or en- 
 tertaining servants and others. Thus, for harboring or entertaining an in- 
 dented servant not having a certificate of his freedom, the penalty is one 
 dollar per day. 1 R. C. ch. 110, § 12. 
 
 For harboring or concealing an apprentice it is three dollars per day. 1 
 R. C. ch. 108, § 30. 
 
 For secretly harboring or entertaining a slave without the master's or 
 overseer's consent, the party is liable to be prosecuted as for a misdemean- 
 or. 1 R. C. ch. 111,§69. 
 
 For harboring or employing any negro or mulatto who has not a certified 
 copy of the register of his freedom, the penalty is five dollars, and a further 
 liability to the action of the party grieved. Ibid, § 72. 
 
 " The other point of injury, is that of beating, confining, or disabling a 
 man's servant, which depends upon the same principle as the last: viz. 
 the property which the master has by his contract acquired in the labour of 
 the servant. In this case, besides the remedy of an action of battery or 
 imprisonment, which the servant himself as an individual may have against 
 the aggressor, the master also, as a recompense for his immediate loss, may 
 maintain an action of trespass vi et arinis ; in which he must allege and 
 prove the special damage he has sustained by the beating of his servant, 
 per quod sermtium amisit ; and then the jury will make him a proportiona- 
 ble pecuniary satisfaction. 
 
 " We may observe, that in these relative injuries, notice is only taken of 
 the wrong done to the superior of the parties related, by the breach and dis- 
 solution of either the relation itself, or at least the advantages accruing 
 therefrom ; while the loss of the inferior by such injuries is totally unregard- 
 ed. One reason for which may be this : that the inferior hath no kind of 
 property in the company, care, or assistance of the superior, as the supe- 
 rior is held to have in those of the inferior; and therefore the inferior can 
 suffer no lessor injury. The wife cannot recover damages for beating her 
 husband, for she hath no separate interest in any thing during her cove- 
 ture. The child hath no property in his father or guardian ; as they have 
 in him, tor the sake of giving him education and nurture. Yet the wife or 
 the child, if the husband or parent be slain, [had formerly in England] a 
 peculiar species of criminal prosecution allowed them, in the nature of a 
 civil satisfaction, which is called an appeal; [but this is taken away in 
 England by a late statute.] And so the servant, whose master is disabled, 
 does not thereby lose his maintenance or wages. He had no property iu 
 his master, and if he receives his part of the stipulated contract, he suffevs 
 no injury, and is therefore entitled to no action, for any battery or impri- 
 sonment which such master may happen to endure."
 
 76 INJURIES TO PERSOxVAL PROPERTY. [ book 3. 
 
 CHAPTER VI. 
 
 OF INJURIES TO PERSOiNAL PROPERTY. 
 
 "In the preceding chapter we considered the wrongs or injuries that af- 
 fected the rights of persons, either considered as individuals, or as related 
 to each other; and are at present to eiiter upon the discussion of such in- 
 juries as affect the rights of property, together with the remedies which the 
 Jaw has given to repair or redress them. 
 
 " And here again we must follow our former division of property into 
 personal and real: personal, which consists in goods, money, and all other 
 moveable chattels, and things thereunto incident ; a property which may at- 
 tend a man's person wherever he goes, and from thence receives its denomi- 
 nation : andreal property, which consists of such things as are permanent, 
 fixed, and immoveable ; as lands, tenements, and heraditaments of all kinds, 
 which are not annexed to the person, nor cannot be moved from the place 
 in which they subsist. 
 
 " First, then, we are to consider the injuries that may be offered to the 
 rights of personal property ; and of these, first the rights of personal pro- 
 perty in possession, and then tliose that are in action only. 
 
 I. '" The rights of personal property in possession are liable to two spe- 
 cies of injuries : the amotion or deprivation of that possession ; and the 
 abuse or damage of the chattels, while the possession continues in the le- 
 gal owner. The former, or deprivation of possession, is also divisible into 
 two branches ; the unjust and unlawful taking them away ; and the unjust 
 detaining them, thouoh the oricrinal taking mirrht be lawful. 
 
 1. " And, first, of an unlawful taking. The right of property in all exter- 
 nal things being solely acquired by occupancy, as has been formerly stated, 
 and preserved and transferred by grants, deeds, and wills, which are a con- 
 tinuation of that occupancy : it follows as a necessary consequence, that 
 when I have once gained a rightful possession of any goods or chattels, 
 either by a just occupancy or by a legal transfer, whoever, either by fraud 
 or force, dispossesses me of them, is guilty of a transgression against the law 
 of society, which is a kind of secondary law of nature. For there must be 
 an end of all social commerce between man and man, unless private pos- 
 sessions be secured from unjust invasions: and, if an acquisition of goods 
 by either force or fraud were allowed to be a sufficient title, all property 
 would soon be confined lo the most strong, or the most cunning; and the 
 weak and simple-minded part of mankind (which is by far the most numer- 
 ous division) could never be secure of their possessions. 
 
 "The wrongful taking of goods, being thus most clearly an injury, the 
 next consideration is, what remedy the law of England has given for it. 
 And tills is, in the first place, the restitution of. the goods themselves so 
 wrongfully taken, with damages for the loss sustained by such unjust inva- 
 sion ; wliich is effected by action ol' replevin ; an institution, which the 
 mirror ascribes to Glanvii, chief justice to king Henry the Second. This ob- 
 tains only ill one instance of an unlawful taking, that of a wrongful dis- 
 tress :' and this and the action of detinue, (of which I shall presently say 
 more,) are almost the only actions, in which the actual specific possession 
 of the identical personal chattel is restored to the proper owner. For things 
 personal are looked upon by the law as of a nature so transitory and perish- 
 
 " la Mr. Cliiity'8 nole to tliiR pnssagR iliis is denied, ;mrl in 1 Srh. &. Lefroy, 325, 3-37, Lord Redes- 
 dnle Fiiircejufuily conlrovoi is ilie posili.m hero laid down by Blacksloiie, and lie assigns good reason 
 for the cxisicnce of ihe reniodv, where mere ii;i.<i liec-ii a laiung of goods by one man from another, 
 thoiiuh not for rent, sa>ing thai the poKKCssion which the parly held was pi-iina facie evidence of his 
 right of properly, and thai it is fairer D ilirow ihe or/rn: «{ proof of the title npoii the person who 
 hag not h'.<il thp posf^epsion, than upon him who has liad it. In Virginia, howevfr, by 8css. Acts, 
 1.^2, ch. '-29, 6 9, it ij piovidid that the action of replevin shall be coiisiden^d to exist in no other ca- 
 ses than sucii as arise under (he act securing ilic payment of rents. 1 K. C, ch. 113.
 
 CHAP. G.] REPLEVIN. 77 
 
 able, that it is for the most part impossible either to ascertain their identity, 
 or to restore them in the same condition as when they came to the hands of 
 the wrongful possessor. And, since it is a maxim that 'lex neminem cogit 
 ad vana, seu impossibilia,' it therefore contents itself in general with re- 
 storing, not the thing itself, but a pecuniary equivalent to the party injured; 
 by giving him a satisfaction in damages. Eut in the case of a distress, the 
 goods are from the first taking in the custody of the law, and not merely in 
 that of the distrainor; and, therefore, they may not only be identified, but 
 also restored to their first possessor, without any material change in their 
 condition. And, being thus in the custody of the law, the taking them 
 back by force is looked upon as an atrocious injury, and denominated a 
 rescous, for which the distrainor has a remedy in damages, either by writ of 
 rescous, in case they were going to the pound, or by writ de parco fracto, 
 or pound-breach, in case they were actually impounded. He may also at 
 his option bring an action on the case for this injury. 
 
 " An action of replevin, the regular way of contesting the validity of the 
 transaction, is founded, (says Mr. Blackstone,) upon a distress taken wrong- 
 fully and without sufficient cause : being a re-delivery of the pledge, or 
 thing taken in distress, to the owner; upon his giving security to try the 
 right of the distress, and to restore it if the right be adjudged against him : 
 after which the distrainor may keep it, till tender made of sufficient amends : 
 but must then re-deliver it to the owner." 
 
 In order to obtain a writ of replevin under our act, 1 R. C. ch. 113, the 
 party praying the writ must first enter into bond, with one or more suffi- 
 cient securities, in the clerk's office. Where the replevin is sued out by a 
 person not bound for the rent, but claiming title to the goods distrained, the 
 value of the property sought to be replevied must be ascertained by the oaths 
 of two disinterested freeholders, sworn before some justice of the peace, 
 and the bond must be in a penalty equal to double the amount of the valu- 
 ation. Where the replevin is sued out by the tenant or other person bound 
 for the rent, the bond must be in a penalty equal to twice the amount of 
 the rent. In both these cases the condition is to perform and satisfy the 
 judgment of the court in case the party be cast. "The sheriflT, on receiving 
 such security, is immediately, by his officers, to cause the chattels taken in 
 distress to be restored into the possession of the party distrained upon ; un- 
 less the distrainor claims a property in the goods so taken. For if, by this 
 method of distress, the distrainor happens to come again into possession of 
 his own property in goods which before he had lost, the law allows him to 
 keep them, without any reference to the manner by which he thus has gained 
 possession; being a kind of personal remitter. If. therefore, the distrain- 
 or claims any such property, the party replevying must sue out a writ de 
 proprietate probanda, in which the sheriff" is to try, by an inquest, in whom 
 the property previous to the distress subsisted. And if it be found to be in 
 the distrainor, the sheriff" can proceed no farther; but must return the claim 
 of property to the court of king's bench or common pleas to be there far- 
 ther prosecuted, if thought advisable, and there finally determined. 
 
 "But if no claim of property be put in, or if (upon trial) the sheriff''s 
 inquest determines it against the distrainor; then the sheriff" is to replevy 
 the goods, (making use of even force, if the distrainor makes resistance,) 
 in case the goods be found within his county. But if the distress be car- 
 ried out of the county, or concealed, then the sheriff" may return that the 
 goods, or beasts, are eloigned, elongata, carried to a distance, to places to 
 him unknown: and thereupon the party replevying shall have a writ of 
 capias in ivithernam, in vetito (or, more properly, repetito) namio : a term 
 which signifies a secpnd or reciprocal distress, in lieu of the first which was 
 eloigned. It is therefore a command to the sheriff' to take other goods of
 
 78 REPLEVIN. [ BOOK 3, 
 
 the distrainor, in lieu of the distress formerly taken, and eloigned, or with- 
 held from the owner. So that here is now distress against distress ; one 
 beincr taken to answer the other, by way of reprisal, and as a punishment 
 for the illegal behaviour of the original distrainor. For which reason goods 
 taken in withernam cannot be replevied, till the original distress is forthcom- 
 ing. 
 
 "But, in common cases, the goods are delivered back to the party reple- 
 
 ^y'"»- . ■ • ,. • 
 
 " Upon this action brought, and declaration filed, the distrainor, who 13 
 now the defendant, makes avowry : that is, he avows taking the distress in 
 his own right, or the right of his wife ; and sets forth the reason of it, as for 
 rent arrere, damafre done, or other cause : or else, if he justifies in another's 
 right as his bailifl:'or servant, he is said to make cognizance ; that is, he ac- 
 knowledges the taking, but insists that such taking was legal, as he acted 
 by the command of one who had a right to distrain ; and on the truth and 
 legal merits of this avowry or cognizance the cause is determined. If it be 
 determined for the plaintiff; viz. that the distress was wrongfully taken; 
 he has already got his goods back into his own possession, and shall keep 
 them, and moreover recover damages." But if the defendant prevails, the 
 judgment at common law was for the return of the goods; — de retorno 
 habendo. But by our law the further proceedins;', where the defendant pre- 
 %'ails, depends on the nature of the replevin. Where the writ has been sued 
 out by a third party, not bound for the rent, and claiming title to the goods, 
 the jury upon the trial, if they find against the party claiming the property, 
 ascertain the value of the property, and the damages (not less than 10 per 
 cent, upon such value) which the defendant in replevin has sustained by 
 the plaintiff suing out the writ, and judgment is entered for the value with 
 interest from the date of the writ, and damages and costs. When the te- 
 nant sues out the writ of replevin and fails, the jury ascertains* the rent in 
 arrear, and damages not less than 10 per cent, on the amount so due, and 
 judgment is^entered for principal, interest, damages, and costs accordingly. 
 In both cases, if the plaintifl^ in replevin is nonsuit before issue joined, the 
 court, upon the suggestion of the defendant in the nature of an avowry, 
 awards a writ of enquiry to ascertain the value of the property, or the a- 
 mount of rent, (as tlie case may be,) and the damages and judgment are 
 given accordingly. 
 
 Observe ; the plaintiff in replevin cannot be nonsuit after issue joined in 
 replevin, for in that action both parties are considered plaintiffs after the is- 
 sue has been joined, the tenant demanding damages for the distress, and 
 the landlord demanding by his avowry judgment lor his rent. See 1 Black. 
 Rep. 375. 1 Esp. 378. 3 T. R. OGL 
 
 After obtaining judgment in replevin, if the tenant or person replevying 
 prove insufficient, the landlord may sue upon the replevin bond in order to 
 charge the securities. 
 
 If the plaintiff in replevin succeeds, the jury, as we have seen, assess his 
 damages, for which, and for his costs, he has a judgment rendered in his 
 favor. For replevin is in its nature an action of trespass, and the plaintifTs 
 declaration complains, as in trespass, of an unlawful taking of his property, 
 and its unjust detention. It should also set out certainly the property fa- 
 ken, and this, I presume, is particularly necessary, where goods are replevied 
 by third persons claiming the proj)erty and asserting its exemption from dis- 
 tress ; for the statute now requires, as I have already stated, that if in such 
 case the plaintiff fails, the defendant shall have judirment for the value of the 
 goods distrained, and damages as above mentioned. 
 
 * In replevin, tlic landlord, if guccCEarul, formerly recovered double rent.
 
 CHAP. 6.] REPLEVIN. 79 
 
 To the dechrntion of the plaintiff, the landlord either /^Zearfs or avows, 
 according to circumstances. Thus he may deny the taking of the goods 
 altogether, by pleading the general issue, which is non cepit : or he may 
 plead the act of limitations in bar. These pleas waving both an assertion 
 of the defendant's right to take the property, and a denial of the plaintiff's, 
 absolve Ai/tt from the necessity of proving his right. So, too, the defendant 
 may plead a justification, and this admits the taking. As, for instance, he 
 may allege that the property distrained belonged to himself or a stranger ; 
 and if so the plaintiff had no right to complain: since, if the property was 
 in the distrainor, he had a righl to take it, and if in a stranger, though the 
 plaintiff might have maintained trespass which only seeks damages for a 
 wrong done, he cannot maintain replevin, for that action takes the property 
 out of the hands where the law found it, which the law never does except 
 for the true owner. See 10 Mod. 25. 
 
 The most usual defence, however, is what is called an avowry, which Mr. 
 Blackstone explains. This avowry is now confined to rent in arrear, by the 
 act abolishing replevins in all other cases. In it, the plaintiff sets out the 
 ground of his claim of rent, and that it was in arrear, and therefore he 
 distrained the goods. Upon common law principles some nicety exists in 
 drawing an avowry, as it is necessary in strictness that the plaintiff should 
 set forth his title, shewing that either he himself, or some person under 
 whom he claims, was seized, and leased reserving rent ; and in the latter 
 case shewing how he claims under such person. See 2 Saun. 284, c. d. in 
 note. 2 Chitty, 512. An English statute has removed this difficulty, and 
 permits a general avowry. The common law remains unchanged with us. 
 2 Leigh, 372, In this avowry, where there are several parceners entitled t^ 
 the rent, they should all join, for they make but one heir, and ought all to 
 be sued, as they ought all to join also in the distress. 
 
 The plaintiff may plead to the avowry that there is no rent in arrear — or 
 the statute of limitations — or eviction or expulsion, — the principles of which 
 last pleas have been sufficiently developed in the notes to former passages 
 of this work. It is provided by our law that the plaintiff in replevin may 
 plead as many several matters, whether of law or fact, as he may think ne- 
 cessary for his defence. I R. C. ch. 128, §88. 
 
 If the goods of several persons are taken, they cannot join in suing out a 
 replevin ; nor can tenants in common join in distraining and in avowing, 
 but joint-tenants and coparceners may and ought to do so. Where one 
 tenant in common distrains for the whole, he must avow for his undivided 
 moiety, and makes cognizance (i. e. acknowledge the taking) for the other 
 moiety, as bailitl of his companion. See the form, 2 Chitty, 514. 
 
 For the speedy decision of writs of replevin, it is provided that they 
 shall be tried without waiting for their turn upon the docket. 1 R. C. ch. 
 113, §25. 
 
 It may be proper here to remark, that replevin by the tenant is only ad- 
 visable where the rent is not due ; for if the rent be due the landlord must 
 succeed, however irrescular his distress. If, indeed, he has distrained for 
 too much, or the distress be excessive or irregular, he is liable, but not in 
 this form of action. See I Hen. Bl. 13. The remedy must be by action 
 on the case, or by action of trespass, if he has by his conduct made himself 
 a trespasser ab initio. 
 
 2. "Deprivation of possession may also be by an unjust detainer of ano- 
 ther's goods, though the original taking was lawful. As if I distrain ano- 
 ther's cattle damage-feasant, and before they are impounded he tenders me 
 sufficient amends ; now, though the original taking was lawful, my subse- 
 quent detainment of them after the tender of amends is wrongful, and he 
 shall have an action of replevin against me to recover them : in which he
 
 80 DETINUE. [book 3. 
 
 shall recover damages only for the detention and not for the caption, because 
 the oriofinal taking was lawful. Or, if I lend a man a horse, and he after- 
 wards refuses to restore it, this injury consists in the detaining, and not in 
 the orio-inal taking, and the regular method for me to recover possession is 
 by action of detinue. In this action of detinue, it is necessary to ascertain 
 the thing detained, in such manner as that it may be specifically known and 
 recovered. Therefore, it cannot be brought for money, corn, or the like ; 
 for that cannot be known from other money or corn ; unless it be in a bag 
 or a sack, for then it may be distinguishably marked. In order, therefore, to 
 ground an action of detinue, which is only for the detaining, these points 
 are necessary : 1. That the defendant should have had possession at some 
 time before the suit brought, for if not, the plea oi' nan detinet must of course 
 be found for him." 1 Wash.30S. If possession is proved in defendant at 
 any time before the action, it is enough, though he had not possession when 
 it was commenced, unless he shews that he has been legally dispossessed. 
 1 Wash. 308. See 3 Leigh, 68-2. 
 
 It is a common opinion in the old books, that this action will not lie 
 where the defendant comes into possession tortiously. But it would be 
 very unreasonable that the law should permit a trespasser to hold my pro- 
 perty against my will, though the more innocent^nc/er cannot. The opin- 
 ion is therefore in later cases justly questioned : for the allegation of finding 
 which is laid in the declaration, is not traversable, that is to say, the plain- 
 tiff cannot, by the defendant's plea, be put to proof of that fact; I Cliitly, 
 I'H) ; and it has moreover been expressly decided, that detinue may be main- 
 tained, though the defendant got possession tortiously. 1 Bos. Sc Pul. N. 
 R. 140. 
 
 2. It is absolutely necessary, however, to maintain this action, that the 
 plaintiff should have a property in the goods ; 1 Wash. 308, 312; but a spe- 
 cial property in the plaintiff is sufficient if the action be against any other 
 than the true owner. Thus a bailee may maintain detinue for the property 
 against any person who unlawfully detains it from him, 1 Chitty, J IS. 2 
 Saun. 47, b. c. d. 
 
 It is not essential that the plaintifi' sliould ever have had possession to 
 enable him to maintain his action. 1 Chitty, 118. 2 Selw. N. P. 593. 
 But he must have a right to the possession when the action is brought. 7 
 T. R. 9. 
 
 3. It is essential that the goods themselves be of some value ; and 4. That 
 they be ascertained in point of identity. Hence the declaration in detinue 
 should be more precise in the description of the property, than in actions of 
 trover or replevin. 2 Saun. 74, a. b. Yet it is unsafe to be too minute, lest 
 the evidence vary from the description, which would, I presume, be fatal. 
 On this subject it has been decided that detinue for a negro child without 
 naming it, but describing it as the child of such a mother, is good. 4 H. 
 & M. 478. At least if it be a defect it is cured by a verdict. 2 Mun. 539. 
 In that case the declaration was for a negro woman and her issue. 
 
 Of the declaration. The form of the declaration will be found 2 Chitty, 
 235. But though the declaration omits the words " tliat the defendant ren- 
 der to the plaintiff, Stc." it is cured by a verdict. IMun. 48G. It should, 
 however, allege that the thing claimed was the j)roperty of the plaintiff. 4 
 Mun. 72. It should describe with reasonable certainty, and set forth the 
 value of the property demanded ; and if there be several articles, separate 
 values must be laid for each, though error herein will also be cured by a ver- 
 dict severing the values. 2 Mun. 5.39. But though the plaintiff must lay 
 a value upon the property in his declaration, the jury may exceed it. 1 H. 
 &. M. 54. And this upon good reason, for during the pendency of the suit, 
 the property (e. g, a slave) might have greatly appreciated.
 
 CHAP. 6.J DETIxNUE. 81 
 
 The declaration states a vefiisal to deliver, •' though the defendant was 
 often requested." This general charge usually suffices. A special request 
 is only necessary, I conceive,' where it is a prerequisite to the plaintiff's 
 right to the possession. As where property is bailed for an indefinite time 
 by A to B ; — there B has a right to the possession till A actually demands 
 it. In other cases, however, it is not necessary. 3 Mun. 1*22. 
 
 When an executor or administrator brings detinue for the property of his 
 testator, of which he himself has had possession, he may declare upon his 
 own possession, and therefore need not produce the letters testamentary at 
 the trial, unless they be called for by notice. 3 Call, 554. And where an 
 executor or administrator takes possession of slaves in which his testator 
 had but an estate terminable upon his dying without issue living at his death, 
 he should be sued personally, and not as executor or administrator. 2 Mun. 
 479.* 
 
 Of the plea. The general issue in detinue isnon delinet. The statute of 
 limitations, as has been already said, need not be pleaded. 
 
 As the requisition of a property in the plaintiff is essential, so it is always 
 a good defence for the defendant to prove that the right of property is in 
 himself by reason of a gift from the plaintiff, or other-.vise. Hence, also, he 
 may prove under the issue of non detinet, facts whicii go to shew that the 
 property is in another — as that a deed under which the plaintiff claims the 
 property was fraudulent as to creditors, and that he himself claims under a 
 sheriff's sale by virtue of an execution against the grantor. 2 Mun. 329. 
 2 Leigh, 347. So he may protect himself on the plea oi non delinet, and with- 
 out pleading the act of limitations, by proving five years' possession before 
 the suit brought, for such possession gives title. 3 Call, 85. 4 Mun. 301. 
 5 Mun. 101. 6 Mun. 357. In^like manner, if a man has had five years' 
 possession, acquired without force or fraud, and then is divested of it, he 
 may maintain detinue, and his five years' possession v/ill be sufficient proof 
 of title. 3 H. &. M. 57. 5 Cranch, 360. But in these cases the possession 
 must always be adverse and with a claim of property, or it gives no title. 
 See 2 Leigh, 347. 
 
 The defendant may also, on non detinet, rely upon the plaintiff's right 
 being in reversion, and not immediate, for if so he has no right in' this ac- 
 tion to recover the possession. 7 T. R. 9. He cannot, however, under 
 that plea, shew that the goods were pawned to him by the plaintiff, or that 
 they were bailed to him, and have been lost or destroyed without his default. 
 These, though good defences, must .be pleaded; for the plaintiff should 
 have notice of them. 1 Chitty, 121. 
 
 If the plaintiff claims under A, and the defendant also sets up a claim 
 under him by virtue of a bill of sale, which the plaintiiT contends was frau- 
 dulent against him as creditor 6r purchaser of A, evidence of such fraud is 
 proper, as also is evidence of parol declarations of the defendant disclaiming 
 title after he had notice of plaintiff's purchase, and before he himself had 
 obtained possession. 4 Mun. 373. 
 
 The verdict of the jury should find as to all the articles of property claim- 
 ed in the declaration, and formerly where this was not done, a venire de 
 novo was awarded. 1 V/ash. 76. But now the plaintiff is barred as to the 
 things omitted. 1 II. C. ch. 128, § 105. But where several articles are 
 demanded the verdict may find for the plaintiff as to some, and for the de- 
 
 * In Catlett vs. Russell, in the court of appeals in April iSo5, the question was much agitated as to 
 the mode of proceeding in deiiniie when the defendant died in possession of the properly. It was 
 decided that detinue would only be against an executor as such when the possession actually came to 
 his hands, and that the action could only he reviveil by scire facias in respect of such possession. 
 The scire facias therefore, or the declaration thereupon, niu.-;t allejje that fact. Ff tbund against the exe- 
 cutor, the judgment is for the thing or the value, and the distiingas issues afjainst his proper goods and 
 ■shaitels, lands and tenements. 
 
 VOL. 2~I1 *
 
 82 DETINUE, [ BOOK ^ 
 
 fendant as to others. The jury must also ascertain the price or value of the 
 property demanded ; but if this be omitted, the court may direct a writ of 
 enquiry to ascertain it. 1 R. C. ch. 129, § 105. This value ought not to 
 be jointly assessed of several articles. Separate values should he found, or 
 there must be a writ of enquiry to ascertain them.* 2 Call, Sl-i. 2 Mun. 
 539. But the jury may find general or joint damages for detaining several 
 slaves. 2 Mun. 539. The diversity arises from the consideration that the 
 judgment is so entered that if any article of the property cannot be had in 
 specie, the plaintifT will be entitled to the alicrnative value. The value of 
 each article should of course be ascertained, since the plaintiff may be able 
 to get one part of the property in specie, though he cannot get another. As 
 to the damages no such reason exists. 
 
 If the jury find a special verdict, no circumstance should be omitted 
 which is necessary to ascertain whether the plaintiff is entitled or not. Such 
 omission will render a rewire de novo necessary. 1 H. &. M. 213. 
 
 The verdict should answer to all the issues. 1 H. &, M. 374. 4 Mun, 
 145. It should also ascertain the damages for the detention ; as in case of 
 slaves, the value of their hires or services while detained ; and these dama- 
 ges are estimated to the time of the verdict, and not merely to the date of 
 the Vi'rit. See 4 Mun. 530. If, however, the defendant appeals from the 
 judgment against him, it seems that although he thereby keeps possession of 
 the property till the final affirmance by the appellate court, no action lies to 
 recover the mesne or intermediate profits. 4 Mun. 528. t Nor does a bill 
 in chancery lie for that purpose. 4 H. & M. 470. Nor are there any 
 means by which the plaintiiT can get the intermediate hires between the date 
 of the verdict and the entry of the judgment. 4 Mun. 531. 
 
 Although the plea "non detinet" is in the present tense, yet, as I have al- 
 ready said, proof of possession in the defendant at any time before the suit 
 brought, is held sufficient; 1 Wash. 308; unless the defendant has been 
 len-aliy dispossessed ; for otherwise justice might be defeated by the wrong- 
 doer passing away his right as soon as he found he was about to be sued. 
 If, therefore, after suit brought against A for a slave, he sells him to B, 
 the plaintiff may yet proceed to judgment, and the slave may be taken out 
 of B's possession if to be found, for he is a purchaser pendente lite, and 
 bound by the verdict and judgment. But if the plaintiff gets a judgment 
 for a slave against A, he cannot afterwards sue B, to whom A sold him 
 before suit brought, for then he would have two judgments for the same 
 property. 1 H. &- M. 450. Fnit I presume he may have a scire facias. See 
 3 B. C. 413. It is on a like principle that after judgment in detinue, anew 
 action of detinue against the same defendant for the same thing will not lie. 
 G Mun. 10. 
 
 Suppose, however, after suit brought, and before trial, the slave dies. 
 "Will the plaintiff recover the value of the slave when living, or not ? This 
 subject was much discussed in Austin's executors vs. Jones. Gil. 341. In 
 that case, however, Judge Coalter being of opinion that the defendant was 
 not liable for the value alter the slave was dead, and Judge Brooke being of 
 the contrary opinion, and Judge Roane, the remaining judge, determining 
 only that as the death of the slave during the pendency of the suit had not 
 been pleaded, the defendant could not avail himself of the finding of tho 
 jury to that effect, since it was a finding of a matter not in issue, the ques- 
 tion cannot be considered as settled. With all deference to this high au- 
 thority, I would suggest that such plea could not have been pleaded ; for, 
 upon Judge Roane's own principles, it would not have barred the action 
 
 * 1 R. C. ch. 128, ^ lO."), provides the writ of enquiry where llie nriceor \ahie is omi'ted. A «e«i- 
 rt de novo would sccin i<j be the regiil.ir course according to orcljftary principles, when llie valuM 
 of several thing* .ire improperly \o\\m\ joiiitty. 
 
 ' The luw i( now oihcrwi«c, Sec^. ncti 1330, ch. r?L
 
 «HAP. 6.] DETINUE. 8S 
 
 entirely, since the pluin^fF certainly had a right of action when he sued, 
 and ought at least to have had damages for detention : and unless it could 
 be pleaded as a good bar to the action in toto, it could not be pleaded at all. 
 On the other l?and, Judge Brooke's opinion that tlie party ought to recover 
 the value, notwithstanding the death, is successfully combatted by Judge 
 Coalter, who takes the obvious distinction between the actions of trover and 
 detinue; — that in trover, the plaintiff admits a change of property, and if it 
 dies, it dies the properly of the defendant, who having converted it, is es- 
 topped to say the property was the property of the plaintiff, and thus throw 
 the loss on him. But in detinue the plaintiff still affirming property in him- 
 self, the life of the slave is at his risk. From the consideration urged by 
 Judge Coalter, it seems to me that the proper course in such case is to plead 
 the death since the last continuance in bar of the recovery of the slave or 
 "his value: for the loss or destruction of the property bailed, is admitted 
 to be a good defence, if properly pleaded. 1 Chitty, 121. But such plea 
 admitting the detention, the plaintiff would bs entitled to his damages and 
 a writ of enquiry thereof. If, indeed, the slave came to his death by reason 
 of the defendant's treatment, another action would perhaps afterwards lie 
 to recover compensation in damages therefor. 
 
 The verdict of the jury (when it is rendered for the plaintiff) finds to the 
 following effect: " We, the jury, find for the plaintiff the slaves in the de- 
 claration mentioned, of the value following ; that is to say, negro Harry, of 
 the value of $500; negro Tom, of the value of $400; and negro Sarah, 
 of the value of $250: and we farther find for the plaintiff $500 damages 
 for the detention of the said slaves." The judgment is then rendered for 
 the slaves, if to be had, and if not, for the alternative value, and for the 
 damages and costs. 
 
 The next step to be considered is the execution to be issued upon this 
 judgment. The proper execution is a distringas, which Mr. Blackstone 
 cursorily mentions in his 3d book, page 41-3. This is a writ which he tells 
 us commands the sheriff to distrain the goods and chattels of the defendant, 
 ^•'so that neither he nor any person by him (i. e. his authority) may lay 
 hands on them." It appears, however, that not only the goods and chat- 
 tels, but the lands and tenements of the defendant are distrained, and the 
 sheriff is directed to take the issues thereof until the defendant produce 
 the property " of the value of so much, if it may be had, or the price 
 aforesaid, if it is not to be had." See 5 Mun. 169, 170. In pursuance of 
 this writ, the sheriff takes all the defendant's lands and goods into his pos- 
 session, and receives the issues and profits thereof, until he gives up the 
 property. These, however, are not applied to the satisfaction of the claim, 
 for the distringas is a mere measure of constraint; the party is considered 
 in contempt, and the rents and profits go to the commonwealth. 6 Com. 
 Dig. 100, 101. Gilb. Ex. 27, &c. cited 5 Mun. 171. If the defendant con- 
 tinues obstinate, and the distringas is returned executed without satisfac- 
 tion, the court may direct it to be superseded so fur as relates to the speci- 
 fic thing, and award a new distringas to be executed for the alternative 
 value only ; and if, after this, it appears that the plaintiff cannot get the pro- 
 perty by the distringas, a casa or fifa may be awarded for the alternative 
 value. These executions ought to be av.'arded by the court upon motion, 
 of which motion, hovv'ever, there need be no notice given to the defendant. 
 5 Mun. 166. 
 
 From this view of the subject, it will appear that, after all, the plaintiff 
 may be foiled in his attempts to recover the identical property for which he 
 sues ; and this is the more clear since the sheriff cannot, on a distringas, dis- 
 train the very property for which the execution issued, nor can he seize and 
 sell it to pny the damages in the execution. 3 Ran. 601. Yet an opinion
 
 84 TROVER. [ BOOK 3. 
 
 has been intimated that the object may be obtained through the assistance 
 of a court of equity, where the properly has a peculiar value. See what is 
 !5aid by Judge Green, 3 Ran. 175, J76. 
 
 Bail is required in actions of detinue ; but the recognizance of bail dif- 
 fers from the recognizance in other actions ; for 
 
 The bail undertakes " tliat the principal if cast will satisfy the condem- 
 nation [judgment] of the court, either by rendering up the property and 
 paying all damages and costs, or by paying the alternative value and dam- 
 ages and costs, ok by rendering his body to prison ; or the bail will do it 
 [that is, some one of those three things,] for him. If, therefore, the bail 
 renders the principal's body to prison he is discharged. If the principal 
 fails in his undertaking, the plaintiff then proceeds against the bail by scire 
 facias, as will be hereafter more fully explained. 
 
 When the value of the property does not exceed twenty dollars, the plain- 
 tiff must bring his warrant before a justice of peace, who alone has juris- 
 diction ; otherwise he will be nonsuited. 1 R. C. eh. 71, § 20, 30. 
 
 There is, says Mr. Blackstone, " one disadvantage which attends this ac- 
 tion ; viz. that the defendant is herein permitted to wage his law, that is, to 
 exculpate himself by oath, and thereby defeat the plaintiff of his remedy : 
 •which privilege is grounded on the confidence originally reposed in the 
 bailee by the bailor, in the borrov/er by the lender, and the like : from 
 whence arose a strong presumptive evidence, that in the plaintiff's own 
 opinion the defendant was worthy of credit. For this reason the ac- 
 tion itself is of late much disused in England, and has given place to the 
 action of trover;" but the wager of law being entirely unknown in practice, 
 in Virginia, even if it be not obsolete, the action of detinue for slaves and 
 other property of peculiar value has become very common with us, for which 
 reason it demands the peculiar attention of the student. 
 
 The action of trover and conversion was in its original an action of tres- 
 pass on tliG case to recover damages against such person as had found 
 " another's goods, and refused to deliver them on demand, but converted 
 them to his own use ; from which finding and converting it is called an ac- 
 tion of trover and conversion. Tlic freedom of this action from wager of 
 law, and the less degree of certainty requisite in describing the goods, gave 
 it so considerable an advantage over the action of detinue, that by a fiction 
 of law, actions of trover were at length permitted to be brought against any 
 man who had in his possession by any means whatsoever the personal goods 
 of another, and sold them or used them v.ithout the consent of the owner, 
 or refused to deliver them when demanded. The injury lies in the conver- 
 sion : for any man may take the goods of another into possession, if lie 
 finds them ; but no finder is allowed to acquire a property therein, unless 
 the owner be for ever unknow n : and therefore he must not convert them to 
 his own use, which the law presumes him to do, if he refuses to restore 
 them to the owner: for which reason such refusal alone \s, prima facie, 
 Rufrici(int evidence of a conversion. The fact of the finding, or trover, is 
 therefore now totally immaterial : for the plaintiff needs only to suggest (as 
 words of form) that he lost such goods, and that the defendant found them : 
 and jf Ue proves that the goods are his property, and that the defendant had 
 them in his possession, it is sufTicient. But a conversion must be fully pro- 
 ved : and then in this action the plaintiff shall recover damages, equal to 
 the value of the thing converted, but not the thing itself; which nothing 
 will recover but an action of detinue or replevin." 
 
 To this scanty account of the action of trover, extracted from the work 
 of Mr. Blackstone, I take leave to subjoin some farther views which its im- 
 portance demands.
 
 CHAP. G.] TROVER. 8 
 
 n 
 
 The action of detinue, as \vc have seen, is given to enable the owner of 
 property to recover the specific tiling, where from any cause he prefers the 
 property in specie, to a recovery of damages in lieu of it. In many instan- 
 ces, however, this is unimportant, — in others it would be to the owner's dis- 
 advantage, (as where the property is injured,) and in others it would be 
 impracticable, as where it has been lost or destroyed, or eloigned by the de- 
 fendant, and is no longer in his possession. In these instances the action 
 of trover, in which damages are recovered for the conversion, furnishes the 
 redress. 
 
 This action differs essentially in its character from an action of trespass 
 de bonis asportalis. The action of trespass only lies where there is a tort ; 
 the action of trover in strictness supposes the defendant to have come to 
 possession without wrong ; and though even where a trespass has been 
 committed, the plaintiff may waive it and bring trover, yet this waiver is in 
 such case implied, and the trespass is put out of the question. 
 
 An action of trover, though it be itself an action on the case, must also 
 be distinguished from an action of trespass on the case for negligence. As 
 where a carrier delivered goods entrusted to him to the wrong person, here 
 was a conversion by an act done, and trover was maintained : but where he 
 lost the goods, trover would not lie, and the injured party was driven to his 
 action on the case ; for here there was a mere omission. Lastly, there is a 
 marked distinction between detinue and trover. In detinue the plaintiff af- 
 firms the property to be still in him, and he demands its return. If, there- 
 fore, pendente lite, the defendant sells it, the purchaser acquires no title 
 thereby. If it dies pendente lite, it is the plaintiff's loss, for it dies his; — 
 though the defendant may be liable in the shape of damages for the hires or 
 profits, and if the death came by reason of the detention, perhaps also 
 for the value itself. But in trover the plaintiff, though he assert a claim to 
 the ])roperty itself, waives, by that form of action, any further right to it, — 
 admits that the property has been converted, and seeks only to be indemni- 
 fied for the loss he has sustained by the conversion. If, indeed, it can be 
 returned in specie, and of undiminished value, and he accepts it, the jury 
 then find damages only for the detention. But the principle of the action 
 seems to be as above stated. For the court formerly would not compel the 
 plaintiff to take his property back and relinquish his action. 1 Wils. 23- 
 (Sed vide, 3 Bur. lo(i4.) It was deemed the defendant's own folly and 
 wrong, either to convert another's property to his own use, or to refuse to 
 deliver it up when demanded. By such acts he uses and treats the proper- 
 ty as his own, and therefore the owner may justly, under such circumstan- 
 ces, consider the title as changed by the wrong, and assert his claim only 
 for compensation. The effect of these principles upon the action is cor- 
 respondent: for a sale even pendente lite vests a title in the purchaser, and 
 the original owner cannot, after having brought trover against A, maintain 
 any action for the property against B, to whom A may have sold it or given 
 it. So', too, a recovery in trover vests the property of the goods in the defen- 
 dant, if the conversion v/as permanent, and the verdict covers their value, 
 though not otherwise. 4 Starkie, 1507. Str. 1078. On this principle, if 
 the property dies, it dies the defendant's, and it is no loss to the plaintiff if 
 he proves an anterior conversion, for thereby the property was changed. 
 See Gill. 348, 349. But the time of conversion gives the date to which the 
 action relates, and that also at which the title is changed, so that if it dies 
 before conversion, the loss is the original owner's. 
 
 The action of trover is applicable from its c-iaractcr, to a great variety of 
 cases. By it the validity of sales is tried ; for a vendee, if he conceives his 
 purchase to be complete, may maintain it against the vendor, if he refuses 
 to give up the article sold ; or the claimant under a bill of sale may main-
 
 86 TROVER. [ BOOK 3. 
 
 tain it either against a sheriff who sells the property under an execution 
 without bond of indemnity, supposing the bill of sale is fraudulent; — or 
 an-ainst the creditor in the execution where the proceeds of such sale have 
 come to his hands, or he has made the sherifi's act his own, by givingbond 
 of indemnity; 2 Str. 996; — or the owner may maintain the action against 
 a prior purchaser where he can shew that the prior purchase was fraudulent 
 and void as to him. By this action the right of stoppage in transitu may 
 be tried. So, also, the right of lien ; for though the plaintiff hath the right 
 of property, yet the defendant, if an innkeeper or carrier, may justily a de- 
 mand and refusal, by shewing that he had a right to retain the property un- 
 til he was paid those demands for which the law gives them respectively a 
 lien. Pawnees, factors, attorneys, tradesmen, and others, may also defend 
 themselves in trover upon the like ground, and the validity of the defence, 
 either in point of law or fact, thus conies directly in question. It may here 
 be observed, however, in general terms, that this right of lien being admit- _ 
 ted for the benefit of trade, is confined very much in its operation to that ; 
 thouiih we are told by Lord Mansfield that of late years courts lean in favor 
 of itfand admit it not only in cases of express contract and where it is 
 to be implied from the usage of trade, but also in cases of factors, and 
 wherever it may be fairly implied from the dealing between the parties. 4 
 IBurr. 2321. Liens are therefore either express, as in case of a pawn, or 
 implied, as that which the law gives to an innkeeper on the horse or other 
 property of a guest for the amount of his bill. 
 
 Liens are also general or special. Thus a factor has a general lien up- 
 on goods assigned to him not only for what is due for those goods, but for 
 the balance of a general account, and may retain them accordingly. 2 Burr. ■ 
 930. Cow. 25 L 2 T. R. 488. 2 E. 222. 7 John. C. 284. But a man- 
 ufacturer has a lien on the goods entrusted to him to manufacture, only for 
 the j)rice of the work done to those goods themselves, unless the usage of 
 the trade is proved to be otherwise, lor that may create a general lien. 1 
 Atk. 2'j7. And so may the particular mode of dealing between the parties 
 create a general lien in cases were otherwise the lien would be but special. 
 But this doctrine of a general lien is not now favored by the courts. 6 E. 
 519. 7 E. 224. Thus the lien of an innkeeper on the goods or horse 
 of his guest, is special, and does not extend to bills due to him by the guest 
 on former occasions. So the lien of a common carrier is only a special 
 lien, unless the usage of trade or the mode of dealing should convert it into 
 a general one ; and the lien of a tailor on clothes made, of a dyer on goods 
 dyed, and of manufacturers generally, is of the same nature. An attorney, 
 however, has a lien for the general balance of his fees on his client's papers 
 which come to his hands in the course of business. 1 M. &S. 535. But 
 persons, other than attorneys, to whom a deed or paper is delivered to do 
 any work upon, have a lien on that deed only for the price of the work, 
 and not on other muniments of the same party. 4 Taun. 807. 
 
 In the case of the innkeeper, he has a lien on a horse brought to his inn, 
 for the price of his keeping, although the owner knew nothing of it. 3 
 Esp. 58 1. But in none of these cases can th.e party claiming the lien, sell 
 the goods. His |)owcr is only to retain them till he is paid. 
 
 Nor is the action of trover very limited as to the nature of the property 
 for which it may be brought: for it will lie for a slave, a horse, a bond, a 
 bank note, wheat, or other like article, though not in a bag or otherwise dis- 
 tinguishable from other wheat, &.c. It will even lie for articles which were 
 once part of the freehold, bia which have been severed from it so as to ac- 
 quire the character of j)ersonalty ; — as l"or coals dug and thrown up from a 
 pit: if they be taken away by another, trover lies. In short, it lies in gen- 
 eral for any personal property in which the plaintiff has a general or special
 
 CHAP. 6.] TROVER. 87 
 
 property. But this general or special property he must have, together with 
 a right to the immediate possession, (7 T. II. 9,) for if his right is in rcver- 
 sio7i, his remedy is an action on the case. 
 
 The general property will enable the owner to maintain trover against 
 any person who cannot shew a right to the immediate possession. Thus 
 the owner may recover from one who took from him his horse ; but if he pawn- 
 ed that horse, or if an innkeeper has alien on him for a sum which is un- 
 paid, even the general property will not enable him to maintain this action 
 against this special right of possession. 
 
 On the other hand, he who has only a special property may maintain tro- 
 ver against any other than the owner, and even against him if he himself has 
 the right of possession. 2 Taun. '268. Thus every bailee may maintain 
 this action against a third person who converts the property bailed to his 
 o-wn use ; for the bailee is answerable over to the bailor. The owner, in- 
 deed, may himself maintain the action in such case, notwithstanding his 
 'bailment; for as against a wrongdoer he is still considered as having the 
 possession in law, and the bailee is looked on as his servant. 7. T. R. 12. 
 2 Saun. 47, b. But, although there can be but one recovery, and though, 
 indeed, both actions cannot be supported at the same time, (2 Saun. 47, c.) 
 jet if the bailor has not sued, the bailee may. In like manner, a sheriff 
 who has taken goods in execution, a common carrier, an innkeeper or factor, 
 or consignee, may maintain the action, and though in the case of a special 
 property the plaintiff must in general have had possession or he will fail,^ 
 yet this rule is very far from being universal. See 1 Bos, & Pul. 47. 2 
 Saun. 47, d. 
 
 , The parties to the action of trover depend upon the nature of the title. 
 If there be joint-tenants or tenants in common of a chattel, they must 
 join in an action of trover, and if one sues alone, the defendant may plead 
 it in abatement, but he can in no other mode take advantage in this action 
 of the omission ; and herein exists a distinction (hereafter more fully ad- 
 verted to) between actions ex delicto, and those ex contractu, for in the lat- 
 ter the error may be taken advantage of at the trial, and without plea in a- 
 batement. Where one of two part-owners sues and recovers for the injury 
 done him, and the defendant fails to plead in abatement of his action, the 
 other part-owner may afterwards sue for the injury done him, and in this 
 latter case tlie defendant cannot even plead in abatement that there is ano- 
 ther partner; for as he omitted to plead it in the first suit, it would be un- 
 reasonable to permit it in the second, whereby the other joint-owner would 
 be impeded in recovering his portion of the damages. The joint interest 
 is indeed severed, by the verdict for several damages found without objection 
 on the part of the defendant. 
 
 Where the cause of action in trover had its inception before marriage, but 
 its completion afterwards, as where the trover was before, and the conver- 
 sion after coverture, the husband may or may not join his wife in the action ; 
 — whore both trover and conversion precede it, he must join her : whero 
 they both are after marriage, he cannot join her; and these doctrines pro- 
 ceed from the principles laid down in a former volume as to the husband's 
 rights in his wife's property. So where the wife is executrix or administra- 
 trix, she ought to join in the action of trover, whether the trover or con- 
 version, or both, were before or after the marriage. On the other hand, 
 if a woman before or after marriage convert the goods of another, this be- 
 ing a tort, she and her husband may both be sued ; for as to the husband, 
 he is answerable for her acts; and as for herself, she is answerable for her 
 torts committed even after marriage, and may be taken in execution for 
 the same, nor shall she be discharged but upon payment of the damages, 
 unless it appear that the plaintiff and her husband collude to keep her in
 
 88 TROVER. [ BOOK 3. 
 
 prison. 2 Str. 1167, 1237. 1 Wils. 149. It is otherwise, however, in 
 detinue, for that will not lie against the wife as well as the husband. 1 
 Chitty, 82. 
 
 One joint-tenant, or tenant in common, cannot suppo'rt trover against his 
 comp;inion, unless the latter has destroyed the chattel. 2 Saun. 47, f. g. 
 4 E. 121. 
 
 Trover will lie in Virginia by or against executors and administrators by an 
 equitable construction of our law. See 4 Mun. 130. 1 Gilm.331, as to 
 the construction of the 64th section of the Statute of Wills. 
 
 Of the PleadIxNgs. First of the declaration. The gist of this action, 
 as we have seen, is the conversion, i. e. the defendant's appropriating the 
 property to his own use. The declaration, therefore, after stating that the 
 plaintiff was possessed of the goods as of his own property, and that they 
 came to the defendant's possession by finding, must set forth a conversion 
 by the defendant, without vvhich it is incurably faulty ; unless, indeed, the 
 late statute of Jeofails has enacted otherwise : — a subject I purpose else- 
 where to examine. A time and place for the conversion should also be spe- 
 cified, and there should be some description ofthe nature, quality, and quan- 
 tity of the goods, though of late the former strictness on this latter point 
 has been much relaxed ; for being out of possession, the plaintiflf cannot 
 always be very accurate, and to compel him to enter into minutia;, would 
 be to deny him justice ; since if he does undertake a particular description, 
 any variation in the evidence will occasion his being nonsuited. 2 Esp. 
 587. The time and place, however, need not be proved as laid. The value 
 of the goods need not be stated. 2 \Vash. 192. 
 
 Where husband and wife are plaintiffs, the declaration states the con- 
 version to be to the damage of the husband only, unless the conversion 
 was before marriage. 1 Salk. 114. And so in like case against baro7i 
 and feme, the conversion must be laid to the use of the husband. 2 
 Esp. 588. 
 
 Of the plea. The general issue is, not guilty; for the conversion char- 
 ged is a tort or wrong done, which can only be denied by that plea. 
 Under this issue most defences may be given in evidence ; yet several 
 special pleas are allowed ; — as a release ; the statute of limitations ; a 
 Ibrmer recovery by the plaintiff, in trover or in trespass, for the same goods, 
 either against the defendant or another; for the plaintiff cannot have a 
 double satisfaction, and indeed by the recovery of damages the property 
 is changed, (2 Str. 1978,) so that afterwards the plaintiff cannot have proper- 
 ty in the goods. So, many things which shew a right to detain the goods 
 may be pleaded specially, as a right of lien in a tavern keeper or carrier, 
 though such defences are also proper to be given in evidence on the gene- 
 ral issue. 
 
 The statute of limitations begins to run from the time of the conver- 
 sion, for then, and not till then, the cause of action accrued. 
 
 Of the evidence : — On the part of \\\g plaintiff . Possession in the plain- 
 tiff is, in the first instance, sufi^icient to be proved on the point of title, for 
 It is prima facie evidence of property. 7 T. R. 397. 2 Taun 302. 
 4 E. 130. 5 Esp. 11. 83. But if the defendant asserts the right of 
 property or the right of possession, and gives evidence in support of his 
 right, the plaintiff is put to farther proof of title. See Salk. 290. 1 T. 
 R. ()o8. 
 
 Having proved his own right, the plaintiff next establishes the defendant's 
 wrong. As to the alleged finding, it is imi.iaterial and not traversable ; 
 that is to say, the defendant cannot foil his adversary by denying that he 
 found the goods. For the conversion being the gist of the action, he is 
 liable whether he found them or not, as if they Mcre delivered to him by
 
 CHAP. 6] INJURIES TO PERSONALTY. 89 
 
 plaintifl*, or were forcibly taken by himself, provided the conversion can be 
 proved. '2Saun. 47, k. Now the conversion may be supported either by 
 proof of an unlawful taking in the first instance, or of an illegal assump- 
 tion of ownership, or of an illegal use or abuse of the property, (Willes, 
 66. 5 E. 407. () E. 540,) or of a demand and refusal to deliver it. And 
 where the plaintiff cannot prove one of the former of these charges, he 
 must prove the last, which, though not itself a conversion, is sufficient ev- 
 idence to justify the jury in finding one, unless it is rebutted bv evidence 
 justifving the refusal. 3 Bur. U-23. 2 Esp. 589. 6 E. 540. 'i Esp. R. 
 83. S Camp. 215. 5 Barn. & A. 247. 1 Camp. 409. 
 
 Evidence for the defendant. This depends upon the cliaracter of the de- 
 fence which he sets up, and must always of course be adapted to it. To 
 what has been already said on the subject of the defence, I will add there- 
 fore that the defendant may, under the general issue, give evidence of the 
 title to the property being in himself, or even in another; or he may shew 
 that though the title is in the plaintiff, the right to hold possession, when 
 the demand and refusal occured, was in him or some person under whom 
 he claims. As where he holds the goods as a pawn, or has hired them for 
 a time not yet expired, or even has found them, and the plaintiff when he 
 demanded them did not prove his right of property. So he may prove 
 that the articles were fixed to the freehold by himself as a lessee, for the 
 convenience of trade, and that he had a right to remove them ; or that the 
 goods were taken by him under an execution or distress for rent to which 
 they were liable ; or that they were detained by him by virtue of a lien he 
 had upon them, and any other matter which, admitting the plaintiff's right 
 of property, will shew his own superior right of possession. 
 
 The verdict in this action is for damages, which damages are measured 
 by the value of the property at the time of the conversion.* The court, 
 however, in modern times, have permitted the defendant to bring the goods 
 into court, or if they are bulky, to deliver them to the plaintiff, and then the 
 damages given are only for the detention. 3 Burr. 1364. The plaintiff, 
 if he recovers, has a judgment for his costs, provided the subject in con- 
 troversy is of the value of $20. If it be not, he will be nonsuited, since of 
 such controversies a justice of peace has jurisdiction. 1 R. C. ch. 71, § 
 20, 30. 
 
 "As to the damage," says Mr. Blackstone, "that may be offered to things 
 personal, while in the possession of the owner, as hunting a man's deer, 
 shooting his dogs, poisoning his cattle, or in anywise taking from the value 
 of any of his chattels, or making them in a worse condition than before, 
 these are injuries too obvious to need explication. I have only therefore to 
 mention the remedies given by the law to redress them, which are in two 
 shapes; by action of trespass vi et annis, where the act is in itself immedi- 
 ately injurious to another's property, and therefore necessarily accompanied 
 with some degree of force ; and by special action on the case, where the 
 act is in itself indifferent, and the injury only consequential, and, therefore, 
 arising without any breach of the peace. In both of which suits the plain- 
 tiff shall recover damages, in proportion to the injury which he proves that 
 his property has sustained. And it is not material whether the damage be 
 done by the defendant himself, or his servants by his direction ; for the ac- 
 tion will lie against the master as well as the servant. And, if a man keeps 
 a dog or other brute animal, used to do mischief, as by worrying sheep or 
 the like, the owner must answer for the consequences, if he knows of such 
 evil habit." 
 
 "Where tlie defendant had fraudulently got possession of tlie plaintiff's diamond, and woulil not 
 produce ii that it might be valued, the highest price was directed to be given, 1 Sir. 605. Set also 
 SJohn.C.C. 103, lie. 8 Bur. 1363. 3 Bl. Rep. 90JJ. 
 
 VOL. 3—12
 
 90 INJURIES TO PERSONALTY. [ uooK 3, 
 
 The foregoing short and unsatisfactory paragraph is all that the commen* 
 tator o-ives us, in relation to the actions of trespass, and trespass on the case, 
 for injuries received in reference to things personal. AVe must therefore 
 push our inquiries farther, by the aid of other lights. 
 
 The actions of detinue and trover, which we have been just considering, 
 though they embrace, according to ihe modern practice, not only those ca- 
 ses ni which the party comes lawfully into possession, but those also in 
 which he torliously acquires it, if the phiinliff chooses to waive the trespass , 
 yet, in their original, they were doubtless considered as confined to cases 
 in which the original possession was obtained without wrong. But where 
 a trespass was committed by forcibly taking away the goods and chattels of 
 the party, his remedy was an action of trcspsLi^s de bonis asportatis, in which 
 he recovered damages to the value of his goods, unless he had regained the 
 possession. 
 
 There are then three kinds of actions to be considered in reference to 
 those wrongs which affect the personal property of a party, viz.: 
 
 1. The action of trespass de bonis asportatis. 
 
 2. The action of trespass vi et armis lor an immediate injury to the pro- 
 perty. 
 
 3. The action of trespabs ou the ca?<^ for a consequential injury. 
 
 Before we proceed to consider these three species of actions, I must re- 
 mind the student of the distinction already noticed in the last chapter, be- 
 tween direct and consequential injuries : a distinction which it is proper to 
 bear in mind, though it has been rendered of less importance than formerly 
 by the act 1 R. C. ch. 108, § i03. That act provides, that no judgment, af- 
 ter a verdict of twelve men, shall be arrested or reversed for any mistake or 
 misconception of the form of action ; a clause which we shall have occa- 
 sion to consider hereafter more particularly. 
 
 We proceed now to speak, first, of the action of trespass de bonis aspor- 
 tatis. This, as we have said, is appropriate where the goods of a party 
 have been tortiously taken from his possession, whether they have been re- 
 turned to him or not ; though if they have been returned, the plaintiff is 
 not entitled to recover their full value, as he may do whore tJiey iiave been 
 used or consumed, or eloigned by the defendant, or are yet retained in his 
 j)ossession. Where he does recover a verdict for their value, it operates a 
 change of property, as in the action of trover, and the defendant according- 
 ly thereby acquires a perfect title to them. 4 Starkie, 1281, 1507. For 
 it would be a gooil plea in a subsequent action of trover, that the plaintiff 
 had received satisfaction. 
 
 As the requisites and proceedings in this action correspond very much 
 with those of the action of trespass for injury to personal property, we shall 
 proceed, secondly, to the consideration of them together, taking care to mark 
 out those instances in which there is a difference between the two. 
 
 Tiie action of trespass to recover damages for an injury to personal pro- 
 perty, lies where the property has been injured by the immediate act of the 
 flefeudaiit ; and i>oth in this and in the action dc bonis asportatis his essen- 
 tial that the plaintiff at the time of the injury should have had an actual or 
 constructive possession, and also a general or (|ualified property in the goods. 
 1 T. 11. 480. 4 T. R. 490. 7 T. R. 9. The absolute or general owner, 
 if he is entitled to immediate possession, may indeed maintain the action 
 though he never had the actual possession, for the general property draws 
 to it a constructive possession. Hence, executors and administrators may 
 maintain trespass for an injury done to the goods after the testator's death, 
 tliou::j!i before probate ; and so may a legatee after the executor has assent- 
 ed to his legacy, for a trespass committed before such assent. 1 Chitty, 
 107. But if the general owner has parted with the possession, and the
 
 CHAP. 6.] INJURIES TO PERSONALTY. 91 
 
 bailee have a right to use the thing, the consiructive possession is rebutted, 
 and he can no longer maintain trespass, though he retain the right of pro- 
 perty : for he has not an immediate right, but only a right in reversion, and 
 vvheij that is the case the owner cannot maintain trespass for an injury done 
 to the property even by a third person, but is driven to his action on the 
 case.* Still less can he maintain trespass against the bailee, unless, indeed, 
 the thing be forcibly destroyed, in which event it seems that it will lie. 1 
 Chitly, ]63. The bailee himself may also bring trespass for taking away or 
 injuring the goods, because he is liable over to the owner; and so may the 
 finder of personal property, and even the illegal holder of it, maintain this 
 action against all persons except the owner or a person entitled to the pos- 
 session. 
 
 The necessity of a right of property and possession creates the line of 
 distinction as to the property for which trespass lies. For it may be main- 
 tained for all things in which a man can by law have a property, though it 
 be only a qualified property. In relation to animals /evcB naturcB, however, 
 it should be shewn by the declaration that they were either reclaimed or 
 dead, which is not necessary as to tame animals. Yet if a hare or rabbit 
 be killed on the land of another, and the person killing it carries it away, 
 the owner of the land may support trespass for taking it, for he has a local 
 property ratione soli, and as soon as it was killed, that property became ab- 
 solute. So as to fish, &c. And if game be started on A's land, and he 
 pursues it to the land of B, where another person kills it, the property in the 
 game is in A, for the local property was continued in him by the pursuit. 
 In actions of this nature, however, were the injury is accompanied by a 
 trespass on the land , it is advisable to set out that also, to remove all doubt as 
 to the propriety of the action. 
 
 The action of trespass is generally sustainable in no case where the de- 
 fendant came lawfully into possession. Where he does so, the owner's re- 
 medy is usually trover or detinue. As where a trespasser delivers the goods 
 to a third person, that person is not liable in this action. Yet this rule is 
 not universal ; for if a bailee, or a joint-tenant or tenant in common, de- 
 stroy the property, he is liable in trespass : and in other cases, though the 
 original taking be lawful, yet if the taker be guilty of any abuse, it may 
 render him a trespasser ab initio, and liable in this action. 1 Chitty, 172, 
 186. But if the defendant came unlawfully into possession, he is liable, 
 as where he has wrongfully distrained for rent; — or distrained what is not 
 distrainable : — and this, though there be no wrongful intent, — as where, on 
 an execution against A, the sheriff by mistake takes the goods of B, he is 
 liable. 
 
 Of the declaration. The declaration contains a concise but direct charge 
 or statement of the injury complained of, and should always allege that it 
 was done vi et armis, and against the peace of the commonwealth. It al- 
 so states a time and place where the injury was committed, though these 
 are generally immaterial and not traversable in actions of trespass to per- 
 sonal property. It also usually sets forth the property and its value, but 
 herein this distinction is to be observed: where the action is de bonis aspor- 
 tatis, the properly should be described, though a charge of taking " a quan- 
 tity of poultry, to wit, geese, ducks, &c." has been held sufficiently certain. 
 4 Mun. 251. The reason for requiring a description of the goods taken, is, 
 that otherwise the defendant might not be able to avail himt^elf of a justifi- 
 cation which he would otherwise have, and also because without such de- 
 scription the record would not afford conclusive evidence of satisfaction 
 
 *Tlnis if the property has been converted, the reversioner must bring frover, not trespass. If it has 
 been iMJnrefi, he must bring case for conseqntntiaL damage; for all injnries are regarded as conae- 
 qiipii'ial only as respects the reversioner.
 
 92 INJURIES TO PERSONALTT. [ book 3. 
 
 already recovered for the injury, as a bar to another suit for the same mat- 
 ter. iSut where the action is for an injury to the goods, the same strictness is 
 not required. There is one thing, liowever, essential, that it should be sta- 
 ted that the goods were of the property of the plaintiff, or that he was pos- 
 sessed of them. 4 Mun. 251. Theomission of this will be fatal after ver- 
 dict, unless, indeed, it be cured by tiie late act of Jeofails. 1 Chitty, 3(55. 
 2 Saun. 379, n. 13. It does not seem necessary to state the price or value 
 of the goods in trespass de boiiis asporlatis ; for even in trover it has been 
 held unnecessary. 2 Wash. 192. 
 
 I have said the charge should be direct. If it be by way of recital, as 
 " Whereas the defendant did, &,c." it is erroneous; though after a verdict it 
 will now be cured by the late act of Jeofails. 
 
 In trespass de bonis asportatis, if the property be inanimate, the dcclara- 
 ration charges that the defendant " took and carried" it away. If the pro- 
 perty be animate, the terms " led" or " drove" are substituted for " carried," 
 according as the one or other is most appropriate. 
 
 Of the plea. The general issue in this action is "not guilty," under 
 which the defendant may give in evidence the want of title in the plaintiff, 
 or any matter which directly controverts the truth of the charge. But mat- 
 ter of juslification must always be pleaded specially; for evidence of justi- 
 fication, so far from supporting the plea of not guilty, which implies a deni- 
 al of the taking, in fact admits it, and the allegata and the probata would 
 thus be in conflict, which would be against an invariable rule. Thus the 
 defendant may plead that he took and impounded the cattle damage-/ca6Y/nf ; 
 or took the goods for a distress, or by execution, or any other matter which, 
 admitting the title of the plaintiff, and the taking of the defendant, shews 
 a legal justification of his conduct. 
 
 The defendant may also plead a former recovery, — accord and satisfac- 
 tion, — the statute of limitations, — or a release. And a release to one will 
 avail all who were jointly concerned in the same trespass. So, too, of a 
 satisfaction by one. 2 H. & M. 38. And so of a former recovery against 
 one of several joint trespassers. 2 H. St M. 355. 
 
 Of the evidence. If separate actions are brought against joint trespass- 
 ers, one may be a witness for the other; for the verdict in one suit is no ev- 
 idence in the other. 1 Wash. 187. If several be sued jointly, and nothing 
 is proved against one, he may be admitted as a witness for the others. 
 
 On the part of the defendant an acknowledgment (not on oath, on the 
 trial,) by a person not party to the cause, that he committed the trespass, is 
 not admissible to exculpate the party to the action. 4 Mun. 458. 
 
 As to justification under process of execution, there is a difference where 
 the defendant is sued by a stranger to the execution, and where he is sued 
 by the defendant in the original action. In the first case he must shew a 
 judgment as well as execution ; for the stranger is not privy to the judg- 
 ment. In the second case he need only shew the execution itself for the 
 plaintiff is conusant of the judgment. 5 Bur. 2()31. Lord Ray. 733. 
 
 Of the verdict, cS-c. The verdict in trespass is for so much as will com- 
 pensate the jdaintiff for his damages, and he can ne\er recover more than 
 he has laid in his declaration. If, therefore, the verdict is for more, lie must 
 release the excess. 
 
 The jury may acquit one of the defendants of the trespass, and find 
 another guilty : but in a joint action (if trespass, the jury cannot sever in 
 dnma^rrs. The doctrine on this subject has however been already stated in 
 treating of the action of assault and battery. 
 
 In trespass against two defendants, if one be found guilty and the other 
 bo acquitted, a new trial cannot be granted on the motion of the convicted 
 defendant. I Wash. 322. In this case, liowever, they had pleaded jointly. 
 
 i
 
 CHAP. 6.] INJURIES TO PERSONALTY. 93 
 
 In all actions of trespass in reference to personal property, if the jury 
 find under $G.66, (in whatever court the suit may be,) the phiintiflfshaii not 
 recover more costs than damages, unless the court shall be satisfied and 
 shall certify upon the record that the trespass was wilful or malicious. 1 
 R. C. ch. J28, §21. 
 
 Let us now proceed, thirdly, to the action of trespass on the case. We 
 have already seen that to prevent a failure of justice where the forms of 
 writs already provided did not embrace the case of a suitor, it was enacted 
 in the time of Edward the 1st, that a writ should be iramed by consent of 
 the learned in the law, adapted to his particular necessities. Hence, the 
 great variety of writs of trespass on the case. Some of thes^e were 
 framed so as to embrace the case of contracts where the amount demanded 
 was unascertained and not secured by specialty: such are actions on the 
 case sur assumpsit. Others were intended to give relief for injuries to real 
 property : such is the action of trespass on the case for a nuisance to lands, 
 or for disturbance in the enjoyment of any right connected with the owner- 
 ship of incorporeal heraditaments. Others were intended to give relief or 
 afford a remedy for injuries to the person or to personal property, not a- 
 mounting to trespasses : such are the actions of trespass on the case against 
 a surgeon or attorney for neglect in their respective duties, or against the 
 keeper of a tierce dog, by which the injured party is bitten, or his sheep or 
 cattle injured or killed. Besides these, there are a great variety of other ca- 
 ses arising out of human affairs, in reference to persons or their property, 
 which it would be difficult completely to enumerate. Of the remedy as ap- 
 plicable to cases of injury to persons or property, it behoves us now to speak ; 
 and perhaps it may not be amiss to observe, 
 
 That in all cases of contracts by specialty, as bonds, covenants, and such 
 like. 
 
 And in all cases of injuries to the person or to personal property, accom- 
 panied by force, 
 
 The law has provided specific and appropriate remedies. 
 
 But in all cases of breach of contract not evidenced by specialty, and of 
 i-njuries to property or the personal rights of individuals not accompanied 
 with force, the action on the case is the proper remedy. Some of these 
 actions on the case, however, from their frequency and importance, are 
 treated of under separate heads; as the action on the case for slander, or 
 for a malicious prosecution, or for trover and conversion, of which we have 
 already spoken, and the action on the case sur assumpsit in all its various 
 forms, of which we shall hereafter speak. At present we shall confine our- 
 selves to those wrongs which are unaccompanied by force, but do not fall 
 within either of the foregoing descriptions. 
 
 The action of trespass on the case, then, lies where the plaintiff has sus- 
 tained an injury consequential lif from the act of the defendant, or from his 
 culpable omission. Thus, if the defendant throw a log in the public high- 
 way, and the plaintiff in the night falls over it and is hurt, he may sue for 
 the injury thus consequential upon the act of the defendant. So lor omis- 
 sion : — if the plaintiff loses his suit by the neglect of counsel to file a decla- 
 ration, he may maintain this action. In all these cases, however, there 
 must be some fault in the defendant, either in doing what he had no right 
 to do, or in not doing what he was bound to do, or in omitting that care in 
 doing a lawful act to which every man is bound. 
 
 There must not only be a wrong on the part of the defendant, but a spe- 
 cial damage to the plaintiff, else it is injuria absque damno, which will not 
 support an action. Thus a nuisance in the public highway is no cause of 
 action to any individual until he has himself sustained some injury from it, 
 though the person guilty of the nuisance would be subject to punishment
 
 i>4 INJURIES rO r ERSONALTY. [ book 3. 
 
 either by way of information or indictment. But as soon as a particular in- 
 jury is sustained by an individual in consequence of the nuisance, the ac- 
 tion lies. Co. Litt. 56, a. 
 
 The injuries for which this action lies are, as has been said, very various. 
 An enumeration will not be attempted. Those which follow must suffice, 
 in addition to wliat liavc already been mentioned. 
 
 An action on the case will lie, if the party's health is impaired by any 
 nuisance of the defendant, or by his selling him bad wine, or treating him 
 unskilfully as a surgeon ; or if he has been bitten by the dog or kicked by 
 the horse of the defendant, where the injury has arisen not from a want of 
 care on the part of the plaintiff, but from the vicious character of the ani- 
 mal, accompanied on the part of the defendant by a knowledge thereof, and 
 a want of due care to prevent his doing injury. In like manner case lies 
 for injuries to the person, consequential on the acts of the defendant — as 
 in the case before put of a log thrown into the highway; or for injuries 
 proceeding from the negligence of the defendant's servant — as where he 
 carelessly drove his master's carriage, whereby he ran against the plaintiff's 
 and overset it, by which the plaintiff was hurt; or where he carelessly drove 
 his master's carriage, which was hired by the plaintiff, so that it was over- 
 set and he was hurt. 
 
 This action also lies for consequential injury to the plaintiff's personal 
 property, proceeding from the act of the defendant, or Irom his omission, 
 or the omission or negligence of his servants. And so it lies for an injury 
 done to his property by a vicious animal of the defendant, where the scien- 
 ter and a want of due care appears.* Actions against attorneys, bailees, 
 carriers, innkeepers. &.c. where they have been guilty of negligence by which 
 they have become liable, as elsewhere explained, come under this head. 
 So also do actions for fraud or deceit in sales, of which I have sj)oken in 
 another place, or for any other fraud or deception whereby the party is in- 
 jured, as by falsely representing an insolvent man to be solvent, the defen- 
 dant knowing him to be otherwise. 
 
 A fruitful source of actions on the case, is to be found in the transactions 
 of sheriffs. Thus this action lay, at common law, for taking insufficient 
 bail, though our law now affords a shorter remedy. And it now lies for 
 taking insufficient security in a forthcoming bond ; or permitting a prisoner 
 to escape ; or for levying an execution on property on leased jMcmises, and 
 selling and paying over the proceeds without paying the landlord's rent, (1 
 Wash, '^-i-i;) or for paying money on A's execution which ought to have 
 been applied to B's ; or for a false return ; or for not levying an execution 
 or serving a writ, whereby the plaintiff's debt was lost ; and so in various 
 other cases where the officer has omitted to perform a duly, or has perform- 
 ed it negligently, by which the party complaining lias sustained some ma- 
 terial injury. 
 
 This action is also appropriate for a husband (1 Chitty, 138,) whose wife 
 has been seduced or enticed to live away from him without suflicient cause ; 
 or for a father whose daughter has been seduced ; though in these cases the 
 action of trespass is most usual It lies also for a parent whose son or 
 
 "As to wliaiiR evidence of linowlfidge, see 4 Camp. 198. 2 Stra. 12G4. 2 Esp. 4n2. But tlie owner 
 is ri'il nii?^\vcMalil(; (or (lie fust inisc.liini done liv a dot;, a bull, or other lame animal, liiill. N. I'. 77. 
 V2 Mod. m I.d. Kayi/i. GO.'i. .See 1 1 C. I. .It .'J:)7. Vel, if lie should larrv liis do<. into a field, where 
 lie limi.self iea Irecpas.ser. and ih" dog .«liould kill sheep, this.lhouuh the fir.-l oflenee, might he slated 
 ■and pmved aw an atiuravalioiiof the lrenpasg. I!ur. iidil.*. 2 Lev. J 72. J{nt where a Heree and vieions 
 do'.; IS kept ehiined lor ihe defeiiec of the premises, and anv one incanliously, or not knowing of it, 
 shiiuld i;o HO near as to l>e injured hy il, noiielionean he mainlaiiicd by Ihe person imured, though he 
 was sc'eking the owner, with whom he had business. Uatea w. Crosbie.lM. '1\ J79ii, in the king's 
 bench. If a man sets traps in his own grounds, but baited with sncli strong-scented articles as allure 
 the neighboring dog.s from the premises of the owners, oi from the highways, the owner of a dog in- 
 jured may mainiaiu aa aciiou upon the ctige. yEast,2-J7: but, sec Hot i'S. Willies, 3 liar. & Aid. 
 '■i^i' Chili!/.
 
 CHAP. 7.] • DEBT. 95 
 
 daughter has been excessivehj beaten, whereby he has lost their service or 
 been put to expense in nursing or curing them. In like manner, it is the 
 proper action for enticing away a servant, or beating him excessively, by 
 which loss of service or expense ensues, or for any injury by which the ser- 
 vant is disabled, whether proceeding directly or consequeiitially from the 
 act of the defendant, his servants or property. 
 
 The action on the case also lies, it is said, against a* magistrate for refu- 
 sing to take deposi'ions, whereby the party loses his action against the hun- 
 dred, or for refusing to take bail where it ought to be granted, provided it be 
 a case in which he is acting ministerially. 2 Saun. (31, c. d. 2 Esp. GIS, 
 citing Leonard, Hawkins, & Hale. It is said, also, to lie against a sherilF 
 who refuses to take a poll for a candidate for office, or to permit a person 
 to vote who is entitled to do so. Salk. 19. See 3 Mun. 579, where tha 
 point, however, was not decided. 
 
 This is also a proper remedy for a patentee whose patent right is invaded. 
 See 2 L. U. S. 3i8, &c. 3 L. U. S. 342. 
 
 This action lies, also, where a distress and sale have been made for rent 
 where no rent is due, (1 R. C. ch. 113, § 5,) or where there has been any 
 irregularity in the taking or sale or disposal of the distress. 1 Chitty, 140. 
 So it lies for a landlord against a person who rescues a distress, or for a cre- 
 ditor against one who rescues a person or goods taken in execution. It is 
 also the appropriate remedy for persons having the reversionary interest in 
 personal property, for an injury done to it; for, as has been said, trespass 
 will not lie for the reversioner, that action being given only to the person 
 having possession, or entitled to immediate possession. 
 
 The declaration in this action ought not to state the injury to have been 
 committed vi el armis, nor ought it to conclude contra pacem, for these are 
 appropriate to actions of trespass. Yet the words viet armis will not con- 
 vert the action into an action of trespass, if the frame and structure of the 
 declaration in other respects is that of an action on the case. 6 T. R. 125. 
 2 H. & M. 443, 444. In other points, the declaration should conform to 
 the circumstances on which the action is founded, and set forth all the mat- 
 ters which are essential to shew a wrong on the part of the defendant, and 
 injury sustained by the plaintiff. Hence, there is a great variety in the 
 forms of the declaration in different cases. Care must be taken, however, 
 that the declaration conform to the evidence, for in this, as in other actions, 
 the allegata et probata must correspond. 
 
 The pleas to this action, generally, are, not guilty, and the statute of lim- 
 itations. In an action of slander, however, we have seen there are various 
 other pleas. 
 
 The verdict is for so much damages as the jury may deem commen- 
 surate to the injury sustained. 
 
 CHAPTER VII. 
 
 DEBT. 
 
 II. " Hitherto of injuries affecting the right of things personal, in posses- 
 sion. We are next to consider those which regard things in action only : 
 or such rights as are founded on, and arise from contracts : the nature and 
 several divisions of which were explained in a preceding book. The viola- 
 tion, or non-performance, of these contracts, might be extended into as 
 great a variety of wrongs, as the rights which we then considered : but I 
 shall now consider them in a more comprehensive view, by here making 
 only a two-fold division of contracts: viz, contracts express, ?nd contracts
 
 96 DEBT. [ BOOK 3, 
 
 implied : and pointing out the injuries that arise from the violation of each, 
 with their respective remedies. 
 
 " Express contracts include three distinct species; debts, covenants, and 
 promises. 
 
 "The legal acceptation of debt is, a sum of money due by certain and 
 express agreement: as, by a bond for a determinate sum, a bill or note ; a 
 special bargain ; or a rent reserved on a lease ; where the quantity is fixed 
 and specific, and does not depend upon any subsequent valuation to settle 
 it. The non-payment of tiiese is an injury, for which the proper remedy 
 is by action of debt, to compel the performance of the contract and recover 
 the specifical sum due. This is the shortest and surest remedy ; particular- 
 ly where the debt arises upon a specialty, that is, upon a deed, or instru- 
 ment under seal. So, also, if I verbally agree to pay a man a certain price 
 for a certain parcel of goods, and fail in the performance, an action of debt 
 lies against me ; for this is also a determinate contract: but if I agree for no 
 settled price, I am not liable to an action of debt, but a special action on 
 the case, according to the nature of my contract. And, indeed, actions of 
 debt are now seldom brought but upon special contracts under seal ; where- 
 in the sum due is clearly and precisely expressed : for, in case of such an 
 action upon a special contract, the plaintiff labors under two difliculties. 
 First, the defendant has here the same advantage as in an action oi^ detinue, 
 that of waging his law, or purging himself of the debt by oath, if he thinks 
 proper, [though this is a defence entirely out of use, even if it has existence 
 in Virginia.] Secondly, in an action of debt the plaintiff must prove the 
 U'hole debt he claims, or recover nothing at all. For the debt is one single 
 cause of action, fixed and determined ; and which, therefore, if the proof 
 varies from the claim, cannot be looked upon as the same contract wliere- 
 of the performance is sued for. If, therefore, 1 bring an action of debt for 
 £30, I am not at liberty to prove a debt of £-2{), and recover a verdict there- 
 on ; any more than if I bring an action of detinue for a horse, I can there- 
 by recover an ox. For I fail in the proof of that contract, which my ac- 
 tion or complaint has alleged to be specific, express, and determinate. But 
 in an action on the case, on what is called an indebitatus assumpsit, which 
 is not brought to compel a specific performance of the contract, but to re- 
 cover damages for its non-performance, the implied assumpsit, and conse- 
 quently the damages for the breach of it, are in their nature indeterminate j 
 and will therefore adapt and proportion themselves to the truth of the case 
 which shall be proved, without being confined to the precise demand stated 
 in the declaration. For if any debt be jiroved, however less than the sum 
 demanded, the law will raise a promise yjro tantu, and the damages will of 
 course be proportioned to the actual debt. So that I may declare that the 
 defendant, bein^ indebted to me in £30, undertook or promised to pay it, but 
 failed ; but lay my damages arising from such failure at what sum I |)lease : 
 and the jury will, according to the nature of my proof, allow either the. 
 whole in damages, or any inferior sum. And even in actions oi debt, where 
 the contract is proved or admitted, if the defendant can shew that he has 
 discharged any part of it, the plaintiff shall recover the residue." 
 
 The doctrine here laid down by i\Ir. Blackstone, is, I conceive, in princi- 
 ple entirely correct, though his phraseology might perhaps with advantage 
 have been somewhat more guarded. 
 
 It is certainly said by Lord Mansfield, in the case cited by Mr. Christian 
 in his note to this passage, that it is not necessary that the plainlifi" in debt 
 should recover the exact sum demanded. See, also, 2 Bl. 11. VZ'il. 1 H. 
 B.ooO. 11 E. irl. Mr. Chitty broadly states, that in debt on simple con- 
 tjact, the plaintiff may prove and recover less than is demanded by the de- 
 claration. Chitty's Plead. 107. I conceive, however, that where the de-
 
 CHAP. 7.] DEBT. 97 
 
 wanrHs certain and determinate, — where the declaration imports a title to 
 a certain fixed gross sum, numerically certain, then the evidence must shew 
 a right to that sum, or the action fails, and the party cannot recover less, 
 except where defendant proves he has discharged a part, in which case, as 
 Mr. Blackstone tells us, the plaintiff has judgment for the residue, the 
 jury finding tlie payment of that part. There are cases, it is true, in which 
 less than the debt demanded is recovered, but these do not conflict with, 
 the principle that the plaintiff must recover according to the contract sued 
 upon. Thus, in Walker ts Witter, (Doug. 1, G,) the objection made was, 
 that tbe value of Jamaica currency for which the judgment was rendered, 
 on which the suit was brought, was fluctuating. This objection was over- 
 ruled ; for though the demand of the plaintiff was to be reduced to ster- 
 ling money, yet it was a certain determinate demand for the amount of a 
 judgment, and therefore might be recovered in debt; but it was not pre- 
 tended that the plaintiff could have recovered one penny less than the va- 
 lue of that judgment.' In a subsequent case, in the same, book, (page 
 73:2,) Lord Mansfield explains himself by saying, that, in such cases, the 
 gist of the action is supported, and a case proved consistent with the de- 
 claration. 
 
 ' A declaration in debt hath also been held good, though it specified by the 
 several counts a less sum than was demanded by the writ, and yet assigned 
 as the breach the non-payment of the amount stated in the writ. 1 H. B. 
 2-19. See also 11 E. 6-2. 
 
 It is said, however, that debt on simple contract will lie for an indetermi- 
 nate sum, capable of being readily reduced to a certainty, though it will not 
 lie where the demand is rather for unliquidated damages than for money. 
 1 Chitty, 101. Bac. Debt, E. 
 
 I must, however, here observe, that with us assumpsit in these cases is the 
 most usual action. It is attended with less nicety as to this matter, and it 
 is not perceived that in Virginia there is any reason for a preference of the 
 action of debt to the assumpsit, Avhere the sum is not ascertained. On 
 promissory 'notes, indeed, debt is to be preferred, and is always brought, for 
 bail may be demanded in actions upon them, and moreover they are not lia- 
 ble to the objections above spoken of. 
 
 An action of debt v/ill not lie against an executoi: on a simple contract, 
 for the testator might have waged his law, which the executor cannot do ; 
 I Esp. 17"2; an absurd reason, indeed ; as it only turns the party around to 
 another kind of action. The rule, however, is settled. 1 Bos. & Pul. N. 
 R. 298. 
 
 Debt, it is said, will not lie against the acceptor of a bill of exchange, for 
 the acceptor is not the debtor ; he is in the nature of a security, and is only 
 liable by reason of his undertaking. Hence, assumpsit upon his accep- 
 tance is the proper remefly. Salk. 23. 3 H. & M. 394. 2 Mun. 302. 3 
 Wheat. 385, contra. 
 
 An action of debt lies also upon a judgment of a court of record, for 
 whatever the laws order any one to pay, that becomes instantly a debt, which 
 he hath before-hand contracted to discharge. And this implied agreement 
 it is, that gives the plaintiff a right to instilute a second action, founded 
 merely on the general contract, in order to recover such damages, or sum 
 of money, as are assessed by the jury and adjudged by the court to be due 
 from the defendant to the plaintiff in any former action. So that if he hath 
 once obtained a judgment against another for a certain sum, and neglects 
 to take out execution thereupon, he may afterwards bring an action of debt 
 upon this judgment, and shall not be put upon the proof of the origi- 
 nal cause of action ; but upon shewing the judgment once obtained, still 
 in full force, and yet unsatisfied, the law immediately implies, that by the 
 Vol. 2—13
 
 98 DEBT. [book ^' 
 
 original contract of society the defendant hath contracted a debt, and is 
 
 bound to pay it. 
 
 In debt upon a judgment interest may be given for the detention by way 
 of damages when the judgment did not carry interest in terms. Payments, 
 however, can only be applied to the principal. Mercer's ad. vs. Be ale, 4 
 Leigh. 
 
 In England debt also lies on bail bonds, against the bail ; but the action 
 is disused with us, as upon the return of bail the suit proceeds against the 
 bail as well as the principal. This matter is explained hereafter. 
 
 Debt also lies against a sheriff for money made on an execution. But 
 our statute having given a more summary remedy, this action is disused in 
 such cases. Debt, however, lies against a sheriff for the whole sum, 
 where a person in execution escapes ; so also on his return of ha^ ing seized 
 goods to such a value, which were rescued, that value may be recovered in 
 this action, for the rescue is no excuse to him, as he might summon tlie 
 posse comilatas. 2 Saun. 343. The better reason, perhaps, is, that if such 
 apologies were permitted, it would lead to dangerous connivances between 
 the sheriff and debtor. 
 
 Of the pleadings in debt. The declaration in actions of debt on simpla 
 contract, should set out the consideration or promise, whicli is the ground 
 of his action; 1 Esp. 206; unless it appears, indeed, on the face of the 
 contract, where it is in writing. And this doctrine seems to be confirmed 
 by the spirit of the cases of Cooke vs. Simmes, (2 Call, 39,) and Hall vs. 
 Smith, (3 Mun. 550. 4 Mun. 95. 5 Mun. 23,) though these were actions 
 of assumpsit. Where debt is brought on a promissory note which is reci- 
 ted in the declaration to have been for value received, it would, I presume, 
 be sufficient; and it has been so held without such recital, 2 Leigh, 195. 
 See 8 John. 120. 9 John. 217. When a note is expressed to be for va- 
 lue, a consideration is presumed ; but the presumption may be repelled. 5 
 Barn. & Cres. 501. Sed vide, 3 Camp. 266. 7 John. 321. 
 
 In declaring on a specially, the declaration should be in the following 
 form, or to the following effect:* 
 
 Tenth Judicial District, Frederick County, 5c/. (1) 
 A B (2) complains of C D (3) in custodij, <^'c. of a plea that he render to 
 him (4) the sum of $500 (5) current money of Virginia, (6) which he owes 
 him, (7) and unjustly detains from him : for that tchereas the said C D (8) 
 heretofore, to wit, on the first day of January, 1825, at the parish of Fre- 
 deride and county aforesaid, by his certain writing obligatory, (9) sealed 
 with his seal, (10) and to the court now here shewn, (11) acknowledged 
 himself to be held and firmly bound (12) unto the said A B in the said 
 sum of $500 above demanded, (13) to be paid to the said A B when he, 
 the said CD, should be thereunto afterwards recjucsted. (14.) Vet the 
 said C D, though often requested, hath not yet f aid the said sum or any 
 part thereof to the said plaintiff, (15) but to pay the same hath hitherto 
 wholly refused, and still refuses so to do, to the damage of the plaintiff 
 .$50, (16) and therefore he sues. 
 
 John Doe. IIiciiaud Roe. P. P. A. II. P. pro qucrente. 
 
 The following comments on the declaration may be of use to the begin- 
 ner : 
 
 1. The purpose of this is to designate the county in which the facts are 
 alleged to have occurred, and the court in which the cause is to be tried. I 
 Chitty, 267, 279. It is called the venue, and will be spoken of elsewhere. 
 Suffice it here to say, that, in generul, even in England, actions founded on 
 
 •The ficures wiiliin parentlicn'm arc iisef] to (k«icnate the different parti of the declaration for th»^ 
 purpote of reference in the comments on it.
 
 CHAP. 7.] DEBT. 99 
 
 contract are transitory, and where that is the case the action may be tried 
 in any county. In Virginia it is, in general, not essential to state in the de- 
 claration where the contract arose. But this is sometimes necessary, and 
 when it is done, then (for the sake of obviating an objection for a variance 
 between the bond and the description of it) the plaintiff is permitted by a 
 fiction to state under a videlicit that the place is within the county where 
 the venue is laid. Thus the above form states the bond to have been made 
 " at the parish of Frederick and county aforesaid." If upon the face of the 
 bond it appeared to have been made elsewhere, (as at Philadelphia,) the 
 following words would be inserted immediately preceding — "at Philadel- 
 phia, to-wit;" so as to read "at Philadelphia, to-wit: at the parish of 
 Frederick and county aforesaid." If, however, this fiction bo omitted, the 
 defendant will not be permitted to rest his defence upon the circumstance 
 that the cause of action arose out of the county, for that is an immaterial 
 matter. 6 Mun. 112. In short, the declaration would be sufficient after a 
 verdict, without any venue whatever being laid. Nor can the truth of this 
 fiction be traversed or denied, for it is admitted, not because it is true, (for 
 it is known to be false,) but because it is immaterial whether it be true or 
 false. For if the defendant did give his bond, it matters not where he was 
 when he gave it, unless the "locality of the cuntract furius an essential part 
 of the deience, and of this he must avail himself in another vvay. 
 
 It must be observed, however, that in our corporation courts it is neces-. 
 sary, in addition to the statement of the venue, to set forth that the contract 
 was made within the jurisdiction of the court, and if this allegation be 
 omitted, the declaration will be insufficient even after a verdict. 1 Chitty, 
 231. 1 Wash. 81. See 3 Hen. 31-3. But this principle is confined to ca-r 
 ses of limited jurisdiction. 
 
 2. The names of the plaintiff or plaintiffs should be correctly stated. So, 
 also, unless they sue in their own right, the character in which they sue 
 should be specified, whether it be as surviving obligees, executors, or admi- 
 nistrators. So also an assignee should be designated as such, for he cannot 
 sue as obligee. 3 H. &M. 219. And if a suit be brought upon an execu- 
 tor's, administrator's, or guardian's bond, in the name of the justices, the 
 declaration should set forth, after the names of the plaintiffs, the person at 
 whose instance the suit is brought, for he is the real plaintiff, and is liable to 
 all the costs. 1 Call, 3-15. The same principle applies to sheriffs' and 
 other like bonds. 
 
 3. The foregoing remarks apply to the case of the defendant as well as 
 the plaintiff. As to both, though the name be mistaken or incorrect in the 
 bond, yet the safest way is to nursue the signature of the bond. See IChit-- 
 ty, 224, citing 3 Taun. 504. " 
 
 4. How far the omission of these words would be material after verdict, 
 may appear from 6 Mun. 4SG, where even in tZc/inue the omission was after 
 verdict not deemed fatal. See, also, 11 East, 62. 
 
 5 & C. The sum for which the bond is given, must be here accurately 
 stated so as to correspond with the instrument itself; else, if the bond be 
 properly described at No. 13, the declaration would be inconsistent with it- 
 self, and if it be not, it will be a fatal variance, as we shall presently see. 
 Hence, the demand should be for dollars, or pounds, or crowns, or guilders, 
 or other currency, according as the bond is for one or other of them. If it 
 be for dollars, or pounds, which are Virginia currency, nothing more is ne- 
 cessary. But where the bond is for foreign money, as for so many guilders, 
 or francs, or livres, or so many pounds Pennsylvania currency, &c., the 
 plaintiff^s demand must be for the numerical amount in foreign currency sta- 
 ted in the bond, " of the value of so much, current money of Virginia," 
 and the verdict of the jury is in the same way. If a bond, however, is for
 
 100 DEBT. [book 3. 
 
 Sterling money, the declaration demands it as such without layingthe value, 
 (2 Wash. lOo,) and the court, by a rule at the foot of its judgment, fixes the 
 exchan'i'e. To omit this is fatal. 3 Call, 557. See 1 K. C. ch. 12G, § 6. 
 Also, rWash. 37:2. 2 Wash. 150. 1 Call, 4\, 391. 
 
 If a bond be given for tobacco, the plaintiff by his declaration demands 
 the tobacco itself, and not the value of it, and judgment is rendered accord- 
 ingly. 
 
 It must be remembered, that in the case of a bond in a penalty with col- 
 lateral condition, or with condition to pay a less sum, and also in the case 
 of a penal bill, the penallij is to be demanded, and not the sum actually due. 
 So in debt on a single bill or a promissory note, the declaration is for the 
 whole sum for which it was given, and not merely for what yet remains un- 
 paid. 
 
 Formerly, it was held that in debt upon a promissory note with interest 
 from the date, the declaration should claim interest, and that if it did not, 
 judgment upon non sum informatus, or by nil dicit, could be entered only 
 for the principal. 1 Wash. 70. 2 Call, 212. But now, though the decla- 
 ration docs not demand interest, the jury gives it by their verdict, or if the 
 judgment is by default, or upon demurrer, the plaintiff nevertheless recovers 
 it. 1 R. C. ch. 1-2S, 'J 79, 80. 2 Mun. -334. 4 Mun. 7G. 
 
 If an action be brought on several bonds together, (which maybe done,)* 
 the debt demanded should regularly be the aggregate of all the sums alleg- 
 ed to be due in the different counts; an error herein would seem, howev- 
 er, not to be fatal. HE. 62. The declaration next proceeds to describe 
 the several bonds in distinct counts ; see 1 Saun. 288, n. 1. 2 Chitty, 152 ; 
 and concludes with an allegation of non-payment of any part of the aggre- 
 gate sum, 
 
 7. The form here is in the debet and delinet. " The form of the writ of 
 debt is sometimes in the debet and delinet, and sometimes in the detinet on- 
 ly : that is, the writ states, either that the defendant owes and unjustly de- 
 iains the debt or thing iu question, or only that he unjustly detains it. It 
 is brought in the debet as well as detinet, when sued by one of the original 
 contracting parties who personally gave the credit, against the other who 
 personally incurred the debt, or against his heirs, if they are bound to the 
 payment ; as by the obligee against the obligor, the landlord against the 
 tenant, &,c. But. if it be brought by or against an executor for a debt due 
 to or from the testator, this, not being his own debt, shall be sued for in the 
 detinet only. So, also, if (he action be for goods, for corn, or an horse, the 
 writ shall be in the detinet only ; for nothing but a sum of money, for which 
 I (or my ancestors in my name) have personally contracted, is ])roperly con- 
 sidered as my debt. And, indeed, a writ of debt in the delinet only, for 
 goods and chattels, is neither more nor less than a mere writ of detinue; 
 and is followed by the very same judgment." 
 
 In actions by or against executors and administrators for rent due in their 
 own time, and in an action for a devastavit, the debet and detinet is pro- 
 per. An:! if the declaration be in the delinet only, the judgment can only 
 be dc bonis teslaloris. 3 H. St M. 123. Observe, also, that though a bond 
 is taken to or given by executors or administrators, and ihcy are so named in 
 the bond, the action should be both in the debet and detinet, for by the spe- 
 cialty the nature of the original debt is changed, and though it may have 
 been originally a simple contract of the testator's, the bond has rendered it 
 their own. 
 
 An heir should be charged in the debet and delinet. But if charged in 
 the detinet only, the defect is not fatal, ciihcr after verdict or on general de- 
 murrer. 2 ]\Iun. 88. 
 
 "As to con-olitJadii^ acli'^ns, sec Post. 201.
 
 CHAP. 7] DEBT. 101 
 
 8. Where the name of the defendant to the bond is misspelt, or in any 
 wise varies from his real name, the form should be thus ; " ihe said C D, 
 
 by the name of , c^-c;" here literally inserting the name as it appears 
 
 on the face of the bond. Indeed, thoutrh the names be totally different, yet 
 if the defendant signed, sealed, and delivered the bond, his liability, which 
 grows out of the sealing and delivery, and not out of the signing, is the same. 
 In such case, it should be stated that " the said C D, by the name of E F, 
 acknowledged himself, Sfc." See Watson on Part. 164, 165. 2 B. &, P. 
 338. 
 
 The practitioner should be careful that the description of the bond or 
 writing sued upon be strictly accurate, so far as it goes. A variance is cre- 
 nerally fatal. Bull. 169. 1 Esp. 210. As to variance, see Starkie's Evi- 
 dence, part 4, Variance. Also, Mowry vs. Miller, 3 Leigh. But thouorh 
 the county of the obligor's residence be stated in the bond, the omission of 
 it in the declaration is immaterial. 1 Wash. 72. So if the bond be given 
 to A B, on account of G Sf P, merchants in Glasgow, the omission of the 
 words in italic is unimportant. So an action brought in the name of A B, 
 cashier of the Farmer's Bank, is an action brought by him individually, and 
 the other words are surplusage ; 4 Ran. 359 ; and therefore not necessary 
 to be inserted. Yet if the date be mistaken, or the sum be erroneous, or 
 the lime of payment be variant, it will be fatal on the trial ; 3 H. & M. 219. 
 Phil, Ev. 162; though the error is unimportant where the judgment is per- 
 mitted to go by delault. 2 H. & M. 446. 
 
 9. In declaring on a speciality it should always appear by the declaration 
 that it is such. It is therefore usually set forth explicitly that the instru- 
 ment declared on was "sealed with the defendant's seal." Yet there are 
 certain terms which ex vi termini import that it was sealed, as "bond, wri- 
 ting obligatory, penal bill, deed, indenture,'^ and tlxese will suffice of them- 
 selves. 1 Saun. 290, n, 1, 320, note 3. 
 
 As every deed imports a consideration, it is not necessary to set forth any 
 in an action of debt on a bond. 
 
 10. Where there are more defendants than one, the declaration should 
 state a sealing by all. But it must not be forgotten that sometimes though 
 a man may have put his hand and a seal to a bond, yet, because of the 
 omission of his name within the body of it, it is not his deed. See 3 Mun. 
 118. 
 
 11. This is what is called making pro/er^ Its object is two-fold ; — to ena- 
 ble the court to inspect it and see that the deed is a good deed, and to put 
 it in the power of the defendant to examine it, that he may see if it be re- 
 ally his, and plead non est factum if it be not. Hence, although it is not 
 considered matter of substance, (for the want of it can only be made an 
 objection by way of demurrer, 1 Chitty, 350,) this profert was formerly con- 
 sidered indispensable if the defendant insisted upon it; so that if the deed 
 were lost or even destroyed by the defendant, the plaintiff could not pro- 
 ceed at law without making profert of the bond, and thus he was driven into 
 chancery. This doctrine, however, has gradually been modified by the 
 good sense of modern times, for if the bond has been lost by accident, or 
 destroyed by fire, or by the defendant himself, or be in his possession, and 
 this is specially set forth in the declaration, it will be good, although there 
 be no profert. 3 T. R. 151. See 1 Wash. 252. But where the plaintiff 
 makes profert, and the defendant pleads iwn est factum, (which plea puts 
 the plaintiff on the proof of the execution of the bond,) the production of 
 the deed itself becomes indispensable, although it be proved by the defend- 
 ant's confession that he burnt the paper in question. 4 E. 585. In such 
 case, however, the plaintiff may have leave to amend. 4 E. 485. Our law 
 has a provision corresponding with these doctrines. For if a suit be brought
 
 102 DEBT. [book 3. 
 
 on a bond which is filed among the records of another court, it is sufficient 
 for tlie phintitTto file with his declaration a copy of the bond, attested by 
 the clerk ; the defendant must plead to it, and it will be evidence on the trial 
 unless the defendant has pleaded non csl factum, \n which case the original 
 is procured by summons to the clerk, (called a subpcena duces tecum,) com- 
 mandino- him to attend with it on the trial for the inspection of the jury. 
 1 R. C. ch. 128, § 85. So where a bond is filed in a suit against the exec- 
 utor of the obligor, a copy may be declared on in a suit against the heirs in 
 another court, unless the defendants demand the production of the origi- 
 nal by what is called " craving oyer," or object to the copy as incorrect, or 
 plead that there is no such bond, in which cases the original may be pro- 
 cured by subpoena duces tecum. Waller's exr. vs. Ellis & al. 2 Mun. 68. In 
 that case the profert was made of the copy, and there was a demurrer foir 
 this cause, which was overruled, although the case certainly did not come 
 within the provisions of the act just cited. It must therefore be consider- 
 ed as settled on general principles. It shews, however, that the excuse fo( 
 not making profert of the original bond, is traversable, as is stated 1 Chit- 
 ty, y49. 3 T. R. 158. 
 
 The manner of stating the excuse for want o^ profert is thus, — " which 
 said writincT obligatory having been destroyed by accident," (or "by fire,'^ 
 or " by the said defendant,") •' the said A B cannot produce the same to the 
 said court here." 
 
 1*2. The phraseology here is usually varied to suit the instrument; — 
 sometimes the obligation, though sealed, is in the language of a promissory 
 note. 
 
 i'S. The variance even of a cent in the description of the bond as to the 
 sum for which it was given, will be fatal, and upon the trial the plaintiff will 
 not be permitted to offer it in evidence.* Another manner in which the 
 defendant may avail himself of the error, is by craving oyer and then de- 
 murring to the declaration, and shewing forth the variance. 
 
 14. This is the usual form in actions on bonds in a penalty and on single 
 bills payable on demand. Where the suit is brought on a single bill pay- 
 able at a day after date, that part of the bill should be set forth with the 
 strictest accuracy. 
 
 15. Where there are several plaintiffs or several defendants, great care 
 must be taken to set forth the non-payment by any of the jbligors to any of 
 the obligees. 2 Mun. 3-'3G. The like attention is necessary where there 
 have been several assignments: in such case it must be alleged in the de- 
 claration that the amount of the obligation has not been paid to the obligee 
 or any of the assignees, or it will be erroneous. 2 Mun. 282, 518. 
 
 16. The laying damages was atone time important in actions upon sin- 
 gle bills, for unless in terms they bound the party to pay interest, it could 
 only be recovered in damages. Now, however, it is otherwise, and the dam- 
 ages are nominal (one cent.) 
 
 In an action for sterling money, the damages should be laid in sterling 
 money also. 1 Wash. 115. 2 Wash. 167. 
 
 In actions of debt upon assigned bonds, the declaration, as has been al« 
 ready said, states that the plaintiff sues as assignee. The form is to this ef- 
 fect : 
 
 " A B, assii^nce of C D, who was assignee of E F, complains o/" G H, <SfC. 
 
 • Sen Moore ts.Fcnwick. Gil. 211. Juilgc Parkpr informs mn dial upon examining llie record af 
 Uiia case it appears llial ihe plea was v'lynieiit. 'J'liis plea in Enylaod ailmits the bond, and it need
 
 CHAP. 7.] DEBT. 103 
 
 Then after setting forth the bond according to the form already given, 
 the assignments are stated to the effect following: 
 
 " Which said writing obligatory was afterwards, to wit, on the first day of 
 February, 18:25, at theparish and county aforesaid, the same being then uu' 
 paid, assigned to the said C D, by an endorsement thereon, on tlie day last 
 aforesaid, signed with the proper hand of the said E F, and was af- 
 terwards, to wit, on the first day of March thereafter, at the parish and 
 county aforesaid, being yet unpaid, assigned by the said C D to the said 
 plaintiff, by an endorsement thereon, dated on the day last aforesaid, 
 signed with the proper hand of the said C D, whereby an action accrued 
 to the said, plaintiff] to have and demand of the said defendant the said 
 
 sum of $500; whereof the defendant afterwards, on the day of 
 
 at the parish and county aforesaid, had notice, yet the said G 
 
 H, though often requested, hath not yet paid the said sum or any part 
 thereof, to the said plaintiff, nor hath he ever paid the same or any part 
 thereof to the said C D or E F, but the same to pay hath hitherto wholly 
 refused, and still refuses, to the damage of the plaintiff $50, and therefore 
 he sues," &,-c. 
 
 Where a bond is given for the payment of money by instalments, and one 
 of them becomes due, the action is brought for the whole penalty ; and the 
 judgment is rendered in the manner stated : Book '•2, 276. 
 
 Of the pleas to actions of debt upon bonds. It is a general rule that no 
 parol agreement shall be pleaded to vary the condition or terms of a boH'dj 
 But where a bond is delivered to a stranger, then the defendant may plead 
 that it was delivered as ah escrow, and that the event hath not occurred up-^ 
 on which it was to become his deed ; — he then concludes, " and so the de- 
 fendant saith that the said writing in the declaration mentioned is not his 
 deed, and of this he puts himself on the country ;" — for such a plea is but 
 a special negative of the affirmative in the declaration, and should therefore 
 conclude to the country. 
 
 The plea of nil debet is a proper plea in an action of debt for rent though 
 reserved by indenture, for the deed in this case is only inducement. It is 
 also the proper plea in debt on a simple contract ; but it cannot be pleaded 
 to an action of debt on bond, and if pleaded should be demurred to ; — for 
 the bond acknowledges the debt, and being under seal the defendant is es- 
 topped to deny the debt, unless he denies the deed. 
 
 Hence, instead of nil debet, the general issue in an action of debt on a 
 bond or other sealed instrument is non est factum. This puts in issue the 
 execution or validity of the bond, as the bond of the defendant. It thus 
 denies that there ever was the contract stated in the declaration. But where 
 the plaintiff declares on a bond and makes profert of a copy under the pro- 
 visions of our act of assembly, or excuses himself from making /)ro/er< be- 
 cause of its loss or destruction, the defendant may take issue on the matter 
 of excuse or the existence of the bond, by pleading that the bond is not lost 
 or destroyed, (3 T. R. 15S,) though it seems also that he may bring the 
 matter in question by pleading non est factum. Id. As this plea however 
 must be sworn to, and seems more appropriate to the denial of the execu- 
 tion or validity of the writing, than of its non-existence, a plea merely put- 
 ting in issue the fact of loss, &c. would, I presume, be most eligible. 
 
 The plea of non est factum is used either where the defendant denies the 
 sealing and delivery of the bond, or where he alleges that it has been can- 
 celled or vacated by erasures or interlineations, or where he relies upon its 
 being void by reason of some original defect in the character of the transac- 
 tion. Where the defendant denies the sealing and delivery of the bond, 
 the plea of non est factum in general terms will suffice. So if the deed
 
 104 DEBT. [book 3. 
 
 were delivered as an escrow, (tliough it is more usual to plead the fact and 
 conclude " and so it is not his deed,") or if it was at common law void ab 
 initio, as if it was made by a feme covert, or a lunatic, or if it has been va- 
 cated by erasure, alteration, or addition, for in all these cases it is void, ipso 
 facto. Since, however, the act requiring the plea to be verified by affidavit, 
 it has become usual to set forth the facts which shew the deed to be void, 
 and conclude " and so the said vvritin^r is not his deed, and of this he puts 
 Jiimself on the country," Stc. And tliis is what is called a special non est 
 factum, the object of which is to (five the plaintiff full notice of the de- 
 fence, to enable him to rebut it. These pleas, like a general non est fac- 
 tum, must be verified by oath under our law, and the affidavit must be posi- 
 tive so far as relates to the facts on which the defendant relies, and ought 
 not to be only " to the best of the defendant's belief,'" except where the 
 defendant is but executor, administrator, or heir of the supposed obligor. 
 
 1 R. C. ch. 128, § 33. Yet where the affidavit of the obligor was " to the 
 best of his knowledge and belief," it was held sufficient, and his swearing 
 to the best of his knowledge in relation to facts resting on his knowledge, 
 was held to be a positive affidavit. G Mun. AQ-i. But it is not necessary 
 that the party should swear to the legal inferences from the facts, and 
 therefore the act of assembly is satisfied by an affidavit verifying the facts 
 only. Ibid. 
 
 It is proper to observe, that, in some of the above mentioned cases, the 
 defendant may either plead as above, or may plead the matter of his defence 
 specially, and conclude with a verification and a prayer of judgment, whether 
 he ought to be charged with the debt. Such is the case of an escrow, or 
 the bond of a feme covert. 2 Chitty, 4GG. But where the defendant relies 
 upon any matter extraneous for the purpose of avoiding the bond, such as 
 infancy or duress, or usury or gambling, or because it is in violation of a 
 statute, the facts, it would seem, must be pleaded specially, and the plea con- 
 cludes with a verification and a prayer of judgment " whether he ought to 
 be charged with the debt by virtue of the said supposed writing obligatory." 
 
 2 Chitty, 2GG, &c. 
 
 It must be observed, however, that this plea of non est factum to avoid a 
 deed for usury, gaming, and such like, is only necessary or proper where 
 the fact does not appear on the face of the instrument. For if it does so 
 appear, the proper mode of taking advantage of it is by praying oyer of the 
 bond with the condition, (i. e. praying to "hear" it read to him,) which be- 
 ing granted, the bond with the condition becomes ])arcel of the record. 3 
 Salk. 119. By this means it also becomes parcel of the plaintiffs declara- 
 ration, [Carth. 513,] and thus the defect of the bond appearing on the face 
 of it, the defendant ought to demur to the declaration, and will have judg- 
 ment. 2 Bl. Rep. 1108. See, however, I Saund. 295, b. contra. 
 
 Accord and satisfaction is a good plea to an action of debt on bond ; but 
 of this enough has been said elsewhere. 
 
 The plea of tender is also a good plea in debt. The principles of this 
 plea are stated under the head of assumpsit, post. 155 Starkie's Ev. 4 
 part, 1.390. G Bac. " Tender." 1 Saun. 33, n. 2. 
 
 The plea of payment is a special plea, and is the most usual in this ac- 
 tion. This plea may be pleaded generally or at the day, according to cir- 
 cumstances. 
 
 Payment generally is the customary plea, whether made before or after 
 the day. 1 R. C. ch. 12d, § 81. If a bond be payable on a particular day 
 and is paid before, the plea should be solvit ad diem; where it is payable on 
 or before, payment before the day is a good plea. 7 John. C. R. 9, citing 
 2 Wils. 173, 150. Sir. 317. Bull. 174. Solvit ad diemis the proper way
 
 CHAP. 7] DEBT. 105 
 
 of pleading when tlic defendant relies upon the length of time as furnish- 
 ing presumption of payment. 
 
 The plea of payment is that usually filed where the party has no real de- 
 fence, but files a plea to gain a term or set aside an olrice judgment. And 
 though only part of the debt has been paid, the defendant may plead pay- 
 ment of the whole, and on the trial will have credit for what he proves to 
 have been paid. A defence as to part, and a cognovit actionem for the re- 
 sidue, is therefore not usual with us. Where the defendant wishes to take 
 this course, care must be taken to plead the matter correctly. For if the 
 defendant makes defence for the whole, (i. e. denies the plaintiff's action for 
 the whole in the first part of his plea,) and then pleads payment of part on- 
 ly, the plea is bad and the plaintiff may demur, for the facts pleaded do not 
 support the defence made. On the other hand, if he defends or denies on- 
 ly as to part, and in the subsequent part of his plea pleads payment of that 
 part, or even of more, the plaintiff may take judgment by nil dicit as to that 
 part not denied in the commencement of the plea. If, instead of this, he 
 demurs, he discontinues his suit, and must go out of court as to the whole. 
 1 Chitty, 509, 510. 
 
 By the law of Virginia it is now required that the defendant shall file with 
 his plea an account stating distinctly the nature of the payment, and the 
 several items thereof, " unless the same be so plainly and particularly de- 
 scribed in the plea as to give the plaintiff full notice of the character there- 
 of." 1 R. C. ch. 128, § 87. See Phil. Ev. 145, &c. as to the doctrines in 
 relation to a bill of particulars. We have a decision in our courts on the 
 late statute just quoted. 4 Ran. 488. 
 
 Under the plea of solvit ad diem, the doctrines of presumption of payment 
 from lapse of time, often come in question. As where a bond has been suf- 
 fered to lie dormant for twenty years, payment may be and ought to be pre-* 
 sumed* : 4 Bur. 1963. 1 T. R. -270; (and this is the principle in equity 
 as well as at law. 5 John. C. 540. 12 Vez. 252. 2 Vez. jr. 11, 272.) 
 The court ought to instruct the jury to that effect where twenty years have 
 elapsed and the presumption arising therefrom is not rebutted by evidence ; 
 for that presumption is sufficient of itself to entitle the defendant to a ver- 
 dict. But where the time falls short of twenty years, then it is not of itself 
 sufficient, but it must be accompanied by some evidence other than mere 
 length of time, in order to raise the presumption; such as having settled an 
 account in the intermediate time — or the obligee being poor and the obligor 
 indepen lent — or the parties residing in the immediate neighborhood of 
 each other, without any demand being made, &c. — and in these cases the 
 presumption must be left to the jury. The evidence must be more or less 
 strong in aid of the presumption, as the time is more or less short of twenty 
 years ; for it must be observed that it is said to have been left to the jury 
 to presume payment where the lapse of time was only sixteen years; though 
 there must be strong circumstances to satisfy the presumption in such case. 
 There is, however, a material distinction between length of time operating 
 as a bar, (as in the case of the act of limitations,) and length of time merely 
 creating a presumption of payment. The former is positive; the latter be- 
 ing only presumptive, may be rebutted by evidence ; 6 John. C. 137. 5 
 John. C. 545 ; such as proof of defendant's recent acknowledgment of the 
 debt, or proof of payment of interest within twenty years, which is an ad- 
 mission that the principal was then unp'iid, — or proof of demands made 
 within the time — or of a suit brought and the writ returned non est inventus 
 — or that during part of the time the plaintiff was an alien enemy, and dis- 
 
 * This presumption from length of time prevails in otiier cases, as in the case of slavps lirought in- 
 to the stale and residing here twenty years. Compliance with the law raay, in such cases, be pre-' 
 Buaied. 4 Ran. 609. 
 
 VOL. 5^—14
 
 lOG 1>E^BT. [BOOKSi 
 
 sbled to sue (2 Cranch, 180, 181. 4 Cranch, 420,)— or that the courts of 
 justice were closed, and the country in the tumult and confusion of war 
 and revolution. 10 John. R. 417. 
 
 With respect to the j)roof of payment of interest to rebut the presump- 
 tion, a receipt or credit entered on the bond in the hand of the obligor, is 
 clearly good. And though the endorsement of the obligee would certainly 
 not be evidence in his behalf if made o/^er he was in danger of the presump- 
 tion, yet his endorsement of the payment of interest is evidence to repel 
 the presumption, if proved by extrinsic evidence to have been made at a 
 period when it was against his own interest to make such endorsement 
 falsely, as where it was made within the time when the presumption, aided 
 by circumstances, will bar. See Philips, 114 to 117. Sir. 827. 
 
 On this plea, also, the question of the application of payments arises. 
 Thus where the plaintiff has two claims against the defendant, and a pay- 
 ment is made by the latter ; — to which of the demands shall it be applied ? * 
 The rule seems to be, that, at the time when the payment is made by the 
 defendant, he has the right to direct to which of the plaiMtifTs claims it shall 
 be applied ; for having the control of the fund about to be paid, he has the 
 power to retain it unless it be applied as he directs ; and if the creditor ac- 
 cepts it under such direction, he assents to it. But where the debtor fails 
 to direct the payment, the control is gone from him, and the right of appli- 
 cation devolves on the creditor. 7 Cranch, 575. 4 Cranch, 317. 1 Wash. 
 133. This right, it is said, he ought to exercise " recently, by entries on 
 his books or papers ;" 1 Wash. 133; though in another case it is stated 
 not to be necessary to make the application immediately. 4 Cranch, 320. 
 However this be, he is bound by it after he once makes it.f Ibid. And if 
 neither party makes the application, the court will ap[)ly the payments to 
 the debts for which the security is most precarious; 6 Cranch, 9; and this 
 upon the principle that all the debts ought to be paid. Or, if one demand 
 be legal and the other usurious, the payment will be applied to the former. 
 3 Bar. & Cres. 165. If, however, there is any particular relation between 
 the fund out of which the payment is made, and either of the demands, or 
 if a special application is required by the nature of the transactions, (14 
 East, 239. Peake's N. P. 64,) it shall be api)lied to that. As if there be 
 a mortgage and open account, funds raised by sale of the mortgaged pre- 
 mises shall be applied to the mortgage. See 1 Vcrn. 468. See, also, a 
 disquisition of Sir William Grant on the application of payments, 1 Meriv. 
 605; and 1 Polhier. 328, on the imputation of payments. 
 
 It may here be added, that, where there is but a single demand, and a 
 payment is made, it shall always be applied to the discharge of the interest t 
 due on the demand, in the first place, and the residue only goes to the cre- 
 dit of the principal : nor do I presume the direction of the debtor could or- 
 der it otherwise : for it is but just that the payment should be applied to that 
 portion of the demand which does not carry interest. 
 
 The student will observe that the general rule as to application of pay- 
 ments does not hold where the receiver is a public oflicer, not interested in 
 the event of the suit, but receiving the money of the public ; and where, 
 too, the payments are indiscriminately made, and different securities, under 
 
 " In cases (iisof a bnnking account) wlirroiliPie li:is l>ecti aconliiiunlion of dealings, llie appropri- 
 tion 'In llie al)Hcnce of express dpclaralion,) c.ki onlv I)p made on tlic ijiouiidol pre.sumplion aricing 
 from llie priority of recfipis and pavnioni:!. 1 Merivale, frJll. And so ulicre surviving partner carries 
 en the dealinijs widi tlie creditor who joins the transactions o( tlie old and new firra in one entire ac- 
 count, paynientii inust be applied fiiH to tiie old debt. 2 Barn. &. Cres.GS. 
 
 t But it is said he is not cuncludcil uuless liic appropriation is cotuinunicated to the payer. 2 Barn. 
 &, Cres. C5. 
 
 t By the citil law as well as by ours, the application is to be made to the interest before the prinrj- 
 prI, ihoouh tlie acquiuance imports it to be paid to account of principal and interest. 1 1'othier, Obi..
 
 CHAP. 7.] DEBT. 107 
 
 distinct obligations, are interested. 7 Cranch, 575. It would seem that 
 in such cases the court, by reference to the collector's (i. e. the debtor's) 
 books and other evidence, will endeavor to effect justice between the differ- 
 ent securities, by applyingto the credit of each bond the moneys collected 
 under it. 
 
 The defendant may plead also that the debt has been attached in his hands 
 by foreign attachment, under the provisions of the act 1 R. C. ch. 123, § 1. 
 See 1 Esp 231. This is clearly a good plea in bar where there has been a 
 decree in the attachment cause, and the money paid under it. And so it is 
 though the attachment were in a foreign country. 4 John. C. 466. But if 
 the bond be assigned and notice given to the obligor, or suit on it be brought 
 by an assignee, to whom it was regularly assigned before the attachment, 
 the plea is not good ; for by the assignment the bond ceased to be liable to 
 attachment for the assignor's debt. 4 H. & M. 259. For if the assignment 
 was anterior to the attachment it passed the right ; and though the obligor 
 had no notice of it till after the attachment suit was commenced, or even 
 till after a decree, yet if he had notice at any time before payment, he will 
 not be protected by a plea of these facts, though he may have paid the mo- 
 ney ; for, upon receiving the notice, he might have immediately taken mear 
 sures to suspend the decree. See 5 Mun. 178. 
 
 Under this plea it has been somewhat contested what amounts to a re-' 
 straining order. An endorsement by the clerk on the subpaina in chancery, 
 is clearly sufficient, according to the decision of our courts. 4 H. & M, 
 259. 6 Mun. 176. But it is still left uncertain whether the endorsement 
 hy the attorney of the plaintiff is so ; 2 Mun. 55; though it is probable, 
 from the reasons given in the case in 6 Munford,it would be deemed equiv- 
 alent to the endorsement of the clerk, which only operates as notice. 
 
 I tind no adjudicated case upon the question whether the /(enrfency of the 
 foreign attachment should, before a decree thereon, be pleaded in abate- 
 ment or in bar. The plea in bar would seem inadmissible, because until a 
 decree it is left uncertain whether the attachment may not be discharged, 
 and if it be, then the plaintiff would have a right of action. I presume, 
 therefore, the plea should be in abatement, for it is in its character but a 
 plea of the pendency of another suit, which should be pleaded in abatement 
 except in a quitam action. 
 
 It is said that in England a debt cannot be attached by foreign attachment 
 before it is due. 1 Esp. 231. It is otherwise here ; 6 Mun. 176; and the 
 property in the hands of the garnishee is bound from the service of the 
 subpoena, so as to prevent an assignment or transfer of the debt by the ab- 
 sent defendant. Ibid. 
 
 The defendant, where a debt is attached in his hands, and the attachment 
 is afterwards discharged, cannot protect himself from payment of interest 
 while the order remains in force, if he retained the money in his hands. 1 
 Wash. 145. He ought (in order to have absolved himself from interest) to 
 have brought the money into court to abide its order — and the court would 
 have directed it to be put out to interest />e7idcn<e lite, so as to avoid loss to 
 the parties. 4 H. & M. 265. 
 
 In debt on a bond of indemnity, besides other pleas common to an action 
 of debt, the defendant may pray oyer of the condition of the bond, and 
 plead non damnificatus ; or he may plead that he has saved the plaintiff harm- 
 less ; but in that case he must shew in his plea how he has done so. 1 
 Chitty, 356. 1 Esp. 233. The omission, however, can only be taken ad- 
 vantage of by special demurrer. See, on the subject of bonds with collate- 
 ral condition, and the mode of assigning breaches of them under the statute, 
 Book 2, Obligations, and the cases there cited.
 
 iOS DEBT. [cook 3. 
 
 \ Of the pleas in debt for renl. The plea of nil habuit in ienementis is not 
 admissible, as I have elsewhere said. Nor is the plea of non deniisit a good 
 plea, where the rent is reserved by indenture ; to debt for rent reserved by 
 parol it is. The distinction arises from the deed being, in the first case, an 
 estoppel. 
 
 Where the rent is alleged to be due by indenture, non est factum may be 
 pleaded; but as the indenture is only inducement, and the fact of the en- 
 joyment of the premises the foundation of the action, the defendant may 
 also plead nil debet ; for the deed in such case does not operate as an es- 
 toppel. The statute of limitations is also a good plea in this action (or 
 rent, notwithstanding it be reserved by deed, for it is so expressly provided 
 by the act. 
 
 Entry and eviction is also a good plea in debt for rent. The principles 
 of this defence have been shown elsewhere. 
 
 There are, besides these, certain pleas which are applicable to actions of 
 debt on bonds, or on judgments, or lor rent. Such is a release, of which it 
 is here only necessary to say, that it must be specially j)leaded ; — and to 
 remind the student that a release to one of the several parties bound, is a 
 release to all ; for it releases the contract. The difierence between a re- 
 lease and a covenant not to sue, is elsewhere adverted to. 
 
 A discharge under the bankrupt law of the United States is a good plea in 
 bar of an action of debt on a bond bearing date before such discharge. But 
 a discharge under a state insolvent law, whether from imprisonment only, or 
 from the debt, is no discharge of debts due at the time of the insolvency, 
 and therefore it affords no good ground for a plea to this action ; 4 Wheat. 
 1'22, &c. ; except in cases of contracts subsequent to such insolvent act, 
 and between citizens of the state by which it was enacted. 1-2 Wheat. 
 213. Nor is such discharge under a foreign bankrupt law, a bar to an ac- 
 tion on a contract made in this country prior to the bankruptcy. 4 Wheat. 
 209. 
 
 The plea of a set-off or discount. The act of 1806 provided that in all 
 actions of debt the defendant should have liberty, on the trial, to make all 
 discounts that he could against the demand. 1 R. C. ch. 127, § 1. This 
 act, it seems, did not require a notice or plea. See 1 Wash. 4-2, 223. But 
 a subsequent act requires the defendant to file with his plea an account 
 ."fating distinctly the nature of the set-off, and the several items thereof; 
 and unless he does so, he can give no evidence of his discount. 1 R. C. 
 ch. 128, § 87. See 4 Rand. 488. 
 
 The law of set-offs was enacted to prevent multiplicity of suits, and 
 therefore permits a defendant, instead of bringing a cross action to recover 
 ■what may be due to him from the plaintiff, to plead his offsets, and give no- 
 tice by the account filed with his plea of the items of offset. The offset 
 is therefore in effect a cross action ; the plea of offset, is but the defend- 
 ant's declaration setting forth his claim against the plaintiff, and should 
 therefore be expressed with clearness and certainty to enable the plaintiff 
 to make a proper defence against it. 1 Scllon's Prac. 3-29. Bull. 179. See 
 also 4 Mun. 442. In furtherance of the object of the law, the discounts 
 are allowed up to the time of the trial, (1 Wash. 10. 5 Mun. 395,) but not 
 .so as to destroy the plaintiffs action, and entitle the defendant to costs. 
 Ibid. If therefore, after.'-uit brought, the defendant buys bonds due by the 
 plaintiff, though ho may discount them on the trial, there will be a judgment 
 fur costs against liim. 
 
 The law of sel-olfs, however, Iniving been introduced from a principle of 
 convenience and benefit to suitors, it' has been so construed as to avoid 
 making it an engine of mischief. Hence it has been always held that cross 
 demands for unliquidated damages caji never be set-off against each other,
 
 CHAP. 7.] DEBT. 109 
 
 nor can such a demand be offset against an action of debt, or be subject to 
 the offset of an action of debt. Cow. 56. 6 T. R. 488. 2 Cranch, 342. 
 Nor can unliquidated demands, be set off in equity. 4 John. C. 287. 3 
 John. C. 251. G Ran. 519. Except, I presume, where the party against 
 whom the set-off is sought is insolvent or likely to become so. And this 
 upon the principle of bills quia timet. If, indeed, unliquidated demands 
 were permitted to beset off, many difficulties would ensue, and the trial be 
 rendered extremely complicated and embarrassing. The debts, therefore, 
 which may be set off, must be such as are certain and liquidated. They 
 must be sucli, at least, as assumpsit would lie for. Ibid. 2 Cranch, 344. 
 But sums in the nature of liquidated damages for breach of an agreement, 
 and not in the nature of a penalty merely, may be set off: as where the 
 plaintiff agreed to do certain work in a given time, and to pay £10 for every 
 week it remained unfinished. The weekly sums which were proved to have 
 become due, were held to be proper set-offs. 2 T. R. 32. Nor is it in 
 conflict with this rule, that if a workman sues on a quantum meruit, the de- 
 fendant may shew that the work done was not worth so much as the plain- 
 tiff claims ; or that it was worth nothing; for this is not so much an offset 
 of a claim of the defendant, as a contesting of the consideration of the 
 plaintiff's demand. See 7 E. 479. 3 Camp. Ca. 451. 
 
 Neither will the law permit set-offs to work injustice ; as to subject the 
 plaintiff to costs where he had no notice of them before action brought, or 
 to occasion his being nonsuited by reducing his claim below the jurisdiction 
 of the court. Larrow vs. Harding's administrators, General Court, June, 
 1820. Virginia cases, 131. 2 Str. 1191. Nor will they be countenanced 
 even in equity, so as vexatiously to perplex or delay the plaintiff; as where 
 the debtor, after suit instituted, buys up unliquidated and disputed claims 
 against his creditor, thus attempting to arrest a simple demand by entan- 
 gling it with a complicated transaction. 3 Call, 105. 1 Mun. 529. Nor 
 does the defendant acquire an advantage by a set-off, which he could not 
 have had if he had brought his action. For if his demand is barred by the 
 act of limitations, or is tainted v/ith usury or gaming, it cannot be set off, 
 as he could not have maintained an action for it. In these cases, however, 
 Ihe plaintiff should reply the statutes of limitations, usury and gaming, res- 
 pectively. On the same, (as well as on another principle,) if at the sale of 
 a testator's estate, one of his creditors, by open account or by bond, makes 
 a purchase and is sued for the amount of it, he cannot offset his claim on 
 the testator's estate ; for peradventure the assets (including the amount of 
 his purchase) may not be more than sufficient to pay debts of superior dig- 
 nity to his ; and so if the offset were permitted he would be better off than 
 if he had brought his cross action, while on the other hand the executor 
 would hereby be made to commit a devastavit. See 1 Wash. 166, 221. 
 Willes, 103, 264. See 4 John. Ch. Rep. 11, 13. 
 
 It must be observed, however, that where an executor sues for a debt due 
 to his testator in his lifetime, the defendant may set off a debt due to him 
 from the testator before his death, for these are strictly in the same right, 
 and the defendant was in fact only debtor for the difference. Bui. 179. 
 
 The debts which are set off must be mutual and due in the same right. 
 4 John. C. 13. 3John. C. 351. 3 Me ri v. 248. 3Vez.248, llVez.24, 
 517. 12 Vez. 346. 18 Vez. 2-32. In 2 Meriv. 121, the master of the 
 rolls said the same rule prevails in equity. This is one reason that a de- 
 mand against a testator cannot be set off against the demand of the execu- 
 tor for the testator's goods sold, or for rent accruing in his own time. Nei- 
 ther can the individual debt of a partner be set off against a partnership de- 
 mand ; 1 H. &M. 476; 1 Wash. 79; for if the defendant sued for his 
 separate demand, it might turn out that after the payment of partnership
 
 110 DEBT. [book 3. 
 
 debts, his debtor would have no funds in the partnership. Nor in an action 
 against a partnership can the debt due by the plaintiff to one of the part- 
 ners be set off. 5 Mun. 388. Nor can a demand against a partnership be 
 set off at law against a debt due to one of the partners. 4 Ran. 359. Yet 
 see 6 Mun. 34. Nor can a man set off against his own bond, a debt due 
 to his wife; Bull. 179; for until it be actually recovered and received, it 
 belongs to him only in her right, and if he dies before her, it survives to her. 
 On the other hand, her debts dum sola cannot be set oft' against a claim due 
 to himself, for if she dies he is no longer responsible for her debts. 
 
 Nevertheless debts due to or from a surviving partner, may be set off by or 
 against liim, against a debt due to or from him in his own right. 5 T. R. 
 493. 6 T. R. 582. For the surviving partner, though accountable to the 
 representatives of the deceased, is sole legal owner of the partnership debts, 
 and may, indeed, join in the same action a demand as surviving partner, 
 with an individual demand of his own. See 3 T. R. 435. 
 
 Judgments may be set off against each other, as well as against other de- 
 mands. The party desiring the set-oft' applies for a rule on his adversary 
 to shew cause, if there be any, why the judgments should not be offset, and 
 unless cause is shewn, it is ordered accordingly. And judgments of dif- 
 ferent courts may thus be set off aganist each other. 1 Esp. 241. 
 
 If the offset is of a less sum than the plaintiff is entitled to, the defend- 
 ant prays to have it set off, and judgment goes against him for the balance. 
 If it be equal to the plaintiff's claim, it is then a bar. If it be greater,* the 
 action is barred, and the plaintiff's demand will stand as a credit to him in 
 any future action brought by the defendant against him. But in cither of 
 these last cases if the offset was procured since the action brought, the 
 plaintiff' will recover his costs. 
 
 Where the defendant pleads as an offset the plaintiff's liability to him as 
 assignee of a bond, he must aver and prove due diligence and the insolven- 
 cy of the obligor in the assigned bond. 3 Call, 9. 
 
 The defendant in an action by an assignee of a bond, cannot offset any 
 demand of his own against the assignor, acquired after he had notice of the 
 assignment. 5 Mun. 388. 
 
 It must be observed, however, that courts of equity often permit discounts 
 which are rejected at law. Thus in all the cases of partnerships before put, a 
 court of equity will examine the state of the accounts, and allow or reject 
 the discount according as the accounts appear. See 6 Mun. 34. t This 
 subject cannot be enlarged upon in this place. 
 
 *Tlie pica of set-o/T in lliis case is to tliiseffect:— " And the said defendant comes and defends the 
 wrong and injiirv, wlien, &:c. and savsthat ihe plaintiff, iiits action aforesaid against liiin, ought nut to 
 liave and inalntaiii, because he says liiat at I lie lime of issuing the original writ in tins aeliuii, there 
 
 was due on the writing oliligatory in llie declaration mentioned, a certain gum, to wit: $- , for 
 
 principal and interest, and that lielore and at tliat lime the plaintifi" wa? indebted lO the said defend- 
 ant in a much larger fuiii of money, to wit: tlie sum of § , due by [here stale the in:inner it is 
 
 due— 1( by Ijonil, describe it as if in a declaration — if by account, elate l<:>r what,] whicli c<aid sum 
 iti wIidIIv unpaid, and exceeds the sum due and owing to liie plaiiitilT, as alorcsaid, on the said liond ; 
 and wliirli said sum so due from the plainlift', or so much thereof as shall be necessary in tins behalf, 
 the Kaid delendant is ready and oflers to sel ofl'aiid allow against llie sum due to tlie plainliff by the 
 wniiiig in llie derlaraiioii mentioned, accoidiiig lo ihe lorm of the statute in that case made and pro- 
 vided; and tliis he in ready lo verily, wherefore hepravs jiidgineiit," &.C. 
 
 The (orm of the plea where the sums are equal, is but lillle difl'erent from the foregoing. Where 
 the sum is less, if tlieofTsejt is pleaded, the ddciidani should ofl'er to offset so much as is really dua 
 to liim, and plead only as to liie balance. 'l"he usual course, however, in such case, is to plead pay- 
 ment and give notice of sclofl". 'I'he notice of sct-otT, though in the form of a notke, is olherwise 
 pretty muclilike the plea. In liCliitly. 441, may be found the form iu the action of aMUoipsit, whicll, 
 li easily moulded so as to suit the action of debt. 
 
 t'lMiis case is questioned, 2 Leigh, 505 It seems clear, however, that set-offs were allowed in 
 equity before the siatiiie. 11 V^ez. ii4. 19 Vez. 467. It seems, also, that an accommodation indoiser 
 liaviiig money of the drawer's in his hands, may, in case of reasonable apprehension of iiisulvencyi 
 reiain nnlil indemnified. Chilly on bills, J47. t>ee, also, Harkevrs. Smilh, 3 T.lt.507,aud ;i I.eiKh, 
 b'JH, riling 1 Alk. 2.W. In Feagle r?. Dillaid, decided in ihe court of appeals in l;i34, il seemed lo be 
 aereed thai it a creditor by judgment be insolvent, llie debtor might injoio for the Uiuouut yf a bond 
 of lUc creditorii which he held, thou^^h it Avaa not yet due.
 
 cSiAP. 7.] OEBT. Ill 
 
 Of the plea with reference to the person. First— against the heir. This 
 action, we have seen, lies against the heir upon the bond of the ancestor, 
 where the heir is expressly bound therein, and hath assets by descent. It 
 is considered as the heir's own debt in respect of the assets, and he is 
 therefore charo-eable in the debet and delinet, though the omission to charge 
 him in the debet is not fatal on a general demurrer, and is cured by a verdict. 
 2 Mun. 88. If the defendant is the immediate heir of the obligor, the de- 
 claration is against him as heir generally, but if he is sued as heir of the 
 heir, he should be charged as such if the intermediate heir has had seizin, 
 thouirh it is not necessary to show how he is heir, as that may not lie with- 
 in the knowledge of the plaintiff. 2 Mun. 88. 2 Saun. 7, n. 4. See, 
 however, 2 Selw. 523. 
 
 In this action against the heir of the obligor, the whole of the heirs should 
 be parties, and where the writ was against four, and the declaration only a- 
 gainst three, it was held an incurable defect, for thus the judgment would 
 place the whole burden on part only of those who are chargeable ; 4 Mun. 
 94; whereas they seem to be only chargeable ;iro rata. See 1 Mun. 437, 
 440, 446. See, also, 3 Mun. 514. Hence, if one be sued without the oth- 
 ers, he may plead that matter and pray judgment whether he ought farther 
 to answer until the others are summoned. 3 Co. 12, 15. 2 Saun. 8, note 
 10. See, also, 2 Bac. Execution, page 696. He is entitled to contribution 
 not merely by compelling his co-heir to refund what he may have been com- 
 pelled to pay, but by compelling the creditor to proceed against the co- 
 heir. Id. 
 
 In order to understand the principles of this action, it is necessary to re» 
 member that the heir by common law was bound by reason of assets de- 
 scended ; and on a judgment against him, the whole of the land descended 
 was delivered to the plaintiff in execution ; and not a moiety only, as would 
 have been the case on a judgment against the ancestor himself. But he 
 was only chargeable where the creditor commenced his suit before any 
 alienation of the land which he inherited. It is true that from the time of 
 the commencement of the action, that land was bound, so that a pendente 
 lite purchaser held subject to the claim : 2 Bac. Execution, I. Co. Litt. 102, 
 b: but if, before action brought, the heir aliened bona fide and for valuable 
 consideration, the lands were not bound in the hands of the alienee. 3 
 Bac. Heir & Ancestor, F. If, however, the deed was fraudulent or volun- 
 tary, it would have been otherwise, and the creditor might have had his 
 judgment against the land itself, and taken out execution accordingly. 2 
 Saun. 7, n. 4. Nor was the heir himself personally responsible at law, 
 (though it was otherwise in equity,) by reason of the assets so aliened. Ibid. 
 Hence arose the defence of the heir at common law, •' that he had no as- 
 sets by descent at the time of suing out the writ." This was the usual plea,- 
 and the creditor was defrauded of his rights by the heir's disposition of the 
 property. To remedy this evil, the English statute and our own act of as- 
 sembly (I R. C. ch. 105) were made. The latter provides that where the 
 heir so aliens before action brought, he shall be answerable in an action of 
 debt to the value of the assets aliened, but the lands themselves, if bona fide 
 sold, shall not be liable to execution. 1 R. C. eh. 105, § 6. Had the act 
 gone no farther it would have put an end to the common law plea, of "no 
 assets at the time of the writ purchased." But it did proceed to authorize 
 the heir who had aliened before action brought, still to plead this common 
 law plea; and it further permitted the plaintiff to reply, "assets before the 
 writ brought or bill filed," on which the defendant either confesses the mat- 
 ter or takes issue. 
 
 The effect at common law of a false plea or an omission to confess the 
 assets descended, seems to have been at one time matter of dispute. But-
 
 112 DEBT. [book 3. 
 
 it appears sufficiently established that if the heir pleaded a false plea, (ex- 
 cept non est factum,) or did not confess the action and shew the certainty 
 of the assets, but pleaded " nothing by descent," or suffered judgment by 
 default, or nil dicit, or confession, without confessing and shewing the cer- 
 tainty of the as^sots, the judgment went against him as for his own debt. 
 Plow. 440. Inasmuch, however, as such a general judgment, as for his 
 own debt, would only reach a moiety of the lands of the heir, it would, where 
 the heir had no other lands than those descended, have been less beneficial 
 than a special judgment against them, since this would seize the whole. 
 Hence it was held that though the heir did not confess the certainty of the 
 assets, the plaintiff might himself suggest that the heir had particular lands 
 by descent, and pray execution of the whole of them accordingly. Saun- 
 ders, ubi supra. 
 
 The statute, however, has made no small alteration in this respect. For 
 if the heir pleads "no assets at the time of the writ purchased," and the 
 plaintiff replies "assets before," and the defendant takes issue, thus in ef- 
 fect denying assets before, yet he shall be liable only to the value of the 
 lands, instead of being made liable for the whole debt, whether the assets 
 were adequate to its discharge or not. The judgment, however, is in such 
 case as for his own debt. But if the judgment be given against the heir by 
 confession of the action without confessing the assets descended, or upon 
 demurrer or nil dicit, it will be for the debt and damages, without any writ 
 of inquiry as to the value, so that the heir will thus be liable to the whole 
 debt, whether the value of the lands be equal to it or not. And note — that 
 the gross, and not the annual value, is to be estimated by the jury in all 
 cases under the statute. 
 
 If, therefore, the heir has sold the land, his best course is to confess the 
 assets descended, or to make the defence left to him by the act, that is to 
 say, to plead no assets at the tin>e of the writ purchased ; for then he will 
 only be charged to the value of the assets if the plaintiff replies under the 
 statute. This the plaintiff must do where the lands have been really sold 
 before the suit was commenced ; for the issue would be found against him, 
 and his action would be barred if he took issue on the defendant's plea. 
 Where, however, in point ofi'act, there were assets at the time the suit was 
 brought, the plaintiff may not only safely take issue, but he will have an ad- 
 vantage in it where the defendant has no other property than the lands de- 
 scended ; since his replication not being under the statute, his judgment 
 in that case will be a special judgment against the whole of those lands, 
 instead of a general judgment against the heir, as for his own debt on 
 which he can only extend a moiety. See 3 Call, 431. Siiun. ubi sup. 
 
 If the heir has not sold the lands descended, he ought (if the cause of 
 action be just) to acknowledge the action and confess the certainty of the 
 assets. By this means the judgment will be — not against him personally, 
 but only against the lands, the whole of which will be extended. If instead 
 of this he pleads " no assets at the time of the writ purchased," the plain- 
 tiff may either reply underthe statute and make him personally liable to the 
 value of the lands, or he may take issue as at common law, and then he 
 will have a judgment for the whole debt, without reference to the value of 
 the assets, for which the defendant will in like manner be personally liable; 
 though the plaintiff may have his judgment entered against the whole land 
 descended. 
 
 If the heir, in truth and in fact, never at any time had assets by descent, 
 he shouUl plead that matter, and it will bar the plaintiffs action. If he 
 had assets, but has paid to the value of them debts of the ancestor which 
 bound him, he may plead that matter also in his discharge. 1 Str. 6G5.
 
 CHAP. 7. J DEBT. 113 
 
 Where there nrc several cohicrs, some of wliom Iiavc aliened and wasted 
 their patrimony, it would seem advisable for the rest to plead separately, 
 confessing fairly the assets they have received by descent. Yet it is matter 
 of great difficulty to say, whether the creditor will not even then recover 
 his whole debt from the solvent heirs, provided the assets descended to 
 them be adequate to its payment. There seems to be much reason and 
 some authority for the doctrine, that each heir should be responsible only 
 for his proportion of the debt. For as the land of the heir is bound from 
 the date of the writ, it is in the creditor's power, immediately ui)on the an- 
 cestor's deat!i, to arrest the alienation by any heir of his portion, l)y the 
 commencement of suit. As the injury therefore has arisen from his own 
 laches, and the other heirs could not prevent the waste or alienation oThis 
 estate by their cohier, it would seem reasonable that the loss should fall on the 
 creditor. This seems to be clearly the doctrine of the civil law, 1 Pothier, 
 159, 165, and is strongly countenanced by the following authorities : 1 
 Mun. 437, 4-10, 446. '2 Mun. 326, 32S. 3 Mun. 514. 2 Cranch, 414. 
 So too it is clear that where all the heirs fairly confess the assets descended, 
 and the judgment accordingly is not against them personally, but against 
 the assets descended, the sheriff cannot take the land of one. to the ex- 
 emption of the land of another ; for in executions which concern the realty 
 the sheriff cannot do execution on the land of one only. 3 Co. 14. He 
 is not permitted to deliver in extent the land of one or the other at his plea- 
 sure. The whole must be taken, and if it be not the party might be reliev- 
 ed by audita querela. Id. 2 Bac. 696. 
 
 Upon like principles we find it decided, that, in a decree against several 
 devisees in favor of a creditor, the decree should be rateably against each 
 for his proportion, and not against the whole jointly, with liberty to him 
 who pays to sue for contribution. 3 Mun. 514. Though if the debt be 
 enforced from one ©f several heirs or devisees who are all liable, he may in 
 equity compel the rest to contribute. 
 
 Yet, notwithstanding these considerations, it seems difficult to imagine 
 how the judgment could be rendered at law, so as to fix his own proportion 
 only upon each; for as the demand is joint, the judgment must be joint; 
 and even if one confesses the assets and the other does not, still I presume 
 the judgment would be joint, though to be levied against the person of the 
 latter, but against the assets only in the hands of the former. 
 
 It may here be advisable to say something of the case of a devisee before 
 we proceed to the judgment and execution against the heir. Among the 
 frauds practised by debtors upon their creditors, it was, before the statute 
 of fraudulent devises, a common artifice for a debtor to devise his lands 
 to his representatives in such manner as to break the descent, which was 
 effected where, by the devise, the heir took an estnte different from Avhat 
 he would have had by descent. By this means, when on the bond of the 
 ancestor a suit was brought against the heir, he might plead no assets by 
 descent, and foil the creditor, though he or some other person had received 
 real estate by devise adequate to the discharge of the debt. To prevent 
 this gross abuse, all devises of real estate, except for payment of debts and 
 certain portions for children, are declared void as against creditors whose 
 demands bind the heir, and they are authorized to sue the heir and devisee 
 jointly. The devisee in such case is to all intents and purposes chargeable 
 as heir, and may make a like defence. And where such devisee is also 
 sued as heir, a plea that he has no assets by descent is no good plea, for it 
 omits to answer that part of the declaration which charges him as devisee. 
 Such a plea ought not to be received to set aside an office judgment, even 
 though it be not objected to, and if a verdict bo found upon it, a repleader 
 will be awarded. 1 Call. 257. 
 VOL. 2—15
 
 114 DEBT. [book 3» 
 
 Having given this vie'fv of the pleadings against the heir and devisee, I 
 shall, for the sake of presenting the subject entire, offer a few remarks as 
 to the judgment and execution. 
 
 1. Where the judgment is by nil dicit, or on demurrer, or upon a false 
 plea, or by confession of the action without confession of the assets, the 
 judgment is for the debt and damages, as if it was the heir's own proper 
 debt, without reference to the lands; unless the plaintiff shall suggest that 
 the heir hath particular lands by descent, and prays execution of the whole 
 of them. 2 Saun. 7. On this suggestion execution issues accordingly: 
 but if there be no such suggestion, a casa, or fifa, or elegit may issue. 
 
 2. Where the defendant, having sold the laud, pleads no assets by de- 
 scent, and the plaintiff replies under the statute, the judgment is given for 
 the debt to the gross value of the land, according to the estimate of the 
 jury ; and any execution may be taken out against the heir. 
 
 3. Where the defendant confesses the assets, the judgment is special 
 that the " plaintiff recover his debt to be levied on the lands," &c. (confess^ 
 ed to be descended :) 1 Lilly's Ent. 181. 2 Lill. Ent. 381 ; and thereup- 
 on an execution issues against the whole land in the form set forth by Judge 
 Tucker in his note to 3 B. C. page 4-21. 
 
 It may not be amiss to add in this place the following remarks : 
 
 1. I think, from the tenor of the law, that the heir cannot be made liable 
 in an action of debt, except for the value of the lands descended ; and that 
 the rents and profits received by him cannot be reached by that action. I 
 am not aware of any decision that would make him accountable in equity. 
 
 It would seem, indeed, in that court, that the guardian of the heir is not 
 bound to apply the rents and profits of the real estate to pay the bond cre- 
 ditors of the ancestor. See 1 Vern. 428. 2 Vern. 006. 3 P. Wms. 365. 
 4 Brown, 167. 4 John. 615. In Alstadt fs. Vestal, Judge Carr decided 
 that the rents and profits were not to be accounted for. See, also, 2 
 Leigh, 29. 
 
 2. In equity the real estate will not be subjected to sale until a deficien- 
 cy of personal assets is ascertained, except in cases of specific lien. 4 
 John. 618. It is no objection to the proceeding to a sale inequity that the 
 heirs are infants. Id. 6Mun.432. 
 
 3. The lands in the hands of a purchaser without notice of debts, are 
 not liable at law or in equity, unless he purchases pendente lite. So of a 
 purchaser from a devisee, though the contrary seems in one case to have 
 been contended. Sug. 366, citing 2 Anst. 206. Equity will, however, 
 under circumstances, enjoin the purchase money of the lands at the instance 
 of a creditor. 3 Bro. C. C.2i7. 
 
 0^ pleas by executors or administrators. 1. Plea of ne unques executor. 
 If the defendant is sued as executor, whereas in truth he is administrator, 
 it must be pleaded in abatement, for it is no bar, since the plaintiff may have 
 a good action against him uiitler another character. But where he is nei- 
 ther executor nor administrator, this |)lea is a good plea in bar, for it siiews 
 that the plaintiff can have no action against him in any character. 5 Barn. 
 &Cres. VJ[. 
 
 On this plea, also, arises the question whether the executor be or be not 
 executor of his own wrong. It is also a proper |)lea in disnbility of a ])lnin- 
 tiff who sues as executor or administrator ; and upon it the question whether 
 letters testamentary or of administration have been properly granted, it is 
 said, will be tried. 1 Es[). 25(». The |)laintilf should in his declaration, in 
 all cases, make profcrt of the letters of administration, though the omission 
 is cured after a verdict by the act of Jeofails. 
 
 The executor may plead to the action any matter which the testator 
 might hare pleaded in bar of the demand, but he may also plead other
 
 CHAP. 7.] DEBT. 115 
 
 matters arising out of his own executorial character and transactions. Thus 
 he may plead a retainer of the assets to pay his own debt, or that lie has 
 fully administered. The riwht of retainer and the order of paying debts 
 havintr been explained elsewhere, a kw remarks will suffice here. 
 
 The ret liner may be given in evidence on the plea oi' plene adininistra- 
 vit. See Saun. SSS, n. (>. 
 
 An executor should plead truly and honestly : and he should also act 
 cautiously; for at common law, if judgment went against him by default, 
 it was an admission of assets. So a plea of six judgments, and that he had 
 not assets more than sufficient to satisfy them, was held an admission of as- 
 sets to above five. Salk. 293, 310. Yet this is not now the law of Vir- 
 ginia. For an executor is not chargeable bejond the assets for any false 
 pleading, or omission, or mistake in pleading. 1 R. C. ch. 104, § 36. Hence, 
 although he does not plead fully administered to the action brought against 
 him to establish the demand, yet he may, under our law, plead it afterwards 
 to an action of devastavit brought on the judgment in that suit, or to an 
 action on the executorial bond. See I R. C. ch. 104, § 63. Still, howev- 
 er, circumspection is necessary, as notwithstanding the lenient spirit of our 
 laws, executors may by carelessness make themselves liable. Tiius an un- 
 conditional confession of judgment is an admission of assets: 2 H. & 
 M. 575. So, also, if to the action brought to establish the debt, the exec- 
 utor pleads p/ene administravit, and it is found against him, he can never 
 afterwards in an action of devastavit, or in a suit on the executorial bond, 
 plead the matter again, since the verdict on the point concludes him for- 
 ever. When, therefore, he finds himself unprepared with his evidence to 
 support a plea of fully administered, he should not plead it to the original 
 suit, or if it has been pleaded, he should withdraw the plea before the trial, 
 and then it may be pleaded in the subsequent action of devastavit, or in the 
 suit on the executorial bond, at which time he may be better prepared to 
 support it. Where, however, there are debts of superior dignity, they must 
 be pleaded, as otherwise the debtor of inferior dignity may get his judgment 
 and sweep the assets by his execution, as he will have a right to levy on them 
 if to be found. 
 
 Our courts, as well as our statutes, are very indulgent to executors and 
 administrators, and will permit them to amend their plea by pleading fully 
 administered at any time before the trial, provided there is no reason to sus- 
 pect a design to procrastinate. 1 H. & M. 28. 
 
 When the executor has fully administered, he pleads the plea generally. 
 Where he has fully aiministered all but a certain sum, the application of 
 which to the payment of the plaintiff's demand he is willing to admit, he 
 pleads "plene administravit pr cuter," that is to say, "that he has fully ad- 
 ministered all the assets except so much." Where he contests such applica- 
 tion because he has confessed judgment to another action, or because there 
 is a debt of superior dio-nity, he must plead these matters accordingly. See 
 Doug. 436; 1 Chitty," 485. 6 Ran. 108. Forms of pleas, 2 Chitty, 452 
 to 458. The creditor may reply per fraudem, see Starkie, part 4, 557. 
 Williams' Executors, 1208. 1 Saun. 103, 329. 
 
 Of the plea to an action by the assignee of a bond. The obligor may in 
 this action plead any thing that he might have done if the suit had been 
 brought by the obligee or assignor. Where, however, payments have been 
 made by him since the assignment, he must plead " payment to the obligee 
 before notice of the assignment," (6 Ran. 353,) and under this plea he may 
 give evidence of any such payment in discharge of the bond. 1 R. C. ch. 
 125, § 5. In like manner, where there are several successive assignments, 
 he may plead " payment to any assignor before notice of the assignment by
 
 116 DEBT. [book 3. 
 
 Buch assignor ;" but unless he pleads this matter specially, he cannot give 
 evidence of it on the general plea of paynient. 6 Ran. 353. 
 
 The obligor may also plead '•' no assignment," and this will render ne- 
 cessary proof of the assignment of the bond, crt- of such of the assignments 
 as are denied, if there be more than one. 
 
 Of the evidence in case of bonds. In Virginia, " payment" is the usual 
 plea instead of non est factum, as this latter is required to be verified by 
 affidavit. Where, however, non est factum is pleaded, the plaintiff must be 
 prepared to establish the execution, or sealing and delivery of the bond. 
 This m,u5t be proved by the subscribing witness, if there be one, provided 
 he can be produced, and is capable of being examined. But, though there 
 be more than one subscribing witness, only one need be produced. 
 
 It is a general rule that the proof by the subscribing witness cannot be 
 dispensed with, nor supplied by evidence of an acknowledgment ol the exe- 
 cution of the bond, though solemnly made on oath in an answer in chan- 
 cery : for the subscribing witness might possibly have recollected facts con- 
 nected with the execution of the bond, which the defendant may have for- 
 gotten. To this general rule, however, there are exceptions ; for if the sub- 
 scribing witness be dead, or absent from the country, or cannot be lound 
 after diligent inquiry, — or if he be blind, or incompetent from insanity, or 
 infamy, or subsequently acquired interest — proof of his handwriting will 
 suffice : and when that is proved, it is considered as establishing both sealing 
 and delivery. It is not necessary, after proving the handwriting of the wit- 
 ness, to prove that of the obligor ; Phil. Ev. [4-20] ; though it was formerly 
 held otherwise. 
 
 Where there are no subscribing witnesses, or they were interested, or in- 
 famous when they attested, and so continue — or the name of a fictitious 
 person is inserted as a witness, or the handwriting of a subscribing witness, 
 who is not to be found, cannot be proved — (I Leigh, 483) — in these cases 
 the execution of the bond may be established by proof of the obligor's hand- 
 writing, or of his acknowledgment of the execution, or by the evidence of 
 a person who was privy to it, although he was not a subscribing witness. 
 Phil. Ev. [421.] Where at the time of attestation the party was interested 
 or infamo'cS, proof of his handwriting is rejected, because no faith is to be 
 reposed in an attestation made when the witness was incompetent from bias, 
 or capable of knavery from character. W^here the subscribing witnesses de- 
 ny any knowledge of the execution of the bond, and it can be shewn that 
 this denial proceeds from fraud, and not from want of recollection only, the 
 obligor's handwriting may then also be proved. PhiW Ev. [420.] 
 
 Evidence on the plea of fully administered. To prove assets the plain- 
 tiff may produce witnesses, or he may give in evidence the inventory of the 
 estate, if one has been made and returned. If there be none, he may 
 compel the executor to make one and return it. I Mun. 16. The ap- 
 praisement of the estate niay also be given in evidence as an inventory, if 
 signed by the executor; but if not signed by him, it cannot, as such, be 
 evidence ag.-.inst him ; 2 IJ. &, M. 30i ; though it is .still admissible as pri- 
 ma facie evidence of the value of the fstate. 3 Mun. 05. It seems doubt- 
 ful whether the inventory and appraisement should be admitted to record 
 under the sanction of the court, before they can be offered as evidence. 2 
 H. & M. 3G1. 4 H. & i\I. 255. 
 
 It must be remarked, too, that the appraisement is not conclusive evi- 
 dence, even if returned and recorded, if it be proved that llie estate sold 
 for more or less than the appraised value. I R. C. ch. 1C4, § 45. Nor is 
 the inventory conclusive if part of the property turns out not to have be- 
 longed to the testator.
 
 iiAP. 7. J DEBT. 1 17 
 
 On the part of the executor, the due administration of the assets must 
 be proved. This (rcguhirly) is to be done by the production of vouclicrs, 
 or other testimony of payments of valid demands against the estate. But, 
 as it is often inconvenient to do this, tiic executor usually has his accounts 
 settled by commissioners under an order of the court which granted the 
 probate, and this account, when it has been examined and passed by the 
 court and admitted to record, is admissible on the plea of fully adniinietered, 
 as yj;i7na/«cic evidence ofthcscveral items therein. 4 H. 8t]\I. '253. The 
 plaintifTmay, however, surchage and falsify such account; that is to say, 
 he may surcharge by proving that there are assets for which no credit is 
 given, or he may falsify by disproving any payment alleged to liave been 
 made, or the justice of tlie demand so j)aid. Where a judgment has 
 been recovered against the executor and discharged, the validity of that 
 judgment, I presume, can only be questioned on the trial of the plea of 
 I'ully administered, by nWegiug per fraudem, — that is, that it was obtained by 
 fraudulent collusion on the part of the executor. But where there has been 
 no judgment, proof may be demanded of the justice of the debts which 
 liave been j)aid ; or if bonds are given in evidence in support of this plea 
 in bar of an action on a simple contract, the plaintiff may even call for 
 proof of the sealing and delivery. Show. 8. 1 Esp. 2G1.* 
 
 See farther, as to administration of the assets, the head of executors and 
 administrators. Book 2. 
 
 Of the verdict and judgment. In debt on simple contract or single bill, 
 the verdict ought to find not only the debt which is demanded, but interest 
 thereon, from the time at which it became due, and one cent damage. It 
 is to this effect: " We, the jury, find for the plaintiff the debt in the decla- 
 ration mentioned, with interest (hereon at the rate of six\ per cent, per annum, 
 
 from the day of 18 — , till paid, and one cent damage :" and 
 
 judgment is rendered accordingly. But where the suit is upon a bond or 
 penal bill, there, as we have seen, the declaration demands the penalty it- 
 self, (see 4 Mun. 307,) and as that covers the interest, the verdict takes no 
 notice of interest, and the words in italics are in such cases omitted. The 
 same may be said where the debt is on a single bill, which on its face calls 
 for interest, and the declaration demands it accordingly; for in that case 
 the finding of the debt in the declaration of itself includes the interest, and 
 therefore the words in italics would be improper, as the plaintiff would then 
 have interest upon interest. Where the verdict is upon a bond or penal 
 bill, the judgment is for the penalty to be discharged by the sum mention- 
 ed in the condition, with interest from the time at which it became due, 
 unless part has been paid, when a different course is i)ursued. 
 
 Where the suit is upon a simple contract or single bill, and part has been 
 paid, the declaration nevertheless demands the wliole. The verdict will in 
 such case bv! thus: "We, the jury, find for the plaintiff $450, part of the 
 debt in the declaration mentioned, with interest thereon at the rate of six 
 per cent, per annum, from the 1st day of January, 1825, till paid, and one 
 cent damages; and we further find that fifty dollars, the residue of the said 
 debt, hath been paid."\ In this case these latter words are necessary, be- 
 cause it is essential that the verdict should be responsive to the whole de- 
 mand ; and without them the court would not know judicially whether the 
 
 * See Aiile, 113. Also, 1 Wasli. 306. 2 Hen. & Mun. 245. 4 Hen. Sc Mun. 2.'i3. 1 Mun. 437. 
 
 tTlie rate of interest licie inserted mu.«t correspond willi the rate arising under the contract. If 
 tlie contract was a Viiginia lontn c anterior to May, 1797, only 5 per cent, is allowable. Ou a New 
 York contract, 7 per cent, is allowed, &c. 
 
 tin pimple contract the finding, inste.id of the words in italics, should be, "And we furlherfind that 
 the defendant doth not owe the residue of the said debt in the declaration mentioned." Debt on 
 simple contract is rarely brought, except on promissory notes. lu England it was lone disused ou 
 account of (lie wager of law.
 
 118 DEBT. [book 3. 
 
 residue had been paid or not. The judgment in this case is for the sum re- 
 covered witli interest, saying nothing of what had been paid. But in debt 
 on bond, or penal bill, where payments are proved, the jury ascertain tho 
 balance of principal and interest due by the condition, and the verdict is 
 thus: "We, the jury, tind for the plaintiff the debtin the declaration men- 
 tioned, to be discharged by the payment of $450, with interest thereon at 
 the rate of six per cent, per annum, from the 1st day of January, 1825, till 
 paid, and one cent damages:" and the judgment is entered accordingly. 
 
 Where the verdict in debt on bond is general for the full amount of the 
 penalty, no payments having been made, the judgment is rendered by the 
 court for the penalty, to be discharged by the payment of the amount due 
 by the condition, with interest from the time it became due till paid. 
 
 Judgment on a bond for payment of a debt by instalments, should be for 
 the debt in the declaration mentioned, to be discharged by the sum due at 
 the time of institution of the suit, reserving liberty to the plaintiff to resort 
 to a scire facias to rceover the other instalments as they afterwards become 
 due by the condition of the bond. Thatcher rs. Taylor, 3 Mun. 249. See> 
 aJso^ Book 2, title Obligations. 
 
 Verdict on plene administravit. Where this plea is filed, it must be di'- 
 rectly answered by the verdict. If it be established, and there be no other 
 plea filed, the verdict may be general: " We, the jury, find for the defend- 
 ant." Or if there be another plea it may be to this effect : " We, the jury^ 
 find for the defendant upon the plea of fully administered." Or, it may re- 
 spond more particularly to the issue thus : " We, the jury, find that the de- 
 fendant had not at the time of the couimencement of this suit, nor ever 
 since, assets in his hands unadministered whereof to satisfy the said plain- 
 tiff his demand, or any part thereof" See 1 Saun. .336, in note 10. 
 
 Where no other plea is filed, upon this being found for the defendant, 
 the judgiuent even before the late act could only have been for costs de 
 bonis testaloris. When a plea denying the plaintiffs claim is also filed, the 
 verdict may be for the plaintiff on that plea, and for the defendant on the 
 plea of fully administered, by blending the forms already given. In this 
 case the plaintiff will be entitled to his costs, to be levied of the assets. 
 But costs cannot now be rendered de bonis propriis. See Sess. Acts, Feb. 
 19, 1823, ch. 28, §4. Until this act it was otherwise. I Saun.336, n. 10. 
 ''■ When an administrator defendant pleads the single plea of ' fully ad- 
 ministered,' and the issue is found for him, the plaintiff ought to have 
 judgment for debt and costs, when assets, Sec, and the defendant ought to 
 Jiave a judgment against the plaintiff for the general costs of the action. 
 
 " When the defendant administrator pleads ' non assumpsit,' and ' fully ad- 
 ministered,' and the first is found for the plaintiff, and the second for the 
 defendant, the judgment ought to be for the plaintiff for the debt and costs, 
 quando, Sec, and the defendant ought to have a judgment for the separate 
 costs of the second issue. 
 
 " If the defendant pleads both jdeas, and tlie plaintiff declines replying 
 to the plea of 'fully administered,' or Jiaving replied to it withdraws it with- 
 out subjecting the defendant to costs by doing so, and the first issue is then 
 found for the ])laintilf, he ought to have a judgment for his debt and costs, 
 quando, Sec, and the defendant is not entitled to any costs. 
 
 "If a plaintiff having replied to the plea of 'fully administered,' after- 
 wards withdraws his replication by consent of the court, the defendant may 
 at that time object to it, uidess on tiie terms of the piaintifl''s paying the 
 costs occasioned by that replication. If he neglects to do so, it will l)e con- 
 strued into an admission that he is not entitled to recover any, and there 
 will be no judgment at any future term for his separate costs, if the first is-
 
 CHAP. 7.] DEBT. 119 
 
 sue on the plea of non assumpsit is found against him. 2 Virg. Ca. 348. 
 See, also, 6 Ran. 108." 
 
 Where the plea of plene administravit is not fully supported, the verdict 
 should find the value of the goods unadtninistcrcd, or at least that they are 
 "sufficient to satisfy the plainlitf's demand." 1 Esp. 203. 2 Wash. 301. 
 5 Crancli, 19. 1 Leigh, 481. And if the verdict be uncertain as to this, 
 the plaintiff cannot have a judgment, but there must be a venire de novo, 
 (i. e. the verdict must be set aside, and another jury must be sworn to try 
 the case.) 3 Call. 4-24. 3 Mun. 05. 4 Mun. 400. 
 
 It has recently been decided, (0 Ran. 108,) that a verdict upon the plea 
 of fully administered ought to ascertain whether the defendant had assets at 
 the date of the commencement of the suit, and of the plea pleaded. It is 
 moreover decided that the judgment, when assets, refers to the time of plea 
 pleaded ; and though assets be received after the plea and before the trial 
 they cannot be inquired into in that action, but may in the subsequent scire 
 facias. See, also, T. R. 1. 
 
 Where the verdict is that the defendant has fully administered the whole 
 of the assets, yet if the plaintiff establishes his demand, judgment is ren- 
 dered in his favor " quando assets acciderint ;" that is, for his debt, interest, 
 damages, and costs, " to be levied of the goods and chattels of the dece- 
 dent which may thereafter come to the hands of the defendant to be admin- 
 istered." 2 Saun. 210. 2 Lilly's Ent. 505. In like manner, where there 
 are in the hands of the executor assets, but not to the value, the judgment 
 is, that the palintiff recover so much of his debt as the assets amount to, to 
 be levied of the goods of the decedent in his administrator's hands, and the 
 residue of his debt to be levied of the further assets quando acciderint. 2 
 Lilly's Ent. 475, 482, 505. 1 Saun. 330, a, in note. 
 
 As to taking judgment quando acciderint, it must be observed that when 
 the defendant pleads p/e/je administravit, the plaintiff may immediately take 
 such judgment ; 2 Saun. 220 ; but then he can never in a subsequent ac- 
 tion go behind it, and shev/ that there were assets in the hands of the ex- 
 ecutor at the time it was rendered ; for he is concluded by the judgment, 
 whether it was given on a verdict rendered on plene administravit, or on his 
 own admission in agreeing to take such a judgment. But it must be re- 
 membered that the judgment itself relates back to the date of the plea 
 pleaded ; and no notice can be taken on the trial of assets received after 
 the date of the plea. Rand. 108. Thus, upon a scire facias, (which is 
 the proper remedy for the plaintiff if assets have since accrued, I Saun. 
 330, b.) evidence of such assets only as have come to the executor's hands 
 since the plea pleaded in the original action (0 Ran. 108,) will be received. 
 2 Selw. 715. T. R. I. For the scire facias must pursue the terms of 
 the original judgment, which are, 'Uhat the plainti(f shaW recover his debt, 
 to be levied of the goods which shall thereafter come to the executor's 
 hands ;" and it must therefore allege as the very ground of it, that goods 
 have come to his hands since the judgment, (which refers to the plea plead- 
 ed, Ran. 108,) or it will be radically defective. 2 Saun. 219, n. 2. On 
 this point, then, the issue will be made up, and to this only can evidence 
 be given. See the form of the scire facias, and of the plea to it. 2 Saun. 
 217, 220. It seems that in this scire facias, if the judgment of assets 
 quando, &c. was rendered upon a special plea of plene administravit prater 
 judgments, the future assets are first applicable to such judgments so far as 
 they may be necessary, and the plaintiff in the scire facias can only come 
 upon the balance. 1 Salk. 312. It is otherwise where the plea is of plene 
 administravit generally, which shews the importance of caution in pleading 
 on the part of the executor. See 1 Saun. 330, b.
 
 120 COVENANT. [book 3. 
 
 In no case is a judgment for costs now levied of the goods and chattels 
 of the executor defendant. Act of Feb. 1823, ch. 28, § 4. 
 
 In debt against two executors, if they plead severally "fully administer- 
 ed," and the jury find that one has assets and the other not, the judgment 
 shall be against the former, and the other shall go quit. 2 Sehv. 176. 
 
 When in an action on an assigned bond or note, the defendant pleads 
 payment, and also a special plea of " payment to the assignor before notice 
 of the assignment," and they find upon the latter plea, it is proper that this 
 should appear in their verdict; and thus the plaintiff in an action against his 
 assignor will be furnished with the means of establishing his demand with 
 out difficulty. 
 
 I have been more explicit on the subject of this action, because of its 
 very great importance ; since a plaintiff may lose, or a defendant may be 
 saddled with large sums by the errors of young counsel in the management 
 of their cause. 
 
 CHAPTER VIII. 
 
 COVENANT. 
 
 2. " A covenant also, contained in a deed, to do a direct act, or to omit 
 one, is another species of direct contracts, the violation or breach of which 
 is a civil injury. As if a man covenants to be at York by such a day, or 
 not to exercise a trade in a particular place, and is not at York at the time 
 appointed, or carries on his trade in the place forbidden, these are direct 
 breaches of his covenant; and may be perhaps greatly to the disadvantage 
 and loss of the covenantee. The remedy for this is an action or writ of 
 covenant: in which, upon proof that the covenant is broken, the jury will 
 give damages in proportion to the injury sustained by the plaintiff, and oc- 
 casioned by such breach of the defendant's contract. 
 
 " There is one species of covenant, of a different nature from the rest, 
 which, though entirely disused, it is proper to notice. It is a covenant real, 
 to convey or dispose of lands, which seems to be partly of a personal and 
 partly of a real nature. For this, the remedy is by a special writ of cove- 
 nant, for a specific performance of the contract, concerning certain lands 
 particularly described in the writ. It therefore directs the sherifl' to com- 
 mand the defendant, here called the deforciant, to keep the covenant made 
 between the plaintiff and him concerning the identical lands in question : 
 and upon this process it is that fines of land are usually levied at common 
 law, the plaintiff, or person to whom the fine is levied, bringing a writ of 
 covenant, in which he suggests some agreement to have been made between 
 him and the deforciant, touching those particular lands, for the completion 
 of which he brings this action. And, for the end of this supposed differ- 
 ence, the fine or finalis concordia is made, whereby the deforciant (now 
 called the cognizor) acknowledges the tenements to be the right of the 
 plaintiff, now called the cognizee. And, moreover, as leases for years were 
 formerly considered only as contracts or covenants for the enjoyment of the 
 rents and [)rofits, and not as the conveyance of any real interest in the 
 land, the ancient remedy for the lessee, if ejected, was by a writ of cove- 
 nant against the lessor, to recover the term (if in being) and damages, in 
 case the ouster was committed by the lessor himself; or if the term was ex- 
 pired, or the ouster was committed by a stranger, claiming by an elder title, 
 then to recover damages only." 
 
 The action of covenant being that whereby damages arc recovered for 
 breach of any af!;rccmenl by deed between the parties, the agreement must 
 always be by deed, for otherwise the proper action is assumpsit. But it is
 
 CHAP. 8.] COVENANT. 12! 
 
 unimportant whether it be an indenture or deed poll, for this action equally 
 lies on either, against the party who has sealed the deed. Yet it does not 
 lie against a party even to an indenture, who has not sealed it, although 
 he has accepted it, and entered and held possession under it, unless, indeed, 
 he claims as heir or assignee under one who has sealed it. I know of but 
 one exception to this rule, and that has no application to us. It is the 
 case of letters patent from the crown, on which covenant will lie against 
 the lessee and his assignee, though the lessee never sealed a counterpart. 
 Cro. Ja. 399, 521. Selw. -385. 
 
 Covenants are either express or implied, or (which is the same thing) in 
 deed or in law. Express covenants are set forth in terms in the deed ; and 
 no particular form of words is necessary to constitute them. Implied co- 
 venants are those which the law raises from the character of the transac- 
 tion, or from certain technical expressions used in the instrument. Thus, 
 the word "demise" implies a covenant for quiet enjoyment ; and the words 
 " yielding and paying," a covenant to pay rent. 1 Saun. 241, b. Sed vide, 
 
 2 Selw. 492, note. 
 
 Covenants are further divided into real and personal, the first of which 
 are annexed to land ; see 4 Leigh, 69 ; and the latter to the person.* 
 
 Though no particular form of words is essential to constitute an express 
 covenant, yet to make a covenant the words must import an actual agree- 
 ment, and not merely a precedent condition : as a covenant to repair, 
 " provided the lessor finds timber," is only a condition ; for he may prefer 
 waiving the repairs to the expense of finding the timber ; while, on the other 
 hand, a lease to B on condition that he shall repair, is not a condition, but a co- 
 venant, for an agreement is clearly imported. 2 Selw. 391. See 2 Mun.337. 
 
 Where the covenant is express, the party is, as we have seen, absolutely 
 bound to perform, nor shall he be discharged by any collateral matter. 
 Thus a covenant to pay rent or to repair, will bind the covenantor, it seems, 
 althoutrh the property is burnt or destroyed. This principle, decided by 
 the arbitrators in Overton vs. Ross, (3 Call, 311,) seems to be supported by 
 some English cases. 6 T. R. 650, 750. 3 B. & P. 420. 
 
 Express covenants, on the other hand, are never to be extended farther, 
 as to time or persons, than the words import; but are to be construed ac- 
 cording to the intention fairly to be inferred from their language, and in 
 doubtful cases most strongly against the covenantor. They shall not be 
 construed to vary the duty to be performed, nor to embrace a thing which, 
 not being in existence at the time they were entered into, may not have 
 been contemplated by the parties. They have the effect of restraining and 
 qualifymg the generality and extent of covenants inlaw, and are themselves 
 limited by their legality ; for if contrary to law or to its policy, they cannot 
 serve as the foundation of an action. 
 
 There are various covenants which are usual in conveyances of land, to 
 which it is proper to advert. As, 1st. The covenant to pay rent, which 
 must be performed though the property is destroyed by fire or inevitable 
 accident, and on which the assignee may be sued, as well as the lessee. 
 Such also is 
 
 2. The covenant for quiet enjoyment, which lies for an entry and eviction 
 by superior title of a third person, or even for a disturbance without evic- 
 tion on the part of the lessor; — though not for the tortious ejectment or 
 eviction of a stranger, unless where the lessor covenants against the distur- 
 bance of such stranger particularly. 1 Esp. 274, 275. Of this something 
 has been said elsewhere. 
 
 'Covenants are also joint or joint and several, and though joint in form they will be considered 
 joint or several, according to the intent of the parties, and the action must be broughtaccordingly. 
 
 3 Leigh, 101. 
 
 VOL. 2—16
 
 122 COVENANT. [book 3. 
 
 3. The corenant to save harmless is another covenant inserted in leases, 
 and, like the preceding, extends not to the tortious acts of strangers; for 
 they are liable themselves to the lessee's action. 
 
 4. The covenant not to assign or underlet. The first of these terms im- 
 plies, as we have seen, a transfer of the lessee's whole estate in the land ; 
 the latter implies a retaining by himself of some portion of the estate, how- 
 ever small. Thus, if A has a lease for one hundred years, and he transfers 
 the whole term without reserving a rent to himself, it is an assignment ; 
 see 1 Str. 405; but if he leases it to another for ninety-nine years, or even 
 for the one hundred years, reserving rent to himself, it is an underletting. 
 Where both acts are intended to be guarded against, both terms should be 
 used. 
 
 This covenant is not, I incline to think, broken by act of law ; as by the 
 lease being taken in execution for debt, though perhaps a lease might be so 
 worded as to become ipso facto \ old by any such matter. See 2 T. R. 133, 
 &c. 425, &c. 
 
 5. Covenant for repairs. This extends to all erections raised during the 
 term. 1 Esp. 277. 
 
 6. Covenant of seizin and right to convey. This covenant is broken at 
 the instant of signing the deed, if the covenantor hath not in fact seizen 
 and right to convey, and an action immediately lies. 4 Cranch, 421. 4 
 Dall. 4^6. And in this action it would seem that the measure of damages 
 is the value of the land at the time the covenant was entered into. 2 Ran. 
 148. 
 
 7. Of the covenant against incumbrances. A right of way is an incum- 
 brance, as also is a right to dam up water so as to flow back on the land. 
 Whether a public road long established, or a daming of water where there 
 has been a writ of ad quod damnum according to law, should be considered 
 as within the intention of a general covenant of this kind, would perhaps 
 depend in each case on its particular circumstances. 
 
 8. The covenant for further assurance. If by the covenant the covenan- 
 tee's counsel is to advise the assurance, the covenantee should procure the 
 advice, and give notice to the covenantor : 5 Co. 19: for until he does this, 
 the covenantor cannot fulfil his contract. Moreover, he is entitled to pe- 
 ruse the deed that is prepared for him, and to take advice upon it. It must 
 be observed, however, that whatever may be the practice in England, in 
 Virginia the purchaser is not bound to prepare and tender a deed to the 
 vendor, unless such obligation can be fairly inferred from the terms of the 
 coniract. 2 Ran. 20. 
 
 Where covenants are secured by bond or penalty, the obligee may either 
 consider the contract as a bond, and sue for the penalty in debt, or he may 
 treat it as a covenant, and bring this action for damages. 1 Mun.45. In 
 the former case the party sets forth as many breaches of the condition of 
 the bond as he pleases, cither in his declaration or replication, or by an in- 
 dependent assignment of broaches where there is no plea, as has been 
 explained elsewhere. The jury assess the damages, and judgment is en- 
 tered for the penalty to be discharged by the payment of those damages, 
 and of such farther damages as may be thereafter assessed upon a scire fa- 
 cias and assignment of other breaches. See 1 Saun. 58. 2 Saun 187, a. 
 But if the party sues for the |)eiialty, (treating the deed as a bond.) he can 
 never afterwards sue in covenant, for the judgment for the penalty puts an 
 end to any further claim. !Nor can he recover damages exceeding the pe- 
 nalty; for having considered it as a debt, he cannot go beyond it. But if 
 he waived the penalty and sued in the first instance in covenant, he might 
 then recover more or less than the penalty toties quotics. 4 Bur. 2225. So 
 that it is sometimes better to sue in covenant than in debt.
 
 CHAP. 8] COVENANT. 123 
 
 A distinction, however, must be observed between a penalty and liquida- 
 ted damages. If from the contract the penalty appears to have been in- 
 tended as ill terrorem, the party recovers only such damages as the jury as- 
 sess. But if the sum or penalty is in the nature of agreed damages or 
 comjjensation, there the party recovers the whole sum without proving any 
 amount of damages ; for what is agreed on need not be proved: 4 Bur. 
 22*28: and even equity will not relieve in such cases. 
 
 Covenants considered with reference to the time of their performance, 
 are distinguished into such as are mutual and independent — such as are de- 
 pendent — and such as are to be ])erformed simultaneously. I cannot do 
 better than interweave with my remarks some observations of Serjeant Wil- 
 liams on this subject. 1 Saun. -320, a. 2 Saun. 351, b. 
 
 "Almost all the old cases, and many of the modern ones, on this sub- 
 ject," says he, " are decided upon distinctions so nice and technical that it 
 is difficult, if not impracticable, to deduce from them any certain rules as 
 to the dependence or independence of covenants." The distinction is 
 important, however, to be understood, as upon it depends the question 
 whether in a given case it is necessary in the declaration for the plaintift'to 
 aver performance on his part or not. For where covenants are independ- 
 ent, performance need not to be averred, but where they are dependent, it 
 is essential that the plaintiff should aver performance, or at least an offer to 
 perform the agreement on his part. 1 Saun. 3'20, a. 2 Saun. 352, b. 
 These principles are well settled: — "the difhculty is in the application of 
 the rule to particular cases. It is justly observed that covenants are to be 
 construed to be dependent or independent, according to the intention of 
 the parties, and the good sense of the case ; and technical words should give 
 way to such intention. 1 T. R. 645. 4 Ran. 352. In order to discover 
 it, however, it may not be improper to lay down a few rules which will per- 
 haps be found useful for that purpose." 
 
 1. In general, the payment of money for an act done is not to be made 
 before the act is done, unless a contrary intention appears, for in the ordi- 
 nary transactions of life, a service done, or property purchased, is not paid 
 for in anticipation. See Salk. 171. 
 
 2. "But if a day be appointed for payment of money, or part of it, or 
 for doing any other act, and the day is to happen, or 7nay happen before 
 the consideration is to be performed, an action may be brought for the money, 
 or for not doing such other act, before performance ; for it is obvious that 
 the party relied on his remedy, and did not intend to make the performance 
 a condition precedent to payment," since he has, in fact, agreed to make 
 the payment precedent to the performance. It is the same thing where " a 
 time is fixed for the payment, &c,, and no time for the performance of that 
 which is the consideration of the money." See 4 Ran. 346. 
 
 3. " When the day appointed for payment, &c., is subsequent to the time 
 appointed for performance of that for which it is to be paid, the payment 
 cannot be enforced till the act is done." 1 Saun. 320, b. 3 Ran. 68. 4 
 Ran. 352. 
 
 4. " In every case of a sale of property, where one engages to convey on 
 a certain day; and the other to pay at the same time, neither party can be 
 compelled to perform his part, until the other has performed, or offered to 
 perform his ovi'n." 2 Saun. 352, b. 1 Saun. 320. See 3 Mun. 159. 
 
 5. " Where a covenant goes only to part of the consideration on both 
 sides, and a breach of such covenant may be paid for in damages, it is con- 
 strued to be an independent covenant." I Saun 320. I think the rule 
 may be more intelligibly laid down, thus : Where the breach or failure by 
 the plaintiff to perform on his part goes only to part of the consideration, 
 and may be compensated in damages, the covenants are independent. See
 
 124 COVENANT. [book 3. 
 
 3 Ran. 71. Bream vs. Marsh, 4 Leigh. As where A sold and agreed to 
 deliver ten slaves to B for £1000. One ran away, and he delivered only 
 nine. The breach, in failing to deliver this one, goes only to part of the 
 consideration of £1000, for if the other nine are delivered, the price or va- 
 lue of them certainly ought to be paid. So that where a covenant has 
 been broken, or cannot be fulfilled in one part, which is distinct and inde- 
 pendent, and can be compensated in damages, and the covenant has in 
 other respects been performed, there, as to the part not complied with, the 
 covenants are to be construed as independent, with the view of attaining 
 justice. 
 
 This would seem indeed to be the case where the contract is not entire, 
 even if there had not been an acceptance of part. For where a man be- 
 came the purchaser of several lots of land, to two of which no title could 
 be made, yet as these two lots were not so complicated with the others as 
 that the possession of them was essential to the enjoyment of the rest, the 
 purchaser was compelled to take the rest against his will. 2 Br. C. C. 118. 
 Sugden, 209, 211. However this may be, it is clear that where performance 
 of part has been accepted, the covenant as to the residue is rendered inde- 
 pendent. As where the plaintiff sold sixty combs of barley, and delivered 
 fifty, which defendant accepted, the action lay for the contract price of these 
 fifty, without proving the delivery of the other ten. 1 Esp. 129.* So where 
 the defendant ordered six hogsheads of rum, and the plaintiff sent only 
 three ; though it was decided that he might thereupon consider the contract 
 entire, and refuse to receive any, yet if he had accepted a part, he could not 
 have objected that the rest was not delivered, but would have been bound to 
 pay for what he did get. 1 Camp. 5-3. So in Boon vs. Eyre ; 1 H. Black. 
 273, n. a ; where A sold to B a tract of land and a number of negroes, 
 and covenanted " that he had good title and was possessed of the negroes." 
 B covenanted that "A well and truly performing all things on his part, &c. 
 he, B, would pay a certain annuity." In an action for the annuity, B 
 pleaded that A was not legally possessed of the negroes, (which jjlea thus 
 went only to part of the consideration.) On demurrer the plea was held 
 ill, "for if such plea were allowed, the fact that any one negro was not the 
 property of A, would on the same principle bar the action for the price of 
 the land and the rest of the slaves, though B was enjoying the profit of all 
 but one. Thus, by considering the covenant a condition precedent, the 
 damages would be unequal, and injustice be done, for A would lose his 
 Avhole purchase money, while B lost but one negro. A reason for this de- 
 cision, and for that of Campbell vs. Jones, (6 T. R. 570,) in addition to 
 that arit^ing from the inequality of damage, is, that where a person has re- 
 ceived apart of the consideration, it would be unjust that, because he has 
 not the whole, he should enjoy that part without paying or doing any thing 
 for it. Therefore the law obliges him to perform, and leaves him to an ac- 
 tion to recover damages for the injury sustained by his not having received 
 the whole consideration." 1 Saun. 320, c. Lewis vs. Weldon, 4 Ran. 
 
 6. " Where the mutual covenants go to the whole consideration on both 
 sides, they are mutual conditions, and performance must be averred." 
 Saun. 320, c. So that where the contract is entire, and the different parts 
 of the subject of it so complicated together that a part performance cannot 
 be Mtivfactfiry, the covenants are to be regarded as dependent. 
 
 Of this there are some strong instances in the books: as where the co- 
 Tcnant was to pay to a mariner £30 on his arrival at Liverpool from Jamai- 
 
 •5 Barn. & Cri.-p.378, acrord. Bavley Fays the action must be for tlie value, not for the stipul.iied 
 prici,'. >P(I qii. 
 
 In Whiiflier v. U.iIp. o P.nnx & Ctcs. 2.19, the agrpement wa? lo lei 30 cows. Part of the lime 23 
 only were in ine le<>!ior'n poti^ejjion iii conseqiienreof an arranjirmpnt between llie parties. The ac- 
 tioa was against the surety of llie lessee, and tlie phtinliff was nou-auitetl, llie coulracl being held entire.
 
 CHAP. 8.] COVENANT. 1 25 
 
 ca, provided he proceeded, continued, and did duty during the voyage, and 
 he died a few days before he reached the port : his representatives could 
 recover nothing for his services. 6 T. R. 3'2U.* So in an action of cove- 
 nant on a charter party, in which the defendant covenanted to pay so much 
 for freight from Wyburg to Liverpool, and the vessel was wrecked before 
 she reached it, the plaintitT could recover nothing in this action for average 
 freight, though the goods came safely to the defendant's hands. 7 T. R. 
 38*2. t As to the case of a builder deviating from the specifications and di- 
 mensions agreed on, the student may consult 3 Taun. 52, and 1 N. R. 354. 
 These cases, however, were in assumpsit, though I am not aware that that 
 would make a diflerence. 7 T. R. 383.? 
 
 Of the brtach of the covenant. Covenants are either affirmative, as 
 where the party agrees to do a particular thing; or negative, as where he 
 engages not to do a particular thing. The breaches of these covenants 
 correspond herewith, the affirmative covenant being brokenby an omission, 
 and those which are negative, by the commission of some act. In like 
 manner where the party covenants affirmatively as to any matter — as that 
 he has good title, the covenant is broken by his not having good title ; 4 
 Cranch, 4-21 ; or where he covenants that there is no incumbrance upon 
 land sold, it is a breach of this negative covenant if there be an incum- 
 brance. Hence, the plea to affirmative covenants is "covenants perform- 
 ed," and to negative covenants, "covenants not broken " 
 
 A covenant to leave the property in repair, is not broken till the end of 
 the term : but if the lessee covenants to leave the property in the same 
 plight in which he receives it, the covenant is broken at once by cutting 
 down trees, for now it cannot be left in the same plight. 1 Esp. "277. 
 
 Of joint and several covenants. Where the interest of the covenantees 
 is joint, they, or the survivors of them, (2 Sehv. 404,) must join in the ac- 
 tion as m the case of obligees, and this, although the covenant is expressed 
 to be joint and several. But where the interest is several, and the covenant 
 is by words of severalty, each may sue separately. 2 Selw. 403. When 
 there are two joint covenantors, and one only is sued, it is said the defend- 
 ant must take advantage of the omission by plea in abatement. 7 Mod. 
 3G0, cited 2 Selw. 406, in note. See, also, 1 Saun. 268. 3 Mun. 168. 
 But where a covenant is several, as well as joint, there one only may be sued. 
 1 Strange, 553. 
 
 Of covenants by or against the heir or executor. Covenants real, or such 
 as are annexed to the estate, descend to the heir, and he may sue for a 
 breach in his own time. But if they are broken in the ancestor's lifetime, 
 the cause of action which belonged to the testator passes to his executor, 
 and not to his heir. And this is the case even with the covenant of seizin, 
 which, being broken as soon it was made, the action goes to the executor, 
 and not to the heir. 4 John. R. 72. 
 
 So covenant lies against the heir or executor. 1. In personal covenants; 
 and by these the executor is bound whether named or not : but the heir is 
 not bound unless named. 2. In covenants respecting real estate, as well 
 as those relating to terms for years, the executor is bound ; 2 Wash. 155; 
 and for a breach in his own time as to the latter, he is chargeable de bonis 
 propriis. In like manner, the heir, when the land descends on him, is bound 
 by covenants entered into by his ancestor, and running with the land. 
 
 The heir, I have said, is bound even by the personal covenant of his an- 
 cestor, if he is named therein. But a devisee is not chargeable in covenant 
 
 » See 12 C. L. Rep. 239. 1 Salk. 65. 12 C. L. R. 177. 2 Carr & Payne, 370. 
 
 t Tbese cases are cited in 2 Evans' Potliier, 40, where there are oiliers also presented, together 
 ■wiUi some interesting retn.n ks on the question whellier an entire contract can be apportioned. 
 
 tThougli in these cases tlie action will not lie on ihe special contract, vet it seems to have been 
 supposed that a quaatius meruit would lie. See 7 T. R. 3S See, also, Ho'oe & Harrisou i-g. .Masou, 
 Z Wash. 207. .
 
 126 COVE.NANT. [book 3. 
 
 tinder the statute against fraudulent devises. 1 R. C. ch. 105. For that 
 statute is confined to the action of debt. Wlicn, therefore, the performance 
 of certain covenants is secured by bond with collateral condition, binding 
 the heirs, it is necessary to bring debt for the penalty, if it is desired to 
 charge the lands in the hands of the devisee. 7 E. 1'28. Sug. 418. 
 
 Of covenant by and against assignees. Of this we have spoken else- 
 where : but here it may be added, that if a covenant extends to a thing in 
 esse parcel of the demise, as a covenant to repair, — to reside on the land, — 
 or to leave a certain part untilled each year, it becomes appurtenant to the 
 thing demised, and the assignee is bound though not named. See 4 Leigh, 
 09. If the covenant relate to a thing not i?t esse, but to be done on the 
 land, — as a covenant to build a new wall, the assignee is bound if named, 
 hut not otherwise. If the covenant is of a maiter merely collateral, as to 
 build a house on another piece of land, the assignee is not bound though 
 named. 2 Selw. 426. If a covenant relates to personal goods; as where 
 there is a demise of sheep, and a covenant to re-deliver them at the end of 
 the time, and they are assigned over, the assignee is not bound though na- 
 med, because in relation to personalty there is no privity of estate as there 
 is in the case of realty, out of which privity grows the assignee's liability. 
 Sehv. ubi sup. 
 
 Of the pleadings : — and first of the declaration. Most of the rules to be 
 observed in framing a declaration in debt or assumpsit, govern in framing 
 the declaration in this action, mutalus mutandis. Thus all the doctrines re- 
 lating to the description and pro/ert of a bond, apply with ^qual force to 
 the description snd profert of the deed on which covenant is brought; and 
 the rules respecting averments of previous performance on the part of the 
 plaintiff, and the setting out of the breaches of the contract which prevail 
 in assumpsit, equally govern in covenant. 
 
 In the commencement the suit is styled " a plea of breach of covenants," 
 and care must be taken that the declaration does not begin in covenant and 
 end in case. 3 H. & M. J 18. No statement of consideration is necessa- 
 ry in this action, as the seal itself is evidence of the consideration ; nor is 
 any inducement recpiired, (stating the circumstances under which the con- 
 tract was made, and how the defendant came to be bound,) except where 
 the plaintiff or defendant stand in a derivative character, as heir or assignee. 
 In setting out the contract no unnecessary matter should be stated. The 
 deed, it is true, must be referred to, but it is not necessary to set forth more 
 of it than is necessary to shew the plaintiff's title to his action. I Call, 575. 
 G Mun. 48S. Indeed it is sufficient to state the substance and legal effect 
 only of such parts of the deed as are necessary to entitle the plaintiff to 
 recover. It is not necessary to use the very words of the covenant ; the 
 intention of the parties to be collected from the instrument may alone be 
 stated. 4H.&,Al. 82. 6 Cranch, 87. After setting out the contract, the 
 plaintiff then avers performance on his part, where that is necessary,* and 
 he also avers any matter which is necessary lo shew that he has a distinct 
 and complete right ol" action. As on a covenant with an overseer to pay 
 liim one-tenth ol" all the grain made, — the declaration should aver that 
 grain was made ; though the defective statement of that fact will be cured 
 by a verdict. 3 Mun. 255. And so in a declaration upon a covenant to 
 give to the jjlaintiir on his marriage with the defendant's daughter as 
 much as the defendant had given to his other children, there should be an 
 averment that he had given so much to them. See 1 Wash. 135. The de- 
 claration next proceeds to set out the breach of the covenant by the de- 
 fendant, which is the essence of the action, and must in all cases be expli- 
 
 * Tliniigli an nmiiloyer forbids liin luilder to go on with tlie work, yet Ciiancelior Kent eecms to 
 tljiuk he has a right lo j;o on^ and recover the full coinpeneation. '^ John. SlU
 
 CHAP. 8.] COVENANT. 127 
 
 citly stated. Where the contract is specific — as to do or forbear some 
 particular act, it is in general sufficient to assign the breach in the words of 
 the contract ; 2 H. & M. 44G, 459 ; but this is not absolutely necessary, for 
 if it be assigned in words containing the sense and substance of the con- 
 tract, though not in its very language, it is sufTicient. See 1 Wash. 204. 
 4 H. & JM. 293. If there be more breaches than one, they may be all as- 
 signed, and on the trial no evidence can be given of any breach not charg- 
 ed in the declaration. 3 Miin. 230. If the contract is in the disjunctive, 
 the breach ought to set forth that the defendant did neither of the acts. 
 But care must be taken that the breach does not vary fiorn the sense and 
 substance of the contract, and that it is neither more enlarged nor more 
 limited than the covenant : for if it be larger than the covena?it, the demand 
 of the plaintiff being greater than he is entitled to, his declaration will be 
 defective ; and if it be too limited, or even if at first it be assigned gener- 
 ally, and afterwards narrowed down to some particular matter, it will fetter 
 the plaintiff on the trial, and tie him down to the very charge, though he 
 might have been able to have gone much farther in his evidence had his 
 breach been more comprehensive. The breach should be direct, and not 
 by way of recital. 4 H. & M. 277. It should also be sufficiently certain 
 and express, but as concise as is consistent with these essential requisites. 
 
 3 T. R. .308. A distinction, indeed, was formerly taken between assign- 
 ment of breaches in debt on bond with collateral condition, and such assign- 
 ment in covenant ; but it is no longer countenanced. 1 Chitty, 325, &c. 
 Lastly, the declaration states the damages sustained by the plaintiff, which, 
 ought to correspond with those laid in the writ, and be of an amount suffi- 
 ciently large to cover the probable finding of the jury, as there cannot be a 
 judgment for more than has been demanded by the party injured himself^ 
 
 4 Mun. 214. 
 
 Of the plea. If the covenants are affirmative — as that the defendant will 
 do such a thing, the plea is positive that he did do it ; this is the plea of 
 " covenants performed." If it be negative — as that he will not do such a 
 thing, the plea must be negative that he has not done it; this is the plea 
 of " covenants not broken." See Co. Litt. 303. And where some are po- 
 sitive and some are negative, the defendant must plead affirmatively to the 
 first, and negatively to the last. Ibid. 1 1 C. L. R. 366. 
 
 The defendant may in this action, as in an action of debt, plead a gen- 
 eral or special non est factum, or a defeazance by deed, or an excuse for his 
 non-performance, — as eviction, or the failure of the plaintiff to fulfil a con- 
 dition precedent; — or, admitting the covenant and breach, he may plead 
 a release, or accord and satisfaction, or former recovery, or arbitrament with 
 an award, or foreign attachment, or tender and refusal, (See 2 John. C, 
 520,) or bankruptcy. A plea of not guilty is bad, but cured by a verdict. 
 1 H. & M. 153. 
 
 Of the evidence. The covenant cannot be introduced as evidence, if it 
 be misrecited. But where there was a joint and several covenant entered 
 int ) by several persons with the plaintiff, and the declaration stated the 
 sealing by one without noticing the others, this did not prevent the deed 
 being introduced as evidence, though the matter might liave been pleaded 
 in abatement. 3Mun. Ki8. 
 
 Of the verdict. The verdict is for so much in damages as the plaintiff 
 may shew he has sustained. If the breach assigned be in not repairing ac- 
 cording to covenant, the damages ought to be such as to put the premises 
 in repair at the time of the action brought, and ought so to be applied. 
 Salk. 141. In Lord Raymond, 803, it is said the jury should estimate these 
 damages according to the state of repair at the time of the trial, and allow 
 the amount at that time necessary to put the premises in repair.
 
 128 ASSUMPSIT. [ BOOK 3. 
 
 Upon a declaration in covenant charging in general terms the breach of 
 contract to deliver a quantity of funded stock, corn, flour, 8cc., at a given 
 time, the general measure of damages is the value of the article at the time 
 it should have been delivered, with interest from that time. 4 Mun. 542, 
 30(5, 1 Wash. 1. In 3 Cranch, 297, also, the value on the day when the 
 cause of action arose, seems to have been considered the measure. But to 
 this rule, it is said, there may be exceptions founded on particular circum- 
 stances. 4 Mun. 545. As, I presume, where there has been a great rise 
 in the price of the article since the time of delivery, for otherwise a temp- 
 tation is held out to the party to break his covenant. 
 
 And here we must observe the difference between the rule just stated in 
 cases of executory contracts for delivery of articles, and the rule where a 
 party sues for property already his, which is withheld by his adversary, or has 
 been fraudulently disposed of. In these cases he recovers the value at the 
 time of trial. I Wash. 164. 3 Call, 89. 2 H. & M. 169. And the like 
 rule prevails against a trustee who has been guilty of a breach of trust. 
 As where he sells stock, the c. q. t. is entitled to elect to have the stock re- 
 placed or the highest price with interest. 2 John. 117. 2 Br. 653. 5 
 Vez. 800. 
 
 It seems that, in England, in suits for breach of contract to replace stock 
 at a given day, the measure of damages is the market price at the time of 
 the trial if the stock has risen in the intermediate time. 2 E. 211. 2 Taun. 
 257. Yet in assumpsit for not delivering a quantity of bacon on an agreed 
 day, the measure of damages (no money having been paid) is the difference 
 between the contract price and the price at the day agreed on. Wilde 
 contended that the rule as to stock should prevail in this case also ; but the 
 court said, " In the case of a loan of stock the borrower holds in his hands 
 the lender's money, and thereby prevents him from using it altogether. 
 Here the plaintiff had hi? money in his possession, and he might have pur- 
 chased other bacon of like quality the day after the contract was broken, 
 and if he has sustained a loss by not doing so it is his own fault. See 2 
 Barn. & Cres. 624. 
 
 CHAPTER IX. 
 
 ASSUMPSIT. 
 
 3. The third species of express contracts which we are to consider are 
 promises; out of these arise the action of assumpsit. 
 
 " A promise is in the nature of a verbal covenant, and wants nothingbut 
 the solemnity of writing and sealing to make it absolutely the same. If, 
 therefore, it be to do any explicit act, it is an express contract, as much as 
 any covenant; and the breach of it is an equal injury. The remedy, in- 
 deed, is not exactly the same : since, instead of an action of covenant, there 
 only lies an action upon the case, for what is called the assumpsit or under- 
 taking of the defendant; the failure of pcrtorming which is the wrong or 
 injury done to the plaintiff, the damages whereof a jury are to estimate and 
 settle. As if a builder promises, undertakes, or assumes to Caius, that he 
 will build and cover his house within a time limited, and fails to do it ; Caius 
 has an action on the case against the builder, for this breach of his express 
 promise, undertaking, or assumpsit; and shall recover a pecuniary satisfac- 
 tion for the injury sustained by such delay. So, also, in the case before 
 mentioned, of a debt by simple contract, if the debtor promises to pay it 
 and does not, this breach of promise entitles the creditor to his action on 
 the case, instead of being driven to an action of debt. Thus, likewise, a 
 promissory note, or note of hand not under seal, to pay money at a day
 
 CHAP. 9.] ASSUMPSIT. 129 
 
 certain, is an express assumpsit ; and the payee at common law, or by cus- 
 tom and act of parliament the indorsee, may recover the value of the note 
 in damages, if it remains unpaid." 
 
 Promises, however, are not only express, but they are often implied by 
 the law, from the general presumption of courts of judicature, that every 
 man has engaged to perform what the principles of natural justice and duty 
 require. 
 
 Thus, 1. " If I employ any person to transact my business for me, or 
 perform any work, the law implies that I undertook or assumed to pay him so 
 much as his labor deserved. And if I neglect to make him amends, he has 
 a remedy for this injury by bringing his action on the case upon this implied 
 assumpsit; wherein he is at liberty to suggest that I promised to pay him 
 so much as he reasonably deserved, and then to aver that his trouble was 
 really worth such a particular sum, which the defendant has omitted to pay. 
 But this valuation of his trouble is submitted to the determination of a ju- 
 ry, who will assess such a sum in damages as they think he really merited. 
 This is called an assumpsit on a quanlian meruit. 
 
 2. " There is also an implied assumpsit on a quantum valebat, which is 
 very similar to the former, being only where one takes up goods or wares of 
 a tradesman, without expressly agreeing for the price. There the law con- 
 cludes, that both parties did intentionally agree that the real value of the 
 goods should be paid ; and an action on the case may be brought accor- 
 dingly, if the vendee refuses to pay that value. 
 
 3. " A third species of implied assumpsits is when one has had and re- 
 ceived money belonging to another, without any valuable consideration giv- 
 en on the receiver's part: for the law construes this to be money had and 
 received for the use of the owne* only; and implies that the person so re- 
 ceiving promised and undertook to account for it to the true proprietor. 
 And, if he unjustly detains it, an action on the case lies against him for the 
 breach of such implied promise and undertaking, and he will be made to 
 repay the owjier in damages, equivalent to what he has detained in viola- 
 tion of such his promise. This is a very extensive and beneficial remedy, 
 applicable to almost every case where the defendant has received money 
 which ex aequo et bono he ought to refund. It liesi'or money paid by mis- 
 take or on a consideration which happens to fail, or through imposition, ex- 
 tortion, or oppression, or where any undue advantage is taken of the plain- 
 tiff's situation. 
 
 4. " Where a person has laid out and expended his own money for the 
 use of another, at his request, the law implies a promise of repayment, and 
 an action will lie on this assumpsit. 
 
 5. " Likewise, fifthly, upon a stated account between two merchants, or 
 other persons, the law implies that he against whom the balance appears 
 has engaged to pay it to the other ; though there be not any actual promise. 
 And from this implication it is frequent for actions on the case to be brought, 
 declaring that the plaintiff and defendant had settled their accounts together, 
 insimul computassent, (which gives name to this species of assumpsit,) and 
 that the defendant engaged to pay the plaintiff the balance, but has since 
 neglected to do it. 
 
 " But if no account has been made up, then the legal remedy is by bring- 
 ing a writ of account de computo, commanding the defendant to render a 
 just account to the plaintiff, or shew the court good cause to the contrary. 
 In this action, if the plaintiff succeeds, there are two judgments : the first is, 
 that the defendant do account (quod compuiet) before auditors appointed 
 by the court ; and when such account is finished, then the second judg- 
 ment is, that he do pay the plaintiff so much as he is found in arrear. This 
 action, by the old common law, lay only against the parties themselves, 
 VOL. 2—17
 
 130 ASSUMPSIT. [book 3. 
 
 and not their executors; because matters of account rested solely on iheir 
 own knowledge. But this detect, alter many fruitless attempts in parlia- 
 ment, was at last remedied by statute 4 Ann, c. IG, which gives an action 
 of account against the executors and administrators. But, however, it is 
 found by experience, that tlie most ready and cIT'ectual way to settle these 
 matters of account is by bill in a court of equity, where a discovery may be 
 had on the defendant's oath, without relying merely on the evidence which 
 the plaintitl may be able to produce. Wherefore actions of account, to 
 compel a man to bring in and settle his accounts, are now very seldom 
 used; though, when an account is once stated, nothing is more common 
 than an action upon an im[)lied assumpsit to pay the balance." 
 
 Such are Mr. Blackstonc's remarks on the action of assuinpsit. It may 
 be defined to be* " an action whereby damages are recovered for the breach 
 of any promise, contract, or undertaking. These contracts are either ex- 
 press or implied : both are efiually grounds of this action : for the obliga- 
 tions of natural justice are equally strong as the most express promise, in 
 the eye of the law." 
 
 But though the law will imply a promise where there is a consideration, 
 it will not imply a consideration from a promise, except in the case ot ne- 
 gotiable papers, as bills of exchange. A consideration, therefore, must be 
 Slated and proved, either of benefit to one party, or loss to the other. 4 
 East, 194. 
 
 " Assumpsit is of two sorts : 1st, Indebitatus assu7npsit, whicli in its na- 
 ture is an action of debt, and lies in cases where debt would lie. 2d. A 
 special assumpsit, in which the damages are not in the nature of debt, but 
 as a compensation for injury." 
 
 " On what contracts it maybe maintained. These contracts are either im- 
 plied or express." 
 
 " 1; Of implied contracts. Assumpsit being in its nature an equitable ac- 
 tion, it is a general description of all cases wherein it lies, that the defend- 
 ant is obliged by ties of natural equity and justice to refund money which 
 he may have received of the plaintilf, or to pay it, if the plaiutiif has a le- 
 gal right to demand «he same." 2 Burr. 1012. 4 M. & Sel.478. 
 
 Hence, this kind of .-Jition embraces a great variety of transactron-s; be- 
 tween man and man, though it is confined, indeed, to agreements by parol. 
 It lies for the price of goods bold and delivered ; it is the proper action to 
 recover comi)eiisation for work and labor, or service done for the defendant. 
 It lies for the balance due upon seti'.ement of accounts ; for the hire of an 
 article, and even for the rent of land either upon an express or implied 
 promise. 4 H. & I\I. 1(31. I Mun. 407. 1 T. R. 378. It lies to recover 
 back money paid to one acting under a void authority, or paid under an 
 erroneous judgment, which is reversed, (7 T. 11. 2(i9,) provided it appears 
 the party had actually received the money, or tliat it Was applied to his use, 
 which is essential. 2 Mun. 272. It is said, however, that general indebi- 
 tatus assumpsit will not lie for the price of land. See 1 H. Sc M. 378. In 
 such case the suit should be brought on the special contract, for such there 
 must be of course in the sale of land. But assumpsit will lie for money 
 paid by a vendee for a tract of land, where the vendor cannot make him a 
 title. 1 Esp. Rep. loO. 3 Bos. Sc Pul. 162. In .such case, however, the 
 vendor cannot maintain assumpsit for the use and occupation by the ven- 
 dee. 2 Taun. 145. For besides that, the person entitled to the land is cn- 
 
 •TliP paBsacPs wliich fillow l)PtwRen inverlpd (•ommas. under lliis head of assumpsit. :ire lal<era 
 from l>i).n:i-s.- s t.iH priiiH Tl.ouu'li the work is li:.l)le (o miiny ol/|C<-lions, 1 have considered il, on 
 the who e, l.eiier caiciilalcd for our rmrpoM-s than aiiv other, because it i« more comprelicnsive ; and 
 1 have IhouEl.l it, moreover, more advisat.lc; to a.lopi ii {-^i I liavc partly done) than to undertake an 
 entirely new e^say on the mil.,ect ol thin action. I liavc endeavored, howevc;-, to correct some errors, 
 «qJ have, moreover, only extracted the i rinciples.
 
 CHAP. 9.] ASSUMPSIT. 131 
 
 titled to the renis and profits; the express contract by which the vendee 
 held as purclinser, negatives the implied contract to pay rent as tenant. 
 
 In like manner, assumpsit will lie to recover money paid or delivered to 
 tlic defendant for the plaintiff's use. And so it will lie ajrainst a sheriff for 
 money collected by himself or his deputy for the plainliff, though in this 
 case the declaration ought to be special, so as to distinguish the demand 
 from one against him in his private capacity. 2 Wash. 17"2, 180. To be 
 more particular, this action lies — 
 
 " 1. To recover back money paid under a mistake, or through the deceit 
 of the other party." 1 T. R. 343, 112, 285. The case of money paid in- 
 to court is an exception to this rule. 2 T. R. 048. 
 
 Where a creditor paid to the jailer, by mistake, prison fees which it turn- 
 ed out he was not bound to pay, he recovered them back in this action. 1 
 Call, 540. 
 
 If two persons account together, and one by mistake overpays the other, 
 ho may recover back the excess in this action. 2 Lord Ray. 1217. Doug. 
 637. 2 Esp. Ca. 522. 3 Mass. 74. Though both parties labor under the 
 laislake, yet the party paying may recover back what he has paid. 6 T. 
 R. (>06. 
 
 But where there is a loss occasioned by mistake, and both parties are 
 equally innocent, the law does not interfere between them, but leaves the 
 loss as it finds it. Thus, where money is paid upon a forged bill of ex- 
 change to a bona fide holder who had given value for it, the payer could not 
 recover it back, the laches, if any, being on his part. 3 Bur. 1354. So, 
 though the payment could not have been enforced by law, yet if ihe party 
 might conscientiously receive it, he cannot be compelled to refund : 1 Dall. 
 147 : as where a father pays the debt of his son, though contracted without 
 authority, and not for necessaries. 
 
 So, too, if the payuient be made with a full knowledge of facts, or if the 
 party hath culpably failed to inform himself, it seems he cannot recover 
 back what he has paid. 4 Barn. & Cres. 272. 1 C. L. R. 46. 2 Leigh, 
 76. As where A paid B for the use of a patent, and he af:erwards disco- 
 vered that another was the patentee, it was decided he could not recover 
 back vv'hat he had paid. 1 Bos. & Pul. 230. So where he paid a debt and 
 afterwards found a receipt, he was not permitted to maintain this action. 
 2 Esp. Ca. 543. Sed qucere as to these cases ; for equity would relieve, and 
 this action is an equitable action. 
 
 If money is paid upon a compromise pending an action, and it be afters- 
 wards discovered that there was a mistake or fraud, it may be recovered 
 back. 4 T. R. 131. 
 
 "2. This action lies to recover monev paid for a consideration which hap- 
 pens to fail." 1 T. R. 732. 2T. R. 366. 
 
 This, as has been said elsewhere, is the foundation of the action of the 
 assignee against the assignor of a bond, where he has been unable to obtain 
 the amount from the obligor. See 2 Wash. 2U>, 232. 
 
 In like uianner, the purchaser of a bill of exchange, which is lost before 
 it is presented, may bring this action to recover back what is paid, (if the 
 drawer refuse to give another hi!!,) and declare for money ha'i and received 
 to his use. 3 Call, 373. In such case, he is entitled by law to demand 
 another bill, upon giving sufficient security to indemnify the drawer against 
 the first. 1 R, C. ch 125, §3. I presume, therefore, the tender of such 
 security is essential to entitle the purchaser to his action. Such tender was 
 proved in the case above cited. 
 
 In assumpsit by the vendee against the vendor of land to recover back 
 the price because the title is defective, it is necessary to prove the title bad, 
 but not to prove eviction. Such action may be maintained against the a-
 
 132 ASSUMPSIT. [book 3. 
 
 gent to whom the money was paid, if he pays it over to the principal after 
 notice not to do so on account of objections to the title. 5 Bur. *2G39. 
 
 "3. This action lies to recover back money paid to any one acting un- 
 der or in pursuance of a void authority." 
 
 As where an attorney under a power from A, forged by B, brought suit 
 against C, who paid him the money, and he paid it over to B ; C was obli- 
 ged to pay it over again to A, but was held entitled to recover what he had 
 paid from the attorney, whose authority to receive it was forged, and there- 
 fore void, 1T.K.59. 
 
 That, however, is not considered a void authority which is given by a 
 court of competent jurisdiction. 3 T. R. 125. 
 
 If a person pays a forged order or draft, it is no discharge against the 
 real creditor. 3 T. II. 1-25, 127. As to proof of identity of payee, see 2 
 Barn. & Cres. 434. 
 
 "4. This action lies to recover back money obtained from any one by 
 extortion, imposition, oppression, or takins^ an undue advantage of the par- 
 ti/ s situation." See 2 Str. 915. Doug. 071. 2 T. R. 763. 
 
 So where a person in an oflicial station extorts money, or charges exor- 
 bitant fees, this action lies. Cow. 204. 4 T. R. 485. As against a jailer 
 who demands and receives of a debtor more than the prison fees allowed 
 by law. 3 Esp. N. P. Ca. 231. 
 
 Where a party who is bound to allow another some uncertain compen- 
 sation for a service or other thing, voluntarily, and without oppression or 
 fraud fixes and agrees upon the amount, and pays it accordingly, he can- 
 not afterwards recover back any part on the ground that it was extravagant : 
 for it was ascertained by his own free assent. 4 John. Rep. 240. 
 
 "5. This action lies to recover back money embezzled, or which any per- 
 son has been defrauded of by cheating, or otherwise." 
 
 So it lies to recover back money lost at play, and infancy is no bar to such 
 an action. 
 
 "6. If money has been recovered in consequence of hny judgment or 
 adjudication, if such was erroneous, and is reversed ; or if money has been 
 paid in consequence of the judgment of an inferior court, where, from the 
 limits of its jurisdiction, the merits could not be tried, it shall, in this action, 
 be recovered back again. Bur. 1009. 7T. R2G9. See 2 Mun. 272, 274. 
 
 " 7. Where any species of contract, or other matter, is by law or statute 
 declared to be illegal and void, money paid in consequence of such con- 
 tract may be recovered back by this action by the party who paid it, provi- 
 ded he was not himself a parliceps criminis in the illegal transaction." 
 
 Thus, money paid for usurious interest may be recovered back. Talb. Ca. 
 39. Doug. 697. IT. R. 153. For the borrower is not ;jan rfe/ic/o. He 
 is the slave of the lender, as Lord Mansfield has strongly remarked. So of 
 money lost at play. 
 
 He who has committed the illegal act shall not be allowed to recover 
 back money he may have so paid illegally. Cow. 790. See 1 Ran. 76. 
 
 And here note that every contract made for or about a matter prohibited 
 by statute, is void, though the statute do not so declare, but only inflicts a 
 penalty : for a penalty implies a prohibition. Cnrth. 252. 1 Taun. 136. 
 i Ran. 76. 
 
 Moreover, a contract made illegal by statute, is not rendered good by re- 
 peal of the statute. 1 H. B. 65. 
 
 All wagering contracts are made void by our acts against gaming. 1 R. 
 C. ch. 147. Hence the action of assumpsit does not lie in Virginia upon 
 any wager; for our act is more comprehensive than the English statute, in- 
 asmuch as it avoids all contracts on any wager whatsoever, whereas the 
 English act has not the term " contracts," but only avoids the " securities,"
 
 CHAP. 9.] ASSUMPSIT. 133 
 
 i. e. bonds, mortgages, &c. given to secure a gambling debt. 2 Str. 1249. 
 2 Bur. 107S. 
 
 " 6. Wherever the law has given to any person certain fees or rewards 
 for his etnployment or labor, in this action they arc recoverable." But they 
 must be settled fees, not mere gratuities. G T. R. GS2. 
 
 " 9 Wherever the law has imposed any duty upon a person, and given 
 him certain allowances or charges for it, lie shall recover them in this ac- 
 tion ; but in such case the duty must be performed, and the party's claims 
 be limited accordingly." 
 
 10. This action lies where one man at an other's request, or as his secu- 
 rity, pays or lays out money for him. The action is then an action " for 
 money paid, laid out, and expended." 
 
 Before we pass from this part of our subject, I will add a kw remarks. 
 
 Implied assumpsits are only raised by lav»- where there is no open and sub- 
 sisting express agreement under which the party may have his redress. 
 Where there is such an open and subsisting express agreement, none can 
 be implied. See 6 T. R. 3"2"2, 324. For though a man is in justice en- 
 titled to recover the worth of his labor or of his goods where there is no 
 stipulated price, yet as he has a right, if he pleases, to contract for less 
 than they are worth, he cannot, when he has once done so, remit himself 
 back again to a title to a greater compensation. Hence, if a man declares 
 on a quantum meruit or quantum valebat, he will be non-suited if it appears 
 ■on the trial that he contracted for a particular price for his labor or goods. 
 1 Str. 648. 2 Saun. 122. 
 
 It may be said, then, that there are three classes of cases in which im- 
 plied assumpsits may be raised : 1. When there never was an express 
 agreement at all ; but the agreement is implied by the law ; as where mo- 
 ney has been received by another for my use, or I have paid money for 
 him or sold him goods without fixing a price, &,c. 2. Where there has 
 been an express contract, but that contract being rescinded, he who has 
 advanced his money upon it seeks to recover back that money. As if I 
 advance ten pounds for the building of a house, and by mutual consent 
 the bargain is rescinded, the contract is at an end, and I may recover back 
 ray ten pounds by indebitatus assumpsit. Here the contract is ended by 
 mutual consent. It is the same thing where it is agreed that one of the 
 parties may rescind it at his option. Thus, if I pay ten pounds for a horse, 
 and it is agreed I may return him in ten days if I do not like him, upon 
 paying fifty cents per day for his hire, and I do return him and tender the 
 hire, the contract is at an end, and I may recover back my ten pounds, 
 whether my adversary choose to take back the horse or not ; for in this 
 case the power of putting an end to the contract was left to me, and I have 
 exerted it. See 1 T. R. 133. So if I pay money in part of the purchase 
 of an estate and I prove that the vendor cannot make a title, I may recov- 
 er back my money by indebitatus assumpsit ; 8 T. R. 516. 3 B. & P. 181 ; 
 for as the contract cannot be carried into eftect because my vendor cannot 
 make me a good title, it may well be looked upon as void at my option ; and 
 this option is manifested by my suing for my money in indebitatus assump- 
 sit ; though I miufht indeed have sued for damages upon the contract itself. 
 So if 1 pay ten pounds to A, in consideration of which he engages to trans- 
 fer to me a share of bawk stock, which he refuses to do on demand, I may 
 recover back the ten pounds. For the refusal on his part terminates the 
 contract absolutely as to him ; and though I might still affirm the bargain 
 and sue him under the bargain for damages, yet I may, if I please, disafiirm 
 the contract: I may consider it at an end. and sue on the implied contract 
 for the ten pounds. But though where the contract is rescinded, the action 
 lies, yet it must bo observed, that notwithstanding the default of one party,
 
 134 ASSUMPSIT. [book 3. 
 
 the other cannot rescind it unless both can be put in statuo quo. As where 
 A let a house to B for £,\{), which was paid him, and he agreed to repair in 
 a given time, and failed : B couhl not, after liolding possession some time, 
 quit the premises and recover back his d£10, but must sue on the special 
 contract for damages. 5 E. 449. 
 
 3. Nor is it only where an express agreement has been rescinded or a- 
 "voided, or considered void, that the action of indebitatus assumpsit lies. It 
 lies equally where the terms of a special agreement have been performed, 
 so as to leave a mere simi)le debt or duty between the parties. In the for- 
 mer case, indeed, it lies to recover back money advanced on the rescinded 
 contract ; which money (as the contract is rescinded) it is not equitable that 
 the defendant should continue to hold. In the latter it lies for the price of 
 the service performed, or article sold, &c. Thus, if I employ an overseer 
 at an hundred pounds per annuui, and he serves the year out, he may after 
 its expiration sue in indebitatus assumpsit, or on the original executory 
 agreement at his option ; "2 Mun. 315; or a count for each may be inserted 
 in the declaration. But this principle only extends to cases where the re- 
 muneration is in money. Id. So, if goods are to be paid for at a specifi- 
 ed time, indebitatus assmnpsit will lie when the time has expired. 4 E. 147. 
 And in these cases the declaration charges that the defendant was indebted 
 so much for services rendered, or goods sold, and being so indebted he as- 
 sumed to pay. 
 
 We shall now endeavor to present some cases in which the indebitatus 
 assumpsit will not lie, because there is still considered to be an open, sub- 
 sisting, express agreement. Thus where money is paid by me as the price 
 of a horse warranted to be sound, and he turns out to be unsound, I cannot 
 sue to recover back my money, but I must sue upon the warranty : Doug. 
 24, 23. Cow. 818. 7 E. 274. I T. 11. 133. For 1 have no right to set 
 aside the contract, which would be the effect of my recovering back what 
 I had paid. I must be content with the remedy I [)rovided for myself, viz. 
 a suit upon the waiTantv. The contract, indeed, so far as relates to the sale, 
 is complete and closed, but so far as respects the icarranty (the remedy 
 which I have provided lor myself) it is still open and subsisting; so that the 
 case comes precisely within the principle above announced, that where 
 the party has made an express agreement he shall not set up an implied 
 one ; where he has provided a particular redress he shall not be permitted 
 to resort to another. For neither party has a right, without the consent or 
 fault of the other, to rescind his own contract ; — to waive the redress he has 
 himself contracted for; — to abandon the remedy agreed on, for another, 
 which perhaps may give him greater advantages over his adversary. 
 
 I have been thus particular as to this matter, because there has always 
 appeared to me to be some obscurity on the subject, arising from the ele- 
 mentary writers having omitted to exj)lain the principles upon which the 
 rule has been adopted. 
 
 We now proceed to speak " of express contracts. 1. Those arising on 
 sales. If a contract is made on a sale, it is always supposed that the ven- 
 dor has a good title; if, therefore, there is any concealment of the circum- 
 stances affecting the title, and the vendee has paid the purchase-money, he 
 may waive the bargain, and recover back his money. 5 Eur. 2639. 
 
 " And where a purchase is made at an auction, though it may consist of 
 several lots, if from the nature of the contract it is entire, the seller must 
 make a complete title to the whole of it; for otherwise the buyer may con-- 
 sider the bargain as void, and recover back his deposite." Esp. Ca. 150. 
 
 The doctrine here laid down seems most usually to conic under discus- 
 sion in courts of equity upon (piestions of specific performance; I shall 
 therefore not enter upon it at large in this place. It may be added here,
 
 CHAP. 9.] ASSUMPSIT. 135 
 
 however, that the buyer cannot recover damages for the supposed loss of a 
 good barirain : 2 Bl. Rep. lOT^i : though the vendor is liable to the expen- 
 ses iiicuned in the course of the business, as for conveyances, &c. Esp. 
 Ca. *2ti3. Tlio auctioneer should not pay over the deposite until the trans- 
 action is complete, and if he does he will himself be liable, for he is stake- 
 holder, and should wait to see to whom the stake belongs. 5 Bur. iiG-39. 
 
 " And where things are sold by auction, and in the j)riiited conditions of 
 sale there is a statement and warranty of the title, the things shall be deem- 
 ed to be sold under such title, and the declarations of the auctioneer at the 
 time shall not be admitted to vary or quality it." 1 H. B. '289. 
 
 In Grantland vs. Wight, (2 Mun. 179, 183,) it was expressly decided 
 that a public and formal notification at the time of a sale, that the sale was 
 made according to certain metes and bounds, then and there specified, 
 with information of probable deficiency in quantity called for by the deeds, 
 was " entirely competent to do away the effect of a previous advertisement 
 representing the property as containing a certain quantity." 
 
 Where there has been a fraud in the sale, the buyer may, upon discove- 
 ry thereof, disaffirm it, waive the bargain, and sue for what he may have 
 paid, provided there is no possession delivered to the vendee of the things 
 purchased, or the goods so purchased have been relumed ; when they are, 
 the contract is at an end, and the plaintiff" may sue for the money." 1 T. 
 R. 133. 
 
 " And as the contract must be at an end before this action can be main- 
 tained, so it must be rescinded by the party who means to sue for the mo- 
 ney paid, in a reasonable lime, as otherwise he must sue on the special 
 contract itself, and recover damages for the breach of it." 2 H. B. 573. 
 " And in such case the plaintiff" must declare on the warranty or special 
 agreement itself, as assumpsil for money had and received will not lie. 
 
 " If the vendor takes upon himself the delivery of the goods purchased 
 to the vendee, he stands all risks ; but if the vendee points out the particu- 
 lar mode of conveyance by which the goods are to be sent, and the vendor 
 sends them according to such direction, and they miscarry, the vendee must 
 stand at the loss. Cow. 296. 
 
 " Where goods are sold by auction, the sale is not complete to bind the 
 buyer to the purchase, till the lot is aciually knocked down to him, until 
 which time he may retract his bidding." 3 T. R. 148. 
 
 " If the owner of goods or an estate sold by auction employs puffers to 
 bid for him without declaring it, it is a fraud on the real bidders, and the 
 highest bidder cannot be compelled to complete the purchase made under 
 such circumstances." 6 T. R. 612. 
 
 An agreement between two persons at u public sale not to bid against 
 each other, is void. 6 John. 194. 
 
 Where a sale is on credit, tlie credit cannot be retracted ; but it is other- 
 wise where it is voluntary and subsequent to the sale. 1 Esp. Ca. 430. 
 And where a sale was on a credit of three months, payable by a bill of two 
 months, though the bill be not given, the seller cannot sue in assumpsit for 
 the money at the end of three months, but may bring a special action on 
 the case for failure to deliver the bill. 4 E. 147. 3 B. & P. 582. But 
 after the expiration of the five months he may maintain assumpsit for the 
 price, if the defendant has refused to make payment in a bill, for then the 
 credit has completely expired. 4 B. & P. 330. 
 
 Where by the terms of a sale the property is not to be removed till secu- 
 rity given, it remains the vendor's property until the terms be complied 
 with. 4 Mass. 495. And where a sale has been completed and the ven- 
 dee refuses to receive the articles, or pay for them, they may be re-sold,
 
 136 ASSUMPSIT. [ BOOK 3. 
 
 and the difTerence recovered of him in this action by the vendor. 3 John. 
 395. 
 
 " 2. Another ground of this action is that for use and occupation." To 
 what has been aheady said on this subject, in a former part of this volume, 
 I will only add a few remarks. 
 
 The act-on lies on an implied as well as an express undertaking. 4H. & 
 M. 161. 1 Mun. 407. But it lies only where the tenant holds by permission, 
 not by wrong. 2 H. B. 820. 1 T. R. 378. Nor will it be countenanced 
 where the premises are expressly let for an unlawful purpose — as for a 
 brothel. 
 
 It is no defence to the action to say that the landlord's title was not 
 good ; and nil habuit in tenementis has accordingly been held to be a bad 
 plea. 5T. R.4. 1 Wils. 314. 
 
 Where a lease is expired, the lessor may maintain this action against the 
 lessee for the occupation after the expiration of the term, unless the lessee 
 delivers up complete possession to the lessor, or the lessor is willing to ac- 
 cept the undertenant of the lessee in case he has underlet. 1 Esp. Ca. 57. 
 
 3. Bills of exchange and promissory notes form the next class of express 
 contracts which give rise to actions of assumpsit. They will be passed 
 over here, the subject being of itself sufficiently comprehensive for a sepa- 
 rate treatise, and the student is recommended to consult on this important 
 subject, Chitty on Bills and Baley on Bills. 
 
 " Having thus considered what will maintain this action, we now proceed 
 to consider 
 
 " ^Vhat contracts will not support an assumpsit. 1. This action being 
 founded either on an express or an implied undertaking, whenever the pre- 
 sumption of such contract or undertaking is excluded, as where it appears 
 that money for which the action was brought was paid against the will of 
 the person sued, there this action will not lie." 1 T. R. 20. 
 
 Yet where the plaintiff, to prevent the protest of abill of exchange drawn 
 by the defendant, agreed to be responsible to the drawers, and paid it ac- 
 cordingly, this was considered sufficient to raise an implied promise; 1 
 Wash. 372, 379; but, generally, no man can by a voluntary payment of the 
 debt of another, make himself his creditor, and then sue for the amount so 
 paid. 8 T. R. 610. A security, however, is not within this rule, for being 
 bound for the debt, he has a right to discharge it. Ibid. 
 
 " 2. A mere voluntary courtesy will not support an assumpsit. And that 
 shall be deemed a voluntary courtesy which has been undertaken without a 
 prospect of certain recompense.^' 
 
 As where a service is performed in contemplation of a legacy. Though 
 the party be disappointed, he cannot bring his quantum meruit for compen- 
 sation. 2 Str. 729. 
 
 " But if there was any request made by the defendant, there the acts shall 
 be presumed and construed to be not voluntary, but done in pursunnce of 
 the recpiest ; and this action will then lie. But though a request has been 
 made, yet if it was in consequence of the fraudulent offer, advice, or induce- 
 ment of the other party, it will not support this action." In 5 John. C. C. 
 531, commissions and compensation were refused to an agent of an ad- 
 ministratrix, who acknowledged he had undertaken the agency from mo- 
 tives of benevolence, and as a friend to the family. 
 
 In reference to this rule, however, " it should seem that any thing done 
 in the course of a person's business or employment shall not be deemed a vo- 
 luntary courtesy, but the foundation of a contract." 
 
 "3. This action will not lie for breach of agreement which could not be 
 legally performed, or where the consideration on which it is founded arises 
 
 I
 
 CHAP. 9.] ASSUMPSIT. 137 
 
 from an illegal act." 5 T. R. 242. 2 H. B. 380. 6 T. R. 51, 405. S T. 
 R. 418. 1 Ran. 70. 7 T. R. 630. 2 B. & P. .371. 
 
 "So, thoutrh the consideration be but in part unlawful, yet it shall vitiate 
 the action, which is founded on the whole consideration taken together. 
 On this ground money won at gaming would not be recoverable." And in 
 the law of Virginia there is no exception of any kind of wager. 1 R. C. ch. 
 147. 
 
 " And though the plaintiff in this action has not been a party to the illegal 
 transaction, yet where the assumpsit has arisen from it, and he knows of it, 
 he cannot recover." 2 Wils. 133. 
 
 As where persons abroad sell goods for the purpose of being smuggled 
 into our ports, and aid in packing them in a peculiar manner to avoid de- 
 tection, they can maintain no action in our courts lor the price of the goods. 
 5 T. R. 596. And though a distinction was once drawn between the case 
 of foreigners and the citizens of the country, (Cow. .341. 13 T. R. 454,) 
 it seems no longer to prevail. 5 T. R. 596. 4 T. R. 466. But in these 
 cases a knowledge of the illeoral intent seems to be essential. 
 
 " And though the consideration is a matter not expressly contrary to law, 
 yet if it be contrary to the policy of the laiv to support, this action cannot 
 be maintained." 3 T. R. 17. 
 
 " 4. Assumpsit will not lie to recover money promised for doing that 
 vi'hich it was the party's duty to do without reward; for it is extortion and il- 
 legal. 2 Bur. 924. 2 Bl. R. 204. 
 
 " 5. Wherever the consideration of the assumpsit arises from a fraudu- 
 lent transaction, this action wiW not We." Doug. 438. 3 T. R. 551. 4 E. 
 372. 
 
 "6. So this action being an equitable one, cannot be supported where 
 the assumpsit arises from an unconscientious demand." Cow. 116, 793. 
 
 "7. And so likewise if the consideration is a. frivolous or grouiidless one, 
 or if there is no consideration at all, this action will not lie, for ex nudopac- 
 to non oritur actio. Upon this ground, a promise of any thing for a service 
 already performed, without view to reward, is void. Though where the ser- 
 vice has been done at the requestor another, it shall be good to support this 
 action. And a promise to a servant in consideration of past services has 
 been held to be good. And for the same reason promises to pay merely in 
 consideration of unspecified forbearance are void, and will not uphold this 
 action. For the forbearance might be but an hour, which would be a for- 
 bearance, and yet would be an inadequate and frivolous consideration." 
 
 "But where a party is under a moral obligation to do any thing, a pro- 
 mise made of payment, or of a reward for doing it, shall not be deemed 
 nudum pactum, though no other immediate consideration appears." As a 
 father's promise to pay for the support of a bastard child. 
 
 But though a moral obligation is a good consideration for an express pro- 
 mise, the courts have never gone so far as to raise an implied promise from 
 it. 2 E. 505. Had they done so, it would have at once ceased to be a 
 mere moral obligation. 
 
 The moral obligation to pay just debts, though barred by the act of limi- 
 tations or the statutes of bankruptcy, has been often decided to be a suffi- 
 cient consideration for an express promise to pay them. 
 
 " 8. Assumpsit will not lie where the debt for which the action is broftght 
 is due by specially ; for the specialty ought to be declared on: therefore it 
 is necessary always in the declaration to set out for what cause the debt be- 
 came due, or it will be a sufficient reason to arrest the iudp-ment." 2 Strange, 
 1207. Cro. Ja. 206, 213. 
 
 Here, however, we must be careful to distinguish between cases where 
 the simple contract is merged or extinguished by a subsequent specialty, 
 VOL. 2—18
 
 138 ASSUMPSIT. [ BOOK 3. 
 
 and where it is merely recognized by it as an existing debt, and a mode is 
 only prescribed for ascertaining and liquidating its amount. 7 Cranch, 
 299. As where there is a parol agreement to build an house, a subsequent 
 covenant, that it shall be measured by A & B, and the value of the work 
 thus ascertained, does not extinguish it. So where a preceding sealed agree- 
 ment is only inducement to a subsequent parol contract, an action of as- 
 sumpsit will lie ; 1 Wash. 170; as where other terms or considerations are 
 introduced into the parol contract. 
 
 So though the demand may have arisen under a deed, but the party's 
 remedy is not by the deed, assumpsit lies. As for a security who has paid 
 off a bond debt for his principal, without having any bond of indemnity. 
 Where such bond is given, however, it merges and extinguishes the simple 
 contract, and assumpsit will not lie. 2 T. R. 100. 
 
 So where parties covenanted to account. They did account, and one 
 promised to pay the other the balance which appeared against him. It 
 was decided that this was a new contract, and that assumpsit was a proper 
 action. 2T. R. 483. 
 
 "9. Assumpsit will not lie where the agreement in which it is founded 
 has been obtained by coercion, or is a fraud on others." 2 T. R. 763. 4 
 T. R. 16G. SeeGT. R. 240. 
 
 " 10. Assumpsit will not lie to recover money which a party has paid 
 volunlarily , or in consequence of an action brought, though the demand was 
 unlawful, and paid Avith a reservation of the party's right : as the party 
 should have resisted the payment: for to allow this would be to multiply 
 actions. 1 Esp. Ca. 279. 2 E. 4G9. 5 Taun. 114. 4 Barn. &Cres. 272. 
 
 " 11. These are cases in which, on account of the consideration on 
 which the action is founded being bad, or insufficient, the plaintiff cannot 
 recover; but in those cases, if the party has paid the money, on such con- 
 sideration, he shall not he allowed to recover it back." Cow. 790. 1 E. 
 96. 7E. 449. 3Bos. &Pul. 35. 
 
 So if a person pays a debt barred by the act of limitations or of bankrupt- 
 cy, or contracted during infancy, and not for necessaries, he cannot recover 
 it back. 2 Bur. 1012. Money lost at play may by our act be recovered 
 back. 
 
 " 12. Though the person who has received any money from another, may 
 not be legally entitled to keep it, yet if it depends on a question of right 
 which cannot be fairly and completely tried in this form of action, but may in 
 another, assumpsit cannot be mantained for it." Cow. 414, 819. 
 
 "The action for money had and received will not lie to recover stock in 
 any of the public funds : for stock is not money, and the remedy should be 
 by bill in chancery." 5 Bur, 2509. Nor will it lie for tobacco. See 2 
 Mun. 344. 
 
 By the act 1 R. C. ch. 101, § 1, it is provided tliat, 1. " No executor shall 
 be charged on any promise to answer any debt or damage out of his own 
 estate : 2. No person shall be charged to answer for the debt or default of 
 another person : 3. Nor any one be charged on any agreement in consid- 
 eration of marriage : 4. Nor upon any agreement for the sale of lands, tene- 
 ments, or hereditaments : 5. Nor upon any agreement whatever which is 
 not to be carried into execution within a year liorn the making thereof, un- 
 less there be a memorandum of the promise, or agreement, or undertaking, 
 signed by the parties or their agents properly authorized." 
 
 This act is very similar to the British statute, upon which many cases 
 have been decided. 
 
 1. As to executors. It is said the promise of a person made to answer 
 damages out of his own estate, is not within the statute, where such person 
 is neither executor nor administrator, though lie becomes administrator af-
 
 CHAP. 9] ASSUMPSIT. 139 
 
 terwards. Amb. 330. In England it seems to have been otherwise as to 
 executors, because they are invested with that character by the will, and not 
 by the letters testamentary. Rob. on Fr. 201. In Virginia, until probate, 
 the executor, as we have seen, is without power. What difference this 
 may make in the matter has not been decided. 
 
 But though the promise of a person not yet administrator, and who af- 
 terwards becomes so, is not within this clause of the statute, there must be 
 some suflicient consideration to support it, or it will be void, for it is a col- 
 lateral promise. I do not, indeed, perceive why it should not be consider- 
 ed as coming under the next clause of the statute, and therefore void unless 
 in writing ; tor it is unquestionably a collateral undertaking to pay the debt 
 of another. 
 
 Though the agreement be in writing, the executor or administrator can- 
 not be charged unless there was a sufficient consideration for the promise : 
 as his having assets ; or his agreeing to pay in consideration of forbearance 
 to sue. 7 T. R. 350. 2 Call, 258. See "3 Mun. 59. For the possible 
 loss which the creditor may sustain by forbearance is a sufficient consider- 
 ation to support the promise. It is therefore no answer to an action on a 
 promise made on such consideration, that the executor has no assets. 2 
 Lev. 3. For perhaps they have been swept ofT by other claims which gain- 
 ed a preference by this very forbearance. So a promissory note by which 
 the makers, as executors, promise to pay on demand with interest, renders 
 them personally liable, it is said. 2 Brod. & Bing. 460. 6 Eng. Ca. 201. 
 For such a note carries with it conclusive evidence of forbearance. But 
 when they have paid it, it is a fair charge against the estate. 
 
 It must be observed, however, that even without a writing an executor 
 seems to be liable where he promises, in consideration of forbearance, to 
 pay the debt of his testator. See 3 Mun. 59. For this is a new contract. 
 
 2. As to promises to answer the debt of another, the Virginia law agrees 
 exactly with the British statute, under which it has been decided, 
 
 1. "That if the defendant comes only in aid of another who obtains the 
 goods, so that there is a remedy against both, according to their distinct 
 engagements, that is a collateral undertaking, and void without a note in 
 writing ; but where the whole credit is given to the defendant, so that the 
 other is but as his servant, and there is no remedy against ^im, that is not a 
 collateral but an original undertakings ; in which case a note in writing is 
 not necessary." 3 Bur. 1886. 2 E. 325. 2H. &M. 611. 2 T. R. 80. 
 1 H. B. 120. 8 John. 29. 4 Starkie, 595. If the person for whose use 
 the goods are purchased is liable at all, the promise must be in writing or it 
 will be void. 2 T. R. 80. 2 H. & M. 603. 
 
 2. "But wherever the person undeiiaking is jointly interested with oth- 
 ers, though they receive the benefit of his undertaking, no note in writing 
 is there necessary ; for the undertaking should be solely for the debt of 
 another, which here is not the case. 5 Mod. 213. 
 
 3. "So it should seem that a. debt should be absolutely due to, or a demand 
 exist by the person to whom the undertaking is made, to make a note in 
 writing necessary. For if the third person for whose benefit the underta- 
 king was given, was never himself liable, the undertaking shall be deemed 
 an original one in the party who makes it, and no note in writing is neces- 
 sary." 
 
 As where in consideration that A would withdraw his action of assault 
 and battery against B, a third person agreed to pay for B £50. This was 
 not the debt of another, and not within the statute. 1 Wiis. -305. This case, 
 however, seems to be in conflict with late decisions. 2 Bar. & Aid. 613. 
 4 Starkie, 597.
 
 140 ASSUMPSIT. [book 3. 
 
 A collateral promise to pay the debt of another, though in writing, must 
 be supported by a sufficient consideration ; for it was required belbrc the 
 statute, upon common law principles, and the statute so far from dispensing 
 with it, and making the promiser farther liable than before, was enacted 
 for his protection, and to exempt him from liability. See 2 H. & M.611. 
 But where the promise constitutes an essential ground of the credit, and 
 was made at the time of the ci)iitract, that will of itself be a sufficient con- 
 sideration. 8 John. 29, 37, 40. 
 
 In like manner, any damage or suspension or forbearance of my right, or 
 any possibility of loss occasioned to me by the promise of another, is a 
 sufficient consideration for such promise, and will make it binding ; though 
 no actual benefit accrues to the party undertaking. '3 Bur. 1G73. 3 T. K. 
 24. 2 H. B. 312. 1 Saun. 211, b. " 2 Saun. 136, cited 6 Ran. 90. For it 
 is in elTect a new contract. In such case no writing is necessary. 
 
 Whether the consideration of the promise is required by a fair interpre- 
 tation of the statute to be inserted in the memorandum required by it, is a 
 matter which has been much disputed. It was decided in England, in the 
 case of Wain vs. Walters, (5 East. 10,) to be necessary. And though that 
 decision is questioned by Lord Eldon, (14 Vez. 190. 15 Vez. 287,) it was 
 sanctioned by the whole court of King's Bench in Saunders vs. Wakefield. 
 4 Barn. & Aid. 595. 6 Eng. Ca. 531. See, also, 6 E. 307. 
 
 In 5 Cranch, 151, 152, Judge Marshall expresses a contrary opinion, 
 founded on a difference between the language of our act, and that of the 
 British statute. That requires the agreement to be in writing, and thus em- 
 braces the promise on one side, and the consideration for it on the other. 
 Our act is satisfied if the promise be in writing. See, also, 17 Mass. Rep. 
 122. Rob. on Fr. 117, 207. 
 
 " The third case under the statute requning a note in writing is, that of 
 agreements in consideration of marriage. As to which, it has been settled 
 that promises to marry are not within the statute. For the statute relates 
 only to promises or contracts in consideration of marriage, as to pay mo- 
 ney, make a settlement, &.c. 1 Str. 84. 
 
 A parol promise by a father to the intended husband of his daughter, 
 made before marriage, is a sufficient consideration to sustain a written a- 
 greement made after marriage, if it be in other respects sufficient under this 
 statute. 3 Hen. & Mun. 144. 
 
 " 4. The fourth case under the statute requiring a note in writing is, 
 that of agreements for the sale of lands or any interest in the7n." Cases un- 
 der this head fall more properly under the jurisdiction of the court of chan- 
 cery. They will not, therefore, be taken up here. 
 
 " 5. The fifth case in which a note in writing is required is, that of agree- 
 ments not to be performed within a year." This subject has been treated of 
 elsewhere. 
 
 The policy of this statute is approved by the courts, and its provisions are 
 considered wise and salutary, (i Ran. 509. It is perhaps much to be re- 
 gretted, that they have been refined away in a great measure by the dis- 
 tinction between direct and collateral undertakings, where the benefit of the 
 transaction is for a third person. Experience, I think, has proved, that by 
 this construction perjuries have been multiplied, instead of being diminished. 
 
 In the recent decision from G Randolph, just cited, the student will find 
 some notice ol" the distinctions between those undertakings which are di- 
 rect, and such as are collateral, and therefi)re within the .'-tatute. He will 
 there find, also, that the entries on the book of the merchant shewing to 
 whom tlie goods delivered are charged, though not evidence for himself, 
 may nevertheless be resorted to by the defendant to prove that his underta- 
 king was merely collateral, and therefore void for want of a promise in writing.
 
 CHAP. 9.] ASSUMPSIT. 141 
 
 As to what shall be a sufficient signintr within the statute, it has been de- 
 cided (very absurdly, I think,) that signing as a witness is suflicient. 1 
 Vez. 6, 7. 
 
 " Of assumpsit with rcftrence to the person. Of persons in general. It 
 is a general rule, that no person can maintain this action on an agreement 
 to which he is not a party ; for in such case there can be no contract, ex- 
 press or implied." 1 Str. 5d-2. 
 
 "However, where the consideration is a provision for, or to inure to the 
 advantage of a child, this rule has admitted of exceptions." See 1 Vent. 
 318, 332. Thus if a son agrees (for valuable consideration) with his father 
 to pay his sister ^1000, she may maintain assumpsit. 2 Lev. 216. Cow. 
 443. Doug. 142. 7 John. C. R. 63. 
 
 " Upon the ground above mentioned, it has been said, that in assumpsit 
 upon promises, general declarations are not sufficient ; they should be made 
 io thi person ivho brings the action." As a general promise of iSiOOO to 
 whoever should marry a daughter, will give no right of action to the person 
 who does marry her. Yet, surely, if I advertise a slave and offer a reward 
 of £10 to any person who will take him up, this would be a good promise 
 on which to ground an action for the ten pounds on the part of the person 
 who may perform the service. 
 
 " In the case of factors. If a factor sells the goods of a person beyond 
 sea, he may maintain an action in his own name for the price ; for the pro- 
 mise shall be presumed to be made to him : and so, if he buys goods, the 
 seller may have an action against him, for the credit shall be presumed to 
 be given to him : and particularly because it is for the benefit of trade." 
 
 But where the owner of the goods interposes and gives notice to the buy- 
 er lo pay him, and not the factor, the buyer is not justified in paying the 
 factor; 2 Str. 1182; unless, indeed, where the owner is in arrears to the 
 factor, or the factor is bound for him : see Cow. 251. 2 E. 227 : for a fac- 
 tor has a lien upon goods consigned to him for his own demands. Yet a 
 consignee or factor cannot pawn the goods for his own benefit, so as to di- 
 vest the property of the consignors. 4 H. & M. 432. 5 Ran. 366. He 
 can only sell them out and out in the way of his business. 7 John. C. 275. 
 5John. C. 429. 5 Vez. 211. 3 Barn. & Cres. 342. 
 
 Factors and agents are answerable for breach or disobedience of orders. 
 If they disregard them, they may be considered as disposing of the proper- 
 ty on their own account, and are responsible for all losses. See 1 John. 
 Ca. 437. 4 John. Rep. 103. 
 
 A factor or consignee who neglected during five years' litigation to ren- 
 der an account of the outstanding debts for goods sold, is chargeable with 
 the amount. 2 Call, 415. 
 
 " Every factor ought xo sell for ready money, unless the usage of trade 
 is otherwise ; and if he sell upon trust, without usage to warrant him, he alone 
 is chargeable in case of a loss ; but if the usage be to give credit, then, in 
 case he sells to a person in good credit, if such person fails, the factor is 
 discharged." 2 Call, 358. 
 
 "The next is the case of agents or receivers," of whom I have treated at 
 large heretofore. 
 
 " The next is the case of masters and owners of ships. These are liable 
 to this action. 1, For general charges against the ship. 2. For repairs. 
 3. For seamen's wages." 
 
 "1. As to general charges againt the ship. The master of a ship may 
 bind his owners to any contract which is for the benefit of the ship," evea 
 beyond the value of the ship. I T. R. 73. 
 
 " And for such general charges against the ship, the owners are specifi- 
 cally liable." 2 Str. 1251.
 
 142 ASSUMPSIT. [book 3. 
 
 '•' 2. As to repairs done to the ship. 1. If they are done at home, there is 
 no hoii on the ship itself, but the owners must be ])ersonally sued ; but if 
 the repairs are done abroad, by the maritime law the master may hypothe- 
 cate the ship's bottom." 2 P. Wms. 367. 
 
 " 2. The person who repairs a ship has his election either to sue the 
 master who employs him, or the owners ; but if he undertakes it on a spe- 
 cial promise from either, the other is discharged." 2 Str. 816. 
 
 "But where no such agreement appears, both are subject; and no pri- 
 vate agreement between the master and owners shall deprive a person who 
 has a charge against the ship for repairs, from suing either party." Cow, 
 636. 7 T. R. 302. 
 
 " The owners, therefore, are generally liable; but the master only on his 
 contract, and no further." Cow. 639. I T. R. 108. 
 
 " 3. In the case of seamen's wages. 1. Freight is the mother of wages ; 
 therefore, in case of the loss of the ship, no wages are recoverable ; that is, 
 the whole voyage to a delivering port must be performed, or the sailors 
 ehall not be entitled to any wages, for the ship is only entitled to freight on 
 delivery of the cargo." 3 Bur. 1844. 
 
 It is a general principle that freight is not due till the delivery of the 
 cargo, unless the delivery is prevented by the shipper or his agents. If it 
 is impossible to deliver the cargo, from causes not arising from the fault of 
 either party, the shipper will be excused. 4 Rand. 504. 
 
 But where the ship was detained in a foreign port, and the seamen im- 
 prisoned, and she was afterwards released and completed her voyage, the 
 seamen recovered wages during the detention. 4 E. 546. So if a seaman 
 is disabled by an accident in the course of his duty. 2 H. B. 606. If he 
 is impressed by a foreign power, it is a personal injury for which the mas- 
 ter and owners are not responsible, and he recovers no wages. 1 Pet. 132. 
 If he dies before the completion of the voyage, (being employed by the 
 month,) his representatives will be entitled to his wages ; but not if em- 
 ployed by the voyage, it seems. 6 T. R. 320. 
 
 " And, on the ground above mentioned, where no freight is earning by 
 the ship, the mariners have no title to wages." As where she is lading or 
 unlading; unless there is a special agreement to the contrary. I Sir. 405. 
 
 By the laws of the United States, seamen are entitled to one-third of 
 their wages at every deliveiing port, unless the contrary is stipulated, and 
 the residue at the last port of delivery. 2 L. U. S. ed. 1815, p. 117. 
 
 An agreement by a sailor to receive no wages unless the ship return 
 home and deliver her cargo, is nudum pactum, and void. 1 Pet. 186. 
 
 A mariner forfeits his wages by embezzlement of any part of the cargo. 
 2 Cranch, 210. 
 
 So he does by <iuitting the ship (upon her being captured) without assent 
 of his employers, and not having been forced to do so by the captors. 3 
 Call, 228. 
 
 " 2. And the case is the same of letters of marque or privateers : for the 
 voyage or cruise must be performed, or no wages are due to the mariners : 
 neither shall it give the ofiicer or mariners any claim, that they were absent 
 from the ship by the owner's direction, when she was lost; for they must 
 still be considered as belonging to the ship." Doug. 520. 
 
 Another class of contracts for which assu?npsit is the proper action, are 
 those made by servants. But of these enough has been said in Book I, 
 quod vide. 
 
 "The next case I shall consider is that of partners. 1. To make a per- 
 son liable as a partner, there must be an agreement between him and the 
 ostensible person to share in all risks of profit or loss, or he must have per-
 
 C\IAP. 9.] ASSUMPSIT. 14S 
 
 mitted the other to use his credit, and to hold him out as jointly liable with 
 himself." 
 
 " 2. It is essential, therefore, to make a person subject as a partner, that 
 he is interested in the profits ; that is, that the advantage he derives from the 
 trade is casual, as depending on these profits; for if it is certain and defin- 
 ed, he is not a partner." 2 Bl. Rep. 1)98. 
 
 "3. Where there is a partnership demand, all the partners should join in 
 the action, for the contract and undertaking is joint ; and if, in such case, 
 one partner only brings the action, the defendant may take advantage of it 
 at the trial, and nonsuit the plaintiff, for the contract is not the same ; but 
 in the case of a tort this must be pleaded in abatement." 2 Str. 820. 2 
 T. R. 282. 
 
 Under an old act, (1755, ch. 2, § 7,) it was necessary in suits for goods 
 sold by a factor in Virginia, for merchants in Great Britain, to state the 
 name of the factor in the declaration. 2 Call, 16. This provision forms 
 no longer any part of our code. 
 
 " But where one partner dies, the other should bring this action alone : 
 for the executor and survivor cannot join, since the remedy survives, though 
 not the sum recovered ; and, therefore, on recovery, the survivor is liable 
 to the executor for part." Salk. 444. 2 T. R. 476. 
 
 " All contracts with partners are joint and several, and every partner is 
 liable to pay the whole ; and in what proportions the others are to contri- 
 bute is a matter merely among themselves ; the plaintiff may, however, 
 bring his action against one, but he may compel, by a plea in abatement, 
 the plaintiff to join them all : but if one partner is out of the kingdom, and 
 not amenable to the process of the court, the plaintiff may proceed singly 
 against the other." 1 Wils. 78. 1 Wash, 9. 
 
 On the subject of partners, consult Watson and Gow on partnership. 
 
 The next class of cases in which assumpsit lies, is that of executors ; and 
 it lies against them on a promise made by the testator, and for them on a 
 promise made to him. So one may as executor sue upon a promise made 
 to him as such, in relation to and for the benefit of the estate. Toll. 437. 
 6 E. 405. And in all these cases it is immaterial whether the promise be 
 express or implied. 
 
 Formerly, where the executor euefl as on a promise made to himself, he 
 was personally liable to costs if he failed ; 1 Wash. 139. 2 H. & M. 361 ; 
 though if the promise was alleged to have been made to the testator, and 
 the executor failed, he was not liable to costs, because he was not presumed 
 to have been conusant of his acts. 5 T. R. 234. 1 Chitty, 203. But 
 now by statute an executor plaintiff is not personally liable for costs, unless 
 the court shall be of opinion, that, in the prudent discharge of his official 
 duty, he ought not to have brought the action : and even then the costs are 
 to be made of the testator's goods, if to be had, and only of his own goods 
 in case there are no goods of the testator. See 1 R. C. ch. 128, § 25. 
 Sess. Acts, 18-2-2, ch. 28, § 4. 
 
 The questions arising out of contracts made by a. fane covert hdt.ve alrea- 
 dy been examined. 
 
 " The pleadings and evidence. 1. Of the pleadings on the part of the 
 plaintiff." 
 
 The declaration in assumpsit is either upon an express or an implied 
 contract. And in the same declaration may be joined several counts, some 
 of which may be founded upon a special or express agreement, and others 
 merely upon the agreement which is implied by law from the transaction 
 between the parties. That upon the express agreement is called the spe- 
 cial count and the others are called the general counts.
 
 144 ASSUMPSIT. [book 5. 
 
 In reference to the action of assumpsit where there is an express contract, 
 we shall observe : 
 
 1. " Where tliere is a special contract or agreement, the plaintiff ought to 
 declare on it, lor the defendant ought to have notice that he is sued on it ; 
 and the plaintiff should not be allowed to go into evidence of any special 
 agreement on a general count in indebitatus assumpsit, by which the defen- 
 dant might be taken by surprise, unless he had notice from the plaintiff 
 that he meant to rely on the general as well as special ground." 1 T. R. 
 134. See 5 Barn. & Aid. 2-28. 4 Barn. & Cres. 163. 
 
 In consonance with this principle, the court of appeals, I think, appear to 
 incline against a general indebitatus assumpsit by the endorsee of a bill of 
 exchange against the endorser. See 1 Call, 239. In such case a special 
 count is necessary. 
 
 2. " Where the assumpsit is founded on an agreement in which something 
 is previously to be performed by the plaintiff , on condition of which the de- 
 fendant undertakes to pay : it is necessary for the plaintiff in his declara- 
 tion to aver either a general pcrfortnance of his part, or that he is ready to 
 do it, and also a notice and request to the defendant." 6 E. 555. 2 Bur. 
 699. 7 T. R. 125. 
 
 Where one man agrees to do a certain act in consideration of another 
 man's doing another act, and both acts are appointed to be done at the 
 same time and place, it is sufficient for the plaintiff to aver that he was 
 ready at the time and place to perform the agreement. 1 E. 203. 3 Mun. 
 166. This subject is treated at large in the action of covenant, the princi- 
 ples of which, as to this matter, are applicable also to this action. 
 
 "And therefore notice and request to the defendant should be averred. For 
 there can be no default in the defendant till he has had notice of the per- 
 formance of the plaintiff's part." 1 Str. 89. Hob. 31, 68. 
 
 The whole amount of the cases here cited is said to be, that they estab- 
 lish a difference as to the necessity of notice between those agreements 
 where the party cannot perform the thing without receiving notice from the 
 person to whom it is to be performed, and those where it is in his power to 
 perform it without such notice, 3 Call, 205. In the first case a special 
 notice and demand is necessary, because without it the defendant cannot 
 know whether he is bound, and to wlmf. In the .second r.nse ho is undei 
 no such embarrassment. 
 
 "So that the rule seems to be, that where the defendant is chargeable] 
 on a collateral matter, and not on a mere debt, there ought to be a reques 
 precisely alleged in point of time, place, &c. As if I promise to deliver ii 
 a certain mill a quantity of wheat, no time being specified for delivery, 
 must aver notice of delivery and request specially, and moreover I mus 
 prove it to entitle myself to my action. For the defendant is not in faulty 
 unless informed of the delivery. But where the assumpsit is for a preced- 
 ing debt, which was due before, then the general allegation of licet sccpius ^ 
 requisitus is suflicicnt ; for the bringing the action is a request." Cro. Ja.J 
 183, 523. I Saun. 33. 5 T. R. 469. Doug. 679. 
 
 " Therefore, in declaring on a note of hand, no request is necessary, for ii 
 acknowledges a debt, and the bringing the action is a request." I Wils^ 
 33. 1 Strange, 88. 
 
 " But in all cases where money is to be paid on an executory considera^ 
 lion, the plaintiff should set out the day when, and place where, the con-j 
 sideration was performed, because it is traversable," as in the case just pu^ 
 of the delivery of wheat in a mill according to contract. 
 
 In assumpsit in the superior court of a county, it is not sufficient caus« 
 to arrest the judgment that the declaration lays the venue in a different
 
 CHAP. 9.] ASSUMPSIT. 145 
 
 county from that where the contract was made, or omits to state that the 
 cause of action arose within the jurisdiction of the court. 5 Mun. 27. 
 
 " Where the action is brought on mutual promises, they must be both made 
 at the same time, or else it will be nudum pactum, and so no action will lie : 
 and when they are to be performed at the same time, the plaintiff in such 
 case need not aver performance." 
 
 But in such case he ought to aver a readiness to perform ; 7 T. R. 125. 
 1 E. 20-}. E. 555. 3 Mun. 16(3 ; unless they are independent promises. 
 
 In the case of Cook vs. Oxley, (3 T. R. 653,) it was decided that where 
 A sold tobacco to B, and gave him till the next day to determine if he 
 would take it, and promised to deliver it if B would take it, and within that 
 time give notice thereof to A, yet A might within the same time retract. It 
 was nudum pactum, and both parties should be bound, or neither. This 
 case is cited and questioned by able counsel arguendo. 2 Call, 227. 
 
 Where the promises are not only mutual but independent, an averment 
 of performance, or that the party was ready, is not necessary. As where a 
 carpenter agrees to build and finish a house by the first of November, for 
 j£iOO, payable one half in May thereafter, and the other half when the 
 house was finished, he may sue for the money though he did not finish the 
 house in the time agreed on : for the very terms of the agreement show 
 that a payment was contemplated though the house was not completed in 
 time. 2 John. Rep. 272, -387. And it would be unjust that an immate- 
 rial failure in the time of performance should occasion a forfeiture of the 
 whole price. The law, therefore, leaves the other party to his action for 
 damages for such failure. 
 
 3. " Where the plaintiff's action is to arise from some precedent act to 
 be done by himself, he should aver and show his right to do such act, and 
 also his performance as far as he could. For otherwise he might recover 
 for a consideration which he could not perform." Doug. 598. 2 H. B. 
 123. _ 
 
 " And, for the same reason, if the \^h'mt\fC avers performance, he must also 
 show how performed, that the court may judge if the performance is suffi- 
 cient to entitle him to action. And if the plaintiff declares on two const' 
 derations, he must aver the performance of both ; for the assumpsit on the 
 part of the defendant shall be presumed to be founded on both considera- 
 tions taken together." 
 
 In assumpsit it is essential that a promise should be stated in the decla- 
 ration. Thus, even in assumpsit on a promissory note or other writing for 
 the payment of money, unless a promise is stated, the declaration is defec- 
 tive, though the writing be expressly set forth in hcBC verba, importing a 
 promise. 2 Call, 39. Lord Ray. 757, 774. So a consideration must be 
 stated, and without it the declaration will be defective. .3 Mun. 550. 5 
 Mun. 23. In this case the promise was to return so much corn ; and though 
 this expression goes far to acknowledge a consideration, yet it was held in- 
 sufficient. 
 
 Where a promissory note is declared on, the declaration ought to state 
 the promise to have been for value received, and if on the face of the note 
 that is expressed, it will be sufficient evidence of consideration, unless con- 
 tradicted by testimony on the part of the defendant, disproving the con- 
 sideration. 
 
 In assumpsit the promise to pay is the gist of the action ; and, as has 
 been already said, unless the promise be set forth, it is a fatal error in the 
 declaration. 2 Str. 793. 2 Wash. 187. And it ought to be averred di- 
 rectly, and not by way of inference. Ibid. 3 Mun. 566. In like manner, a 
 consideration for the promise ought to be set forth in the declaration, and if 
 VOL. 2—19
 
 146 ASSUMPSIT. [book 3. 
 
 it be omitted, it has frequently been declared to be a fatal error. 2 Call, 39. 
 3 IVIun. 550. 4 Mun. 95. 5 Mun. 23. Yet the late act of Jeofails (1 R. 
 C. ch. 1:2S, § 103,) provides "that no judgment after a verdict shall be ar- 
 rested on account of the omission of the averment of any matter, without 
 proving which the jury ought not to have given such verdict, or for any 
 other defect in the declaration which niight have been good cause of de- 
 murrer, and was not taken advantage of by demurrer." How far this act 
 cures the errors above mei:)tioned, the courts must determine. The statute, 
 however, seems to have been of little effect since the decision which has 
 sanctioned the practice of demurring and pleading to tiie same declaration. 
 For now, in all cases of moment, the dei'endant both demurs and pleads, 
 and thus takes advantage of those errors which the statute intended to cure. 
 
 2. Of the general counts or assumpsit upon contracts implied by law. 
 
 The general counts, as they are called, to contra-distinguish them from 
 counts on special agreements, are indebitatus assumpsit, — the count on a 
 quantum meruit for work or services done, and that on a quantum valebat for 
 goods sold. The count on an insimul computassent does not fall strictly 
 under either denomination. 
 
 The indebitatus assumpsit is the most general of any ; for it lies for 
 work and labor done, for goods sold and delivered, for money lent to the 
 defendant, or paid for him, or received l)y him to plaintiff's use, or appear- 
 ing due on an account stated. The difference, however, in effect, between 
 the indebitatus assumpsit for work and labor, and the quantum meruit, is now 
 not very material, although the former is founded upon the supposition of 
 a sum due for the service under some previous determinate contract, (now 
 complete and at an end,) and the latter is for such price only as the party 
 deserved to have for his labor. For notwithstanding the indebitatus as^ 
 sumpsil supposes the sum to be due by express contract, (no longer open 
 and subsisting,) yet the plaintiff may recover under it as much as he deserv- 
 ed, where there apj^ears to have been no contract price. Formerly, how- 
 ever, it was held otherwise. 2 Saun. 12i2, n. 2. 
 
 The indebitatus assumpsit alleges that the defendant is indebted to the 
 plaintiff in a sum of money for goods sold, for work done, lor money lent, 
 for money advanced at defendant's request to a third person, for money 
 paid for his use, for money had and received by him for the use of the 
 plaintiff, and for money due on an account stated. There may be in the 
 same declaration distinct counts upon each of these several considerations, 
 or there may be one count for all of them ; since any number of causes of 
 action to which the indebitatus count is applicable, may be included in the 
 same count of indebitatus assumpsit. See 4 John. Rep. 280. 2 Chitty 43, 
 in note. Having stated the indebtedness of the defendant, the declaration 
 proceeds to allege that, being so indebted, the defendant in consideration 
 thereof undertook and assumed to pay to the plaintifl^ the said sum, when 
 requested, and then concludes with setting forth a breach of the promise 
 and failure to pay. 
 
 The quantum meruit does not state as the count on indebitatus assumpsit 
 does, that the defendant was indebted lor goods sold, services performed, or 
 some other pre-existing simple contract debt, but alleges that in considera- 
 tion that the plaintiff had, at the defendant's request, done certain work, 
 &c., he, the defendant, promised to jjay what the plaintiff reasonably de- 
 served ti.erefor. 
 
 The quantum valebat count difiers in like manner from the indebitatus. 
 It is in general confined to the sale of goods, and states that the defendant 
 had agreed to pay so much as the goods were reasonably worth. Both 
 these counts contain averments of the demand of the fair price of the la- 
 bor, or vf tho j^oodt.
 
 CHAP. 9.] ASSUMPSIT. 147 
 
 But thouirlij as I have said, the indebitatus assumpsit in these cases sup- 
 poses a price to have been agreed on, and therefore implies an express 
 contract; and though where a price has been agreed on, it will lie after the 
 contract is complete and at an end, yet we must remember that so long as 
 the contract remains open, subsisting, and in force, the plairititf cannot re- 
 cover on this general count. '2 Mun. 345. 7 Cranch, -HYi. Doug. 23. 
 2E. 147. Cow. 818. 1 T. R. 133. 4 E. 14<>. 6 E. 564, 509. The 
 difference, as I have already endeavored to shew, is this: where the con- 
 tract is at an end, (as where it has been rescinded,) the plaintiff is entitled 
 to recover back his whole money, and then an indebitatus assumpsit will 
 lie ; but if the contract be open, then the plaintiff's demand is not for the 
 whole sum, but for damages arising out of the breach of it, and he must 
 consequently rely upon the special contract. 1 T. R. 133. 7 T. R. 181. 
 As where A bought a carriage lor £10, and had liberty to return it in three 
 days, and did return it, he maintained the action of indebitatus assumpsit 
 to recover back the price which he had paid. So for work and labor ; how- 
 ever special the agreement, yet if the terms of it have been performed on 
 the plaintiffs part, and the rumuneration was to be in money, the common 
 indebitatus count is sufficient; 2 Mun. 345 ; but if the contract has not 
 been executed by the plaintiff, though the defendant prevented it, the de- 
 claration must be special. 1 Chitty, 339. 
 
 On the general counts above mentioned, it is proper to observe, 
 
 " In declaring in assumpsit, it is always necessary to set out/or what the 
 debt became due, and not generally, that the defendant being indebted, un- 
 dertook to pay, &c. For the debt might be due by specialty, in which case 
 this action would not lie." 
 
 " But if it sulhcienfly appears from the declaration that the debt is not 
 ■due by specialty, as \t"it.'\s pro opere ct Zaiore generally, without saying what 
 work, it is good." 
 
 "2. In declaring in indebitatus assumpsit for money lent and advanced, 
 it must always be tor money lent to the defendant himself," or to his wife, 
 for that is a loan to the husband. 3 VVils. 388. 2 Wils. 141. 1 Salk. 2-3. 
 
 This principle arises out of the technical meaning of the word " lent," 
 and where money is advanced to a third person at the request of the defea- 
 .dant, this word should in strictness be omitted in the declaration. It may 
 perhaps well be doubted whether this technicality would now be counte- 
 nanced. 
 
 In all actions of indebitatus assumpsit, the plaintiff must file with his de- 
 claration an account sta'ting distinctly the several items of his claim against 
 the defendant; and, on failure, he can give no evidence of any item which 
 is not so plainly described in the declaration as to irive the defendant full 
 notice of the character thereof. I R. C. ch. 128, § 86. The use of a bill 
 of particulars is to prevent surprise. As to the necessity for such a provi- 
 sion, see 1 Call, 2-39. 2 Mun. 275, in note. See, as to the practice under 
 the English statute corresponding somewhat with ours, Phil. Ev. 145, &c. 
 
 An account filed in indebitatus assumpsit, which gives notice of the cha- 
 racter of the claim, is sufficient, though made up of rarious items of which 
 no specific notice is given : 4 Ran. 488 : as for merchandise per bill at such 
 a date. But observe, in this case it was proved that a bill of particulars 
 had been delivered with the articles when sold. 
 
 "3 The breach assigned in the declaration should always follow the un- 
 dertaking stated, or the plaintift' cannot have judo'ment." 
 
 And the breach must be clearly stated. Where there were several 
 counts, and the breach was that the defendant had not paid the amount 
 charged in the last count, which count was not proved, the plaintiff could 
 not have judgment : — not on the first count, because there was no breach,
 
 148 ASSUMPSIT. [ BOOK 3. 
 
 nor on the last, because not proved. 5 Mun. 196. How far the new sta- 
 tute of Jeofails would cure the defect in the first count, remains to be seen. 
 
 "4. In assumpsit, the day of the promise laid in the declaration is not 
 material." 1 Str. 21. 1 T. 11. 116. 
 
 Except where the day makes a part of the contract, as in the case of a 
 promissory note ; for there, if the date of the note or time of payment is 
 misrecited, it is fatal, and the plaintilF cannot give the note in evidence. 
 So, where the date of any other written contract is averred, a correct reci- 
 tal is essential. See 1 Chitty, 258. 
 
 And though in assumpsit on inshnul computassent, time and place ought 
 to be laid, (Lord Ray. 533,) yet neither seem material ; for though, gene- 
 rally, in personal actions, the declaration should state a time and place, yet 
 the precise time is not important. 
 
 "5. In declaring under the statute of frauds, the plaintiff need not, in 
 his declaration, shew any note in writing ; but it will be sufficient for him 
 to produce it on the trial." 
 
 " 6. In assumpsit against an infant, one count in tlie declaration was an 
 account slated, and there was a general verdict; judgment was arrested: 
 for such count is bad as against an infant, who is not presumed to be com- 
 petent to enter into an account." I T. R. 40. 
 
 But in Virginia, where there are several counts, and general damages 
 are given, the verdict is good though one count be faulty ; but the defend- 
 ant may apply to the court to instruct the jury to disregard that count, and 
 then if the plaintiff has no evidence to support any other he must be defeat- 
 ed. See 1 R. C. ch. 128, § 104. 
 
 "7. In an action by an executor, if the action is brought on a contract 
 made by himself respecting the goods of the testator, he need not name 
 himself executor, as where he sells on credit goods of the deceased to pay 
 the debts without taking bond. Here an assumpsit is raised, and he may 
 either sue as executor or not, at his pleasure." 
 
 "But the plaintiff cannot join in the same action a demand due to him- 
 self in his own right, and another as executor or administrator; for the 
 costs to be recovered are entire, and he can never discover how much he is 
 to have as administrator or executor, and how much as his own." 1 Wils. 
 171. Salk. 10. 6E.405. 
 
 " Yet an executor may join in the same declaration several counts for 
 money had and received by the defendant to the use of the testator, and to 
 the use of the executor as such." 3 T. R. 660. 6. E. 405. Chitty, 202, 
 203, 204. 
 
 In declaring against an executor, a count cannot be introduced which 
 would charge him personally, for the judgment in the one case would be 
 de bonis propriis, and in the other de bonis testaloris. 1 Chitty, 205. In 
 2 Lev. 175, the rule laid down was, that where money when recovered 
 Would be assets, the executor may declare for it in his representative cha- 
 racter. See, also, 1 T. 11. 487. 6 E. 405. Whore the promise in such 
 case is made to him, or raised to himself, but in his character of executor, 
 the words "as executor" should be inserted. 1 Chitty, 204. 
 
 " 2. Of the evidence on the part of the plaintiff. 1. As the plaintiff is 
 bound to declare on a special agreement, where there is such, he ought to 
 prove the contract stated in his declaration expressly as laid, or he shall be 
 nonsuited." 
 
 "As where the plaintiff declared on an agreement by the defendant, to 
 deliver good merchandiznhle corn. Proof of an agreement to deliver good 
 corn of the second sort was held not to support the declaration." 1 Lord 
 Hay. 735. 4 T. R. 314. 5 E. 107, 111. 8 E. 7.
 
 CHAP. 9.] ASSUMPSIT. 149 
 
 " For the agreement being the gist of the action, must be stated trul)', 
 and the whole of it ought to appear on the record. 1 T. R. 447. 
 
 There is no principle more generally true than this ; nor is it impugned 
 by the decision that an agreement in writing is good evidence in suj)port 
 of a declaration setting forth an oral contract, provided it be of the same 
 purport, and not under seal. For, not being sealed, the written and oral 
 contracts are of the same nature, and that which is in writing ought to be 
 produced, as it is the best evidence, although it is merely evidence, and 
 does not change the nature of the contract. 1 Wash. 199, 20*2. Indeed 
 there is no other distinction between agreements than specialty and parol. 
 7 T. R. 351. 
 
 It is however sufficient if the substantial parts of the contract are proved 
 as laid, nor will the court extend the principle so as to embrace what is im- 
 material. 1 Wash. 363. 
 
 " But where an agreement is in the alternative, and it is in the option of 
 the party bringing the action to sue on either part of it : where he does so 
 bring his action on one part, he need not state the whole of the agreement; 
 for having made his election as to one, it then becomes absolute, and he 
 need only state so much as gives him a right to sue ; but where the optiort 
 of the alternative is in the defendant, it is otherwise." 1 T. R. 448. 
 Doug. 15. 
 
 "It has been held, that though the plaintiff has a count in his declara- 
 tion on a quantum meruit, as well as on a special agreement, yet if at the 
 trial he proves a special agreement, but different from that laid in the decla- 
 ration, the plaintiff cannot recover on either count : not on the first count, 
 because of the variance; nor on the second, because there was a special 
 agreement." 1 Str. 648. Bull. N. P. 139. 
 
 The doctrine here stated rests upon the sound principle, that where 
 there ' .• a special contract for an agreed price, the plaintiff cannot recover 
 on the quantum meruit, because on that count the measure of damages is 
 the value of the services, which, peradventure, may be more than the price 
 agreed upon. See 6 T. R. 325. Nor can he recover upon the special agree- 
 ment prorerf, if it differs from that laid in the declaration ; because the de- 
 fendant would be taken by surprise, if, when he is charged with having 
 made one contract, the plaintiff should be permitted, without giving him an 
 opportunity to prepare for his defence, to prove another. It is for this rea- 
 son, among others, that the allegata et probata are always required to cor- 
 respond. 
 
 But where the plaintiff declares on a special contract, and upon the trial 
 he fails altogether to prove any special contract whatever, and none is pro- 
 ved by the defendant, the plaintiff may then recover on the quantum meruit ; 
 for where there is no contract for price, the party is entitled to recover the 
 fair price of his labor. See Doug. 628. 7 John. 132. 1 B. & P. (New. 
 R.) 354. 
 
 In Cooke vs. Munston, (1 N. R. 354,) Sir J. Mansfield observes, that if 
 a plaintiff sues a defendant, as having built a house for him according to 
 agreement, yet if he fail to prove that he did build it according to agree- 
 ment, he may still recover for work and labor done. Yet, in 3 Taunton, 
 52, it is decided, thai a builder who deviates from the specifications of di- 
 mensions and materials in his contract, cannot recover upon a quantmn me- 
 ruit for the work actually done. It seems, however, reasonable that in 
 some shape the workman should recover the price, and that the person for 
 whom he built should recover damages for deviation. See Boone vs. Eyre, 
 1 H. B. 273. See, also, 6 T. R. 573. I Saun. 320, b. The remedy of 
 the workman would be, I should have conceived, on the special contract, 
 and the contract should be considered mutual and independent. This has
 
 150 ' ASSUMPSIT. [book 3. 
 
 been explained in treating of the action of covenant. See Norris's Peake, 
 408. 
 
 The doctrine, however, would seem not to have been settled agreeably 
 to this opinion. A judicious writer, in presenting the decisions on this 
 subject, remarks, (4 Starkie, 97,) — 
 
 " Where the plaintiff proves a special agreement, and work done, but 
 not pursuant to such agreement, it is said he shall recover upon the quan- 
 tum meruit; for otherwise he would not be able lo recover at all. (Bull. 
 N. P. 139.) As if on a quantum meruit for work and labor, the plaintiff 
 should prove that he had built a house for the defendant ; though the de- 
 fendant should prove that there was a special agreement about the building 
 of it, viz., that it should be built at such a time and in such a manner, 
 which had not been strictly complied with, yet the plaintiff must recover on 
 a quantum meruit. The proof on the part of the defendant is only proper 
 to lessen the quantum of damages, or the price allov.ed for the work. 
 
 " Where the plaintiff, under a special agreement, has executed the work 
 improperly, since he has not done that which he engaged to do, and which 
 is the consideration of the plaintiff's promise to pay, it seems now to be 
 settled (7 E. 479) that he must recover, if at all, upon the quantum meruit, 
 and that he cannot recover more than the value of the materials and work 
 to the defendant ; though, where this defence is intended to be set up, no- 
 tice of it should be given. 7 E. 749. And where the plaintiff has execu- 
 ted the work so ill that the defendant has derived no benefit from it, or 
 none which exceeds in value what he may have already paid, the plaintiff 
 is not entitled to recover any more, even for the labor and materials 7 E. 
 479. 3 Taun. 52." The great objection to this doctrine is, that if the 
 builder has contracted below the ordinary prices, he may thus recover on 
 the quantum meruit a greater compensation for his labor than he had con- 
 tracted for, and thus derive advantage from his own wrong, unless, indeed, 
 the quantum meruit is to be controlled as far as may be by the terms of the 
 special agreement. Where deviations from a specification are made by 
 mutual consent, the plaintiff recovers according to the terms of the contract 
 and specification, as far as they are applicable, and upon a quantum meruit 
 as to the rest. 1 Starkie's Cases, 275. Peake's C. 103. 4 Starkie, 98. 
 In such a case there should be, of course, both a special and general count. 
 
 " Where the plaintiff declares on a contract which is entire, he must re- 
 cover on the whole contract taken together, and cannot either apportion 
 or recover on the common counts." 6 T. R. 320. 
 
 This was the case of a mariner to whom the master engaged in Jamaica 
 to give JE30 on his arrival at Liverpool, provided he proceeded, continued, 
 and did his duty on board the ship. He died a few days before she reached 
 the port. It was decided that his representatives could not recover in as- 
 sumpsit for the time he had served. J3ut the case seems to have turned, in 
 part, on the seaman's havino- enorafrcd for hicrher waores than usual, and 
 the payment made to depend upon a condition precedent which was not 
 performed. It was considered a kind of insurance. He was to get high 
 wages if ho completed the contract, and nothing unless the whole duty was 
 performed. 
 
 On the principle above stated, when the contract is entire, the party for 
 whose benefit the act is to be done may, if it be not performed in the 
 whole, refuse to accept a part, and then no action will lie for that part; so 
 far from it, that if he had paid money on the contract, he may recover it 
 back. 7 T. R. 181. Hence, where six hogsheads of rum were sold, and 
 only three sent, the defendant was held justifiable in refusing to accept 
 them, and the plaintiff could not recover the price of them. 3 John. Rep. 
 534. Yet if he had accepted them, then he would have been bound ; for
 
 CHAP. 9. J ASSUMPSIT. 151 
 
 where the plaintiff sold one thousand bushels of wheat, to be delivered be- 
 fore the 1st of March, and delivered nine hundred bushels within the time, 
 he was entitled to recover; for though the agreement was entire, yet every 
 delivery made a several contract, which would maintain this action. 1 
 Esp. 1-29, Barker vs. Sutton. Lewis vs. Weldon, Court of Appeals, 1824. 
 3 Ran. 71. 
 
 "•2. The plaintiff's proof must correspond with his title, as laid in the 
 declaration ;" and if it does not, he will be non-suited. 1 Salk. 28-2. 
 
 "Therefore, where the plaintiff declared as executor, on a promise to 
 the testator, and on non-assianpsit infra sex annos pleaded, gave in evidence 
 a promise made to himself within that time. It was held that it should not 
 have been given in evidence in support of the declaration, but that the 
 plaintiff should have declared on a promise to himself." 1 H. & M. 56iJ.. 
 3H. &M. 401. See 3 Call, 248. 
 
 ^ " So in assumpsit against several, a joint debt or contract must be prov- 
 ed ; for, otherwise, the proof would not correspond with the declaration." 
 
 ''But where the person bringing the action has looked to the faith of se- 
 veral partners, who are in business together, and has relied on their joint 
 credit, though but one only of the partners has acted, the other partners 
 shall be charged, unless they show a disclaimer; and proof of the act of 
 one shall charge them all." Salk. 292. If only one partner be sued, the 
 other must plead it in abatement, as be must be conusant of the fact, and 
 cannot take advantage of it at the trial. Chitty's Pleading, 29, citing 1 
 Saun. 154, n. 1— 291, b. n. 4. 5T. R. 651. 1 E. 20. 4 T. R. 725. 2 
 Bl. R. 947. 
 
 All parties must join as co-plaintiffs in actions on matters of contract; 
 if any are omitted, it may be pleaded in bar, or the plaintiff may be non- 
 suited on the trial, because the contract proved being joint, does not cor- 
 respond with that alleged, which is several or single. See 1 Saun. 291, b. 
 c. 1 B. & P. 70. 1 Chitty, 27. But it is otherwise in cases of tort, for 
 there if one partner sues without the other for an injury to the joint proper- 
 ty, the defendant must plead it in abatement, or he cannot afterwards take 
 advantage of it. 6 T. R 766. And if one partner sues for his share of the 
 wrong, and no plea in abatement being filed, he recovers, the other may 
 afterwards sue alone for his share, and then even a plea in abatement will 
 not avail the defendant ; for he should have pleaded it in the first suit. 7 
 T. R. 279 
 
 " 3. It was formerly the opinion, that on a count of insiiiml coinputassent, 
 the plaintiff was obliged to prove the exact sum laid, but that idea is now 
 exploded, and the plaintiff may now recover part of the sum demanded on 
 this count as well as on any other." 
 
 "But the court will not admit any evidence of an account current and 
 unliquidated ; for that would involve the court in a tedious examination. 
 The account, therefore, must always be exhibited as an account stated." 
 
 The defendant is, in the action upon an account stated, confined to 
 pointing out errors on the face of the settlement, and cannot go into a re- 
 examination of the items. 3 Call, 5. 
 
 "4. In assumpsit against an executor, and plene administravit pleaded, 
 the plaintiff must, aotvvithstaning, prove his debt, or he shall recover but 
 one penny damages, though there be assets ; for the plea only admits the 
 debt, but not the quantum of it. 1 Salk. 296. 
 
 "3. Of the phadingS'On the part of the defendant. The plea should al- 
 ways answer to the promise or undertaking as laid in declaration." 2 Str. 
 919. 
 
 *' So the plea must answer to every part of the declaration." 1 Str. 302.
 
 152 ASSUMPSIT. [ BOOK 3. 
 
 " For if the plea be pleaded to the whole promise, and yet answers but a 
 part, the whole plea is nought, and the plaintiff should demur. But when 
 it is pleaded to, and answers but to a part, it is a discontinuance." 
 
 The meaning of this is, that it will be a discontinuance if the plaintiff 
 demurs or replies to the plea instead of taking judgment (as he may well 
 do) for that part of his claim which the defendant has failed to defend or 
 deny ; for that being unanswered, he has a right to his judgment by 7iil dicit. 
 1 Salk. 179, 180. 1 Saun. 28, n. 1, 2, 3. 1 Chitty, 509. 
 
 " The defendant cannot plead in bar, that he revoked and countermand- 
 ed his promise." 3 Lev. 214. 
 
 "Matters of law that do not go to the denial of the original cause of ac- 
 tion, but to the discharge of it, inust be pleaded : such as accord and satis- 
 faction, the statute of limitations, &c. 
 
 1. "Accord and satisfaction is a good plea in assumpsit : but it must be 
 performed at the time of the plea. For a bare accord without satisfaction 
 is no plea." 3 Call, 234. 2 T. R. 21. 2 H. B. 317. 
 
 "Payment is a good plea under this head of satisfaction ; for it admits a 
 good cause of action, though discharged by a subsequent transaction." 2 
 Lord Ray. 787. The general issue is however most advisable. 
 
 "Payment of a lesser sum before the time must always be pleaded, for it 
 is not a performance which destroys the being of a promise, but a collateral 
 agreement that supplies the place of it. But such evidence may be given in 
 mitigation of damages;" 2 Lev. 81 ; that is, the defendant will have credit 
 for it. 
 
 " And wherever accord and satisfaction is pleaded, it must appear to the 
 court to be a reasonable and good satisfaction, and be accepted by the 
 plaintiff as such ; — such as a better security. And therefore a bond may 
 be pleaded in bar of a simple contract debt." 
 
 2. " The statute of limitations is the next plea in bar I shall consider. 
 And this must always be pleaded, and cannot be given in evidence on the 
 general issue." See 3 Chitty's Black. 245, n. 40. 
 
 The lex fori, and not the lex loci contractus, governs the time of limita- 
 tion of actions. 13 E. 439, 450. 3 John. C. R. 217. 2 Ran. 303. 
 
 Consider here " against what demands it runs. The statute of limitations 
 runs against the plaintiff's demand in actions of assumpsit generally, so as 
 to be a complete bar notwithstanding any mesne acts intervening, as the 
 bankruptcy, coverture, 8cc. of the parties ;" for when it once begins to run 
 it never stops. 4 T. R. 311. Ridg. R. 331. 1 Str. 556. 2H. &M. 289. 
 3 Cranch, 173. Mun. 355. 6 E. 80. 6 Mun. 352. 
 
 "The statute of limitations runs also against bills of exchange and pro- 
 missory notes ; which must be sued for within five years, or the holder will 
 be barred. 
 
 "The statute is a good plea in bar to an action by an attorney for his 
 fees, though it was insisted that such demand was out of the statute, as the 
 fees arose on a suit which was matter of record." So it is a good plea for 
 an attorney, even in an action for money received by him for his client. 1 
 Ran. 284. When it begins to run, see 3 Barn. & Aid. 626. 
 
 Where there are mutual demands or accounts current between parties, 
 and credit given on both sides, in such case if any item on the part of the 
 defendant is within five years, it shall prevent the statute from attaching. 
 For the giving the credit amounts to an admission of some unsettled ac- 
 count between the j)artics, and any act which the. jury may consider as an 
 acknowledgment of there being an c)pcn account, is sufficient to take the 
 case out of the statute. 6 J. Rep. 193. 2 Saun. 127, c. in note. And this 
 is the law, not in reference to accounts between merchant and merchant on-
 
 CHAP. 9.] ASSUMPSIT. 153 
 
 ly, but in relation to accounts between all other persons. But where all the 
 items within five years are on the side of the plaintid", these items shall not 
 draw after them those that are of longer standing ; for there is here no act 
 of the defendant's to be construed into an acknowledgment. 
 
 In the statute there is an exception of such accounts as concern the trade 
 of merchandize between merchant and merchant, their factors or servants. 
 In order to bring his case within this clause, the plaintiff must shew that 
 both parties were merchants, &c. For the exception does not extend to 
 accounts between a merchant or shopkeeper and his customers who are not 
 merchants. So there must be mutual accounts or reciprocal demands ; for 
 if all the items are on one side, it is not an account between merchant and 
 merchant. See Bull. 149, 150. G T. R. 193. 5 John. C. 524. It was at 
 one time thouglit that the exception only extended to merchants beyond sea, 
 and that inland merchants and shopkeepers were not included. 2 Saun. 
 ubi sup. But this notion is exploded. It was also at one time supposecWhat 
 to bring even a merchant's account out of the statute, there must be some 
 item of credit within five years. But this idea is also incorrect. Then it 
 was said that in the case of merchants' accounts the plaintifl" is not barred, 
 though there has been no transaction of any kind between the parties for 
 five years. 6 T. R. 193. Yet here we must advert to a distinction be- 
 tween an account stated, and those cases where the dealings between the 
 parties are closed, but the accounts are not. For though the dealings be- 
 tween merchant and merchant have ceased more than five years, yet if the 
 accounts are not closed, they were held to be within the exception of the sta- 
 tute. But Chancellor Kent seems to doubt whether open accounts are not 
 also within the statute, (though they be between merchant and merchant,) 
 where the last item is above five years' standing. 5 John. C. 522 ; and see 
 6Vez. 580. 15Vez. 19S. 18Vez.286; where this opinion is sustained. 
 But in 19 Vez. 184, 185, the whole matter seems to be again unsettled. As 
 to accounts stated, there can be no doubt. For an account stated is where 
 the accounts between the parties have been either actually settled, or are 
 presumed to be so from the circumstance of a party's retaining for a long 
 time, without objection, the account of the other party which has been pre- 
 sented to him, shewing a balance against him ; and in these cases the de- 
 mand is not within the exception of the statute. By the settlement it has 
 ceased to be an account. It has become an ascertained debt. All intricacy 
 of account is at an end, and thus it is neither within the letter nor the spi- 
 rit of the exception, and of course is barred by the general provision. See 
 2 Saun. 127, d. e. in note. 5 Cranch, 18, 19. An account stated may in- 
 deed exist, as I have just intimated, where there has been no actual settle- 
 ment between the parties ; as in the case just mentioned where a merchant 
 forwarded his account against another, shewing a balance against him, and 
 he kept it for two years without objection. 7 Cranch, 147. 2 Vez. 239. 2 
 Atk. 252. It may here be remarked that where dealings have long ceased 
 between merchants, though the accounts are not closed so as to constitute 
 an account stated, yet equity will not decree an account, but will leave the 
 parties to the law. 2 Vern. 276. Gilb. Eq, R. 225. 
 
 It was formerly held that the exception in the statute applied only to ac- 
 tions of account. Garth, 226. 2 Saun. 127, c. in note. But it has in mo- 
 dern times been decided that it applies to actions of assumpsit, as well as to 
 actions of account. 5 Cranch, IS. Yet it would seem that the action of 
 assumpsit must relate to matter of account, for an action by one merchant 
 against another, on a bill of exchange or promissory note, would not appear 
 to be within the exception. See Carth. 226. 
 
 Store accounts of retail dealers (1 Wash. 190. 3 Gall, 514,) for goods 
 sold to customers, must be sued for within one year; and all articles of 
 VOL. 2—20
 
 154 ASSUMPSIT. [book3» 
 
 more than one year's standing shall be rejected under the statute. But if 
 the action be grounded on an express assumpsit, an action brought upon it 
 within five years will not be barred, though the consideration of the assump- 
 sit was a store account, and though the assumpsit was not within the year. 
 3 Call, 514. The party wishing to avail himself of this clause of the act 
 must plead it ; 3 Mun. 8 ; though distinguished counsel seem to have 
 thought otherwise. 3 Call, 518. 
 
 " In the same statute is a saving of the right of infants, feme coverts, non 
 compos, persons imprisoned or beyond sea. So that the statute does not run 
 against any demand that they may have against others, provided they bring- 
 their actions within five years after the disabilities removed." 
 
 Yet any of these persons may sue before the disability removed, though 
 the infant must sue by his guardian or prochein amy, the person non compos 
 by his committee, and the feme covert jointly with her husband. See 2 
 Saun. 120. 
 
 Beyond sea is equivalent to "out of the state." 3 Cranch, 176. The 
 expression in our act in one section is, "beyond sea or out of the coun- 
 try." In other sections it is " not within this commonwealth." They 
 mean the same thing. See the English doctrine as to Scotland not being 
 within the clause of their act. 1 Bl. Rep. 28(3. 
 
 If the plaintifT be in the state when the cause of action begins to run, 
 his subsequent departure will not bring him within the saving. 1 Wils. 
 134. 4 T. R. 311. So though his residence was abroad, his coming to 
 the state even temporarily, removes the disability. 3 Cranch, 174. So 
 where goods are sold by a factor here, or where the action is joint, and any 
 of the parties reside in Virginia, the statute v/ill bar. 4 T. R. 516. 7 
 Cranch, 156. 1 R. C. 128, § 13. And now by statute, Sess. acts, 1825, 
 ch. 23, the saving in favor of persons not within the commonwealth is re- 
 pealed. 
 
 There is a farther saving in the statute where the defendant absconds or 
 conceals himself, or by removal out of the country or county of his resi- 
 dence when the action accrued, or by any other indirect ways or means, de- 
 feats or obstructs the bringing the action. In this case he cannot plead the 
 act at all, and if he does the plaintiff must reply this special matter. 1 R. 
 C. ch. 128, § 14. In case of mere removal, however, it must appear that 
 the plaintiff was actually defeated or obstructed in bringing his action. 7 
 Cranch, 202. 
 
 Nor can the act be pleaded by a master of a vessel who carries off ser- 
 vants or slaves contrary to law, or puts ashore disabled or sick seamen, or 
 servants, without providing for their maintenance. 1 R. C. ch. 128, § 15. 
 
 As to executors : The provisions of the act of limitations may be consi- 
 dered, first, as they respect executors, plaintiffs. Tlie statute provides, (1 
 R. C. ch. 128, § 10,) that where judgment is given for the plaintiff which 
 is afterwards reversed for error, and judgment given that he take nothing by 
 his plaint, writ, or bill, the plaintiff may within a year after such reversal 
 commence a new suit, though the period of limitation may then have ex- 
 pired. It has been said, that, by the equity of this statute, if a testator die 
 within the time of limitation, and the executor takes out proper process 
 within the year, the bar of the statute will be saved. Selw. 1-30. And this, 
 I think, seems to have been the idea of the court of appeals as to cases at- 
 tempted to be brought within the equity of this statute. 1 Wash. 303. 
 Yet Mr. Selwyri tells us, that perhaps the only rule that can be laid down 
 with safety, is, that the executor must sue within reasonaole time ; and 
 some judges adoj)!, the same idea by analogy to the common law doctrine 
 of Journey's accomjtls, and say that the party must proceed in reasonable 
 time, which is to be " discussed by the justices." See 6 Co. 9, 10,. II. Selw.
 
 i-i • i/J ASSUMPSIT. 155 
 
 131. It is not a good replication to the plea of the statute that the plain- 
 tiff sued in five years after administration granted. Willes, 27. 
 
 Secondly. As to executors, defendants : The law of Virginia provides in 
 relation to actions against them upon open accounts, that it shall be the 
 duty of the court to expunge from the account every ile7)i of five years 
 standing. 1 R. C. ch. 128, § 16. It is not necessary, indeed, that the court 
 should actually expunge them, as an instruction to the jury to disregard 
 them is a sufficient compliance with the law. 1 H. St M. 378. And it 
 must also be remarked that this section only applies to open accounts and 
 implied assumpsits, and not to settlements or express assumpsits by the tes- 
 tator. 4 H. & M. 266. There is in this section the usual saving as to the 
 rights of infants, femes covert, &c. 
 
 " In all cases where money is to be recovered back where it has been 
 paid by mistake, or for a consideration which has happened to fail, the sta- 
 tute of limitations begins to run from the time the money was so paid, for 
 from that time the right to recover it back accrued." Doug. 630. In cases 
 of fraud the act runs from the time it is discovered. Ibid. 
 
 "What shall prevent the statute from attaching. 1. The first is a. promise 
 by the defendant to pay the debt after the five years have elapsed ; for this 
 is a revival of the assumpsit, and no new consideration is required : for the 
 plea admits a cause of action before five years." 
 
 That a new promise to pay will bind the debtor and take a debt out of 
 the statute, is well settled by decisions in our own courts, as well as those 
 of Great Britain. See 3 Call, 514. Lord Ray. 389. But the cases have 
 gone much farther, and as the statute was made to protect persons against 
 antiquated claims, the evidence of payment whereof they may have lost, 
 they have admitted an acknowledgment of the existence of the debt to take 
 a case out of the act. 2 Bur. 1099. 2 Vent. 151. Cow. 548.* And the 
 slightest acknowledgment has been holden sufficient; as " prove your debt 
 and I will pay you," — "I am ready to account, but nothing is due," and 
 such like. 1 Salk. 29. 16 E. 420. 2 T. R. 762. 4 E. 599. And what 
 amounts to an acknowledgment is to be left to the jury. 2 T. R. 760. 4 
 E. 604, note. There must, however, be something that amounts to an ac- 
 knowledgment of a debt ; for v^here the acknowledgment of the receipt of 
 money was accompanied by a declaration that it was given to the defen- 
 dant by the plaintiff's testator, this did not suffice. Bull. 148. And the ac- 
 knowledgment must go to the fact that the debt is still due and unpaid, for 
 the mere admission of its original justice will not do, since the statute was 
 intended to protect persons, not from claims fictitious in their origin, but 
 from claims once good that may have been discharged. 8 Cranch, 74. The 
 courts have confessedly gone far enough, and have said they will go no 
 farther. In England there seems some discrepancy between the different 
 tribunals on this subject. See 7 Taun. 608. 4 E. 599. 2 Hovenden's 
 Sup. 312. 4 Starkie, 892. 2 Barn. & Aid. 760. 4 Barn. & Aid. 568. 
 See 2 Saun. 64, b. in note. 
 
 It must be farther observed, that even where the acknowledgment of the 
 existence of a debt has been admitted to take a case out of the statute, it 
 has been only on the ground that such acknowledgment affords reason to 
 presume a promise of payment. Hence, if a verdict should find the ac- 
 knowledgment merely, the court could not infer a promise, though the jury 
 might have done so ; and in such case, therefore, the bar of the statute 
 would be unimpaired. On this subject Chancellor Kent observes, 6 John. 
 
 *It is said an acknowledgment to a third person will suffice. 2 Bnrn. & Cres. 149. This vvould 
 sejsm to depend on tiie question wlietiier the acknowledgment is to operate as a new substantial pro- 
 mise, or as drawing down tlie original promise to the time of tiie acknowledgment. As to this, see 
 1 Barn. & Aid. 93. 8 C. L. K. GJ. 1 Barn. & Cres. ^10. G Taun. 210. 1 Peters, 351. 4Leigh,6iy, 
 G03.
 
 156 ASSUMPSIT. [book 3. 
 
 C. 290, that "an acknowledgment of the debt is sufBcient ground for a ju- 
 ry to presume a new promise ; and it is the new promise, and not the mere 
 acknowledgment, that revives the debt and takes it out of the statute." If 
 the acknowledgment be qualified in a way to repel the presumption, it is 
 not evidence of a promise to pay.* Id. 11 John. 146. 13 John. 288. 
 15 John. 511. Moreover, Chief Justice Abbott is said to have decided that 
 there must be a promise. An acknowledgment of the existence of the 
 debt he deemed insufficient. 
 
 The acknowledgment of a debt by one of a mercantile firm, whether be- 
 fore or after dissolution, takes a debt out of the statute. 3 Mun. 191. 
 Doug. 652. 2 Bing. 306. 
 
 An acknowledgment by an executor will not revive a debt so as to affect 
 the heir in equity on a bill to marshal assets. 6 John. C. 373. I was also 
 of opinion, in the case of Tiernan vs. Magill, Winchester C. C. Nov. 1830, 
 that the acknowledgment of the executor did not revive the debt so as to 
 enable the creditor to recover from the administrator de bonis, non to whom 
 the estate was committed after the executor's death. Ideo qiicBre. 
 
 Lastly : it has been decided that a bill in equity will not lie, to compel 
 the defendant to discover if he had not made a new promise to pay. 2 John. 
 C. 150 ; also, Martin's ex. vs. Williams, per Chan. Carr, at Winchester. 
 But a contrary decision is reported, 5 Mad. 331, cited by Mr. Chitty in his 
 notes on the subject of equitable jurisdiction. 
 
 " The next mode by which the statute is prevented from becoming a bar, 
 is by having sued out process out of some court before the five years elaps- 
 ed, and having proceeded on it." 
 
 I have already referred to the provision of the statute which enables a 
 plaintiff, whose judgment is arrested or reversed, to begin again within a 
 year, and to reply to the plea of the statute that he had commenced and 
 prosecuted suit within the five years, in which suit judgment was arrested, 
 &c. The equity of this statute has been extended, it has been said, to all 
 cases where the plaintiff " gets out of court " in any manner. See 1 
 Wash. 303. This expression seems perhaps too general, as the provision 
 would not relieve a plaintiff, I presume, who suffers a nonsuit, or whose 
 suit has been irregularly prosecuted. See 2 Mun. 511. 1 Ran. 436. The 
 English books, however, are full of cases to shew that where a plaintiff 
 Commences an action, though the process be informal or irregular, it will 
 save the bar of the statute, provided the process was returned and regularly 
 continued, and the new suit is brought in reasonable time. Willes' R. 258. 
 Lord Ray. 883. 3 T. R. 662. 1 Selw. 127. 6 T. R. 618. 2 Black. 
 Rep. 1131. 4 Bac. Abr. 482. But the party, it seems, ought to com- 
 mence his second suit within a year after the determination of the first, or 
 he will be barred. 1 Wash. 302, 303. And he must reply the former suit 
 specially. 3 Call, 1. 
 
 This is somewhat in the nature o? Journey's accounts, a term in the old 
 law thus understood : — If a plaintiff's suit abated by death, or was " inepte 
 conceptum," as Bracton calls it, and abated for false Latin, want of form, 
 &c., he might have a new writ by Journei/s accounts, that is (originally) 
 within a computed time, (journees accomptes,) and (afterwards) within as 
 little a time as possible after the abatement of the first ; and this second 
 writ was a continuance of the original cause, as if it had never abated. 
 This learning is now out of use, it being the custom at present to quash 
 the first writ and issue another. By our law, indeed, abatements rarely oc- 
 cur, as will be hliewn elsewhere. See 1 Bac. Abr. Abatement. 
 
 If the plaintiff files a bill in chancery within the five years, which bill is 
 dismissed because the matter was cognizable at law, its pendency cannot 
 " Sec 2 I3;u II. & Cics. 1 1!). 3 Bing. 329.
 
 CHAP. 9] ASSUMPSIT. 157 
 
 be replied in a subsequent suit at law to save the bar of the statute. 4 
 Mun. 181. 1 Atk. 282. 2 Atk. 1. Where, however, justice would re- 
 quire it, perhaps the court of chancery would enjoin the defendant from 
 pleading the act, as Lord Hardwicke said he would do. 2 Atk. 615. And 
 where the delay has been produced by the defendant himself, as by an in- 
 junction, the plaintiff will not be barred. 2 Ch. Ca. 217. 
 
 "How the statute is to be pleaded." 
 
 Here observe that the plea of " non-assumpsit within five years," without 
 adding " next before the institution of the suit," or words to the like effect, 
 relates to the time of pleading, and is therefore not a good plea, since it 
 must appear that the suit was not commenced within five years after the as- 
 sumpsit. 1 Wash. 135. 3 Call, 248. If, however, the evidence is de- 
 murred to, and shews a bar under the act, a repleader ought not to be 
 awarded, since it is obvious, that, upon amending the plea, the plaintiff 
 must be barred. 3 Call, 248. 
 
 The plea of the statute of limitations ought not to conclude to the country 
 but with a verification ; for it is a special plea setting forth matter of defence, 
 independent of the original merits of the plaintiff's claim. 1 Wash. 135. 
 
 After a verdict, it seems that a plea of "the act of limitation," in these 
 words only, is good, though it was contended that it ought to have appear- 
 ed, however informally, which branch of the statute was relied on. 4 
 Mun. 444. 
 
 " Where the cause of action is to arise from a collateral executory consi' 
 deration, as some act to be performed and a promise to pay in consequence 
 of it, there non-assumpsit infra sex annos is not the proper plea ; for the as- 
 sumpsit does not arise till the consideration is performed, which may be 
 long after the promise made : it should be actio non accrevit infra sex an^ 
 nos." 2 Salk. 422.* 
 
 " But this is the case of assumpsit on collateral and executory conside- 
 rations only ; for where the action is indebitatus assumpsit for a supposed 
 subsisting debt, it is otherwise." 
 
 " A plea that the defendant ivas a bankrupt and had obtained his certifi- 
 cate, is a good plea to discharge all debts due before his bankruptcy." But 
 a plea of discharge under an insolvent act is no bar, for that does not dis- 
 charge the debt ; if, indeed, the act itself provides that the debt shall be 
 discharged, it is unconstitutional. . 4 Wheat. 122. Sed vide 12 W. 213. 
 
 The next plea to be considered is a tender. This is to be pleaded where 
 the defendant admits the plaintiff's claim, or some part of it, to be due. 
 Where, before action brought, the defendant tenders the money to the 
 plaintiff, and he refuses to receive it, the defendant may plead the tender 
 and refusal, and allege that he has always been ready since it became due, 
 and still is ready to pay it, and that he brings the money into court ready 
 to be paid to the plaintiff. 1 Wash. 26. And these averments are essen- 
 tial. 2 Wils. 74. 1 Str. 638. The money must always accompany the 
 plea. 3 Call, 243. If the defendant proves the truth of this plea, he saves 
 the costs of the suit and interest, and recovers costs from the plaintiff, but 
 the money paid in is delivered over to the latter. See 3 Black. 304. 1 
 Vent. 21. So he may plead non-assumpsit as to part, and tender as to the 
 residue, thus making up a plea going to the whole action. And by our 
 law he may plead one plea of non-assumpsit as to the whole, and another 
 of tender as to the whole. But he cannot plead in the same plea non-as- 
 sumpsit as to the whole, and a tender as to part. For though our act ad- 
 mits inconsistent pleas, which the English act does not, (4 T. R. 195,) yet 
 it does not justify a plea, the parts of which are inconsistent with each 
 other. See 3 Wils. 145. 4 T. R. 194. 
 
 * When the statute begins to run : see 3 Barn. & Aid. 238, (KG. 6 Cowan, 233, Post. 409.
 
 158 ASSUMPSIT. [ BOOK 3. 
 
 A tender may be pleaded to a quantum meruit, though the demand is un- 
 certain. Str. 576. 
 
 A tender ought always to be before commencement of suit. 8 T. R. 629. 
 And it should in general be pleaded before an imparlance, in England, be- 
 cause the asking an imparlance is contradictory to the plea, which avers 
 the defendant to be always ready. Here, I presume, it ought to be plead- 
 ed before office judgment. Sed qiicere, see 1 Wash. 26. 
 
 In making a tender the money regularly should be produced, unless the 
 plaintiff, when the tender is made, dispenses with it. So specie should be 
 tendered ; yet a tender of bank notes is good, if no objection be made on 
 that account at the time of the tender. 3 T. R. 554. See 2 B. &, P. 526. 
 
 To the plea of tender the plaintiff may reply a subsequent demand and 
 refusal, which is a good answer to the plea, for it shews the defendant has 
 not been always ready. 
 
 When a tender is made the money should be produced, and not kept in 
 the pocket, and it is generally prudent to take a witness who knows the 
 amount tendered, so as to be able to establish it. 
 
 It is said that a party tendering money cannot require, as a condition of 
 the creditor's receiving it, that he should give a receipt. Peake's Cases, 179. 
 This seems not very reasonable. It would indeed be unreasonable if he 
 demanded as a condition a receipt in full, or an acquittance, when the 
 other party supposed himself entitled to more. Such a demand would 
 doubtless make the tender bad. 
 
 Foreign money, if made current by act of Congress, is a good tender. 
 
 3. " Another plea in this action is that of infancy, — though this may be 
 a'Iso given in evidence on the general issue of non-assumpsit ; for the pro- 
 mise of an infant cannot be enforced by suit. 
 
 " The general rule in the case of infants is, that they are liable on no 
 contracts, except for necessaries, as meat, drink, education, clothes, &c." 
 But they are liable for money embezzled by them ; for infancy is no pro- 
 tection to fraud. 
 
 " Necessaries for an infant's wife or his child are necessaries for himself, 
 and he shall be liable." I Str. 168. See 8 T. R. 578. 
 
 ' But though an infant is liable on his contract for necessaries, yet if one 
 lends money to an infant, even to pay for necessaries, the infant is not lia- 
 ble ; for it may be misapplied." Salk. 286. But if the money be laid out 
 for necessaries, the lender will in equity be permitted to stand in the shoes 
 of the person who furnished them. " And if the plaintiff proves that the 
 money was lent to pay for necessaries, and applied to that purpose, he might 
 at law be entitled to a verdict; but, in such case, the defendant should re- 
 join and take issue on the expenditure." Ca. K. B. 197. Sed vide 2 Esp. 
 Ca. 472, in note, where such evidence was refused. 
 
 " And where infancy is pleaded, 'that the goods were necessaries' is the 
 proper replication." And what are necessaries, depends on the infant's 
 circumstances and condition in life, and must be left to the jury. 1 M. & 
 S. 378. 
 
 "Goods furnished to an infant «i the way of his trade are not necessaries, 
 and therefore he is not liable ; for the law will not allow him to trade, 
 which may ruin him." Str. 1083. The case cited in Bui. N. P. 154, is 
 not law. 
 
 " And where an infant is sub potestate parentis, and living in the house 
 with his parents, he shall not then be liable even for necessaries." Peake's 
 Cases, 229. 
 
 "But though an infant is thus exempt from all demands, except for ne- 
 cessaries, yet if goods, not necessaries, have been delivered to an infant, 
 and after his coming of age he promises to pay for them, he thereby ratifies
 
 CHAP. 9.] ASSUMPSIT. 159 
 
 the contract, and shall be bound to pay. And what amounts to such con- 
 firmation, shall be matter to be left to the jury ;" but he shall not be bound) 
 farther than that promise extends. See 1 T. R. 648. 1 M. &,S. 724. 
 
 "And where the plaintiff relies on a new promise made after full age, 
 the infant must always be charged on the simple contract" which the new 
 promise was meant to establish, and cannot be sued upon a bond which 
 he may have given during his infancy, for that is void. 3 M. & S. 477. In 
 such case the bond does not merge the simple contract, and that may there- 
 fore be sued upon where it is for necessaries, for the bond was void ab ini- 
 tio. 3 Wils. Bac. 595. Assumpsit would therefore lie on the promise to 
 pay, if made at full age. 
 
 Observe, however, that a single bill for payment of necessaries is held 
 good against the infant, though a bond is not. 1 Lev. 87. 1 T. R. 40. 
 
 Though the promise of an infant is voidable by him, yet a promise made 
 to him in consideration of that promise is good, and the party of full age is 
 liable, if the promise is for the infant's benefit. For it was his own folly 
 to deal with an infant ; and, therefore, he is bound, though the infant is not. 
 2 Str. 993. 
 
 " In assupmsit for use and occupation of a house, by permission of the 
 plaintiff, nil habuit in tenementis is a bad plea." I have sufficiently treated 
 of this matter elsewhere. 
 
 " A judgment for a defendant in one personal action, is a good bar to an- 
 other personal action for the same cause, and is therefore a good plea. 6 
 Co. 7. But the cause of action must be specially stated to be the same." 
 2 Bl. R. 779. 3 Wils. 240. 
 
 But the judgment must have been upon the merits, or it will be no bar; 
 for the plaintiff may bring a new action where the first has been ineffectual 
 because of some error in the proceedings. 
 
 The pendency of a former action for the same demand is also a good 
 plea in abatement, but not in bar. 1 Chitty, 443. 
 
 That the debt claimed by the plaintiff has been attached in the defend- 
 ant's hands by foreign attachment, is a good plea. 1 Lord Ray. 180. 1 
 Salk. 291. If the court (of chancery) by which the attachment was issued, 
 has proceeded to hearing, and decreed a payment of the money by the de- 
 fendant to the plaintiff's attaching creditor, the matter may be pleaded in 
 bar of the action. 1 Salk. 280. See 6 Ran. 93. But where the attach- 
 ment cause is yet pending and undetermined, it must be pleaded in abate- 
 ment ; for if the attachment be ultimately dismissed, the plaintiff's right to 
 sue will be resuscitated. See 1 Salk. 280. 5 John. Rep. 102. Also, 1 
 Saun. 67, a. n. 3 E. 367, 378. 2 Vez. jr. 106. 
 
 A former recovery is also a good bar, and may be given in evidence un- 
 der the general issue, for it shows that the plaintiff had no cause of action 
 when he commenced his suit, as he had already obtained a judgment for his 
 demand. 2 Str. 733. 1 Saun. 92, n. 2. 
 
 The plea of former recovery is no bar if upon evidence it appears that 
 the matter of the existing suit was not in fact the subject of inquiry in the 
 former suit. 6 T. R. 607. 
 
 The test whether a judgment on the merits in one action shall bar anoth- 
 er, is, "the same evidence being required in both actions." 2 Bl. Rep. 
 827. 3 Wills. 304. 
 
 See, as to the bar of a former judgment, 1 Chitty, 195. 3 Wils. 204. 
 Bac. Pleading, I. 13. 5 Co. -32, -33. 
 
 A release is also a good plea in assumpsit. But where the promise has 
 been broken, and a right of action accrued, the release must be by deed. 
 While the promise is yet unbroken, the plaintiff may discharge the defend- 
 ant from performance by parol. Ca. K. B. 538. 1 Lord Ray. ^o.
 
 160 ASSUMPSIT. [book 3. 
 
 Arbitrament and award is a good plea. But arbitrament without award 
 is not so. 4T.R. ]46. 
 
 "Alienage in the plaintiff is a good plea in abatement, but it must be, 
 that he is an alien enemy ; for alien friends may maintain personal actions, 
 and it shall not be presumed that he was an enemy." 2 St. 1082. 
 
 Of set-offs. A set-off may be pleaded. By our law, 1 R. C. ch. 128, 
 § 89, it is provided that in every action in which a defendant shall desire to 
 prove a payment or set-off, he shall file with his plea an account stating dis- 
 tinctly the nature of such payment or set-off, and the items thereof, and if 
 he fail to do so, he shall not give evidence of it unless it be so particularly 
 described in the plea as to give the plaintiff full notice of the character 
 thereof. Such notices should be almost as particular as declarations — for 
 the set-off is a substitute for the cross action. Bull. 179. 1 Sell. Prac. 329. 
 
 The subject of set-offs has been examined in considering the plea of set- 
 off to an action of debt. 
 
 " The last plea to be considered is, that of the general issue, which is non- 
 assumpsit. Though where the defendant pleaded not guilty, it was held to 
 be good after a verdict : yet if the plaintiff had dcmi-rrcd, it had been bad." 
 2 Str. 1022. 
 
 " 1. Under this issue the defendant may go into any equitable defence : 
 he may prove a release without pleading it, and take advantage of every 
 equitaljle allowance possible." 2 Bur. 1010. 
 
 " So he can give payment in evidence on the general issue, or he may plead 
 it. For as there is no debt, there shall be presumed to be no promise." 
 Salk. 394. 
 
 " So under the general issue he can give an usurious contract in evidence : 
 for the statute having declared all such contracts absolutely void, there can 
 be no assumpsit ;" but usury must be pleaded to an action on a sealed in- 
 strument. 
 
 " So infancy may be given in evidence on the general issue." 2 Lev. 144. 
 
 •' And, in general, whatever defeats the promise is good evidence on non- 
 assumpsit." 
 
 And, therefore, where the plaintiff sues upon a quantum meruit, the de- 
 fendant may on the general issue, and without notice, give evidence that 
 the work was not worth what the plaintiff claims, and that he had paid as 
 much as it was worth. And though the contract was that the work should 
 be done at a certain price, he may, upon giving notice, be let into a like 
 defence. And if the work be wholly inadequate for the purposes for which 
 it was undertaken to be performed, he may be let into such defence even 
 without notice. 7 E. 479. In general, however, the circumstance that the 
 work and materials are not as good as were contracted for by the plaintiff, 
 does not form a defence. Norris's Peake, 406. 2 B. <fc P. 136. See, 
 however. Camp. N. P. 38. 
 
 The verdict is in all cases of assumpsit found for damages sustained by 
 the plaintiff in consequence of the breach of the promise of the defendant, 
 whether it was express or implied. 
 
 Where the ground of the action is not upon an entire contract, the find- 
 ing of the jury may vary from the demand set up. " For it is a rule in this 
 action that the plaintiff may recover less than he croes for, but not more." 
 2 Bur. 906. 
 
 Therefore, where the plaintiff sues for £100 due by account, he may re- 
 cover only £50. If, on the other hand, the verdict is for too much, he may 
 release the excess. 4 Mun. -371. 
 
 The verdict must substantially answer to the issue; and, if it does so, it 
 will not be set aside, though irregular in form : as where it found that the 
 defendant had not paid the debt, and the jury assessed the damages by oc-
 
 CHAP. 9.] ASSUMPSIT. 161 
 
 casion of tlie non-performance of the assumpsit at £\0, it was held good. 
 
 1 Wash. 380. The verdict is usually in this form: "We, the jury, find 
 that the defendant did assume upon himself as the plaintiff in his declara- 
 tion hath alleged, and we assess his damages at $100," or, " We, the jury, 
 find for the plaintift' $100 damages," or, " We find for the plaintiff, and as- 
 sess his damages at $100." And where the jury give interest, which they 
 may do by our law, they insert after the sum these words, "with interest 
 
 thereon at the rate of six per cent, per annum from the day of 
 
 till paid." See 1 R. C. ch. 128, § 80. 
 
 Where the pleas were, '^non-assumpsit and non-assumpsit loithin five 
 years," and the entry was, " which plea the plaintiff joined," and the ver- 
 dict found, "that the defendant did assume within five years," the judg- 
 ment was not arrested though the issue was not expressly on both pleas. 2 
 Call, 514. A general verdict in assumpsit assessing entire damages is good, 
 though tliere are several counts, the counts being all good. 5 Mun. 27. 
 
 2. '' Of the judgment and writ of inquiry. The jury, in their verdict upon 
 the issue, settle the quantum of the damages. But where there is judg- 
 ment by default, or on demurrer, or any other interlocutory judgment, then 
 the plaintiff^s right to some damages is determined ; but the express sum is 
 to be settled in damages by the intervention of a jury on a writ of inquiry, 
 upon which the plaintiff obtains final judgment." 
 
 Mere admission of a sum due does not dispense v/ith proof of the amount 
 due. 2 H. & M. 401. Sed vide 5 Mun. 24. That case, however, was 
 the case of a demurrer to evidence by the defendant, against whom all fair 
 inferences were of course made according to a well established rule in cases 
 of such demurrer. 
 
 If the action be on a promissory note, the execution of it ought to be 
 proved by the subscribing witness, if to be had, and if not, the handwriting 
 should be proved. But in case of judgment by default, this is unnecessary, 
 for the contract is by the default admitted. 1 Esp. 170. So as to a bill of 
 exchange. 3 Term Rep. 303. 
 
 Where by discounts and offsets the plaintiff's claim is reduced below the 
 sum which suffices to give jurisdiction ; yet the plaintiff will have judgment. 
 
 2 Virg. Ca. 255, 256. So where the parties referred their suit to arbitra- 
 tors, and the arbitrators awarded a sum below the jurisdiction, the plaintiff 
 had judgment, as his declaration claimed a larger sum than was necessary 
 to give the jurisdiction. Virg. Ca. 141. But though the declaration claim- 
 ed ,£85, yet the jury having given a verdict for £10 only, which was below 
 the jurisdiction, the judgment on the verdict was arrested because it did not 
 appear that the demand was reduced by offsets. Virg. Ca. 131. Had this 
 appeared, it seems it would have been otherwise. So where an assignee 
 sued on a note for more than $100, the court gave judgment, though the 
 verdict was only for $87, the residue having been an offset against the as- 
 signor. Ferguson vs. Highly, 2 Virg. Ca. 255. But v.'here the amount is 
 reduced below the jurisdiction by proof of payments to plaintiff himself, the 
 court cannot give judgment. Larrow vs. Harding, 2 Virg. Ca. 203. In 
 the case of an action of debt on a bond, the penalty gives jurisdiction. 
 Seel Mun. 555. 4 Cranch, 316. 3 Mun. 151, 155. Heath rs. Blackly, 
 General Court, June, 1820. 
 
 As to costs. Costs cannot be given against executors or administrators 
 who are defendants, payable out of their own estates. Sess. Acts, ch. 28, 
 § 4. The law was formerly otherwise. At present the judgment for costs 
 as well as for the damages, is de bonis testatoris. Where the executors are 
 plaintiffs, they are in like manner exempt from personal liability for costs, 
 unless the court will certify that in the prudent discharge of their official 
 duty they ought not to have brought the suit. 1 R. C. ch. 128, § 25. 
 VOL. 2~2I
 
 162 ACTIONS ON THE CASE. [ book 3. 
 
 It remains, before we proceed to tlie head of itijiirics to real property, to 
 present the student with the following sumniiiry of Mr. Blackstone of the 
 last class of cases considered by him in the light of contracts implied by 
 reason and construction of law. And as most of the subjects here touch- 
 ed upon arc treated of elsewhere in these lectures, I shall not think it ne- 
 cessary here to offer any observation upon the remarks of the commentator. 
 
 6. " The last class of contracts, implied by reason and construction of 
 law, arises upon this supposition, that every one who undertakes any of- 
 fice, employment, trust, or duty, contracts with those who employ or en- 
 trust him, to perform it with integrity, diligence, and skill. And if by his 
 want of either of those qualities any injury accrues to individuals, they have 
 therefore their remedy in damages by a special action on the case. A few 
 instances will fully illustrate this matter. If an officer of the public is guil- 
 ty of neglect of duty, or a palpable breach of it, of non-feasance or of mis- 
 feasance ; as, if the sheriff does not execute a writ sent to him, or if he wil- 
 fully makes a false return thereof; in both these cases the party aggrieved 
 shall have an action on the case, for damages to be assessed by a jury. If 
 a sheriff or gaoler suffers a prisoner, who is taken upon mesne process (that 
 is, during the pendency of a suit) to escape, he is liable to an action on the 
 case. But if after judgment, a gaoler or a sheriff permits a debtor to es- 
 cape, who is charged in execution for a certain sum, the debt immediately 
 becomes his own, and he is compellable by action of debt, being for a sum 
 liquidated and ascertained, to satisfy the creditor his whole demand: which 
 doctrine is grounded on the equity of the statutes of Westm. 2. 13 Edw. c. 
 11, and 1 Ric. II. c. 12. An advocate or attorney that betray the cause 
 of their client, or, being retained, neglect to appear at the trial, by which 
 the cause miscarries, are liable to an action on the case, for a reparation to 
 their injured client. There is also in law always an implied contract with 
 a common inn-keeper, to secure his guest's goods in his inn ; with a com- 
 mon carrier or bargemaster, to be answerable for the goods he carries ; with 
 a common farrier, that he shoes a horse well, without laming him; with a 
 common tailor, or other workman, that he performs his business in a work- 
 manlike manner ; in which, if they fail, an action on the case lies to recover 
 damages for such breach of their general undertaking. But if I employ a 
 person to transact any of these concerns, whose common profession and 
 business it is not, the law implies no such general undertaking; but, in or- 
 der to charge him with damages, a special agreement is required. Also, if 
 an inn-keeper, or other victualler, hangs out a sign and opens his house 
 for travellers, it is an implied engagement to entertain all persons who tra- 
 vel that way ; and upon this universal assumpsit an action on the case will 
 lie against him for damages, if he without good reason refuses to admit a 
 traveller. If any one cheats me with false cards or dice, or by false weights 
 and measures, or by selling me one commodity for another, an action on 
 the case also lies against him for damages, upon the contract which the 
 law always implies, that every transaction is fair and honest. In contracts 
 likewise for sales, it is constantly understood that the seller undertakes that 
 the commodity he sells is his own ; and if it proves otherwise an action on 
 the case lies against him, to exact damages for this deceit. In contracts 
 for provisions it is always implied that they are wholesome ; and, if they 
 be not, the same remedy may be had. Also if he that selleth any thing 
 doth, upon the sale, warrant it to be good, the law annexes a tacit contract 
 to this warranty, that if it be not so, he shall make compensation to the 
 buyer; else it is an injury to good faith, for which an action on the case 
 will he to recover damages. The warranty must be upon (he sale; for if it 
 be made after, and not at the time of the sale, it is a void warranty : for it 
 is then made wilhcut any consideration ; neither docs the buyer then take
 
 CHAP. 10,] OUSTER OF THE FIlEEII0Ll7i 163 
 
 the goods upon the credit of the vendor. Also the warranty can only reach 
 to things in being at the time of the warranty made, and not to things in 
 futuro : as, that a horse is sound at the buying of him ; not that he will be 
 sound in two years hence. But if the vendor knew the goods to be un- 
 sound, and hath used any art to disguise them, or if they are in any shape 
 different from what he represents them to be to the buyer, this artifice shall 
 be equivalent to an express warranty, and the vendor is answerable for their 
 goodness. A general warranty will not extend to guard against defects 
 that are plainly and obviously the object of one's senses, as if a horse be 
 warranted perfect, and wants either a tail or an ear, unless the buyer in this 
 case be blind. But if cloth is warranted to be of such a length, when it is 
 not, there an action on the case lies for damnges ; for that cannot be dis- 
 cerned by sight, but only by a collateral proof, the measuring it. Also if a 
 horse is warranted sound, and he wants the sight of an eye, though this 
 seems to be the object of one's senses, yet as the discernment of such de- 
 fects is frequently matter of skill, it hath been held that an action on the 
 case lieth, to recover damages for this imposition, 
 
 " Besides the special action on the case, there is also a peculiar remedy^ 
 entitled an action of deceit, to give damages in some particular cases of 
 fraud; and principally where one man does any thing in the name of ano- 
 ther, by which he is deceived or injured ; as if one brings an action in an- 
 other's name, and then suffers a non-suit, whereby tlie plaintiff becomes 
 liable to costs : or where one obtains or suffers a fraudulent recovery of 
 lands, tenements, or chattels, to the prejudice of him that hath right. As 
 when by collusion the attorney of the tenant makes default in a real ac- 
 tion, or where the sheriff returns that the tenant was summoned when he 
 was not so, and in either case he loses the land, the writ of deceit lies 
 against the demandant, and also the attorney or the sheriff and his officers, 
 to annul the former proceedings and recover back the land. It also lies 
 in the cases of warranty before mentioned, and other personal injuries 
 committed contrary to good faith and honesty. But an action on the case, 
 for damages, in nature of a writ of deceit, is more usually brought upon 
 these occasions. And indeed it is the only remedy for a lord of a manor, 
 in or out of ancient demesne, to reverse a fine or recovery had in the king's 
 courts of lands lying within his jurisdiction ; which would otherwise be 
 thereby turned into frank fee. And this may be brought by the lord against 
 the parties and cesluy que use of such fine or recovery ; and thereby he shall 
 obtain judgment not only for damages (which are usually remitted) but also 
 to recover his court and jurisdiction over the lands, and to annul the for- 
 mer proceedings. 
 
 "Thus much for the non-performance of contracts, express or implied ; 
 which includes every possible ijijury to what is by far the most considerable 
 species of personal property, viz., that which consists in action merely, 
 and not in possession. Which finishes our inquiries into such wrongs as 
 may be offered to personal property, with their several remedies by suit or 
 action." 
 
 CHAPTER X. 
 
 OF INJURIES TO REAL PROPERTY; AND, FIRST, OF DISPOSSESSION OR OUS- 
 TER OF THE FREEHOLD. 
 
 " I come now to consider such injuries as affect that species of properly 
 which the laws of England have denominated real ; as being of a more sub- 
 stantial and permanent nature, than those transitory rights of which per- 
 sonal chattels are the object.
 
 164 OUSTER OF THE FIlEEnOLI>. [ book 3. 
 
 " Real injuries then, or injuries affecting real rights, arc principally five: 
 1. Ouster; 2. Trespass; 3. Nuisance; 4. Waste; 5. Disturbance. 
 
 " Ouster, or dispossession, is a wrong or injury that carries with it the 
 amotion of possession : for thereby the wrongdoer gets into the actual oc- 
 cupation of the land or hereditament, and obliges him that hath a right to 
 seek his legal remedy, in order to gain possession, and damages for the ii.- 
 jury sustained. And such ouster, or dispossession, may either be of the 
 freehold, or of chattels real. Ouster of the freehold is effected by one of the 
 following methods: 1. Abatement; 2. Intrusion; 3. Disseisin; 4. Dis- 
 continuance ; 5. Deforcement. All of which in their order, and afterwards 
 iheir respective remedies, will be considered in the present chapter. 
 
 " 1. And first, an abatement is where a person dies seised of an inheri- 
 tance and before the heir or devisee enters, a stranger who has no right 
 makes entry, and gets possession of the freehold : this entry of him is call- 
 ed an abatement, and he himself is denominated an abator. It is to be 
 observed that this expression, of abating, which is derived from the French, 
 and signifies to quash, beat down, or destroy, is used by our law in three 
 senses. The first, which seems to be the primitive sense, is that of abating 
 or beating down a nuisance, of which we spoke in the beginning of this 
 book ; and in a like sense it is used in statute Westm. 1. 3 Edw. I. c. 17, 
 where mention is made of abating a castle or fortress : in vv'hich case it 
 clearly signifies to pull it down, and level it with the ground. The second 
 signification of abatement is that of abating a writ or action, of which we 
 shall say more hereafter : here it is taken figuratively, and signifies the over- 
 throw or defeating of such v/rit, by some fatal exception to it. The last 
 species of abatement is that we have now before us ; which is also a figu- 
 rative expression to denote that the rightful possession or freehold of the 
 heir or devisee is overthrown by the rude intervention of a stranger. 
 
 "This abatement of a freehold is somewhat similar to an immediate oc- 
 cupancy in a state of nature, which is effected by taking ])ossession of the 
 land the same instant that the prior occupant by his death relinquishes it. 
 But this, however agreeable to natural justice, considering man merely as 
 an individual, is diametrically opposite to the law of society, and particular- 
 ly the law of England ; which, for the preservation of public peace, hath 
 prohibited as far as possible all acquisitions by mere occupancy : and hath 
 directed that lands, on the death of the present possessor, should immedi- 
 ately vest either in some person, expressly named and appointed by the de- 
 ceased, as his devisee ; or, in default of such appointment, in such of his 
 next relations as the law hath selected and pointed out as his natural repre- 
 sentative or heir. Every entry therefore of a mere stranger by way of in- 
 tervention between the ancestor and heir or person next entitled, which 
 keeps the heir or devisee out of possession, is one of the highest injuries to 
 the right of real property. 
 
 "2. The second species of injury by ouster, or amotion of possession 
 from the freehold, is by intrasicn : which is the entry of a stranger, after a 
 particular estate of freehold is determined, before him in remainder or re- 
 version. And it happens where a tenant for term of life dieth seised of cer- 
 tain lands and tenements, and a stranger entcrelh thereon, after such death 
 of the tenant, and before any entry of Jiini in remainder or reversion. This 
 entry and interposition of the stranger differ from an abatement in this ; 
 that an abatement is always to the prejudice of the heir, or immediate de- 
 visee; an intrusion is always to the prejudice of him in remainder or rever- 
 sion. For example : if A dies seised of lands in fee -simple, and before the 
 entry of B his heir, C enters theroon, this is an abatement; but if A be ten- 
 ant for life, with ronuundcr to B in fee-simple, and after the death of A, C 
 enters, this is an intrusion. Also, il A be tenant for life on lease from B,
 
 CJIAP. 10.] OUSTER OF THE FREEHOLD. 1G5 
 
 or his ancestors, or be tenant by the curtesy, or in dower, the reversion be 
 ing vested in B ; and after the death of A, C enters and keeps B out of 
 possession, this is likewise an intrusion. So that an intrusion is always im- 
 mediately consequent upon the determination of a particular estate; an 
 abatement is always consequent upon the descent or devise of an estate in 
 fee-simple. And in either case the injury is equally great to him whose 
 possession is defeated by this unlawful occupancy. 
 
 " 3. The third species of injury by ouster, or privation of the freehold, 
 is by disseisin. Disseisin is a wrongful putting out of him that is seised of 
 the freehold. The two former species of injury were by a wrongful entry 
 where the possession was vacant: but this is an attack upon him who is in 
 actual possession, and turning him out of it. Those were an ouster from a 
 freehold in law : this is an ouster from a freehold in deed. Disseisin may 
 be effected either in corporeal inheritances, or incorporeal. Disseisin of 
 things corporeal, as of houses, lands, &c. must be by entry and actual dis- 
 possession of the freehold ; as if a man enters either by force or fraud into 
 the house of another, and turns, or at least keeps, him or his servants out 
 of possession. Disseisin of incorporeal hereditaments cannot be an actual 
 dispossession : for the subject itself is neither capable of actual bodily pos- 
 session, nor dispossession: but it depends on their respective natures, and 
 various kinds : being in general nothing more than a disturbance of the 
 owner in the means of coming at, or enjoying them. With regard to free- 
 hold rent in particular, our ancient law-books mentioned five methods of 
 working a disseisin thereof: 1. By enclosure ; where the tenant so enclos- 
 eth the house or land, that the lord cannot come to distrein thereon, or de- 
 mand it : 2. By foreslaller, or lying in wait ; when the tenant besettelh the 
 way with force and arms, or by menaces of bodily hurt, affrights the lessor 
 from coming: 3. By rescous ; that is, either by violently retaking a distress 
 taken, or by preventing the lord with force and arms from taking any at all: 
 4. By replevin ; when the tenant replevies the distress at such time when 
 his rent is really due : 5. By denial; which is when the rent being lawfully 
 demanded is not paid. All or any of these circumstances amount to a dis- 
 seisin of rent ; that is, they wrongfully put the owner out of the only pos- 
 session, of which the subject-matter is capable, namely, the receipt of it. 
 But all these disseisins, of heraditaments incorporeal, are onjy so at the 
 election and choice of the party injured ; if, for the sake of more easily try- 
 ing the right, he is pleased to suppose himself disseised. Otherwise, as 
 there can be no actual dispossession, he cannot be compulsively disseised 
 of any incorporeal hereditament. 
 
 " And soo, too, even of corporeal hereditaments, a man may frequently 
 suppose himself to be disseised, when he is not so in fact, for the sake of en- 
 titling himself to the more easy and commodious remedy of an assise of 
 novel disseisin, instead of being driven to the more tedious process of a writ 
 of entry." 
 
 To constitute a disseisin, there must be a complete ouster from the free- 
 hold ; and, if a person comes into possession lawfully, his or his heirs' sub- 
 sequent unlawful continuance in possession will not operate as a d isseisin, 
 or bar the owner's power of entry, or devising his right of entry. "But 
 when the remedy by assise was introduced under Henry II. to redress such 
 disseisins as had been committed within a few years next preceding, the 
 facility of that remedy induced others, who were wrongfully kept out of 
 the freehold, to feign or allow themselves to be disseised, merely for the 
 sake of the remedy." This fiction was allowed by the courts in behalf of 
 the person kept out of possession, and hence originally sprung the distinc- 
 tion in the books between actual disseisin and disseisin by election. See 
 Co. Litt. 239, a. n. 1. 1 Burr. CO, 111. 5 Cruise, 371.
 
 166 OUSTER OF THE FREEHOLD. [ BOOK 3. 
 
 " These three species of injury, abatement, intrusion, and disseisin, arc 
 such wherein the entry of" the tenant ab initio, as well as the continuance 
 of his possession afterwards, is unlawful. But the two remaining species 
 are where the entry of the tenant was at first lawful, but the wrong con- 
 sists in the detaining of possession afterwards. 
 
 " 4. Such is, fourthly, the injury of discontinuance : which happens in 
 England when a tenant in tail claims a greater estate than he can lawfully 
 alien, in which case it is good so far as his power extends, but no farther ; 
 except that after his death the heir in tail cannot enter, but is put to his 
 action. So, by common law, where a husband seised in right of his wife, 
 aliened her estate in fee, this worked a discontinuance, and the wife was 
 put to her action ; for, in these cases, the alienation having been made by 
 one having a good estate in the premises, and the alienee coming lawfully 
 into possession, the law would not permit that possession to be divested by 
 entry, but put the party to his action, that the right might be fairly tried. 
 Now the term discontinuance is used to distinguish those cases where the 
 party (who is ousted of his freehold by the alienation of one having a par- 
 tial estate or interest in the premises) cannot enter, but is driven to his ac- 
 tion in order to regain his possession. In Virginia, the doctrine is perhaps 
 obsolete, tenancies in tail being abolished, wrongful alienations being inhi- 
 bited, and the law having enacted that the alienation of the husband shall 
 work no discontinuance of the right of the wife, but that she may enter and 
 repossess herself without the necessity of an action. 1 R. C. ch. 129, § 5. 
 
 " 5. The fifth and last species of injuries by ouster and privation of the 
 freehold, where the entry of the present tenant or possessor was originally 
 lawful, but his detainer is now become unlawful, is that by deforcement. 
 This, in its most extensive sense, is nomen generalissimum ; a much largcf 
 and more comprehensive expression than any of the former; it then sig- 
 nifying the holding of any lauds or tenements to which another person hath 
 a right. So that this includes as well an abatement, an intrusion, a dissei- 
 sin, or a discontinuance, as any other species of wrong whatsoever, where- 
 by he that hath right to the freehold is kept out of possession. But, as 
 contradistinguished from the former, it is only such a detainer of the free- 
 hold, from him tlsat hath the right of property, but never had any posses- 
 sion under that right, as falls within none of the injuries which we have be- 
 fore explained. As if a man marries a woman, and during the coverture is 
 seized of lands, and alienes, and dies; is disseised, and dies ; or dies in 
 possession ; and the alienee, disseisor, or heir enters on the tenements and 
 doth not assign the widow her dower ; this is a deforcement to the widow, 
 by withholding lands to which she hath a right. In like manner, if a man 
 lease lands to another for term of years, or for the life of a third person, 
 and the term expires by surrender, efflux of time, or death of the cestuy que 
 vie, and the lessee, or any stranger, who was at the expiration of the term 
 in possession, holds over, and refuses to deliver the possession to him in 
 remainder or reversion, this is likewise a deforcement. Deforcements may 
 also arise upon the breach of a condition in law : as if a woman gives lands 
 to a man by deed, to the intent that he marry her, and he will not when 
 thereunto required, but continues to hold the lands: this is such a fraud on 
 the man's part, that the law will not allow it to devest the woman's right 
 of possession ; though, his entry being lawful, it does devest the actual 
 possession, and tlicr(;by becomes a deforcement. Deforcements may also 
 he grounded on the disability of the parly deforced: as if an infant do 
 make an alienation of his lands, and the alienee enters and keeps posses- 
 sion ; now, as the alienation is voidable, this possession as against the in- 
 fant (or, in case of his decease, as against his heir,) is after avoidance 
 wrongful, and t'hcrcforc a deforcement. The same happens when one of
 
 CHAP. 10.] REMEDY BY ENTRY. 167 
 
 nonsane memory alicnes his lands or tenements, and the alienee enters 
 and holds possession ; this may also be a deforcement. Another species 
 of deforcement is. where two persons have the same title to land, and one 
 of them enters and keeps possession against the other ; as where the an- 
 cestor dies seised of an estate in fee-simple, which descends to two sisters 
 as coparceners, and one of them enters before the other, and will not suffer 
 her sister to enter and enjoy her moiety ; this is also a deforcement. De- 
 forcement may also be grounded on the non-performance of a covenant 
 real: as if a man, seised of lands, covenants to convey them to another, 
 and neglects or refuses so to do, but continues possession against him ; this 
 possession, being wrongful, is a deforcement," and the common law gave 
 a remedy by action for the breach of covenant, in which the plaintiff reco- 
 vered the land. And from this action has sprung the mode of conveyance 
 by fine, heretofore mentioned. " Lastly, by way of analogy, keeping a man 
 by any means out of a freehold office, is construed to be a deforcement ; 
 though,. being an incorporeal hereditament, the deforciant has no corporeal 
 possession. So that whatever injury (withholding the possession of a free- 
 hold) is not included under one of the four former heads, is comprised un- 
 der this of deforcement. 
 
 " The several species and degrees of injury by ouster being thus ascer- 
 tained and defined, the next consideration is the remedy ; which is, uni- 
 versally, the restitution or delivery of possession to the right owner: and, in 
 some cases, damages also for the unjust amotion. The methods whereby 
 these remedies, or either of them, may be obtained, are various. 
 
 "I. The first is that extrajudicial and summary one, which we slightly 
 touched in the first chapter of the present book, of entry by the legal own- 
 er, when another person, who hath no right, hath previously taken posses- 
 sion of lands or tenements. In this case the party entitled may make a 
 formal, but peaceable, entry thereon, declaring that thereby he takes pos- 
 session ; which notorious act of ownership is eqaivalentto a feodal investi- 
 ture by the lord ; or he may enter on any part of it in the same county, de- 
 claring it to be in the name of the whole : but if it lies in different coun- 
 ties he must make different entries ; for the notoriety of such entry or 
 claim to the pares or freeholders of Westmoreland, is not any notoriety to 
 the pares or freeholders of Sussex. Also, if there be two disseisors, the 
 party disseised must make his entry on both : or if one disseisor has con- 
 veyed the lands with livery to two distinct feoffees, entry must be made on 
 both : for as their seisin is distinct, so also must be the act which divests 
 that seisin. If the claimant be deterred from entering by menaces or bo- 
 dily fear, he may make claim as near to the estate as he can, with the like 
 forms and solemnities : which claim is in force for only a year and a day. 
 And this claim, if it be repeated once in the space of every year and a day, 
 (which is called continual claim,) has the sartic effect with, and in all re- 
 spects amounts to, a legal entry. Such an entry gives a man seisin, or puts 
 into immediate possession him that hath right of entry on the estate, and 
 thereby makes him complete owner, and capable of conveying it from him- 
 self by either descent or purchase. 
 
 " This remedy by entry takes place in three only of the five species of 
 ouster, viz., abatement, intrusion, and disseisin ; for, as in these the origi- 
 nal entry of the wrongdoer was unlawful, they may therefore be remedied 
 by the mere entry of him who hath right. But, upon a discontinuance or 
 deforcement, the owner of the estate cannot enter, but is driven to his ac- 
 tion ; for herein, the original entry being lawful, and thereby an apparent 
 sight of possession being gained, the law will not suffer that right to be 
 overthrown by the mere act or entry of the claimant. Yet a man may en- 
 ter on his tenant by sufferance : for such tenant hath no freehold; but only
 
 168 REMEDY BY ENTRY. [ BOOK 3. 
 
 a bare possession, which may be defeated, like a tenancy at will, by the 
 mere entry of the owner. But if the owner thinks it more expedient to 
 suppose or admit himself to be disseised and his tenant to have gained a 
 tortious freehold, he is then remediable by action. 
 
 " On the other hand, in the case of abatement, intrusion, or disseisin, 
 where entries are generally lawful, this right of entry may be tolled, that 
 is, taken away by descent. Descents, which take away entries, are when 
 any one, seised by any means whatsoever of the inheritance of a corporeal 
 hereditament, dies ; whereby the same descends to his heir : in this case, 
 however feeble the right of the ancestor might be, the entry of any other 
 person who claims title to the freehold is taken away ; and he cannot re- 
 cover possession against the heir by this summary method, but is driven to 
 his action to gain a legal seisin of the estate. And this, first, because the 
 heir comes to the estate by act of law, and not by his own act ; the law 
 therefore protects his title, and will not suffer his possession to be devested, 
 till the claimant hath proved a better right. Secondly, because the heir 
 may not suddenly know the true state of his title ; and therefore the law, 
 which is ever indulgent to heirs, takes away the entry of such claimant as 
 neglected to enter on the ancestor, who was well able to defend his title ; 
 and leaves the claimant only the remedy of an action against the heir. 
 Thirdly, this was admirably adapted to the military spirit of the feodal ten- 
 ures, and tended to make the feudatory bold in war : since his children 
 could not, by any mere entry of another, be dispossessed of lands whereof 
 he died seised. And, lastly, it is agreeable to the dictates of reason and 
 the general principles of law. 
 
 " For, in every complete title to lands, there are two things necessary ; 
 the possession or seisin, and the right or property therein : or, as it is ex- 
 pressed in Fleta, juris et seisinae conjimclio. Now, if the possession be 
 severed from the property, if A has the jus proprietatis, and B by some 
 unlawful means has gained possession of the lands, this is an injury to A ; 
 for which the law gives a remedy, by putting him in possession, but does it 
 by different means according to the circumstances of the case. Thus, as 
 B, who was himself the wrongdoer, and hath obtained the possession by 
 either fraud or force, hath only a bare or naked possession, without any sha- 
 dow of right ; A therefore, who hath both the right of property and the 
 right of possession, may put an end to his title at once, by the summary 
 method of entrjj. 13ut, if B the wrongdoer dies seised of the lands, then 
 B's heir advances one step farther towards a good title : he hath not only 
 a bare possession, but also an apparent jus possessionis or right of posses- 
 sion. For the law presumes, that the possession which i^ transmitted from 
 the ancestor to the heir, is a rightful possession, until the contrary be shewn : 
 and therefore the mere entry of A is not allowed to evict the heir of B ; 
 but A is driven to his action at law to remove the possession of the heir, 
 though his entry alone would have dispossessed the ancestor. 
 
 "So that, in general, it appears that no man can recover possession by 
 mere entry on lands, which another hath by descent. Yet this rule hath 
 some exceptions wherein those reasons cease, upon which the general doc- 
 trine is grounded ; especially if the claimant were under any legal disabili- 
 ties, during the life of the ancestor, either of infancy, coverture, imprison- 
 ment, insanity, or being out of the realm : in all which cases there is no 
 neglect or laches in the claimant, and therefore no descent shall bar, or take 
 away his entry. And this title of taking away entries by descent, is still 
 farther narrowed by stat. 32, H. 8, ch. 33, [from which we have taken our 
 statute 1 R. C. 120, § 4.] This act provides that if any person disseises 
 or turns another out of possession, no descent to the heir of the disseisor 
 shall take away the entry of him that has a right to the land, unless the dis-
 
 CHAP. 10.] REMEDY BY ENTKY. IGD 
 
 scisor had pdacoablc possession five years next after llic disseisin. But the 
 statute e^ttendeth not to any fooftec or donee ol" the disseisor, mediate or 
 immediate: because he comes in peaceably and not by wronc^; sucli a one 
 by the genuine feodal constitutions always came into the tenure Golemnly 
 and with the lord's concurrence by actual delivery of seisin, that is, open 
 and public investiture. On the other hand, it is enacted by the statute of 
 limitations, 21 Jac. I. c. 16, [1 R. C. ch. 128, § 1,] that no entry shall be 
 made by any man upon lands, unless within twenty years [now fifteen 
 years by act of 1830, ch. 30,} after his right shall accrue," And hence it 
 is that no ejectment will lie after the expiration of twenty years next after 
 the right or title of entry accrued, the reason of which will be hcrcnfier ex- 
 plained. The student will see the doctrine ns to descents cast explained in 
 Adams on Ejectment, 41 to 45; and see H. Chitty on Descents, 25, Ao, 
 56; Taylor vs. Horde, 1 Burr. 60; 12 East, 141; and Watkins on De- 
 scents ; Com. Dig. Descents ; Bac. Ab. Descents. It is scarcely possible, 
 it is said, to suggest a case in which the doctrine of descent cast can be 
 now so applied, as to prevent a claimant from maintaining ejectment. 
 Adams, 41, note e. It has been said, that where the entry of the party or 
 his ancestor was originally lawful, and like continuance in po^ession only 
 unlawful, the entry is not tolled. 2 Dowl. & R. 41. Hence even the dy- 
 ing seised of the feoffee or donee of the disseisor would not seem to bar 
 the right of entry. Yet, I should presume, cases may well arise where the 
 doctrine of the right of entry being tolled by descent might have strict ap" 
 plication. 
 
 " In case of deforcement, where the deforciant had originally a lawful 
 possession of the land, but now detains it wrongfully, he still continues to 
 nave the presumptive prima facie evidence of right ; that is, possessiori 
 lawfully gained. Which possession shall not be overturned by the mere 
 entry of another ; but only by the defendant's shewing a better right in a 
 course of law. 
 
 " This remedy by entry must be pursued, [according to statute 1 R. Ci 
 ch. 115, § 1,] in a peaceable and easy manner ; and not with force or strong- 
 hand. For, if one turns or keeps another out of possession forcibly, this* 
 is an injury of both a civil and criminal nature. The civil is remedied by 
 immediate restitution ; which puts the ancient possessor in statu quo: the 
 criminal injury, or public wrong, by breach of the king's peace, is punish-* 
 cd by tine to the king. For by'the statute 8 Hen. VI., c. 9, upon complaint 
 made to any justice of the peace, of a forcible entry, with strong hand, on 
 lands or tenements ; or a forcible detainer after a peaceable entry ; he shall 
 try the truth of the complaint by jury, and, upon force found, shall restore 
 the possession to the party so put out : and in such case, or if any aliena- 
 tion be made to defraud the possessor of his right (which is likewise decla- 
 red to be absolutely void,) the oOcndcr shall forfeit, for the force found, tre- 
 ble damages to the party grieved, and make fine and ransom to the king» 
 But this does not extend to such as endeavor to keep possession manuforti, 
 after three years' peaceable enjoyment of either themselves, their ancestors, 
 or those under whom they claim." 
 
 This statute, from which our act to be found in the revisal of 17'94, ch, 
 87, was taken, has been much m/sdified by a more recent statute ; 1 R. C, 
 ch. 115; the former law having been deficient as a civil remedy, and much 
 abused. The provisions of this last act afford a prompt redress to a party 
 either forcibly turned out of possession, or unlawfully kept out. I am 
 aware of no decisions upon this act, except that a mortgagee or tenant in: 
 common may avail himself of it, (4 Rand. 468,) and that the justices be- 
 fore whom the writ is tried have the power of granting a new trial. Ha"^" 
 mock 1-5= Wilson, General Court, 18^2. The statute should be carciuny 
 
 VOL. 
 
 o ^ on
 
 170 REMEDIES BY ACTION. [ book 3. 
 
 examined by the student, as it affords a summary remedy for the recovery 
 of possession of real estate, in many cases, instead of the tedious process 
 of ejectment.* 
 
 Having thus treated of the extrajudicial remedy by entry, in cases of 
 ouster of the freehold, and referred the student to a recent provision in ca- 
 ses of wrongful entries and detainers, I proceed to consider the remedies 
 by action, where the right of entry is taken away, or where the party chooses 
 to resort for redress to the courts of justice rather than to take his redress 
 into his own hands. 
 
 In the execution of this design I shall content myself with referring the 
 student to Mr. Blackstone's account of the remedies by writ of entry and 
 by assize, because those remedies arc certainly altogether disused among 
 us, whether they be or be not in force. I cannot too earnestly recommend 
 the account of these actions, however, by the learned author, because there 
 is much valuable matter interwoven with it, and it will contribute moreover 
 to facilitate the researches of the student. 
 
 The only remedies known in practice, in Virginia, for the recovery of 
 real estate, besides the summary remedy before mentioned, are the action 
 of ejectment and the writ of right. Reversing herein the order of Mr. 
 Blackstone, I shall proceed to consider in the first instance the action of 
 ejectment. This is a remedy originally given for an ouster or amotion of 
 possession from an estate for years ; though it has long since been moulded 
 to the purpose of trying the title to lands or tenements, whether the plain- 
 tiff claims an estate for years only, or a freehold for life, or even an estate 
 of inheritance. Hence it is proper that we should understand somewhat 
 minutely its history, the manner of its process, and the principles on which 
 it is founded. 
 
 1. "A writ then of ejcctione firmae, or action of trespass in ejectment, 
 lieth where lands or tenements are let for a term of years, and afterwards 
 the lessor, reversioner, remainderman, or any stranger, doth eject or oust 
 the lessee of his term. In this case he shall have his writ of ejection to 
 call the defendant to answer for entering on the lands so demised to the 
 plaintiff for a term that is not yet expired, and ejecting him. And by this 
 writ the plaintiff shall recover back his term, or the remainder of it with da- 
 mages. 
 
 " The writ of covenant, for breach of the contract contained in the lease 
 for years, was anciently the only specific remedy for recovering against the 
 lessor a term from which he had ejected his lessee, together with damages 
 for the ouster. But if the lessee was ejected by a stranger, claiming under 
 a title superior to thatoftlie lessor, or by a grantee of the reversion, (who 
 might at any time by a common recovery have destroyed the term,) though 
 the lessee might still maintain an action of covenant against the lessor for 
 non-performance of his contract or lease, yet he could not by any means 
 recover the term itself. If the ouster was committed by a mere stranger, 
 without any title to the land, the lessor might indeed, by a real action, re- 
 cover possession of the freehold, but the lessee had no other remedy against 
 the ejector but in damages, by a writ of ejectione firmae, for the trespass 
 committed in ejecting liim from his farm. But afterwards, when the courts 
 of equity began to oblige the ejector to make a specific restitution of the 
 land to the party immediately injured, the courts of law also adopted the 
 .same method of doing complete justice ; and, in the prosecution of a writ 
 of ejectment, introduced a species of remedy not warranted by the original 
 writ nor prayed by the declaration, (which arc calculated for damages 
 merely, and are silent as to any rcotitution,) viz.. a judgment to recover the 
 ^.crm, and a writ of possession thereupon. This method seems to liavc 
 'The statute Ii:is been ;is;ai> amcii(Jed by a sul)3cqucnt act.
 
 CHAP. 10.] EJECTMENT. 171 
 
 been settled as early as the reign of Edward IV., though it hath been said 
 to have first begun under Henry VII., because it probably was then first 
 applied to its present principal use, that of trying the title to the land. 
 
 " The better to apprehend the contrivance whereby this end is efiectctl, 
 we must recollect that the remedy by ejectment is, in its original, an action 
 brought by one who hath a lease for years to repair the injury done him by 
 dispossession. In order, therefore, to convert it into a method of trying ti- 
 tles to the freehold, it is first necessary that the claimant do take posses- 
 sion of the lands, to empower him to constitute a lessee for years, that may 
 be capable of receiving this injury of dispossession. For it would be an 
 offence, called in our law maintenance, (of which in the next book,) to con- 
 vey a title to another, when the grantor is not in possession of the land; 
 and, indeed, it was doubted at first whether this occasional possession, 
 taken merely for the purpose of conveying the title, excused the lessor from 
 the legal guilt of maintenance. When therefore a person, who hath right 
 of entry into lands, determines to acquire that possession, which is wrong- 
 fully withheld by the present tenant, he makes (as by law he may) a formal 
 entry on the premises ; and, being so in the possession of the soil, he there, 
 upon the land, seals and delivers a lease for years to some third person or 
 lessee : and, having thus given him entry, leaves him in possession of the 
 premises. This lessee is to stay upon the land till the prior tenant, or he 
 who had the previous possession, enters thereon afresh and ousts him ; or 
 till some other person (either by accident or by agreement beforehand) 
 comes upon the land, and turns him out or ejects him. For this injury the 
 lessee is entitled to his action of ejectment against the tenant, or this casual 
 ejector, whichever it was that ousted him, to recover back his term and da- 
 mages. But where this action is brought against such a casual ejector as 
 is before mentioned, and not against the very tenant in possession, the 
 •court will not suffer the tenant to lose his possession without any opportu^ 
 nity to defend it. Wherefore it is a standing rule, that no plaintiff shall 
 proceed in ejectment to recover lands against a casual ejector, without no.- 
 tice given to the tenant in possession, (if any there be,) and making him a 
 defendant if he pleases. And, in order to maintain the action, the plaintiff 
 must, in case of any defence, make out four points before the court, viz., 
 title, lease, entry, and ouster. First, he must shew a good title \n his lessor, 
 which brings the matter of right entirely before the court ; then, that the 
 lessor, being seised or possessed by virtue of such title, did make him the 
 lease for the present term ; thirdly, that he, the lessee or plaintiff, did enter 
 or take possession in consequence of such lease; and then, lastly, that the 
 defendant ousted or ejected him. Whereupon he shall have judgment to 
 recover his term and damages; and shall, in consequence, have a writ of 
 possession, which the sheriff is to execute by delivering him the undisturb- 
 ed and peaceable possession of his term. 
 
 " This is the regular method of bringing an action of ejectment, in which 
 the title of the lessor comes collaterally and incidentally before the court, 
 in order to shew the injury done to the lessee by this ouster. This method 
 must be still continued in due form and strictness, save only as to the no- 
 tice to the tenant, whenever the possession is vacant, or there is no actual 
 occupant of the premises ; and, also, in some other cases. But, as much 
 trouble and formality were found to attend the actual making of the lease, 
 entry, and ouster, a new and more easy method of trying titles by writ of eject- 
 ment, where there is any actual tenant or occupier of the premises in dis- 
 pute, was invented somewhat more than a century ago by the lord chief 
 justice Rolle, who then sat in the court of upper bench, so called during 
 the exile of king Charles the Second. This new method entirely depends 
 wpon a string of legal fictions ; no actual lease is ma.de, no actual entry by
 
 172 EJECTMENT. ['book 3. 
 
 the plainlifT, no actual ouster by the defendant; but all are merely ideal, 
 'for the sole purfwsc of trying the title. To this end, in the proceedings a 
 lease for a term of years is stated to have been made, by him who claims 
 title, to the plaintift" who brings the action, as by John Rogers to Richard 
 Smith, [John Doe, or some other fictitious lessee.] It is also stated that 
 Smith, the lessee, entered ; and that the deiendant, William Stiles, [also a 
 fictitious person,] who is called the casual ejector, ousted him ; for which 
 ouster he brings this action. As soon as tliis action is brought, and the 
 complaint fully stated in the. declaration, Stiles, the casual ejector, or defen- 
 dant, sends a written notice to the tenant in possession of the lands, as 
 George Saunders, informing him of the action brought by Richard Smith, 
 and transmitting him a copy of the declaration : withal assuring him that 
 he. Stiles, the defendant, has no title at all to the premises, and shall make 
 no defence ; and, therefore, advising the tenant to appear in court and de- 
 fend his own title : otherwise he, the casual ejector, will suffer judgment to 
 be had against him ; and thereby the actual tenant, Saunders, will inevita- 
 bly be turned out of possession. On receipt of this friendly caution, if the 
 tenant in possession does not within a limited time apply to the court to 
 be admitted a defendant in the stead of Stiles, he is supposed to have no 
 right at all ; and, upon judgment being had against Stiles, the casual ejec- 
 tor, Saunders, the real tenant, will be turned out of possession by the sheriff. 
 
 "But if the tenant in possession applies to be made a deiendant, it is 
 allowed liisn upon this condition ; that he enter into a rule of court to con- 
 fess, at (he trial of the cause, three of the four requisites for the mainte- 
 nance of the plaintiff's action, viz., the lease of Rogers, the lessor, — the 
 entnj of Smith, the plaintiff, — and his ouster by Saunders himself, now made 
 the defendant instead of Stiles : which requisites, being wholly fictitious, 
 should the defendant put the plaintiff to prove them, he must of course bo 
 non-suited for want of evidence ; but by such stipulated confession of lease, 
 entry, and onstcr, the trial will now stand upon the merits of the title only." 
 After the entry into the rule above mentioned, which is called the common 
 rule, and after making up the issue, the cause proceeds in the name of the 
 real defendant instead of the casual ejector, and is placed on the docket 
 under the style of " Rogers' lessee vs. Saunders." Upon the trial, the les- 
 sor of the plaintiff, Rogers, must make out a clear title ; otherwise his fic- 
 titious lessee cannot obtain judgment for the term supposed to be granted. 
 J3ut if he makes out a title in a satisfactory manner, a judgment is rendered 
 in favor of Smith, the nominal or fictitious lessee, lor liis term yet to come, 
 and the damages assessed by the jury, which are merely nominal ; and the 
 actual plaintiff, Rogers, then sues out a writ of possession, called ^n habere 
 facias possessionem, directed to the sheriff, and commanding him to deliver 
 possession. 
 
 "Such is the modern way of obliquely bringing in question the title to 
 lands and tenements, in order to try it in this collateral manner ; a method 
 which is now universally adopted in almost every case. It is founded on 
 the same principle as the ancient writs of assise, being calculated to try the 
 mere possessory title to an estate ; and hath succeeded to tho.^e i^al actions, 
 as being infinitoly more convenient for attaining the end of justice : because 
 the form of the proceeding being entirely fictitious, it is wholly in the pow- 
 er of the court to direct the application of that fiction, so as to prevent 
 fraud and chicane, and eviscerate the very truth of the title. The writ of 
 ejectment and its nominal parties, (as was resolved by all the judges,) arc 
 'judicially to be considered as tl^e fictitious form of an action, really brought 
 by the lessor of the plaintiff against the tenant in possession ; invented un- 
 der the control and power of the court, for the advancement of justice in
 
 CHAP. 10.] EJECTMENT. 173 
 
 many respects, and to force the parties to go to trial on the merits, without 
 being entangled in the nicety of pleadings on either side.' " 
 
 It will be observed by the student, that, in the commencement of an 
 ejectment, no writ or other process issues against the defendant, nor is 
 there any succession of pleadings. 1 Call, 437. The suit is commenced 
 by a declaration in the first instance. The plaintiff's counsel prepares tHe 
 declaration and a notice to the tenant in possession, which being delivered 
 to the sheriff, it is his duty to serve them, which he usually does by dcli- 
 veringr a true copy and reading it and explaining the purport of it. ilBelw. 
 Gil.* The tenants in possession are the proper, if not the natural, defen- 
 dants to an ejectment, although the landlord has a right to be made a de- 
 fendent, to prevent his being injured by a combination between the lessor 
 of the plaintiff' and his tenant ; but he may waive his right, or, having as- 
 serted it, may relinquish it by consent of the lessor of the plaintiif. 2 Call, 
 498. 
 
 The notice must specify some day in the succeeding term for the appear- 
 ance of the defendant, at which time, if he does not appearand confess the 
 lease, entry, and ouster, a common order is entered against him. The 
 proceedings in ejectment all take place in court, and not at the rules. 1 
 Call, 4-29. For the assent of the court is necessary to the admission of the 
 real defendant, and by his appearance and entering into the common rule, 
 i. e. pleading the general issue, confessing lease, entry, and ouster, and 
 agreeing to insist on the title only at the trial, the issue is at once made 
 up, and there is no necessity for the case going to the rules. Ibid. 
 
 On the day fixed by the notice, and on the motion of the plaintiff's 
 counsel, the tenant iii possession on whom the notice was served is so- 
 lemnly called. If he appears, he at once enters into the common rule, and 
 makes up the issue by pleading not guilty, and if he refuses to do it judg- 
 ment is rendered against him. If he fails to appear, a common order is 
 entered against him to this effect; — it recites the proof of notice, and that 
 the defendant had been duly called but did not appear, and orders that un- 
 less he appear at the next term and enter himself defendant in lieu of the 
 casual ejector, and also enter into the common rule, judgment shall be gi- 
 ven for the plaintiff, and a Avrit of possession shall be awarded. 
 
 This order must be taken on the day to which the notice was given, and 
 if that is permitted to slip without calling the tenant in possession and 
 making the common order, it cannot be done afterwards during the term, 
 and the plaintiff must begin anew, unless the objection is waived. 
 
 The notice and copy of the declaration may be served any where, if it 
 be personally delivered to the tenant. If he cannot be found, service on 
 his wife is good, provided it be on the land. So service on a servant, child, 
 (or, I presume, any other person,) living on the premises with the tenant, 
 and constituting part of his family, is good service, if afterwards acknow- 
 ledged by the tenant himself. And, lastly, if the tenant or his wife refuse 
 to receive the declaration, a copy should be left for them, or affixed to some 
 notorious part of the premises. And if there be no one in possession this 
 course should be pursued. 
 
 If the court is not entirely satisfied with the notice, it may grant a rule 
 on the tenant to shew cause why the service should not be deemed good, 
 and it directs the mode in which the rule shall be served. See Sclw. 61i, 
 G42. 
 
 As to the declaration. 1. The venue should be laid in the county where 
 
 the land lies ; for the action is local. 2. The day of the demise must be 
 
 laid posterior to the time when the plaintiff's title accrued, for if he had no 
 
 title he could make no lease. Yet the court will permit this to be araend- 
 
 * A service on Sunday is not ijoocl. JJarn, ii, Cres. 701.
 
 174 EJECTMENT. [book 3. 
 
 «(1. 7 Cranch, 477. And indeed it is cured by our acts. 3 Call, 362, 3. 
 The demise may be for any number of years. It should be so long as to 
 reach beyond the probable termination of the suit, for if at the time of the 
 judgment the lease is expired, there is no term for the nominal plaintiff to 
 recover. Yet if the term expires before judgment, the court will enlarge it 
 on motion. Cow. 841. 1 Mun. 218. The appellate court will not indeed 
 even notice the fact of the expiration of the term. 1 H. &,M. 177. 1 Mun. 
 218. And after the judgment is rendered by it, and the cause goes back 
 to the court below, that court will enlarge it upon a rule to shew cause. 6 
 Mun. 185. Yet see 1 Barn. & Cres. 121. 4. Formerly it was held that 
 the property should be so described as that the sheriif might know from an 
 inspection of the record what he is to deliver possession of. This strict- 
 ness in England seems to be relaxed, and it is nov/ the rule that the sheriff 
 in executing the habere facias possessionan must take his information from 
 the party plaintiff himself. 1 Bur. 623. 5 Bur. 2673. Selw. 639. This 
 information the plaintiff gives at his own risk, for he is a trespasser if he 
 shews the wrong land, and moreover the court will interpose in a summary 
 way, and restore the possession of what was not recovered. Sed vide 1 
 Mun. 162, 6 Mun. 25. 5. The ouster must be laid after the supposed 
 lease, but an error herein, like others, would be cured by our statute. 
 
 The only plea of the defendant in this action, according to our practice, 
 is that of " not guilty," under which he may prove his own title, or that the 
 plaintiff hath no title, or is barred by the statute of limitations. 
 
 Where there are several persons having a joint title, the declaration must 
 allege a joint demise. This is the case of joint-tenants and parceners. 
 Selw. 638. 2 Chitty, 401. But with tenants in common it is otherwise, 
 for they are seised per my et nen per tout, and therefore there must be laid 
 a several demise, by each, of their undivided shares, each demise being 
 laid in a separate count. There is another mode, however. The tenants 
 in common may join in an actual lease to a third person, and then there 
 may be a single count on a fictitious demise by that person. The demise 
 by a tenant in common of his undivided share, should specify such share ; 
 as, for instance, " one undivided moiety or half part, the whole into two 
 equal moieties to be divided," though under a count for an entirety or an 
 iialf, any less part (as an undivided third) may be recovered. 1 Bur. 326. 
 (See 1 Mun. 162. 9 Cranch, 153. But not any greater part than demanded. 
 
 Where the title is in several persons severally concerned in interest as 
 trustees and cestuis que trust, it is usual to declare upon the demise of each 
 in separate counts. And so where I claim title under different persons, I 
 may count upon several demises from each of them. 3 Mun. 93. 2 Ran. 
 422. And this is with much reason, since the action, being fictitious, is 
 moulded to effect the purposes of justice; and it is but just that I should 
 recover, provided any of those under whom I claim had a good title. Such 
 a course is very usual, it seems, with us, and is exceedingly convenient in 
 those parts of this commonwealth where a man is sometimes compelled to 
 fortify his title by purchasing from half a dozen persons in succession. If 
 he has not completed his purchase from any of them by obtaining his deed, 
 then he counts upon a lease from such vendor. 
 
 One tenant in common may maintain ejectment against his companion 
 upon an actual ouster, (Litt. § 322,) but not without. 7 Cranch, 457, 471. 
 Yet thirty-six years' sole possession and exclusive receipt of profits accom- 
 panied by a denial of title, was held suflicient for a jury to presume an 
 ouster. Cow. 217. 11 East, 49. 
 
 An infant may maintain an ejectment, and for that purpose may make 
 a lease tliough no rent be reserved in it. 3 Burr. 1606. In strictness the 
 lease ought to bg hid to have been made, in the case of an infant, by deed ;
 
 CHAP. 10.] EJECTlVrENT. 175 
 
 but if it be not, the omission is aided by verdict. So too of a corporation- 
 aggregate, the lease should be laid to have been by deed, but this also is 
 aided by verdict. Sehv. 639. Our statute, I presume, cures all such er- 
 rors. 1 R. C. ch. 128, § 102. 
 
 It is said in 4 Ran. 85, that an ejectment may be brought against several 
 persons in possession. And this is doubtless true where they have a pos- 
 session jointly, or in common, or as coparceners ; but not, I conceive, where 
 they hold in severalty. The cases cited by the judge in that case, from 1 
 Washington, do not maintain the opinion. 
 
 Of the proof by the plaintiff in support of this action. The right of 
 entry is essential to maintain the action ; for if it has never existed, as 
 where the lessor of the plaintiff is a reversioner or remainderman, and the 
 particular estate is yet undetermined, it does not lie. So if the right of en- 
 try has been tolled or taken away, the plaintifi' cannot succeed ; for though 
 the tenant confesses the lease, entry, and ouster, yet he is left at liberty to 
 contest the title ; and the right of entry is part of the title. Hence, as the 
 act of limitations (1 R. C. ch. 128, § 1,) declares that no person shall make 
 an entry into lands but within tv/enty years after his right or title accrued,* 
 no person can maintain an ejectment where there has been twenty years' 
 adverse possession. It is thus, and thus only, that the statute of limitations 
 operates as a bar to an ejectment when the owner has been out of posses- 
 sion for twenty years or more ; for that action is not mentioned in the act, 
 and the limitation therefore only grows out of the restriction upon the right 
 of entry. On like principles five years' peaceable possession without entry 
 or claim by the person entitled, and a descent cast, will bar an ejectment 
 by such person, because it tolls or takes away his entry. Litt. § 385. 1 
 R. G. cb. 129, § 4. 
 
 We must not, however, forget, that although the act of limitations bars 
 an entry after twenty years, yet it contains a saving in favor of infants, 
 femes covert, non compos, and persons imprisoned ; and such person or his 
 heirs may enter and may of course maintain ejectment within ten years af- 
 ter the disability removed, or the death of the disabled person. 1 R. C. ch. 
 
 128, § 2. On this clause, however, it is material to observe, 1. That if the 
 statute once begins to run it never stops ; 4 T. R. 310. G Mun. 352. 2 
 H. & M. 289; so that if A, of full age, is disseised and dies, and the lands 
 descend to bis infant son, the statute is not suspended by the infancy, for 
 it began to run against A in his lifetime, who had capacity to sue. So if a 
 woman not under disability is disseised, and then marries, the act is not 
 suspended by the coverture. 2. No person can avail himself of any disa- 
 bility except that which was existing when the right of action first accrued, 
 and one disability cannot be built up upon another, or (if I may so speak) 
 spliced or tacked to it so as to continue the right of action. 3 John. C. 129. 
 Thus if a. feme infant is disseised, the right of action accrues at once, and 
 she will have ten years, after attaining full age, to sue. But if in such case 
 she leaves the country or marries while she is within age, and is covert fifty 
 years and her husband dies, she cannot maintain ejectment by tacking the 
 disability of absence or of coverture to that of infancy, although they did 
 commence before th« disability of infancy was removed. It is the same 
 thing with the disability of lunacy, imprisonment, &c., though these arc 
 not, like marriage, voluntary acts. See 2 H. & M. 30G. 3 John. Ch. Rep. 
 
 129. 18 John. Rep. 40. G E. 80. 4 T. R. 300, 310. Plow. 355, Stovv- 
 cU vs. Zouch. 3. If, however, the right of entry accrued during the disa- 
 bility, it will not be barred though the disability continues an hundred years ; 
 and thus it is possible that ejectment will lie when a writ of right will not. 
 For as to that there is no such saving. 4. If one of two parceners is undcE 
 
 * The limitatiou is reduced to fifteen years by the act of 1G30. ch. 30,
 
 176 EJECTi\fENT. [book 3. 
 
 disability, tlic otlior, who is not so. must, nevertheless, sue within twenty 
 years, ii Taun. 411. 4 T. R. 510. 7 Cranch, loO. 
 
 It may also be observed as to the statute of limitations ; 1. That it docs 
 not run in favour of trustees against cestui que trust, as long as the confi- 
 dence may fairly be presumed to continue. But when that has ceased it 
 begins to run. 1 Call, 428. 1 Wash. J4.5. 4 Mun. 2;»:2. 4 H. & M. 
 130. 2. It runs in equity as well as at law, in favor of disseisors and tort 
 feasors. 1 Call, 4i28. 3. It only runs where the possession is adverser 
 Selw. G60. And where a party holds by purchase from a trustee, though 
 lie may be considered to some intents trustee in equity, yet the statute 
 runs in his favor. G Mun. 357. And a purchaser without notice may join 
 his adversary possession to that of his vendor, so as to protect himself by 
 the act. 8 Crancli, 4G-3. 
 
 In support of his title the plaintiff may either prove an uninterrupted anc^ 
 peaceable possession by him and those under whom he claims for fifteen 
 years anterior to the ouster, which itself is sufiicient to enable him to main- 
 tain ejectment, or he may deduce his title irora the commonwealth by a 
 regular and unbroken chain ; — though if lie and the defendant both claim 
 nndcr the same remote title, it will be unnecessary for him to go farther 
 back than that common source. 
 
 The plain tiiT in this action frequently traces his title by devise and de- 
 scent througli different persons. The student is referred to Peake's Ev, 
 part 2, ch. ] 4, for an exposition of the evidence proper in ejectment to es- 
 tablish a title by the heir. 
 
 The plaintiir must in this action recover by the strength of his own title, 
 not on the ground of the weakness of his adversary's. 4 Bur. 2484—7. 
 5 T. R. 107, HO, note (b.) Possession is a good title against any plain- 
 tilT except the person entitled to the possession. Tliis is the established 
 doctrine of the subject, and empliatically laid down by the courts. 1 Gil. 
 118. Hence if the defendant prove a title out of the lessor, it is sufficient, 
 although he have no title himself. Bull. 110. It is true he must shew the 
 title to be an actually subsisting title, and prove possession under it within 
 twenty years. There are also certain cases in which he will not be permit- 
 ted to set up the outstanding legal title against the plnintifT. Tlius where 
 the plaintiff claims b} mortgage from the defendant himself, the latter can- 
 not set up against him a prior mortgage, for this would be to deny his own 
 title at the time he mortgaged to the plaintiff, which by his deed he is es- 
 topped from doing. See IT. R. 758. 2 T. R. 084. 3 Bur. 1410. The 
 law is the same in the case of a landlord who brings ejectment against his 
 tenant, or any person claiming under him ; 2 Bl. Rep. 1259. 2 Salk. 447; 
 and so in any other case where the defendant has entered into possession 
 tmdev the plaintijf, acknowledo-ing his title, he cannot afterwards controvert 
 it. See 6 John. 34. 7Johnri57. 10 John. 292. 14 E. 488. 
 
 So, too, where the title set up against the plaintiff amounts but to a charge 
 upon t(ic lands, the title will not bar him. As where the plaintiff is mort-- 
 gagor, he is entitled to the possession except against the mortgagee, and if 
 he sues to recover it from any other person, the defendant cannot defeat 
 him by shewing the mortn-ajre, though it conveyed thedegal title. 7 John. 
 Kep. 2/8. 1 or m substance the mortgage is only a charge. So, too, neith- 
 er an outstanding satisfied term, nor a trust whose purposes have been ful- 
 Tdled, will be permitted to impede the plaintiffs recovery ; but in such ca- 
 ses the jury will be directed to presume a surrender or conveyance. Cow. 
 40. Bull. 110. 7T. R. 2. 4 T. R. 083. And when that presumption is 
 raised, there is an end of the difficulty arising out of the legal title created 
 l)y the term. 2 T. R. 090. The general rule, however, seems to be, that 
 the plaintiff must recover upon a legal title. 8 T. R. 122. And, therefore,
 
 CHAP. 10.] EJECTMENT. 177 
 
 where there is an oulslanding unsatisfied term, it will be a good bar to his 
 recovery; for if it is unsatisfied it cannot be presumed to be surrendered; 
 and unless the jury are satisfied in presuming a surrender from the fact of 
 satisfaction, the legal title stands uncontroverted, and, being outstanding, 
 must defeat the plaintiff. 2 T. R. 684. Moreover the jury must draw the 
 conclusion where a surrender is presumed from satisfaction, and should by 
 their verdict find the surrender as a fact : for if they merely find the matter 
 of presumption, the court cannot itself draw the conclusion. 7 T. R. 47. 
 
 Such are the English doctrines. In Virginia, Lord Mansfield's decision 
 in Hart vs. Knot, (Cow. 46,) that a cestui que trust shall not be impeded 
 in his ejectment by a trust, the purposes of which have been satisfied, has 
 been recognized as the law of the subject, and acted on accordingly. 6 
 Mun. 38. 
 
 But with these limitations the principle seems undeniable, that proof of 
 title in a third person will suffice as a defence for the defendant. Thus, if 
 A, claiming under a patent dated January 1, 1825, sues C, he may, upon 
 the trial, prove a title in B by virtue of an elder patent, although he does 
 not claim under B. See a note 3 Wheat. 224, controverting this doctrine. 
 
 So far indeed is the idea carried of the legal title prevailing in ejectment, 
 that a practice once existing of not permitting the legal estate to be set up 
 at law by a trustee against his cestui que trust, (1 T. R. 759,) is no longer 
 countenanced in England. 5 E. 138, cited 1 Chitty, 190. See 2 T. R, 
 684. 7 T. R. 47. 8 T. R. 2, 122. The courts seem to think it better to 
 keep the jurisdiction herein separate and distinct, lest confusion might 
 eventually be introduced by inquiries in a court of law into complicated 
 equities. See 2 T. R. 684. 
 
 In this action evidence cannot be introduced to prove that a patent was 
 irregularly obtained. I H. & M. 303. See 9 Cranch, 87, 94. 5 Wheat. 
 293. 6 Mun. 238. 
 
 In the progress of the trial the defendant may call on the plaintiff's lessor 
 to prove that the defendant had possession at the time the suit was brought. 
 Runnington, 106. 1 Wils. 220. A case agreed, finding the lease, entry, 
 and ouster, sufficiently finds, however, the fact of possession, unless the con- 
 trary is found expressly. 2 Mun. 453, In England at this time by gene- 
 ral rule the defendant confesses possession. Norris's Peake, 520. 2 Brod. 
 & Bing. 470. 
 
 0/ the verdict and judgment. The verdict in ejectment should be suffi- 
 ciently certain to enable the sheriff to deliver possession. Thus a verdict 
 for four hundred acres, part of the land in the declaration mentioned, with- 
 out specifying the bounds, was set aside. 6 Mun. 25. The jury, if they 
 find part of the land sued for, should designate the boundaries. 1 Mun, 
 162. Sed vide Bur. 629, 2673. Selw. 639. But where they find the 
 whole, it is sufficient without such designation. See 4 Mun. 468. 
 
 If a party sues for one hundred acres, he may recover any less quantity. 
 So if he sues for an undivided half, he may have judgment for any less 
 portion to which he may appear entitled ; 1 Bur. 326 ; for the lessor shall 
 recover according to his title. 
 
 If the jury " find for the plaintiff one cent damages," without more say- 
 ing, the clerk should extend the verdict so as to enter it for the lands in the 
 declaration mentioned also. 1 Call, 246. 
 
 The judgment must always follow the verdict, and be limited to the land 
 which the jury have found for the plaintiff: so that if this is not clearly its 
 effect it will be erroneous. 2 Wash. 276. The judgment after verdict fof 
 the plaintiff is for his term yet to come and unexpired in the lands, &c. and 
 his damages (which are only nominal) and costs. 
 VOL. 2—23
 
 178 TRESPASS FOR MESNE PROFITS. [ book 3. 
 
 The whole effect of a judgment for the plaintiff in this action is to put 
 him in possession, and the only point decided is, that he has a better title 
 to the possession than the defendant. 4 Mun. 397. 
 
 The execution in an action of ejectment is an habere facias possessionem. 
 If the issue of this be delayed by injunction more than a year, the plaintiff 
 should within a year after final dissolution, move for a rule to shew cause 
 why execution should not issue, and thereupon an execution will be award- 
 ed. 6 Mun. 185. Nor will he be put to a scire facias. 
 
 A verdict and judgment in one ejectment is no bar to another ejectment 
 for the same land. 6 Mun. 433. After a variety of trials, however, all ter- 
 minating in the same way, a court of equity will interfere by injunction or 
 bill of peace, and quiet the possession. 4 P. Wms. G71. 1 Str. 404. 2 
 Br. P. Cases, 217. 
 
 An ejectment does not abate by the death of the lessor of the plaintiff. 
 1 H. & M. 531. 2 H. & M. 614. 2 Mun. 453. 3 Mun. 191. But se- 
 curity for costs must be given.* 2 H. & M. 31. Possession in such case 
 is to be given under the control of the court. 2 Mun. 453. 
 
 The damages recovered in these actions, though formerly their only in- 
 tent, are now usually (since the title has been considered as the principal 
 question) very small and inadequate; amounting commonly to one shilling, 
 or some other trivial sum. In order, therefore, to complete the remedy, 
 when the possession has been long detained from him that had the right to 
 it, an action of trespass also lies, after a recovery in ejectment, to recover 
 the mesne profits which the tenant in possession has wrongfully received. 
 Which action may be brought in the name of either the nominal plaintiff 
 iri the ejectment, or his lessor, against the tenant i:i possession : whether 
 he be made party to the ejectment, or suffers judgment to go by default. 
 Where the action is brought against the defendant in ejectment, the evi- 
 dence necessary to maintain it is a copy of the judgment and common rule 
 in ejectment, with proof of the length of time the defendant has occupied, 
 and of the value of the mesne profits. Where the judgment has been by 
 default, he must also shew the writ of possession executed, or that he has 
 been let into possession. Selw. 672, 673. 
 
 Where this action is brought against the defendant in ejectment for rents 
 and profits subsequent to the demise laid, no proof of title is required, that 
 being already established by the verdict and judgment in the ejectment. 
 But where the plaintiff goes against the precedent occupier, or against the 
 defendant in ejectment for a time anterior to that laid, he is put to proof of 
 his title : Selw. 673. 2 Call, 508 : and in these cases the action should be 
 brought in the name of the lessor of the plaintiff. In the foregoing cases 
 it may be brought either in the name of the lessor or that of the fictitious 
 plaintiff. Norris's Peake, 537. 
 
 The general issue in this action is not guilty. But if more than five 
 years' profits are claimed, the defendant may protect himself from all but 
 five years anterior to the commencement of the suit, by pleading the sta- 
 tute of limitations. The plea in such case is, "Not guilty within five 
 years." 
 
 CHAPTER XI. 
 
 REMEDIES TO REAL PROPERTY— CONTINUED^ i 
 
 We shall now proceed to the writ of right, called in the old law-language 
 the mere writ of right. This is the only remedy Used in Virginia for the 
 recovery of an estate in fee-simple, where the right of entry has been bar- 
 * The liability is merely personal, and does not extend to executora. 1 Barn. &. Cvcs. 281
 
 C"AP. 11.] WRIT OF RIGHT. 179 
 
 red by lapse of time, or otherwise, so as to render the action of ejectment 
 inappropriate to the case. " This mere writ of right is, in its nature, the 
 highest writ in the Kiw, and lieth only of an estate in fee-simple, and not 
 for him who hath a lesser estate. At common law it lay concurrently with 
 all other real actions for the recovery of a fee ; and it also lay after them, 
 being an appeal to the mere right, when judgment had been had as to the 
 possession, in an inferior action. And in such cases, and where the right 
 of possession is lost by length of time, there is no other choice ; this is 
 then the only remedy that can be had ; and it is of so forcible a nature, that 
 it overcomes all obstacles, and clears all objections that may have arisen to 
 cloud and obscure the title. And, after issue once joined in a writ of right, 
 the judgment is absolutely final ; so that a recovery had in this action may 
 be pleaded in bar of any other claim or demand. 
 
 " In the progress of this action, the demandant was bound at common 
 law to allege some seisin of the lands and tenements in himself, or else in 
 some person under which he claims, and then derive the right from the per- 
 son so seised to himself; to which the tenant may answer by denying the 
 demandant's right, and averring that he has more right to hold the lands 
 than the demandant has to demand them : and this right of the tenant be- 
 ing shewn, it then puts the demandant upon the proof of his title : in 
 which, if he fails, or if the tenant hath shewn a better, the demandant and 
 his heirs are perpetually barred of their claim ; but if he can make it ap- 
 pear that his right is superior to the tenant's, he shall recover the land 
 against the tenant and his heirs for ever." 
 
 The mode of proceeding in writs of right has, in Virginia, been greatly 
 changed and much simplified. See 1 R. C. ch. 118. 
 
 Before this act writs of right were so complicated and hazardous, that 
 they were almost abandoned here as well as in England. Since the reme- 
 dy has been reformed and simplified, they have become more frequent for 
 the trial of land titles. The following commentaries on the different parts 
 of that act may not be without their use to the student: 
 
 The act provides (sect.|l,) that the '' claimant or demandant of an estate 
 in fee-simple may sue forth against the possessor or tenant a writ oi praecipe 
 quod reddat." Here observe that the remedy is provided for the claimant 
 of the fee-simple only, for no person claiming title to a limited estate can 
 maintain this action : so that if there be a tenant for one thousand years, 
 and he is dispossessed and held out until his right of entry, and the pos- 
 sessory remedies are taken away, he is without remedy. So it is with a 
 tenant in dower, or of any other particular estate ; for these are confined 
 to the action of ejectment and the possessory remedies prescribed by the 
 law, and if they have too long omitted to pursue them, they are entirely 
 without redress. It is much to be wished that the writ of entry and as- 
 size were new modelled and simplified, or that a new remedy was substitu- 
 ted for the cases to which they were applicable. 
 
 As no person can bring a writ of right but he who has a fee-simple es- 
 tate, so this action does not lie against any other than the tenant of the 
 freehold at the least. See 8 Cranch, 242. 2 Saun. 45, n. 4. For as the 
 writ is to recover the seisin, it must be brought against him who hath it. 
 Thus if A takes up my land and obtains a patent for it, and enters and 
 holds it, claiming title, I may bring a writ of right against him or against 
 any person to whom he may have conveyed the freehold. So if without 
 title he forcibly disseises me, such disseisin vests the freehold in him, and 
 this action lies after my right of entry is taken away. But if in either ot 
 these cases he leases for years, 1 cannot bring this writ against the tenant. 
 It must be brought against the landlord or holder of the freehold himself, 
 and a recovery against him is conclusive as to those holding under him as
 
 180 WRIT OF RIGHT. [BOOK 3. 
 
 lessees for years. If, therefore, a writ of right be brought against one who 
 is not tenant of the freehold, the defendant may plead that he is " not ten- 
 ant, and disclaim the tenancy," upon which, if true, the judgment must be 
 rendered in his favor, as the demandant cannot recover tliat from him which 
 he has not. But the judgment in such case is only "that the tenant go 
 thereof without day." Booth on Real Actions, 29. Litt. § 691. And 
 this judgment not being upon the " mise joined on the mere right," does 
 not affect the demandant's right, but he may immediately enter upon the 
 lands. See 2 Call, 585, citing Co. Litt. 363, a. Where the writ was brought 
 against a tenant who had only seisin for life, he " prayed him in the rever- 
 sion in aid to defend the inheritance of the land." See 3 B. C. 300. 2 
 Saun. 45, c. in note. The form of the aid prayer, and the proceedings 
 thereon to judgment, may also be there seen. By our law (1 R. C. ch 128, 
 § 34,) all essoigns, views, and vouchers are taken away, but nothing is said 
 of aid prayers. I have never known an instance of a writ of right against 
 a tenant for life alone, and have no knowledge of any decision as to the 
 right of the tenant to pray in aid since the passage of the act above men- 
 tioned. In the case of Rowe vs. Smith, (1 Call, 487,) the writ was brought 
 jointly against the tenant for life and the reversioner, without objection be- 
 ing made to joining them. None, I presume, would lie. 
 
 The act provides that the writ shall issue "from any court having juris- 
 diction." The writ of right is a local action, and must be brought in the 
 county court or superior court of that county where the land lies. This 
 act provides for the process where the defendant cannot be found therein. 
 Sect. 2. 
 
 The writ (the form of which is set forth in the act) directs the sheriff to 
 command the defendant " to render unto the demandant without delay 
 
 tenement containing acres of land, and if he fails to do so, then 
 
 to summon him to appear before the court at the next term to shew why 
 he has not done it." Several tenants claiming by distinct titles, and hold- 
 ing by distinct possessions, should not be joined in the same writ, and if 
 they are, the matter may be pleaded in abatement. 
 
 It is not necessary that the blank in the writ should be filled with the 
 precise quantity of land to which the demandant is entitled. He may re- 
 cover less than his demand, but upon general principles he cannot recover 
 more. See 1 Mun. 162. 2 Mun. 167. See 2 Ran. 68. 
 
 The writ is returnable as other writs, and proceedings may be had at the 
 rules. 1 Call, 429. 
 
 The count (for so the declaration in a writ of right is called) is in the fol- 
 lowing form, prescribed by the act itself: 
 
 — County, to wit : A. B. by F. G. his attorney, demands against 
 
 C. D. tenement, containing ■ of land, with the appurte- 
 nances, in the county of E. and bounded by . And lohcreupon the 
 
 said A. B. sailh that he hath right to have the tenement aforesaid, with the 
 appurtenances, and offcreth proof that such is his right. 
 
 Here observe 1st. The name of the county being written in the margin 
 of the count, was in the case of Turbcrvillc vs. Long, considered after ver- 
 dict as supplying the omission to lay a formal venue, and important in sup- 
 porting the action. Regularly it should be set forth in the body of the 
 count that the land lay within the county where the suit was brought. 3 
 H. & M. e309. 
 
 2d. If the demandant claims as heir, it is not necessary that he should 
 set forth his ancestor's intestacy. I Call, 438. But he ought by common 
 law to shew how he is heir. 2 Saun. 45, a. Quare, if this be not necessa- 
 ry even now.
 
 CHAP. 11.] WRIT OF RIGHT. 181 
 
 3d. If the demandant fails to set forth in liis count the boundaries of the 
 land claimed by him, it will be error even after a verdict : 1 Call, 484 : 
 though it must be observed that the statute of Jeofails extends to writs of 
 right. Sec 3 H. & M. 309. If several tenements bo demanded in the same 
 count, the contents, situation, and boundaries of each must be inserted. 
 
 It seems to be sufficient in describing the boundaries, to refer with proper 
 certainty to water courses and adjoining lands, without a minute specifica- 
 tion of courses and distances. 3 H. &. M. 314. 
 
 In order, however, to enable the demandant to set forth the boundaries 
 with certainty, a survey is usually made in the cause by consent ; and it 
 has been decided that if the count refers to the survey for a description of 
 the land claimed, thus, — "Bounded as by a survey made in the cause," it 
 is sufficient. So if it describes the lands demanded as part of a larger tract, 
 setting out the boundaries of such larger tract, and the plea reiterates the 
 description in the same terms, and the verdict ascertains the boundary, the 
 generality of the count is cured. 2 Mun. 167. 
 
 4th. By comparing this count with the count given us by Mr. Black- 
 stone in his appendix, we shall find they are essentially different. In Eng- 
 land the demandant counts on his seisin, or that of some of his ancestors, 
 " as of fee and right," by taking the esplees [profits] thereof. Here the 
 count says nothing of seisin, whence it might have been inferred that the 
 demandant need not under this act prove seisin in himself or those under 
 whom he claims. But the contrary has been expressly adjudged. 8 Cranch, 
 244, 245. Another act, however, provides that " actual possession need 
 not be proved to maintain a writ of right." 1 R. C. ch. 128, § 90. Some 
 difficulty has been suggested as to the mode of reconciling this act witli 
 the statute of limitations, which provides that any person may maintain a 
 writ of right upon the possession or seisin of his ancestor within twenty- 
 five years, and upon his own possession or seisin within twenty years. I 
 would venture to suggest that the difficulty is to be solved by an attention 
 to the diflerence between actual possession and many kinds of seisin which 
 are considered seisin in deed, though they fall short of actual possession. 
 Thus the patent of the commonwealth conveys not merely seisin in law, 
 but seisin in deed. 8 Cranch, 229, &c. So of a bargain and sale ; and he 
 who has possession by his tenant for years has seisin in deed, though not 
 actual possession. 
 
 The different grades of seisin or possession may be thus illustrated : — If 
 my ancestor dies and a stranger immediately enters on my inheritance, 
 claiming it as his own, and is an abator, and I have no seisin : I have only 
 a right of action. If there be no such abatement, I have immediate seisin 
 in law, though I have not actual possession. If my ancestor leaves two 
 tracts of land in the same county, and I enter on one in the name of all, I 
 have seisin in deed, though of only that one have I actual possession. So 
 if for fear of harm I dare not enter, yet if I approach and claim the land, I 
 have seisin in deed, though not actual possession. Litt. § 417, 418, 419. 
 8 Cranch, 246. Hence I presume it is essential to his success that the de- 
 mandant should shew a seisin in himself, or those under whom he claims. 
 That we have no authority on the subject, arises perhaps from the fact that 
 the demandant usually traces his title up to the commonwealth, whose pa- 
 tent, if it conveys title at all, conveys also the necessary spisin in deed. It 
 may be remarked, however, that if the demandant can shew uninterrupted 
 seisin for fifty years in himself or those under whom he claims, it is unne- 
 cessary to trace his title farther back, since that is of itself a good title. 
 
 5th. If any portion of the land described in the count in a writ of right 
 is included in the patent under which the defendant claims, it is sufficiently 
 identified. 2 Ran. 68.
 
 182 WRIT OF RIGHT. [ liOOK 3. 
 
 The act proceeds: "To wliich count the tennnt may plead in this form, 
 or tliis effect : and the aforesaid C. D., by U. I. his attorney, comelh and. de- 
 fendelh the right of the said A. B., when and lohere it behoovefh him, and all 
 that concerncth it, and ivhatsoevcr he ought to defend, and chiefly the tenement 
 aforesaid, with the appurtenances as of right, namely tenement, con- 
 taining of land in the county 0/ E. and bounded by , and put - 
 
 ieth himself upon the assize, and prayeth recognition to be made, whether he 
 hath greater right to hold the tenement aforesaid with the appurtenances, as 
 he now holdeth it (or them) or the said A. B. to have it as he now demandeth 
 it (or them." ) 
 
 And to such plea the replication shall be in this form, or to this effect: 
 "And the aforesaid A. B. in like manner putteth himself upon the assize, and 
 prayeth recognition to be made whether he hath greater right to hold the te- 
 nement aforesaid as he demandeth, or the said C. D. as he holdeth it (or 
 them.") 
 
 The plea here given puts the contest upon the simple question of which 
 hath best right to the land, the demandant or the tenant. By it the tenant 
 lenders the mise (or issue) upon the mere right. But he is not precluded 
 hereby from pleading other matters, as he might have done at common law, 
 notwithstanding the subsequent provision that upon the general issue or 
 mise he may give in evidence any thing which might have been specially 
 pleaded ; for these provisions are cumulative, not exclusive. 2 Call, 589, 
 593. 8 Cranch, 244. Thus it is admitted he may plead any matter in 
 abatement, such as "non-tenure," "joint tenure," " several tenure," "sole 
 tenure," and "never tenant of the freehold." In like manner, until a late 
 act, he might have pleaded that the plaintiffs were tenants in common, and 
 so incapable of joining in a writ of right. Sess. Acts, 1823. 
 
 A much litigated question, however, has arisen on this point ; whether 
 the defendant can give matter of abatement in evidence on the mise joined 
 on the mere right. In Hyers rs. Wood, (2 Call, 594,*) it was decided that 
 he might. In Green vs. Liter, (8 Cranch, 229,) the contrary is expressly 
 adjudged ; and, I conceive, upon good reason. For, besides the technical 
 objection that the plea of the mere right is a waiver of the matter of abate- 
 ment, the admission of such evidence is extremely inconvenient, and in 
 conflict with every rule of law. Thus, when the demandant comes prepar- 
 ed only to assert his owm, and to contest the right of the tenants, they meet 
 him with evidence of non-tenure or several tenancy. By so doing the de- 
 mandant is completely surprised. It is partly to prevent this surprise that 
 the law confines the evidence of each party to the issue joined between 
 them and requires the allegata et probata to correspend. These principles 
 are broken down by this proceeding. Moreover, this special evidence be- 
 ing given to the jury, they are to pronounce upon it without the usual sanc- 
 tion of their verdict— a juror's oath ; for their oath to decide truly upon the 
 mere right, can by no forced construction embrace this matter of abatement, 
 and thus they determine the question without being sworn to decide it. 
 Besides, if the jury find a general verdict according to the charge prescribed, 
 then, it seems, an absolute judgment in bar must be given in favor of the. 
 tenant, that he shall hold the lands quit of the demandant forever, although 
 he has shown or pretended no title to them. Or if the jury find a special 
 
 * I do not mean to qiiostion tlte justice of tlie decision in this case, but only tlie principles upon 
 which it was decided ; for I agree that the matter given in evidence was proper evidence on behalf 
 of the tenants, hut not as evidence n( iion-tenure. 'I'he demandant claimed the '.and the tenants held : 
 tiie tenants alleged that his patent did not cover their land, but land elsewhere ; ilie evidence did not 
 go to show that they did not hold what he demanded, but that his land lay elsewhere, and so he de- 
 manded what he had no right to recover. See Judge 'Lyon's opinion and remark, 2 Call, 586. 
 Noil-tenure, therefore, was not a plea that would have embraced their case. The evidence 'liat thft 
 demandant's patent covered land elsewhere, was directed to the question of mere right to the lanil 
 demandeij, and waa therefore proper.
 
 CHAP. 
 
 11.] WRIT OF RIGHT. 183 
 
 verdict as to the non-tenure, &c., as it is intimated they should, then the 
 verdict will be upon one point, whereas tlicy were sworn upon another, and 
 tJius the demandant may be defeated lor want of that security for a juror's 
 justice and impartiality which his oath affords. From these and other con- 
 siderations, I always inclined to think that the decision in Green vs. Liter 
 should prevail, and that the privilege of giving special matter in evidence 
 must be interpreted to relate to matter which goes to bar the plaintiff's de- 
 mand, and not merely to abate his writ. 
 
 But this matter is now put at rest by the case of Boiling vs. the Mayor of 
 Petersburg, 3 Ran, 503, followed by a case in 6 Ran. IIO, by which cases 
 that of Hyers vs. Wood is, as to this matter, wholly overruled. In the first 
 of these cases, the reasoning of the court is strongly in unison with that 
 which I have pursued. See the latter case as to the rules governing the 
 plea in abatement. 
 
 The plea in abatement must in this, as in every other action, be put in 
 upon oath. 1 R. C. ch. 128, § 33. And farther to prevent delay, all es- 
 soigns, views, and vouchers, are expressly taken away by the same clause. 
 After one imparlance, (or, I presume, upon the expiration of the rule to 
 plead,) unless the tenant plead non-tenure, joint-tenancy, or several tenan- 
 cy in abatement, and even then after the plea shall be overruled, he shall 
 put himself on the grand assize, and the mise shall be joined upon the 
 mere right, or the general issue shall be joined, as the case shall require. 
 No excuse for default is admissible, except non-summons, and upon that 
 being allowed, the tenant may imparls, and must then plead in abatement 
 or put himself upon the grand assize or upon the country. Ibid, § 34. If 
 the tenant pleads that he is jointly seised with another person not named 
 in the writ, and it be found for him, the writ shall be abated. If found 
 against him, the demandant has peremptory judgment for his seisin, and 
 double damages. The plea must be filed on oath. Ibid, § 35. 
 
 The plea o[ non-tenure of parcel of the lands at common law, abated the 
 writ for the whole. It now abates ii only for the quantity of which non^- 
 tenure is alleged. Ibid, § 3G. 
 
 In writs of right all the pleadings must be in writing, and in regular form., 
 to authorise a judgment thereon. 2 H. & M. IGl. If, however, the record 
 in a writ of right states that the demandant "replied generally," the court 
 will presume after a verdict that the replication was filed regularly and ia 
 writing. See 2 Leigh, 653. 
 
 The demandant's counsel should always take care that the plea offers a 
 full defence. For if the count be in behalf of two or more demandants, and 
 the plea "defends (i. e. denies) the right" of only part of them, it is insuf- 
 ficient; and though upon the trial the demandant should get a verdict in 
 his favor, it would be set aside and a repleader awarded. 5 Mun. 98. In 
 like manner, particular attention should be paid to the description of the 
 land in the plea, for if the land described in the plea does not correspond 
 with that demanded by the count, or is not comprehended by it, the parties 
 will not be fairly at issue, and even after a verdict the proceedings will be 
 set aside and a repleader awarded. 
 
 Under this act, at the trial any matter may be given in evidence which 
 might have been specially pleaded. The better opinion is, that this clause 
 is not compulsory and exclusive, but only cumulative ; so that though the 
 defendant could formerly only avail himself of special matter of defence by 
 pleading specially, he may now either plead it specially or give it in evi- 
 dence. In Hyers vs. Wood, as we have seen, this provision is considered 
 as extending to pleas in abatement. In Green vs. Liter it is confined to 
 matter in bar. The latter opinion seems sustained by the recent case be* 
 fore cited. 3 Ran. 063.
 
 184 WRIT OF RIGHT. [ book 3. 
 
 At common law every thing might have been given in evidence upon the 
 mise joined, vvliich might have been pleaded in bar, except collateral war- 
 ranty. Booth, 98, 11'2. 2 Saun. 45, f. Under our act, if the heir of A 
 brings a writ of right for lands belonging to himself in reversion, and which 
 A had aliened with warranty, the alienation with warranty is, I presume, 
 good evidence to bar him to the value of the assets descended. See 1 R. 
 Q. ch. 99.. § 21. 
 
 Where the defendant or tenant has joined the mise upon tlie mere right, 
 the introduction of evidence is commenced on his part, "because (it is 
 said) the mise is prayed for and joined by him." The reason would rather 
 seem to be this : At common law the demandant counted on his own or his 
 ancestor's seisin. The defendant was thus called upon to render up the 
 lands, of the right to which the demandant once had the strong evidence 
 derived from possession. This seisin the tenant might indeed deny " by 
 tendering a demimark to inquire of the seisin." And if he did so, he put 
 the proof of the seisin on the demandant, who thus had the affirmative in 
 issue, and was of course entitled to begin with his evidence, and to com- 
 mence and conclude the argument of the case, according to a general rule, 
 which always imposes the omis probandi on him who holds the affirmative, 
 and gives him the concomitant advantage of beginning and concluding the 
 case. See 2 Saun. 45, f. But where the tenant did not tender the demi- 
 mark to inquire of the seisin, and did not put the seisin in issue, but ten- 
 dered the mise upon the mere right, he admitted the seisin. The substance 
 of the plea indeed is, that though he admits the demandant or his ances- 
 tors had seism, yet he is prepared to shew that he himself hath better title. 
 Unless he shews this, the demandant is entitled to regain the seisin which 
 it is admitted he once had, provided always that the can show the best title. 
 
 The tenant, therefore, having rested the defence on his better title, which 
 he asserts and offisrs to prove, has the affirmative in issue, and therefore, 
 according to the rule just mentioned, must be the first to introduce his evi- 
 dence, and must open and conclude the argument. 
 
 But however fair the foregoing deductions may seem, from the doctrines 
 of the common law as modified by our statute, some recent decisions have 
 established principles apparently in collision with them. Thus it is the 
 opinion of the Supreme Court of the United States, that, although it is not 
 necessary to prove an actual entry under title, or actual taking of the es- 
 plees, yet a constructive seisin at least must be shewn in the demandant, or 
 he will fail. 8 Cranch, 239.* The tenant may, therefore, in his defence, 
 shew that the demandant had no such actual or constructive seisin in deed ; 
 for the seisin of the tenant is a sufficient title for him until a better is shewn 
 by the demandant. 7 Wheat. 27. 3 Ran. 570. This seisin of the de- 
 mandant must be a seisin in deed of the fee. But it is said there may be 
 an actual seisin in deed, and a constructive seisin in deed ; the first consti- 
 tuted by the pedis positio, and the second by a patent or deed from one 
 liaving seisin ; and either will support the action. 3 Ran. 570. But if the 
 demandant has neither, he must fail. 
 
 Again it is said, the mise joined on the mere right puts in issue this ques- 
 tion, " which party has the better title?" It is a comparison of the rights 
 in controversy. If the demandant prove an actual seisin in deed, the tenant 
 cannot defend himself by shewing a better outstanding title in a third per- 
 son ; because this is not in the issue, and does not disprove the actual sei- 
 sin of the demandant. But where the demandant relies on a constructive 
 seisin in deed only, the tenant may shew an elder patent or better title in 
 
 * It seems tliat a drviscc cnnnol, i)j' the Engliali law, maintain a writ of riglit upon tlie seisin of tlic 
 tlcvisor. See 2 Sell. & Lef. 101, iiSi. 'I'he reason 1 presume is, tiiat, by ilio English statute of wills, 
 a right of entry is not devisable, o E. 552, This reason would not apply to our act, the terms of 
 which are very broad.
 
 CHAP. 11.] WKIT OF RIGHT. 185 
 
 another; because this destroys the constructicc scibin, and leaves the de- 
 mandant no [M-ouud to stand on ; the tenant's actual seisin suflicino- for his 
 protection until a better title be shewn. 3 Ran. and 7 Wheat, ubi supra. 
 
 The demandant may establish liirs claim either by exhibiting a connected 
 chain ofti'ile IVoin the commonwcaltli down to himaell', or by relyiu"- on the 
 length of possession of himself and tliose uiider whom lie claims. In the 
 first case the chain of title must be perfectly connected and unbroken; be* 
 g'lnnin'^ with iho commonweakh's pateni, and brought down to the dcman- 
 tlaiit, by deed, devise, or descent, iVom one owner to another, in regular 
 succession. In the latter ca^c he proves that he himself, or some person 
 Uiider whom he claims, had enjoyed an uijiulcrrupted possession for fifty 
 years; and if he rests upon the uninterrupted possession of another person, 
 he traces liie title, by deed, devise, or descent, from such person to him- 
 self, and produces the iustrumcuts and evidciices which establish such 
 light. 
 
 The tenant, on the other hand, produces the evidence of his title in the 
 like manner, though the want of a link in his chain of title is not fatal if he 
 his enough to shew that the demandant has no title, provided the deman- 
 daiit had only constructive seisin. But if the demandant proves an actual 
 Hcisin, the tenant must shev.' a better title in himseli' than in the deman- 
 tlant. 
 
 The tenant, moreover, may defend h.imse'f by the statute of limitations 
 without pleading it. That siatUiO provides that writs of right may be main- 
 tained upoii one's own possession within thirty years, and upon the pos- 
 session of one's ancestor within fiily years, and not after; with a proviso^ 
 however, (1 R. C. ch. I2S, § IJ,) excepting from the computation certain 
 periods of time during the revohilioiary war, air.ounting to something moro 
 than five years.* This proviso, I presume, was operative not longt-r than 
 about the year 1S30. This clause of the statute coiitains no saving in be- 
 IfdVi oriu/anls, femes coveii, non compos, beyond sea, or otherwise, it having 
 been, I presume, the intention of the legislature to make an undisturbed 
 possession of half a century, a complete title against all tlie world. If, 
 liowever, cither party is an infant, j'cine covert, or v.on couipor, when tho 
 judgment is rendered, he may bring a new action within five years after the 
 disability removed. 1 R. C. ch. IIS, § 5. 
 
 The protection of this statute, however, is never extended to mere intru- 
 ders without pretence of title, nor to those called squatters in the dialect of 
 the western countries. See Adams on Ejectment. See also I John. R. 
 ]-38. 2 Id. 230. 8 Id. -227. 9 Id. 102, IGS, ISO. 12 Id. 368. 10 Id. 
 475. 13 Id. 553. 1 Wh. 513. 1 Cooke's Ten. Rep. 356. Nor does 
 the party in possession acquire title t'nercby, however great its duration, 
 unless it be an adversary possession. 9 Wheat. 211, 288. 
 
 A special verdict may be found where llie mise is joined upon the mere 
 right. 1 Call, 439. A new trial may also be gianted, or a juror withdrawn, 
 as in other cases. 
 
 So, too, the parties may agree a case, or one may demur to the testimony 
 of the other; and judgment will be given a^^ainst tho demandant unless 
 the testimony stated in the deuiurrer shews hi:n to have good title in him- 
 self; for he must recover by the strength of iiis own title; and nulil he 
 shews a good one, tiie possession of tiie tenant gives the best right. 2 Call, 
 592. But this must be understood with tiie qualifications already mention- 
 ed, since an actual seisin in the demandant seems sufl:icient to maintain 
 
 *Tlic liaiitation in writs of lislit id now rediicetl to Iwcnty-fivc veins on ilic seisin or possession of 
 tlic aiicesior or predecessor, anil twenty jearson one's own seioin; witli a bHving to inlanis, lenu-3 
 covert, persons imprisoned or non-compos, oi' live years nioie, aCier tlieir disabilities mnoveri. 
 183U,cli.;jO. Tlicpame act lepcais the act of JSae so far as it afletis realorniixed actions, llicieia 
 also a saving as to lights of entry or action already accrued, U commenced wiiiiiu two jears. 
 
 VOL. 2—21
 
 18G CAVEATS. [ BOOK 3. 
 
 his action, unless tliere be a better title proved in himself by the tenant. T 
 Wheat. 27. 3 Ran. 570. 
 
 By the act which we have been considering, the demandant may also re- 
 cover damages. This is an innovation on the common law, by which dam- 
 ages were never given in any species of droiturcl action. 10 Rep 111, 
 116, a. 117. 1 Call, 437. The jury impannelled to try the title, assess 
 the damages under the express provisions of this act. 
 
 The act also provides that upon the verdict, or in case of demurrer, the 
 like judgment shall be given as in case of a writ of right. That judgment 
 is, that the "demandant recover his seisin against the tenant, of the lands 
 and tenements, with the appurtenances, to hold to him and his heirs quit 
 of the tenant and of his heirs forever." 3 Black. App. V. 3 Chitty, 664. 
 3 Wils. 563. Tlie judgment for the tenant where he prevails is, that the 
 " demandant take nothing by his writ, and for his false clamor be in mercy, 
 and that the tenant go thereof without day, and hold the lands and tene- 
 ments aforesaid, with the appurtenances, to him and his heirs, quit of the 
 said demandant and his heirs forever." 3 Chitty, 665. 3 Black. App. VI. 
 
 If the demandant is nonsuit after the mise joined on the mere right, the 
 judgment until very recently was the same as where a verdict had been 
 found against him on the mere right. Of course it was peremptory, and a 
 perpetual bar to any future writ. 2 Saun. 45, f. 5 Co. part 2, 85, b. Pen- 
 ryn's case, Vin. Abr. Nonsuit L. pa. 576. But it was not so where the de- 
 mandant was defeated on issue joined upon any collateral matter. If there 
 were several demandants, the nonsuit of one did not affect the others; for 
 in real actions in such case he may be summoned and served. Co. Litt. 
 139, a. 
 
 The doctrine that a nonsuit is a peremptory bar, is now changed by the 
 act 1823, ch. 24, by which it is enacted that a nonsuit in a writ of right 
 shall be no bar to a subsequent action. 
 
 The proper execution for the demandant in a writ of right is an habere 
 facias seisinajn. 
 
 Where the tenant is returned not found upon the jncBcipe, certain pro- 
 ceedings arc prescribed by the act of assembly, already cited, to which I 
 must content myself with referring the student. So also where the defiand- 
 ant appears and then makes default. I must remark, however, that the 
 proceedings in these cases must be strictly regular, or the judgment will bo 
 reversed ; for these judgments do not partake of the character of judgments 
 by default, since there is no actual notice to the tenant, by a summons or 
 prnocipc served on him. 
 
 The student will find in 3 Chitty, most of the forms in a writ of right at 
 the common law. They throw light upon the principles of this ancient ac- 
 tion. Booth on Real Actions, an approved treatise on the subject, may bo 
 advantageously consulted. 
 
 To what we have said on the subject of real actions, I shall subjoin a few 
 remarks as to caveats. 
 
 A caveat under our land law (1 R. C. ch. 86, § 38, 42, &,c.) is a kind of 
 equitable process in the nature of an injunction given to prevent a patent 
 from issuing until it is determined by the proceedings on the caveat which 
 of the contending parties has the best right to the emanation of the patent. 
 See 3 Call, 501. But it does not lie to set a patent aside; 1 Wash. 38, 
 and if the patent emanated while the caveat is depending, though a court 
 of equity by a bill filed for that purpose may repeal it as surreptitiously ob- 
 tained during the pendency of the caveat, the court of law ought to dismiss 
 the caveat itself, as beinjf no longer a proper remedy for the parly, ibid 
 Sec al'O 1 Call, 200. 6 Munford, 100,
 
 CHAP. 11.] CAVEATS. 18t 
 
 Anterior to the rcvisal of 1819, it was after much debate decided by the 
 court of appeals, that the legislature having established legal tribunals for 
 deciding disputes prior to the issuing of a patent, if a party omits to avail 
 himself of a caveat to prevent its emanation to his antagonist, a court of 
 equity cannot afterwards be called upon for its aid to set it aside, unless he 
 can shew that he was prevented by actual fraud or accident from prosecu- 
 ting a caveat, or that the grounds on which he claims relief could not have 
 been used by him on the trial of one. 3 Call, 259. 1 Mun. 293. 4 Mun. 
 155, 533. 5 Ran. 455. 1 Leigh, 353. The act above mentioned has, 
 however, settled this matter otherwise, by declaring that the failure to caveat 
 shall not bar any person from asserting his better right either in a court of 
 law or equity in like manner as if no remedy by caveat had been given him. 
 The statute is not retroactive. 5 Ran. 453, 509. Even before this act, 
 however, when the rights of the parties could not be adjusted in the court 
 of caveat, court of equity had jurisdiction. G Mun. 534. So where there 
 iiad been forgery and fraud practiced in order to obtain the patent. 1 
 Ran. 114. 
 
 It seems that no person can maintain a caveat unless he either designs 
 to procure the lands for the person in whose name the caveat is entered, 
 (I R. C. ch. 8G, § 43,) or claims himself to have a better title than the ca-- 
 veatee. See 2 Call, 547. In the latter case he ought to shew his title. 1 
 R. C. ch. 86, § 38. 3 Call, 28. 
 
 The dismission of a caveat is not binding unless it be upon the merits. 
 1 Call, 20G. 6 Mun, 160. And a general dismissal does not purport to be 
 upon the merits. 3 Cranch, 283. On the trial of caveats on the ground 
 of the plaintiff's better right, the question usually arises whether the entry 
 or location of the defendant is sufliciently specific, under the provision that 
 the party taking up lands shall so '-direct the location of his warrant as 
 that others may be enabled with certainty to locate tlie adjacent residuum." 
 Under this clause it is decided that a reasonable degree of strictness should 
 be observed in all entries. 1 Call, 206. 3 Call, 28. 1 Mun. 293. They 
 should have that reasonable certainty which would enable a subsequent lo- 
 cator, by the exercise of a duo degree of diligence and judgment, to locate 
 ids own lands on the adjacent residuum. Bodley and al. vs. Taylor, 5 
 Cranch, 191, 224. Though by the decision in this case, it in terms ap- 
 plies to Kentucky, yet as it has reference to the Virginia law, and expresses 
 clearly and strongly what has been decided in the other cases cited, it may 
 be regarded as affording the rule in Virginia also. 
 
 In these entries there is usually a general and also a particular descrip- 
 tion. The first points out the part of the country where the entry is made ; 
 the next shews the particular land located in that part of the country. 
 Thus, " A B enters 500 acres of land lying in the county of Frederick, on 
 the west side of Opequon, on the waters of Redbud." This is a general 
 description. It refers the subsequent locator to the part of country where 
 the location is made : it directs hirn to the Redbud, on the west side of a 
 notorious stream : it sends him to the neighborhood to make more definite 
 inquiries ; and when there he compares the information he receives with 
 the subsequent part of the entry, which describes the particular lands upon 
 Redbud which were the object of the first part of the entry. This part of 
 the description is more definite. It refers to some specific part of Redbud ; — 
 as, to " its mouth," — " its head spring," — " its north or south side," — " ad- 
 joining lands of A B on the west," &c. ; so that by inquiry among settlers 
 the location may be adequately ascertained. In Kentucky, the locatio'^ 
 under our act have been very loose, as may be seen by reference to '^'^'^'1 
 tries which make part of the case of Bodley vs. Taylor, Such ^'^•''.le of the 
 of a certificate of settlement of a tract of land " lying on the east "
 
 1 88 REPEAL OF PATENTS. [ book 3. 
 
 Buffalo road lendiiifr from ilieBliie Licks to Limeslnnc. nine milen from llio 
 Lick, on (lie iijjper inp.d." And thon';!i our Virgiiiin Jocalions are not qnifft 
 so inderinite, tiioy have been var^uc enough to involve llie land titles in some 
 parts of the country in innumorablc difiicuilies. See on this subject 1 Call, 
 i>Or>. 3 Call, 28. 1 Man. 293. i Crancli, S8, 89. 
 
 The party who desires to prevent the emanation of a grant to another, 
 may enter a caveat in the land office against issuing^ any grant upon his lo- 
 cation or survey ; expressing for what caure the grant tdiould not issue : or 
 if any person obtains a survey of lands to which another hath, by law, a 
 better right, the latter may enter a caveat in like manner to prevent his ob- 
 taining a grant until (he title can be determined ; but the ravcalor must, in 
 liis caveat, express the nature of the light in which lie claims the lands. 
 He is then to take, from the register of the land office, a, certified copy of 
 Jiis caveat, and within tliirty days ^ Re: wards must deliver it to the clerk of 
 the superior court, or county court of the county in which the land lies ; 
 ]ic must, moreover, obtain from the surveyor of the county, or from the re- 
 gister of the land office, a certified copy of the survey and plat, which, 
 within thirty days afier entering the caveat, must be delivered to the clerk 
 of the court where the suit is instituted ; and, on failure in cither of thche 
 cases, the caveat is void. The clerk, on receiving the same, is to enter a 
 copy of the caveat in his books, and issue a summons reciting the can?e 
 for which the caveat is entered, riud requiring the defendant to appear on 
 the first day of the next court and defend his right ; and on such process 
 being returned executed, the court is to proceed to determine the cause in 
 .1 summary way, without pleadings in writing, impannelling, and swearing a 
 jury for the finding such facts as are not agreed by the parties. A copy of 
 the judgment, if in favor of the defendant, is to be delivered to the jcgis- 
 ler of the land office, and thereupon (he caveat is vacated ; but, if not de- 
 livered v.ithin three months, a new caveat may for that cause be entered. 
 Cut, if judgment be given in favor of the plaintiff, upon delivering the 
 same into t'lo land otlice, together with a plat and ccrl'ficate of the survey, 
 and also producing a legal certificate of new rights on liis ovrn account, he 
 shall be entitled to a grant of the land ; but on failure thereof for six month:-, 
 after the judgment in his favor, any other person may enter a caveat for 
 Ihal cause against issuing a grant ; uj)on vihich cubscquent caveats the same 
 proceedings are to be had, ioties (jiiotie", r.s upon the original. If judgment 
 be given for the defendant, he is entitled to his costs ; if for the plainfifT, 
 the court in their discretion may award costs. The court may likewise rule 
 the plaintiff to give security for costs, and, if he fails, dismiss his suit. 
 
 Litimately connected with this subject is that of the repeal of letters 
 patent, or grants of the commonwealth for lands, which remedy is regn- 
 latcd by a recent act. i U. C. ch. 109. I shall therefore subjoin .'?omc re- 
 marks on the subject ol the law and the character of its provisions. 
 
 The student is already aware, tiiat where there arc two claimants of 
 lands under the commonwealth's patent, he whose patent is rf prior date 
 lias the better legal title, which not only will prevail over the adversary 
 title in all courts of law, but in courts of chancery also, unless the junior 
 patentee can siicw that he has for some cause superior equity. This may 
 arise out ol'llie iniquitous conduct ol'thc rejiior patentee or the irregularity 
 of his patent, or out of his having himself a prior and valid entry, properly 
 pursued, but which, from causes coguizable in equity, he did not carry into 
 grant at an earlier date. 
 
 We have just seen, however, that as the law lias given a rpccific remedy 
 r^ ^veat, courts of equity have refiised to interfere, unless the party apply- 
 '"§ *^'^ts aid can shew that he was prevented by fraud or accident from 
 mosecu u, „ caveat acpording to the provisions of the land law. Hence,
 
 CHAP. 11.] REPEAL OF PATENTS. 18D 
 
 it may well happpii, tlmt I may be a jniiior claimant liavin/r pupoiior equity 
 lo the senior patentee, bnl tlial I atn excluded iVoni the benefit of that ccpii- 
 ty, because I did not caveat. Tlius if mine n-as the prior entry, and was 
 .sufucicnliy certain, it must liave prevailed if I liad caveated. But as I fail- 
 ed to do 80, I could not. vt-iUiout shewing some excuse for my faihiro, as- 
 sert this equitable jjreference in a court ol" chancery, according to that train 
 of decisions, of which the case of Noland and Cromwell mny be consider- 
 ed the most conspicuous. 
 
 If, however, I can by any means nnnilii'ate tiic patent of ihc senior pa- 
 tentee, my patent will then prevail and secure lo me tlie land. Now if his 
 patent was irregular or voidable for any caupc, I may, under this hci, pro- 
 cure its rescission, and then I may procure a patent on my equitable rights, 
 or if I have already procured one, it will prevail over my adversary. To fa- 
 cilitate (he attainment of this object was, I imagine, the object of this act. 
 The court of appeals having rcliiscd relief to the parly who had (he best 
 equitable title, because he had failed to caveat, the legislature, with a view 
 of counteracting this decision, so much in conflict with the notions of the 
 people in the western part of the commonwealth, Vilio arc most deeply con- 
 cerned in land titles and implicated in land disputes, passed this act, and 
 tiie amended clause in tlie .section respecting caveats. By tlic latter, they 
 declared that the failure to caveat shall be no bar to relief in equity ; and 
 by this act they provided the means of removing a patent, — irregular or 
 void for any matter not appearing on its face. — out of tlie way of the equi- 
 table claimant. If, indeed, it be irregular or void on its face, then even in 
 a court of law it may be vacated or declared void in the progress of the trial 
 of an ejectment or writ of right, i P«Iun. 131, 140. Oiherwitc it cannot. 
 G Mun. :i-38. 
 
 Having thus succinctly stated the cbject and ialcnlicn cf the act, 1 will 
 now shortly advert to its provisions. 
 
 Vv'liere a person, having a good equitable right to lands, commencing 
 prior to the date of an adversary patent, desires to jirosecute a ache facias 
 to repeal it, on the ground that it was obtained by ialsc suggestion, or is- 
 sued contrary to law, or to the prejudice of his private right, he must ex- 
 hibit his petition to the court of chancery within wliich the land lies, or to 
 the judgG thereof in vacation, setting forth the case. The judge there- 
 upon directs a ceriloran lo issue to the register of the land office, com- 
 manding him to certify if the patent overissued, and if so, to certify a copy 
 thereof. On th.e vetnrn of the writ and of a copy cf the patent, the peti- 
 tioner files his bill against the other party or parties concerned, setting^ ibrth 
 (lie facts, and praying a repeal of tiic patent. Thereupon a scire facias is- 
 sues, summoning the defendants to appearand answer, and shew cause a- 
 gainst the repeal. After this the cause proceeds as any othcrbili in equity, 
 and on the hearing the ccurt denies the repeal cf the patent or not, as may 
 seem fit. This is certif.eJ to the register, who enters the substance of it in 
 the margin of the original record of the paten:, and tliereupcn the patent 
 is declared null and void, if such iias been the sentence of the court. No 
 patent can be repealed on these proceedirigs, farli'.er man the petitioner's 
 right extends ; and every such scire facias must have issued within ten 
 years after the the 2G(.h of February, ]8iS,, v. here the patent assailed is an- 
 terior to that dale. Where it is po'sterior, the scire facias must be sued out 
 within ten years after the date of the patent, with a Hirther eaving of ten 
 yearr; to inhnts, femes covert, non compos, persons in prison or beyond sea, 
 after tlieir disabilities removed. 
 
 And licre we conclude Our view of the remedies aiforded by law, for the 
 redress of such injuries to real property as arise from ouster or amotion from 
 <he possession.
 
 TRESPASS. [ KOOK 3. 
 
 CHAPTER XII. 
 
 TRESPASS. 
 
 '' In the two preceding chapters we have considered such injuries to real 
 property, as consisted in an ouster, or amotion of the possession. Those 
 which remain to be discussed are such as may be offered to a man's real 
 property without any amotion from it. 
 
 " The second species, therefore, of real injuries, or wrongs that affect a 
 man's lands, tenements, or hereditaments, is that of trespass. Trespass, in 
 its largest and most extensive sense, signifies any transgression or offence 
 against the law of nature, of society, or of the country in which we live ; 
 whether it relates to a man's person or his property. Therefore beating 
 another is a trespass ; for which (as we have formerly seen) an action of tres- 
 pass vi et armis in assault and battery will lie : taking or detaining a man's 
 goods are respectively trespasses; for which an action of trespass vi et ar- 
 mis, or on the case in trover and conversion, is given by the law : so also, 
 non-performance of promises or undertakings is a trespass, upon which an 
 action of trespass on the case in assmnpsit is grounded : and, in general, 
 any misfeasance or act of one man whereby another is injuriously treated 
 or damnified, is a transgression or trespass in its largest sense ; for which 
 we have already seen that whenever the act itself is directly and immedi- 
 ately injurious to the person or property of another, and therefore necessa- 
 rily accompanied with some force, an action of trespass vi et urinis will lie: 
 but, if the injury is only consequential, a special action of trespass on the 
 case may be brought. 
 
 " ]]ut in the limited and confined sense in which we are at present to 
 consider it, it signifies no more than an entry on another man's ground with^ 
 out a lawful authority, and doing some damage, however inconsiderable, 
 to his real property. For the right of mcum and tuum, or property in 
 lands, being once established, it follows as a necessary consequence that 
 this right must be exclusive; that is, that the owner may retain to himself 
 the sole use and occupation of his soil : every entry therefore thereon, with- 
 out the owner's leave, and especially if contrary to his express order, is a 
 trespass or transgression. The Roman laws seem to have made a direct 
 prohibition necessary, in order to constitute this injury : ' qui alienum fundum 
 ingreditur, potest a domino, si is praeviderit, prohiberi, ne ingrediatur.' But 
 the law of England, justly considering that much inconvenience may hap- 
 pen to the owner, before he has an opportunity to forbid the entry, has car- 
 ried the point much farther, and has treated every entry upon another's lands, 
 (unless by the owner's leave, or in some very particular cases,) as an injury 
 or wrong, for satisfaction of which an action of trespass will lie ; but deter- 
 mines the quantum of that satisfaction, by considering how far the offence 
 was wilful or inadvertent, and by estimating the value of the actual damage 
 sustained. 
 
 " Every unwarrantable entry on another's soil the law entitles a trespass 
 b}/ breaking his close; the words of the writ of trespass commanding the 
 defendant to shew cause quare ckmsttm querenlis /regit. For every man's 
 land is in the eye of the law enclosed and set apart from his neighbor's ; 
 and that either by a visible and material fence, as one field is divided from 
 another by a hedge ; or by an ideal invisible boundary, existing only in the 
 contemplation of law, as when one man's land adjoins to another's in the 
 same field. [And this I consider to be still the law notwithstanding the 
 act 2 R. C. ch. 219.] And every such entry or breach of a man's close 
 carries necessarily along with it some damage or other ; for, if no other spc-
 
 CHAP. 12.] TRESPASS. 191 
 
 cial loss can be assigned, yet slill the words of the writ itself specify one 
 general damage, viz.: the treading down and bruising his herbage.* 
 
 " One must have a property (either absolute or temporary) in the soil, 
 and actual possession by entry, to be able to maintain an action of trespass : 
 or at least, it is requisite that the party have a lease and possession of the 
 vesture and herbage of the land. Thus, if a meadow be divided annually 
 among the parishioners by lot, then after each person's several portion is 
 allotted, they maybe respectively capable of maintaining an action for the 
 breach of their several closes ; for they have an exclusive interest and free- 
 hold therein for the time. But before entry and actual possession, one can- 
 not maintain an action of trespass, though he hath the freehold in law. And 
 therefore an heir before entry cannot have this action against an abator ; 
 though a disseisee might have it against the disseisor, for the injury done by 
 the disseisin itself, at which time the plaintiff was seised of the land : but ho 
 cannot have it for any act done after the disseisin, until he hath gained pos- 
 session by re-entry, and then he may well nsaintain it for the intermediate 
 damage done ; [G Ran. 8;] for after his re-entry, the law, by a kind ofJ«s 
 postliminei, supposes the freehold to have all along continued in him." 
 
 It is on this principle of the necessity of possession to sustain this action 
 that the guardian in possession, and not the ward, must sue for trespass 
 done to the premises, though the damages go to the credit of the ward in 
 the setttlement of the guardian's accounts. 6 Ran. 556. So, too, a land- 
 lord cannot, during a subsisting lease, maintain trespass, though the tenant 
 may ; nor can the heir maintain trespass for an injury to the lands held by 
 adoweress as her dower, or to the mansion house and plantation while she 
 holds it, for defect of assignment of dower. But if a lasting injury be done 
 to the premises, as by felling timber, the landlord or heir may maintain tres- 
 pass on the case. 
 
 Any actual possession will maintain this action. It may be brought by 
 tenant for years, at will, or at sufferance. A tenant may also bring it against 
 his landlord, if he wrongfully intrudes on him. 1 Chitty, 17G. 
 
 Constructive possession is not sufficient to maintain trespass to real pro- 
 perty. Actual possession is required. And hence it is that where the in- 
 jury is done to an heir or devisee by an abator before he has entered, or to a 
 lessee before he has taken possession, he cannot maintain this action, until 
 his entry. 
 
 If the owner of land builds houses on it, and leaves a street as a public 
 highway, he may still maintain trespass for an injury to the soil: as for 
 placing the end of a bridge thereon. Str. 1004. 
 
 "A man is answerable for not only his own trespass, but that of his cattle 
 also ;t for if by his indulgent keeping they stray upon the land of another, 
 (and much more if he permits, or drives them on,) and they there tread 
 down his neighbour's herbage, and spoil his corn or his frees, this is a tres- 
 pass for which the owner must answer in damages, and the law gives the 
 party injured a double remedy in this case, by permitting him to distrcin 
 
 *Iri an aclion of trespass for entering llie grounds of another person, and sporting over them, the 
 jury may take into consideration, in deleriiiiniiig their verdict, not only tlio actual damage sustained 
 (<y the plaintifl', but circumstances of aggravation and insult on tiie part of tiie defendant. Thus, in 
 the c^ise of Merest vs. Harvey, 1 Mar?h. 139. 5 Taunt. 442, S. C. where tliedolendant, a magistrate, 
 liad committed the trespass, before the phiintift's face, in defiance of notice that he was a tres- 
 passer, and had accompanied it ijy every kind of insuU, a verdict was given for £500 damages, and 
 tlio court refused to grant a new trial, on the ground that they were excessive ; and in that case, the 
 chief justice of the common pleas, Sir Vicary Gibbs, observed, that" he knew not on what principle 
 a rule could be granted, except that the jury should only have found to the extent of the actual pecu- 
 iiiary damage sustained by <hc plaiiitill'." "Suppose," said he, J'l had a walk before ni.y house, 
 which I had a pleasure in looking at, or walking on, would it be allowed that a man Khoiild co"|'<j 
 ihere and walk to my annoyance, and then olfyr me u halfpenny in saii^factioi), ailcsiiig that 1 uaii 
 jccoivcd no actual damage." 
 
 t Yet ace 1 Carr & I'aync liG. 1 Buir. 2002,
 
 192 TRESPASS. [book 3. 
 
 tlio cattle ihiis damage-feasant, or Join^- damage, till the owner shall make 
 iiiin satisCactiou : or eke by leaving" him to the common remedy inj'orocon- 
 ienlioso, by action. And the action that lies in either of these cases ol" tres- 
 pass committed upon another's land, either by a man himself or his cattle, 
 is the action of trespass vl ct cumis: whereby a man is called upon to an- 
 swer, qdcire vi et arniis dausiim ipsius A. apud B.fiegit, el hJuda ipslus A. 
 ad valcntiam centum sGlidonim ibidan nitper cresctAlla cum qaibmdam ave- 
 viis depastnsfuU, ccnculcavil, et consampslt, Sfc. : for the law always cou- 
 ples the idea of force witii that of intrusion upon the property of another. 
 And herein, if any uiuvarraniable act of the defendant or his beasts in 
 cominir ui)OU the land be proved, it is an act o[ trespass for which the 
 plaintiff must recover some daniai^es ; such, however, as the jury shall think 
 proper to assess." 
 
 The action of trespass may be brouglit either in the county where the de- 
 fendant resido:i, as the place of his rcsideijcc yeneraliy gives the jurisdic- 
 tion, (I 11. C. ch. 1-2S, § 41,) or in the county where the land lies ; for it is 
 provided that any action may be brought against a deii-ndant in the county 
 where the cause of action arose, thou^ih it be not t!ie county of his resi- 
 dence. Ibid. At common law the venae must be laid wiicre the land lies, 
 as the action is local. Selw. liDS. 
 
 The declaration should charge the trespass directly, and not by way of 
 recital, for that is faulty. Sehv. 1 109. It is now cured by verdict. The 
 precise day oa which the trespass was committed is immaterial, thou_2;h a 
 day should be stated anterior to the commencement of the action. The 
 locas in quo should be stated to be the land, house, or close of the plaintiff', 
 and the trespass ihould be charged to have been vi cl ctrhils, and against 
 the peace; though the omission is cured by a verdict. 1 11. C. ch. 138, 
 
 § io;j. 
 
 " III trespaisGS of a pcraiinont uaturo, v/horc (he injitry is continually re- 
 newed, (as by spoiling or consuriiing the herbage with liic delendant's cat- 
 tle.) the declaration may allege the injury to have been committed by con* 
 ihiiuiiiGn from one given day to another, (which is called laying the action 
 with a voiiliUKando,) and the plalntiir shall not be conjpellcd to bring sepa- 
 rate actions for every day's separate o.Tence. But v^liere the trespass is by 
 one or several acts, each of which terminates in itself, and being once done 
 cannot be done again, it cannot be laid with a conliiinando ; yet if there be 
 repeated acts ol trespass committed, (as cutting down a certain number of 
 trees,) they may be laid to be done, nut continually, but at divers days and 
 times within a given period."* 
 
 This latter mode of declaring is preferable to the ccnunucndo, because 
 there is some nicety as to the acts which may ov may not be laid with a 
 canlinuando. Tiius it is "erroneous to lay with a conlinuaudo the cutting of 
 trees, for each act. of cutting is separate, distJiict, and complete in itself. 
 The mode of declaring which is now generally used, em!>races with equal 
 propriety all cases. See 2 Cititty, oG8, note s. 1 Saun. 2i. n. 1. 
 
 " In some cases trespass is justifiable; or rather entry on anoiher's land 
 ov house shall not in those cases be accounted trespass: as if a man comes 
 thither to demand or pay money, there payable; or to execute, in a legal 
 manncrj the process of the law. Also a man may justify entering into au 
 inn or public house, without the leave of the owner first specially asked; 
 because when a man professes tlic keeping such inn or public house, lie 
 thereby gives a general license to any person to enter his doors. So a 
 landlord may jus^tiiy entering to distrein for rent; a commoner to attend- 
 liis cattle, commoning on another's land; and a reversioner to see if any 
 
 *Ttcspags cannot be !;iia wiili a cnntinuaudn so as toicacli licyond ihc coatuiuancc ol liie plainlifT* 
 posBc^sioo, uuless he ho^i [cgitiaed the posiicseiou. 6 Kuu. 1-J.
 
 CHAP. 12.] TRESPASS. 193 
 
 waste be committed on the estate ; for the apparent necessity of the thing. 
 Also it hath been said, that, by the common law and custom of England, 
 the poor are allowed to enter and glean upon another's ground after the 
 harvest, without being guilty of trespass: [but this notion no longer pre- 
 vails. 1 H. B. 51.] In like manner the common law warrants the hunt- 
 ing of ravenous beasts of prey, as badgers and foxes, in another man's land ; 
 because the destroying such creatures is said to be profitable to the public." 
 The English authorities, even of very late days, affirm the right here asserted. 
 1 T. R. 334. But in the exercise of it care must be taken that the party- 
 does not trample down another's crops, or throw down the fences, or mali- 
 ciously ride on his grounds. Ibid, 338. In Virginia no man can lawfully 
 hunt upon the lands of another. 2 R. C. ch. 251. 
 
 Besides the defences in trespass here mentioned, there are others which 
 go to the denial or justification of the trespass. Thus the defendant may 
 plead a right of way or a license; or he may plead matters which go to 
 the discharge of the trespass, as a release, accord, and satisfaction, or a 
 former recovery ; or he may plead that the right was tried in a former ac- 
 tion and found against the plaintiff, and so estop him. 3 E. 346. So the 
 defendant may plead involuntary trespass and tender of amends, under the 
 act 1 R. C. ch. 128, § 22. In cases, however, where a man " misdemeans 
 himself, or makes an ill use of the authority with which the law intrusts 
 him, he shall be accounted a trespasser ab initio ; as if one comes into a 
 tavern and will not go out in a reasonable time, but tarries there all night 
 contrary to the inclinations of the owner; this wrongful act shall aflTect and 
 have relation back even to his first entry, and make the whole a trespass. 
 But a bare nonfeasance, as not paying for the wine he calls for, will not 
 make him a trespasser: for this is only a breach of contract, for which the 
 taverner shall have an action of debt or assumj)sit against him. So if a 
 landlord distreined for rent, and wilfully kill the distress, this by the com- 
 mon law made him a trespasser ab initio. So if a revisioner, who enters 
 on pretence of seeing waste, breaks the house, or stays there all night ; or 
 if the commoner who comes to tend his cattle cuts down a tree ; in these 
 and similar cases, the law judges that he entered for this unlawful purpose, 
 and, therefore, as the act w-hich demonstrates such his purpose is a trespass, 
 he shall be esteemed a trespasser ab initio. 
 
 " A man may also justify in an action of trespass, on account of the free- 
 hold and right of entry being in himself; and this defence brings the title of 
 the estate in question. This is, therefore, one of the ways devised, since the 
 disuse of real actions, to try the property of estates ; though it is not so 
 usual as that by ejectment, because that, being now a mixed action, not 
 only gives damages for the ejection, but also possession of the land ; whereas 
 in trespass, which is merely a personal suit, the right can be only ascer- 
 tained, but no possession delivered ; nothing being recovered but damages 
 for the wrong committed." 
 
 The defence here spoken of m,ay indeed be given in evidence under the 
 plea of not guilty, which is the general issue in trespass. In like manner 
 the defendant may, under the same plea, give evidence that the right of 
 freehold is in a third person, for this proves he had not trespassed on the 
 plaintiff. 
 
 In this action the plaintiff will recover no more costs than damages, if 
 the damages are under $6.66, unless the court shall be satisfied and enter 
 on the record that the freehold, or title, or interest, of the land was, or 
 might have been, in question, or that the trespass was wilful or malicious. 
 1 R. C. ch. 128, § 21. 
 
 " Every trespass is tvilful where the defendant has notice, and is espe- 
 cially forwarned not to come on the land ; see 6 T. R. 11 ; as every tres- 
 voL. 2—25
 
 194 NUISANCE. [book 3. 
 
 pass is malicious, though the damage may not amount to forty shillings, 
 where the intent of the defendant plainly appears to be to harass and dis- 
 tress the plaintiff. 
 
 " A third species of real injuries to a man's lands and tenements, is by 
 nuisarice. Nuisance, nocumentum, or annoyance, signifies any thing that 
 worketh hurt, inconvenience, or damage. And nuisances are of two kinds : 
 public or common nuisances, which affect the public, and are annoyance to 
 all the king's subjects : for which reason we must refer them to the class of 
 public wrongs, or crimes and misdemeanors: and private nuisances, which 
 are the objects of our present consideration, and may be defined, any thing 
 done to the hurt or annoyance of the land^i, tenements, or hereditaments 
 of another. We will, therefore, first, mark out the several kind of nuir 
 sances, and then their respective remedies. 
 
 "I. In discussing the several kinds of nuisances, we will consider, first, 
 such nuisance as may affect a man's corporeal hereditaments, and then 
 those that may damage such as are incorporeal. 
 
 " 1. First, as to corporeal inheritances. If a man builds a house so close 
 to mine that his roof overhangs my roof, and throws the water off his roof 
 upon mine, this is a nuisance, for which an action will lie. Likewise to 
 erect a house or other buildings so near to mine, that it obstructs my an- 
 cient lights and windows, is a nuisance of a similar nature. Bat in this 
 latter case it is necessary that the windows be ancient : that is, have sub- 
 sisted there a long time without interruption; otherwise there is no injury 
 done. For he hath as much right to build a new edifice upon his ground 
 as I have upon mine ; since every man may erect what he pleases upon the 
 upright or perpendicular of his own soil, so as not to prejudice what has 
 long been enjoyed by another; and it was my folly to build so near 
 another's ground. Also, if a person keeps his hogs, or other noisome 
 animals, so near the house of another, that the stench of them incommodes 
 him and makes the air unwholesome, or renders the enjoyment of life and 
 property uncomfortable ; 1 Bur. 337. 2 Stra. 1167; this is an injurious 
 nuisance, as it tends to deprive him of the use and benefit of his house. 
 A like injury is, if one's neighbor sets up and exercises any offensive trade ; 
 as a tanner's, a tallow chandler's, or the like ; for though these are lawful 
 and necessary trades, yet they should be exercised in remote places ; for 
 the rule is, ^^ sic iitere tuo, ut alienum non laedas :" this, therefore, is an ac- 
 tionable nuisance. 
 
 " So also it will be a nuisance, if life is made uncomfortable by the ap- 
 prehension of danger; it has, therefore, been held to be a nuisance, to keep 
 great quantities of gunpowder near dwelling houses. 2 Stra. 1167. 
 
 "And where defendant employed a steam engine in his business as 
 a printer, which produced a continual noise and vibration in the plaintiff's 
 apartment, which adjoined the premises of the defendant, it was held that 
 this was a nuisance. Duke of Northumberland vs. Clowes, C. P. at West- 
 xninister, A. D. 1821. Yet an action cannot be maintained for every thing 
 done to the inconvenience of another; for where a jury found for the de- 
 fendant in an action for keeping seven noisy pointers, the court refused to 
 grant a new trial. Selw. 974. 
 
 " Thus the nuisances which affect a man's dwelling may be reduced to 
 these three : 1. Overhanging it ; which is also a species of trespass, for 
 cujios est solum, ejus est usque ad caelum : 2. Stopping ancient lights : and, 
 3. Corrupting the air with noisome smells; for light and air are two indis- 
 pensable requisites to every dwelling. But depriving one of a mere matter 
 of pleasure, as of a fine prospect by building a wall, or the like ; this, as it 
 abridges nothing really convenient or necessary, ii no injury to the Bufferer, 
 and i«, ther«for«, n»t an actienable nuisance. "
 
 CHAP. 12.] NUISANCE. 195 
 
 " As to nuisance to one's lands : if one erects a smeltinff-house for lead 
 80 Bear the land of another, that the vapour and smoke kills his corn and 
 grass, and damages his cattle therein, this is held to be a nuisance. And 
 by consequence it follows, that if one does any other act, in itself lawful, 
 which yet being done in that place necessarily tends to the damage of 
 another's property, it is a nuisance : for it is incumbent on him to find some 
 other place to do that act, where it will be less offensive. So, also, if my 
 neighbor ought to scour a ditch, and does not, whereby my land is over- 
 flowed, this is an actionable nuisance." 
 
 With regard to other corporeal heriditaments, it is a nuisancp to stop or 
 divert a watercourse that uses to run to another's meadow or mill,* Twenty 
 years' exclusive enjoyment of the water in any particular manner by the 
 occupier of the adjoining lands, affords a conclusive presumption of right 
 in the party so enjoying it; and he may maintain an action if the water be 
 diverted from its course, so that the quantity he has thus been accustomed 
 to enjoy is diminished, although the fishery may not be injured ; 6 East, 208. 
 7 East, 195 1 Wils. 175; and he may legally enter the land of a person, 
 who has occasioned a nuisance to a watercourse, to abate it. 2 Smith's 
 Rep. 9. Com. Dig. Pleader, 3 M. 41. 
 
 So, too, it is a nuisance to " corrupt or poison a watercourse, by erect- 
 ing a dye-house or a lime-pit for the use of trade in the upper part of the 
 stream ; or, in short, to do any act therein, that in its consequences must 
 necessarily tend to the prejudice of one's neighbor. So closely does the 
 law of England enforce that excellent rule of gospel-morality, of "doing 
 to others as we would they should do unto ourselves." 
 
 " 2. As to incorporeal hereditaments, the law carries itself with the same 
 equity. If I have a way, annexed to my estate, across another's land, and 
 he obstructs me in the use of it, either by totally stopping it, or putting 
 logs across it, or ploughing over it, it is a nuisance : for in the first case I 
 cannot enjoy my right at all, and in the latter I cannot enjoy it so commo- 
 diously as I ought." 'So if I have a ferry established by law, it is an injury 
 and nuisance for any person to erect a ferry, without authority of law, so 
 near mine as to draw away the custom ; for as I am bound to keep the 
 ferry always in repair and readiness, for the use of travellers, under heavy 
 penalties, (see 2 R. C. ch. 2-37, 238,) it " would be extremely hard, if a 
 new ferry were suffered to share my profits, which does not share also my 
 burthen. But where the reason ceases, the law also ceases with it: there- 
 fore, it is no nuisance to erect a mill so near mine, as to draw away the cus- 
 tom, unless the miller also intercepts the water. Neither is it a nuisance to 
 set up any trade, or a school, in a neighborhood or rivalship with another: 
 for by such emulation the public are like to be gainers ; and, if the new 
 mill or school occasion a damage to the old one, it is damnum absque injU' 
 ria. 
 
 " II. Let us next attend to the remedies, which the law has given for 
 this injury of nuisance. And here I must premise that the law gives no 
 private remedy for any thing but a private wrong. Therefore, no action 
 lies for a public or common nuisance, but an indictment only : because the 
 damage being common to all the king's subjects, no one can assign his 
 particular proportion of it; or if he could, it would be extremely hard, if 
 every subject in the kingdom were allowed to harass the offender with se- 
 parate actions. For this reason no person, natural or corporate, can have 
 an action for a public nuisance, or punish it ;" but only the commonwealth. 
 "Yet this rule admits of one exception ; where a private person suffers 
 some extraordinary damage, beyond the rest of the people, by a public nui- 
 sance ; in which case he shall have a private satisfaction by action. As it, 
 • But damage must be proved. 2 JBarn . j& Cre«. 910.
 
 196 WASTE. [book 3. 
 
 by means of a ditch dug across a public way, which is a common nuisance, 
 a man or his horse suffer any injury by falling therein ; there for this par- 
 ticular damage, which is not common to others, the party shall have his ac- 
 tion.* Also if a man hath abated, or removed, a nuisance which offended 
 him, (as we may remember it was stated in the first chapter of this book, 
 that the party injured hath a right to do,) in this case he is entitled to no 
 action. For he had choice of two remedies; either without suit, by abat- 
 ing it himself, by his own mere act and authority ; or by suit, in which he 
 may both recover damages, and remove it by the aid of the law : but, hav- 
 ing made his election of one remedy, he is totally precluded from the other. 
 
 "The remedies by suit are, 1. By action on the case for damages; in 
 which the party injured shall only recover a satisfaction for the injury sus- 
 tained ; but cannot thereby remove the nuisance. Indeed every continu- 
 ance of a nuisance is held to be a fresh one ; and therefore a fresh action 
 will lie, and very exemplary damages will probably be given, if, after one 
 verdict against him, the defendant has the hardiness to continue it." In 
 this second action the verdict in the first action is conclusive of the rights 
 of the parties. And thus it may happen that a party may be subjected to 
 very heavy damages and the loss of important rights, without the power of 
 appeal. For it has been decided that in an action for a nuisance in erect- 
 ing a mill, if the damages recovered are less than $100, no appeal lies, 
 though it appears from the record that the right to erect the mill came in 
 question. 5 Mun. 270. Thus, then, in the first action, in which nominal 
 damages are given and the right is determined forever, there can be no ap- 
 peal ; and in the second, where the damages are heavy, an appeal would be 
 to no purpose, so far as relates to the matter of right, as the right is conclu- 
 sively determined by the first action. 
 
 "The founders of the law of England did not, however, rely upon pro- 
 babilities merely, in order to give relief to the injured. They have there- 
 fore provided two other actions ; the assise of nuisance, and the writ of quod 
 permitlat prosternere : which not only give the plaintiff satisfaction for his 
 injury past, but also strike at the root and remove the cause itself, the nui- 
 sance that occasioned the injury. These two actions, however, can only 
 be brought by the tenant of the freehold ; so that a lessee for years is con- 
 fined to his action upon the case;" and indeed both these actions are now 
 out of use. 
 
 We have already observed that twenty years' adverse enjoyment of water 
 in any particular manner, affords a conclusive presumption that the party 
 hath a right by grant or otherwise, unless such enjoyment can be explained 
 so as to show no admission of right. Selw. 273. 6 E. 214. And in de- 
 claring in such a case or in pleading such right, the party insisting on it sets 
 it forth as a grant which hath by time or accident been lost or destroyed. 
 See 2 Ciiitty, 575. For the form of declarations for diverting water courses, 
 see ibid, 337. 
 
 " The fourth species of injury, that may be offered to one's real property, 
 is by ivaste, or destruction in lands and tenements. What shall be called 
 
 * But the particular clamnge in (his case must he direct, and not ronseqiienlial, as bj' being dela3'ed 
 jn ajoiirney of iiii|)ortaiice.° Bull. N. 1^. iilj. Carthcw, 194. And if the plaintiff lias not acted with 
 ordinary care ami skill, with a view to protect liiiiiseif from the mischief, he cannot recover. 11 East, 
 60. a Taunt. 311. If a parly living in the neiyliborhood, and who has been in the habit of passing 
 to and fro on a highway, is obliged by a nuisance thereto to take a more circuitous route in his transit 
 to and from the nearest market town to iiis house, it is a pi ivate injury, for which he may sue as well 
 as indict. 3 M. &. S. 472. So, being delayed four hours by an obstruction in ahighway, and being 
 thereby prevented from perforniiug the same journey as many times in the day as if the obstruction 
 liad not existed, is a sufficient injury to entitle a parly to sue for the obstruction. 2 Bingh. 233. So. 
 if the nuisance prevent the |)laintifr navigating his barges on a public navigable creek, and compel 
 him to convey liis goods out of the same over a great distance by land, it is actionable. 4 M. &■ S- 
 101. But the mere obstruction of the plaintiff in liis business, 1 Esp. N. P. C. 148. 4 INI. & S. 103, 
 or delaying him a little while in a journey, Carth. 191, is not such a damage as will entitle the party 
 to his action ; the damage ought to be direct, not consequential. Carth. 191. Clncty.
 
 CHAP. 12.] WASTE. 197 
 
 vvaete was considered at large in a former book, as it was a means of for- 
 feiture, and thereby of transferring the property of real estates. I shall, 
 therefore, here only beg leave to remind the student, that waste is a spoil 
 and destruction of the estate, either in houses, woods, or lands; by demo- 
 lishing not the temporary profits only, but the very substance of the thing; 
 thereby rendering it wild and desolate; which the common law expresses 
 very significantly by the word vastum : and that this vasttim, or waste, ia 
 either voluntary, or permissive ; the one by an actual and designed demo- 
 lition of the lands, woods, and houses; the other arising from mere negli- 
 gence, and want of sufficient care in reparations, fences, and the like. So 
 that my only business is at present to shew, to whom this waste is an inju- 
 ry ; and of course who is entitled to any, and what, remedy by action. 
 
 I. " The persons who may be injured by waste, are such as have some 
 interest in the estate wasted ; for if a man be the absolute tenant in fee-sim- 
 ple, without any incumbrance or charge on the premises, he may commit 
 whatever waste his own discretion may prompt him to, without being im- 
 peachable, or accountable for it to any one. Ajid, though his heir is sure 
 to be the sufferer, yet nemo est haeres vivenlis'; no man is certain of suc- 
 ceeding him, as well on account of the uncertainty which shall die first, as 
 also because he has it in his ovv'n power to constitute what heir he pleases, 
 according to the civil law notion of an haeres natus and an haeres /actus : 
 or, in the more accurate phraseology of our English law, he may aliene or 
 devise his estate to whomever he thinks proper, and by such alienation or 
 devise may disinherit his heir at law. Into whose hands soever, therefore, 
 the estate wasted comes, after a tenant in fee-simple, though the waste ia 
 undoubtedly damnum, it is damnum absque injuria. 
 
 "One species of interest, which is injured by waste, is that of a person 
 who has a right of common in the place wasted ; especially if it be com- 
 mon of estovers, or a right of cutting and carrying away wood for house- 
 bote, plough-bote, &c. Here, if the owner of the wood demolishes the 
 whole wood, and thereby destroys all possibility of taking estovers, this is 
 an injury to the commoner, amounting to no less \\\%n a disseisin of his 
 common of estovers, if he chooses so to consider it ; for which he has 
 his remedy to recover possession and damages by assise, if entitled to a 
 freehold in such common ; but if he has only a chattel interest, then he can 
 only recover damages by an action on the case for this waste and destruc- 
 tion of the woods, out of which his estovers were to issue. 
 
 "But the most usual and important interest, that is hurt by this commis- 
 sion of waste, is that of him who hath the remainder or reversion of the 
 inheritance, after a particular estate for life or years in being. Here, if the 
 particular tenant — (be it the tenant in dower or by curtesy, who was answer- 
 able for waste at the common law, or the lessee for life or years, who was 
 first made liable by the statutes of Marlbridge and of Gloucester,) [see 1 R. 
 C. ch. 117] — if the particular tenant, I say, commits or suffers any waste, it 
 is a manifest injury to him. that has the inheritance, as it tends to mangle 
 and dismember it of its most desirable incidents and ornaments, among 
 which timbers and houses may justly be reckoned the principal. To him, 
 therefore, in remainder or reversion, to whom the inheritance appertains in 
 expectancy, the law hath given an adequate remedy. For he who hath the 
 remainder /or life only, is not entitled to bring a writ of waste, though he 
 may bring an action on the case for waste. For by the writ of waste the 
 place wasted is recovered, and as his interest may never come into posses- 
 sion, he ought not to recover that ; but by the action on the case he reco- 
 vers damages only. It seems, therefore, that the action on the case, which 
 is the most eligible remedy, may be supported by any person who has the 
 immediate remainder or reversion, whether in kejor Hfe, or years, against
 
 198 WASTE. [book 3. 
 
 the tenant in possession, or a stranger. Whereas, the writ of waste Hes 
 only for the owner of the inheritance. See 2 Saun. 252, n. 7. 2 Chitty, 
 344, n. q. It is obvious, also, that the person immediately in remainder or 
 reversion can alone maintain a writ of waste, since by that writ the party, 
 besides damages, recovers the place wasted, to which a remote remainder- 
 man or reversioner cannot be entitled. After the death of the immediate 
 remainderman, however, without recovery, he who is more remote may su« 
 and recover. For the forms and proceedings in a writ of waste, see 2 Saun. 
 228. 
 
 " II. The redress for this injury of waste is of two kinds : preventive, 
 and corrective ; the former of which is by writ of estrepement, the latter by 
 that of waste. 
 
 " 1. Estrepement is an old French word, signifying the satne as waste or 
 extirpation : and the writ of estrepement lay at the common law, o/Ver judg- 
 ment obtained in any action real, and before possession was delivered by 
 ihe sheriff; to stop any waste which the vanquished party might be tempt- 
 ed to commit in lands, which were determined to be no longer his. But as 
 in some cases the demandant may be justly apprehensive, that the tenant 
 may take waste or estrepement pending the suit, well knowing the weak- 
 ness of his title, therefore the statute of Gloucester [see 1 R. C. ch. 117,] 
 gave another writ of estrepement, pendente placito, commanding the sheriff 
 firmly to inhibit the tenant ' ne fiaciat vastum vel estrepementum pendente, 
 placito dido indiscusso.' And, by virtue of either of these writs the sheriff 
 may resist them that do, or offer to do waste : and, if otherwise he cannot 
 prevent them, he may lawfully imprison the wasters, or make a warrant to 
 others to imprison them : or, if necessity require, he may take the posse 
 tomitatus to his assistance. So odious in the sight of the law is waste and 
 destruction. 
 
 " Besides this preventive redress at common law, the courts of equity, 
 upon bill exhibited therein, complaining of waste and destruction, will grant 
 an injunction in order to stay waste, until the defendant shall have put in 
 liis answer, and the court shall thereupon make further order. Which is 
 now become the most usual way of preventing waste. 
 
 "2. A writ of waste is also an action, partly founded upon the common 
 law, and partly upon the statute of Gloucester, [see 1 R. C. ch. 117,] and 
 may be brought by him who hath the immediate estate of inheritance in 
 reversion or remainder, against the tenant for life, tenant in dower, tenant 
 by the curtesy, or tenant for years. This action is also maintainable in 
 pursuance of statute Westm. 2, by one tenant in common of the inheritance 
 against another, who makes waste in the estate holden in common. The 
 equity of which statute extends to joint-tenants but not to coparceners ; be- 
 cause by the old law coparceners might make partition, whenever either of 
 them thought proper, and thereby prevent future waste, but tenants in com- 
 mon and joint-tenants could not; and therefore the statute gave them this 
 remedy, compelling the defendant either to make partition, and take the 
 place wasted to his own share, or to give security not to commit any farther 
 waste. But these tenants in common and joint-tenants are not liable to 
 the penalties of the statute of Gloucester, which extends only to such as 
 have life-estates, and do waste to the prejudice of the inheritance. The 
 waste, however, must be something considerable ; for if it amount only to 
 twelve pence, or some such petty sum, the plaintiff shall not recover in an 
 action of waste : nam de minimis non curat lex. 
 
 "This action of waste is a mixed action ; partly real, so far as it recovers 
 land ; and partly personal, as far as it recovers damages. For it is brought 
 for both those purposes ; and, if the waste be proved, the plaintiff shall re- 
 cover the thing or place waited, and also treble damages by the statute of
 
 CHAP. 12.] DISTURBANCE. 199? 
 
 Gloucester. The writ of waste calls upon the tenant to appear and shew 
 cause why he hath committed waste and destruction in the place named, 
 dd exhaeredatienem, to the disinherison of the plaintiff. And if the de- 
 fendant makes default, or does not appear at the day assigned him, then 
 the sheriff is to take with him a jury of twelve men, and go in person to 
 the place alleged to be wasted, and there inquire of the waste done, and the 
 damages ; and make a return or report of the same to the court, upon which* 
 report the judgment is founded. For the law will not suffer so heavy a 
 judgment, as th« forfeiture and treble daniages, to be passed upon a mere 
 default, without full assurance that the fact is according as it is stated in 
 the writ. But if the defendant appears to the writ, and afterwards suffers 
 judgment to go against him by default, or upon a.nihil dicit, (when he makes 
 no answer, puts in no plea, in defence,) this amounts to a confession of 
 the waste ; since, having once appeared, he cannot now pretend ignorance 
 of the charge. Now, therefore, the sheriff shall not go to the place to in- 
 quire of the fact, whether any waste has, or has not, been committed ; for 
 this is already ascertained by the silent confession of the defendant ; but 
 he shall only, as in defaults upon other actions, make inquiry of the quaiv- 
 turn of damages. The defendant, on the trial, may give in evidence any 
 thing that proves there was no waste committed, as that the destruction 
 happened by lightning, tempest, the king's enemies, or other inevitable ac- 
 cident. But it is no defence to say, that a stranger did the waste, for 
 against him the plaintiff hath no remedy ; though the defendant is entitled 
 to sue such stranger in an action of trespass vi et armis, and shall recover 
 the damages he has suffered in consequence of such unlawful act. 
 
 " When the waste and damages are thus ascertained, either by confes- 
 sion, verdict, or inquiry of the sheriff, judgment is given in pursuance of the 
 statute, that the plaintiff shall recover the place wasted ; for which he has 
 immediately a writ of seisin, provided the particular estate be still subsist- 
 ing, (for, if it be expired, there can be no forfeiture of the land,) and also 
 that the plaintiff shall recover treble the damages assessed by the jury ; 
 which he must obtain in the same manner as all other damages, in actions 
 personal and mixed^ are obtained, whether the particular estate be expired, 
 or still in being." 
 
 The last species of real injuries, is that of disturbance, which is usually 
 a wrong done to some incorporeal hereditament, by hindering or disquiet- 
 ing the owners in their regular or lawful enjoyment of it. 
 
 I am not aware of any species of disturbance known to our laws, except 
 disturbance of franchises and disturbance of ways, and even these must be 
 very limited and rear. The disturbance of franchise may exist in the case 
 of the turnpike companies, in obstructing the exercise of their chartered 
 right to take the tolls allowed by law. Nor does it seem to me very impor- 
 tant to consider these and some of the other cases of disturbance mention- 
 ed by Mr. Blackstone, under a distinct head, since they fall naturally under 
 the division of actions on the case, which is the proper species of actions 
 for all these injuries. 
 
 " The third species of disturbance happens when one who hath a right 
 to a way over another's grounds, by grant or prescription, is obstructed by 
 enclosures, or other obstacles, or by ploughing across it; by which means 
 he cannot enjoy his right of way, or at least not in so commodious a man- 
 ner as he might have done. If this be a way annexed to his estate, and 
 the obstruction is made by the tenant of the land, this brings it to another 
 species of injury ; for it is then a nuisance, for which an assise will he, as 
 mentioned in a former chapter. But if the right of way, thus obstructed 
 by the tenant, be only in gross, (that is, annexed to a man's person and un- 
 «onne«ted with any lands or teHements,) or if the obstruction of a way be-
 
 200 DISTURBANCE. [ book 3. 
 
 longing to an house of land is made by a stranger, it is then in either case 
 merely a disturbance : for the obstruction of a \vay in gross is no detriment 
 to any lands or tenements, and therefore does not fall under the legal no- 
 tion of a nuisance, which must be laid, ad nocumentum liberi lenementi ; 
 and the obstruction of it by a stranger can never tend to put the right of 
 way in dispute : the remedy therefore for these disturbances is not by as- 
 sise or any real action, but by the universal remedy of action on the case to 
 recover damages." 
 
 In a preceding lecture we have enlarged somewhat upon the text of the 
 commentator in relation to the right of way. It becomes necessary in this 
 place also to be somewhat more particular than he. has been upon the sub- 
 ject of the injury of disturbance, and the remedy to be pursued, with the 
 mode of pursuing it ; for although these questions do not as yet arise very 
 frequently in our courts, it is obvious that, as we advance in denseness of 
 population, they will be more and more important. Waiving, therefore, 
 the consideration of nuisances on public highways, which are remarked 
 upon elsewhere, I shall here only turn the student's attention to the remedy 
 of the action on the case for a disturbance of a right of way, or for a nui- 
 sance' to a private way. And here it must be recollected, that, as the gran- 
 tee is to keep the road in repair himself, (at least so far as his own conve- 
 nience is to be consulted, unless there be a special agreement to do so by 
 the grantor,) he can only sue for acls of the grantor, and not for his omis- 
 sions. Some of those acts which lay the foundation of an action are men- 
 tioned in the text. 
 
 In the plaintiff's declaration, which is intended to set forth his rights and 
 to state the injuries he has sustained, he usually shews a possession of a 
 house or land, and that by reason thereof he ought to have a certain way. 
 In the case of a private way, it must be described ; and it must be stated 
 either that it leads to a public highway, (8 E. 4,) or that it leads to a pri- 
 vate close in which the plaintiff has an interest. The kind of right of way 
 should also be shewn ; — whether cartway, horseway, or footway, and the 
 injury, hindrance, and obstruction set forth ; though the kind of nuisance 
 erected need not be specified. See 2 Chitty, 358, a precedent, and the 
 notes thereon: and see also 2 Saun. 114 a. n. 1. Formerly the plaintiff 
 was bound to set forth in all cases, (whether he claimed by grant, prescrip- 
 tion, or a way of necessity,) in what manner he did claim. But this is not 
 now held to be necessary where the plaintiff sets forth a. possession, and a 
 rightly reason thereof. See 1 Saun. 114, a. n. 1. Chitty, 358. But if the 
 right of way be not by reason of possession, but by special agreement, it is 
 necessary to set it out ; as, for instance, in the case of a right of way in 
 gross; and so I presume (from the reasoning of Serjeant Williams, shew- 
 ing that a way of necessity is nothing else but a way by grant, 1 Saun. 323, 
 a. n. 6,) it is equally proper where such right of way is claimed. It seems, 
 indeed, that where the defendant in trespass justifies under a right of way, 
 whether by grant, prescription, of necessity, or by way of non-existing grant, 
 (to let in the presumption from length of time,) he must always set forth in 
 his plea the particular grounds of his title. 1 Saun. 323, a. in note. 1 B. 
 & P. 371. 3 E. 294. 2 Chitty, 575, in note ; also the different precedents 
 in 2 Chitty, from 573 to 580. I incline, therefore, to suppose that in all 
 cases, except where the plaintiff claims by prescription, (which never can 
 occur in Virginia,) he must set forth how he claims. However this may be, 
 he must prove the title at the trial to enable him to recover, even in those 
 cases where it is considered matter of evidence only. 2 Saun. 114, c. in 
 note. The student, in addition to the authorities above cited, may consult 
 2 Esp. 639, 3d Lon. Ed.
 
 :hap. 12.] QtJO WARRANTO. 20l 
 
 Passing over the intermediate matter of Mr, Blackstone'e work, but recom- 
 mending it to the student's attentive perusal, I shall now proceed to the 
 consideration of two species of remedies, which he has classed under the 
 head of remedies proceeding from, or affecting, the crown. 
 
 Of these the first is a quo warranto. " A writ of quo warranto is in the 
 nature of a writ of right for the crown, against him who claims or usurps 
 any office, franchise, or liberty, to inquire by what authority he supports his 
 claim, in ordef to determine the right. It lies also in case of non-user or 
 long neglect of a franchise, or mis-user or abuse of it ; being a writ com- 
 manding the defendant to shew by what warrant he exercises such a fran- 
 chise, having never had any grant of it, or having forfeited it by neglect or 
 abuse. And in case of judgment for the defendant, he shall have an allow- 
 ance of his franchise ; but in case of judgment for the king, for that the 
 party is entitled to no such franchise, or hath disused or abused it, the fran- 
 chise is either seised into the king's hands, to be granted out again to 
 whomever he shall please ; or, if it be not such a franchise as may subsist in 
 the hands of the crown, there is merely judgment of ouster, to turn out the 
 party who usurped it. 
 
 " The judgment on a writ of quo warranto (being in the nature of a writ 
 of right) is final and conclusive even against the commonwealth. Which, 
 together with the length of its process, probably occasioned that disuse into 
 which it is now fallen, and introduced a more modern method of prosecu- 
 tion, by information by the attorney for the commonwealth, in the nature of 
 a writ of quo warranto ; wherein the process is speedier, and the judgment 
 not quite so decisive. This is properly a criminal method of prosecution, 
 as well to punish the usurper by a fine for the usurpation of the franchise, 
 as to oust him, or seise it for the state ; but hath long been applied to the 
 mere purposes of trying the civil right, seising the franchise, or ousting the 
 wrongful possessor ; the fine being nominal only. 
 
 "A writ of mandamus is, in general, a command issuing in the common- 
 wealth's name from the court having jurisdiction thereof, and directed to 
 any person, corporation, or inferior court of judicature, requiring them to 
 do some particular thing therein specified, which appertains to their office 
 and duty, and which the court has previously determined, or at least sup- 
 poses to be consonant to right and justice. It is a high prerogative writ, of 
 a most extensive remedial nature ; and may be issued in some cases where 
 the injured party has also another more tedious method of redress, as in the 
 case of admission or restitution to an office ; but it issues in all cases where 
 the party hath a right to have any thing done, and hath no other specific 
 means of compelling its perfermance. A mandamus, therefore, lies to com- 
 pel the admission or restoration of the party applying, to any office or fran- 
 chise of a public nature ; to academical degrees ; to the use of a meeting- 
 house, &c.; it lies for the production, inspection, or delivery of public 
 books and papers; to oblige bodies corporate to affix their common seal; 
 to compel the holding of a court ; and for an infinite number of other pur- 
 poses, which it is impossible to recite minutely. But at present we are 
 more particularly to remark, that it issues to the judges of any inferior court, 
 commanding them to do justice according to the powers of their office, 
 whenever the same is delayed. For it is the peculiar business of superior 
 courts to superintend all inferior tribunals, and therein to inforce the 
 due exercise of those judicial or ministerial powers, with which the legis- 
 lature have invested them : and this not only by restraining their excesses, 
 but also by quickening their negligence, and obviating their denial of jus- 
 tice. This writ is grounded on a suggestion, by the oath of the party m- 
 jured, of his own right, and the denial of justice below : whereupon, m or- 
 der more fully to satisfy the court that there is a probable ground for such 
 VOL. 2—26
 
 202 MANDAMUS. [book 3. 
 
 interposition, a rule is made (except in some general cases, where the pro- 
 bable ground is manifest) directing the party complained of to shew cause' 
 why a writ of mandamus should not issue: and, if he shews no sufficient 
 cause, the writ itself is issued, at first in the alternative, either to do thu^s, 
 or signify some reason to the contrary ; to which a return, or answer, must be 
 made at a certain day. And, if the inferior judge, or other person to whom 
 the writ is directed, returns or signifies an insufficient reason, then there- 
 issues in the second place a peremptory mandamus, to do the thing absolute- 
 ly ; to which no other return will be admitted, but a certificate of perfect 
 obedience and due execution of the writ. If the inferior judge or other 
 person makes no return, or fails in respect and obedience, he is punishable 
 for his contempt by attachment." But if he, at the first, returns a suffi- 
 cient cause, the person who sued out the writ may traverse or plead to all 
 or any of the material facts alleged therein, to which he who makes the re- 
 tUTU shall reply, take issue, or demur, and such further proceedings shall be 
 had as if it were an action for a false return, and if a verdict be rendered 
 for the person suing the writ, he shall recover damages and costs in like 
 manner as if he had brought such action ; and thereupon he takes out an 
 execution therefor, aad a peremptory mandamus also issues. 1 R. C. ch. 
 121. 
 
 The writ of mandamus will not lie, it is said, against the visiters of a 
 private eleemosynary institution ; 3 Call, 593; but it is a proper remedy to 
 restore to his office a clerk of a court who has been ousted from his office 
 by the illegal appointment of another person. 3 H. & M. 1, 47. In such 
 case, however, the party occupying the office ought to be made a party to 
 the rule or conditional mandamus, or it ought to be served upon him that 
 he may be warned to appear and defend his right, and contest the propriety 
 of issuing a peremptory mandamus. If, however, it appears from the re- 
 cord that he was apprised of the proceeding, it will be sufficient. Ibid. If 
 an inferior court of record refuse to admit a deed to be proved and record- 
 ed, a mandamus will lie to compel it to do so. 2H. & M. 132. Sedvide 
 3 Dall.42. So, if an inferior court refuse to permit a defendant, a non-re- 
 sident of the state, to remove his cause to the circuit court of the United 
 States, according to the provisions of law, it may be compelled by manda- 
 mus from the superior court of the state, but not from the circuit court of 
 the United States. 4 H. & M. 173. 
 
 But a mandamus will not lie to a superior court of law because it has re- 
 fused to grant a supersedeas to the judgment of an inferior court, thougli> 
 that refusal is entered of record. The proper remedy in that case is a su- 
 persedeas by the court of appeals to the order of refusal. 2 Call, 270, 389. 
 Nor, I presume, does it lie to compel an inferior court to proceed with a 
 cause where unreasonable delay is alleged. See 4 H. & M. 462. It is 
 now provided otherwise, as to the chancery courts. 
 
 Wlien a party wishes this process, he moves by counsel for a rule on the 
 person or persons against whom it is to go, to show cause why it shall not 
 issue. When the mandamus is issued, and is against the justices of a court, 
 the delivery of it to such of the justices as are sitting in open court is suffi- 
 cient service of the writ. I Call, 562. 
 
 A mandamus is a legal remedy to compel an executive officer to deliver a 
 commission to any officer who has been regularly appointed according to 
 the law and constitution, unless where such oflicer is removable at will, and 
 the executive has chosen to rescind the appointment. 1 Cranch, 137, 163. 
 But this power being in its character one of original jurisdiction, cannot be 
 exercised by the supreme court of the United .States, whose power is only 
 appellate, with a very kvi exceptions. Ibid. 2 Wheat. 369. And even 
 the power of the circuit courts to issue a writ of mandamus is confined ex-
 
 CHAP. 12.] PKOHIBITION. 203 
 
 clusively to cases in which it may be necessary to exercise jurisdiction in 
 cases vested in them. 7 Cranch, 504. 
 
 The case of Dew vs. Stribling, (3 H. & M. ],) affords much useful in- 
 formation on the subject of the mandamus. See also2 Esp. 661. 3T. R. 
 577. 2 T. R. 177. 6 E. 356. 1 T. R. 396. 6 T. R. 168. 2 T. R. 259. 
 1 M. & S. 101. 3 Dall. 42. It is a general rule that it will not lie unless 
 the party has no other specific remedy. 1 T. R. 404. 3T. R. 652. Douff. 
 523, 526. 2 Leigh, 165. 
 
 Lastly, I shall mention here another injury, which is that of encroach- 
 ment of jurisdiction, or calling one coram non judice, to answer in a court 
 that has no legal cognizance of the cause. This is also a grievance, for 
 which the common law has provided a remedy by the writ of prohibition. 
 
 A prohibition is a writ issuing properly out of a superior court, to an in- 
 ferior court, commanding them to cease from the prosecution of a suit, up- 
 on a suggestion that either the cause originally, or some collateral matter 
 arising therein, does not belong to that jurisdiction, but to the cognizance 
 of some other court. This writ may issue either to inferior courts of com- 
 mon law, or to a justice or justices of peace, if they hold plea of any mat- 
 ter above their jurisdiction. See 1 Virg. Ca. Miller vs. Marshall. 
 
 " And if either the judge or the party shall proceed after such prohibition, 
 an attachment may be had against them, to punish them for the contempt, 
 at the discretion of the court that awarded it ; and an action will lie against 
 them, to repair the party injured in damages." 
 
 A short summary of the manner of proceeding in prohibitions is as fol- 
 lows : 
 
 " The party aggrieved in the court below applies to the superior court, 
 setting forth in a suggestion upon record the nature and cause of his com- 
 plaint, in being drawn ad aliud examen, by a jurisdiction or manner of pro- 
 cess disallowed by the laws of the kingdom : upon which, if the matter al- 
 leged appears to the court to be sufficient, the writ of prohibition immedi- 
 ately issues, commanding the judge not to hold, and the party not to pro- 
 secute, the plea. But sometimes the point may be too nice and doubtful 
 to be decided merely upon a motion : and then, for the more solemn deter- 
 mination of the question, the pariy applying for the prohibition is directed 
 by the court to declare in prohibition ; that is, to prosecute an action, by 
 filing a declaration against the other, upon a supposition or fiction (which 
 is not traversable) that he has proceeded in the suit below, notwithstanding 
 the writ of prohibition. And if, upon demurrer and argument, the court 
 shall finally be of opinion that the matter suggested is a good and suffi- 
 cient ground of prohibition in point of lav/, then judgment with nominal 
 ■damages shall be given for the party complaining, and the defendant, and 
 also the inferior court, shall be prohibited from proceeding any farther. On 
 the other hand, if the superior court shall think it no competent ground for 
 restraining the inferior jurisdiction, then judgment shall be given against 
 him who "applied for the prohibition in the court above, and a writ of con- 
 suUation shall be awarded ; so called, because, upon deliberation and con- 
 sultation had, the judges find the prohibition to be ill-founded, and there- 
 fore, by this writ, they return the cause to its original jurisdiction, to be 
 there determined, in the inferior court. And, even in ordinary cases, the 
 writ of prohibition is not absolutely final and conclusive. For though the 
 ground be a properjWDne in point of law for granting the prohibition, yet if 
 the fact that gave rise to it be afterwards falsified, the cause shall be re- 
 manded to the prior jurisdiction. For the party prohibited may appear to 
 the prohibition, and take a declaration, (which must always pursue the sug- 
 gestion,) and so plead to issue upon it ; denying the contempt, and travers- 
 ing the allegation that the inferior tribunal is trJiing cognizance of a matter
 
 204 OF JOINDER OF ACTIONS. [ book 3. 
 
 not within its jurisdiction ; and if this appears, a writ of consultation is 
 awarded. The writ of consultation may also be, and is frequently, grant- 
 ed by the court without any action brought ; when, after a prohibition is- 
 sued, upon more mature consideration the court are of opinion that the 
 matter suggested is not a good and sufficient ground to stop the proceed- 
 ings below." 
 
 CHAPTER XIII. 
 
 OF JOINDER OF ACTIONS.' 
 
 Where the plaintiff has two causes of action, which may be joined in one 
 action, he ought so to proceed, and if he bring two actions, the court will 
 compel him to consolidate them, and to pay the costs of the application. 
 2 T. R. 639. Tidd's Prac. 3d Edit. 556. It is, therefore, material to as- 
 certain when several demands may be included in the same action. This 
 may be considered with reference to, first, the joinder of different /onns of 
 action ; secondly, of different rights of action ; and thirdly, the consequences 
 of misjoinder. 
 
 1st. Joinder of different fonns of action. The joinder in action depends 
 on the fonn of the action, rather than on the subject matter of it; thus, in 
 an action against a carrier, if the plaintiff declare in assumpsit he cannot 
 join a count in trover, as he may if he declare against him in case, for the 
 joinder depends on i\\e form of action ; Per Duller J. I T. R. 277. And 
 see the judgment of Ld. Ellenborough, C. J. in 3 East, 70, and I Chit. 135 ; 
 and if a cause of action, which ought to be laid in assumpsit, be improper- 
 ly laid in case, and joined with a count in trover, no objection can be tak-" 
 en with effect on the ground of misjoinder, but only the particular defective 
 count should be demurred to. 6 East, 335, 6. The result of the authori- 
 ties is stated to be, that when the same plea may be pleaded, and the same 
 judgment given on all the counts of the declaration, or when the counts are 
 of the same nature, and the same judgment is to be given on them all, though 
 the pleas be different, as in the case of debt upon bond and on simple con- 
 tract, they may be joined. 2 Saund. 117, n. c. 1 T. R. 276, 7. Bac. Ab. 
 Actions in General. Com. Dig. Action, G. By this rule we may decide in 
 general what forms of action may be joined in the same declaration. 
 
 In actions in form ex contractu, the plaintiff may join as many different 
 counts as he has causes of action in assumpsit; so also in covenant, debt, 
 account, annuity, or scire facias. Bac. Ab. Actions in General, C. Com. 
 Dig. Actions, G. 2 Vin. Ab. p. 42, 45, 46. So debt on bond or other spe- 
 cialty may be joined in the same action with debt on judgment, or on sim- 
 ple contract, or for an amerciament; so may debt and detinue, though in 
 these cases the pleas are different, and in the latter the judgment also va- 
 ries ; 2 Saund. 117, b. 1 Wils. 252; which joinder has probably been 
 allowed, because the practice is sanctioned by the entries in the Registrum 
 Brevium. Gilb. C. P. 5, 6, 7. Bac. Ab. Actions in General, C. But 
 where the defendant would on bringing error on a judgment in debt found- 
 ed on a specialty, be compellable to find bail in error in pursuance of the 
 3 Jac. 1, c. 8, it is not advisable to join a count in debt on simple contract, 
 the judgment on which would not require bail in error ; 2 East, .359. Tidd's 
 Prac. 3d edit. 1079 ; so several counts may be joined in one action on a 
 penal statute, for different penalties of a similar nature, as for several acts 
 of bribery. 4 T. R. 229. 3 T. R. 103. 2 Vin. Ab. 44, pi. 49. 
 
 "This chapter is taken entiroly from 1 Cliitly's Pleadings. It did not occur to llieEdilor until the 
 work had been prinleil thus t';ir, iliat puch a dissertation" was very essential. Aa it was too late to 
 prepare one, he has adopted 31r. Chilly's, though it is by no meaiiS guch aa he could haye desired for 
 the use of the student.
 
 CHAP. 13.] OF JOINDER OF ACTIONS. 205 
 
 So in actions m form ex delicto, several distinct trespasses may be joined 
 in the same declaration, 2 Saund. 117, b. 8 Co. 87, b. 2 Vin. Ab. 38, 
 &c., and several causes of action in case may be joined with trover; Id. 
 ibid. 1 T. R. 277; thus case against a common carrier, or for immode- 
 rately riding a horse, or for disturbing the plaintiff in his right of common, 
 or for hindering him from landing goods upon a yard of the defendant con- 
 trary to agreement between them, or for not returning to the plaintiff a 
 spaniel delivered to the defendant, to be tried and returned in a reasonable 
 time, but keeping and detaining the same from the plaintiff, may be joined 
 in one action and with a count in trover. Id. Ibid. So in replevin the 
 plaintiff may in the same declaration count of several takings on different 
 days, and at different places in the same county, Fitz. N. B. 68, n. a. 
 Bull. Ni. Pri. 54. 2 Vin. Ab. 41. And the plaintiff may join trespass 
 with a count for a battery of his servant ^er quod servitiiivi amisit, or for 
 debauching his servant, Alleyn, 9. Bac. Ab. Actions in General, C. 3 
 Wils. 18, or trespass and rescue ; 2 Lutw. 1249. Lord Raym. 83. Tidd. 
 Prac. 3d edit. 11, n. u. ; though the loss of service, and consequence of the 
 rescue, are properly the subjects of an action on the case ; 2 Chitty, 2G7, 
 n. u. 293 to 299 ; however, if these injuries be joined, they should be stat- 
 ed to have been commited vi et armis. 
 
 But in order to prevent the confusion which might ensue, if different 
 forms of actions, requiring different pleas and different judgments, were al- 
 lowed to be joined in one action, it is a general rule that actions in form 
 ex contractu cannot be joined with those in form ex delicto. Thus assump- 
 sit, and an action on the case, as for a tort, cannot be joined, 1 T. R. 276, 
 7. 1 Vent. 366. Carth. 189, nor assumpsit with trover, 2 Lev. 101. 3 
 Lev, 99. 1 Salk. 10. 3 Wils. 354. 6 East, 335, nor trover with detinue. 
 WiUes, 1 18. • 
 
 And, with the above exceptions, counts in one species of action cannot 
 be joined with counts in another ; as assumpsit, covenant, debt, or account 
 with each other, Bac. Ab. Actions in General, C, nor trespass with case, 
 for they are actions of distinct natures, and the judgments are different; 
 that in trespass being in strictness quod capiatur, and that in case quod sit 
 in misericordia. 1 Lord Raym. 272, 3. 2 Saund. 117, e. In criminal 
 proceedings, the joinder of different offences in an indictment does not ren- 
 der the proceeding defective, though it is a matter of discretion in the court, 
 on motion to quash an indictment so framed. 8 East, 46, 7. 3 T. R. 103. 
 
 2dly. Joinder of several rights of actions, or liabilities. Where the same 
 form of action may be adopted for several distinct injuries, the plaintiff may 
 in general proceed for all in one action, though the several rights affected 
 were derived from different titles ; but a person cannot in the same action 
 join a demand in his own right, and a demand as representative of another 
 or in auter droit, nor demands against a person on his own liability and on 
 his liability in his representative capacity. Bac. Ab. Actions in General, C. 
 2 Vin. Ab. 62. Com. Dig. Actions, G. The points which usually occur 
 in practice, may be considered as they arise in actions by and against part- 
 ners, husband and wife, assignees of a bankrupt, executors and administra- 
 tors, and heirs and devisees. 
 
 In actions by or against several persons, whether ex contractu or ex delicto, 
 all the causes of action must be stated to be joint. Thus'a person cannot 
 bring a joint action against two, and state in one part of the declaration 
 that one of them assaulted and beat him, and in another part that the other 
 took away his goods, for the trespasses are of several natures and ^gamst 
 several persons, and they cannot plead to this declaration. 2 Saund. 117, 
 a. Sty. 153, 4. 4 T. R. 360. But in the case of a survivor of several con- 
 iracting parties, a demand by Of against hira as sufvivor, may be jomed
 
 206 OF JOINDER OF ACTIONS. [book 3. 
 
 with a demand due in his own right. 3 T. R. 433. 5 T. R. 493. 6 T. 
 
 R. 582. 1 Esp. Rep. 47. 
 
 When the wife is co-phiintiff in an action ex contractu, no cause of ac- 
 tion can be inckided unless it be founded on a contract with the feme be- 
 fore marriage, or she be the meritorious cause of action, and her interest 
 must expressly appear on the face of every count. 1 Chitty, '20. 2 Bla. Rep. 
 1236. And in an action in form tx delicto for a personal injury, if the 
 wife be joined, the declaration must proceed only for torts to her individu- 
 ally, and not for such wrongs as only affect the husband. 1 Chitty, 61. And 
 for torts to the person or personal property, if she be joined, the nature of 
 her interest therein must be expressly stated. 1 Chitty, 62. And an action 
 on the case cannot be supported against the husband and wife for words 
 spoken by both. Bac. Ab. Actions in General, C. 2 Willes, 227. 
 
 A plaintiff cannot join in the same action a demand as executor, with 
 ■another in his own right. 1 T. R. 489. 2 Saund. 117, d. 3 T. R. 659. 
 4 T. R. 277. Bac. Ab. Actions in General, C. Tidd's Prac. 6th ed. 13. 
 The contradiction and doubts in the different cases to be met with in the 
 books upon this point are merely on the application of the rule. See the 
 -cases, 2 Saund. 117, d. 6 East, 405. In the late case of Co well vs. Watts, 
 (6 East, 405, and see 1 Taunt. 322. 2 Marsh. 147. 2 Smith's Rep. 416. 
 Tidd's Prac. 6th edit. 13,) it was decided, that a count upon a promise to 
 the plainlifVas administratrix, for goods sold and delivered by her as such, 
 after the death of the intestate, may be joined with a count upon an ac- 
 oouut stated with her as administratrix, because the damages and costs 
 when recovered would be assets; and Lorxl EUenborough, Ch. J. expressed 
 xL wish, that the rule laid down in Bull vs. Palmer, (2 Lev. 165,) had been 
 abided by, viz. : that where the money, ivhen recovered, would be assets, the 
 executor may declare for it in his representative charact%r ;\ and Grose, J. 
 -observed, that the best line to adopt in determining whether counts may be 
 joined, is to consider whether the sura when recovered would be assets ; and 
 Lawrence, J. observed, " that the reason why promises made to a plaintiff 
 in his own right cannot be joined with promises to him in his representa- 
 tive character is, because the funds, to wliicii the money and costs to be re- 
 eo.vered are to be applied, or out of which the costs are to be paid, are dif- 
 ferent, and that it appeared to him that those cases in which the rule had 
 been laid down, that counts may be joined, whenever the money recovered 
 under them would be assets, afford the best guide. The question of costs 
 is a matter of very different consideration, on which many of the contrary 
 decisions have proceeded. The reason why an executor suing in his repre- 
 sentative character shall not be liable to costs if he fail, is, because he is 
 supposed not to be cognizant of the contracts made by his testator : but as 
 he must be cognizant of all contracts made by himself personally, though 
 in his representative character, and as he might declare upon them in his 
 own right, there is no reason why he should be exempt from costs, in case 
 he fail in liis action ;" and Le Blanc, J. said, "the plain and intelligible 
 line is, that the counts may be joined, whenever the money when recovered 
 would be assets." This was also considered to be the criterion whether 
 the counts may be joined, in 1 Taunt. 322. 2 Marsh. 147. 2 Smith's Rep. 
 416. It is therefore clear, that an executor or administrator may declare 
 as such for money paid him in that character, and may join such count with 
 counts on promises to the testator or intestate. 3 East, 104. So money 
 had and received by the defendant, to the use of the plaintiff as executor, 
 (3 T. R. 569. 2 Saund. 207, 8,) and an account stated with him as exe- 
 cutor, of moneys due and owing to the testator, (5 East, 150. 6 East, 406, 
 403. 1 T. R. 487. 1 Taunt. 322. 2 Marsh. 147,) or to the plaintiff as 
 executor, (6 East, 406, 403. 1 Taunt. 322. 2 Marsh. 147. ace. 1 Ld.
 
 CHAP. 13.] OP JOINDER OF ACTIONS. 207 
 
 Raym. 437. 2 Saund. 117, d. semb. cont.) may be joined with counts on 
 promises to the testator or intestate. And where the plaintiff declared as 
 executor upon a bill of exchange indorsed to him in that character, it was 
 bolden sufficient, (1 T. R. 487. 6 East, 410, 413. 2 Vin. Ab. 48, pi. 9,) 
 though in another case it was decided, that an executor cannot join a count 
 upon a bond given to his testator, and a count upon a bond given to him as 
 executor, in the same action. -3 Bos. £c Pul. 7. Sed vide 1 T. R. 487. G 
 East, 105. Where six years have elapsed since the death of the testator, 
 or intestate, or it may on any other account be material for the plaintiff to 
 avail himself of a promise or acknowledgment since the death, counts- 
 should be introduced in the declaration, on promises to the executor in that 
 character, (see the form, 2 Chitty, 95,) for otherwise, such promise or ac- 
 knowledgment cannot be given in evidence. 3 East, 409. Willcs, 29. In 
 every count stating debts or promises to the executor or administrator in 
 that character, the word "as" executor, &c. must be inserted. 5 East, 150. 
 2 Marsh. 151. But see 2 Lev. 110. 2 Vin. Ab. 47, pi. 6. 48, pi. 9. 2 
 Bos. & Pul. 424. 
 
 So in an action against an executor, a count cannot be introduced which 
 would charge him personally, for the judgment in the one case would be 
 de bonis testator is, and in the other de bonis propriis ; 2 Saund. 117, d. 
 Hob, 88. 2 Lev. 228. 2 Vin. 45, pi. 52, 47, pi. 5 ; and, therefore, a count 
 for money lent to or had and received by an executor as such, is not sus- 
 tainable. 2 Saund. 117, d. 4 T. R. 347. 1 Hen. Bla. 108. But of late, 
 counts for funeral charges against the executor in that character have suc- 
 ceeded. See 3 Camp. 298, sed quare. And in an action of covenant against 
 an executor, the plaintiff may join a breach by the testator and a breach' 
 since his decease; 10 East, 313; and an account stated by the defendant 
 as executor or administrator, of moneys due from the testator or intestate 
 may be supported, and may be joined with counts upon promises by the 
 testator or intestate, and this is the common mode of declaring against ex- 
 ecutors and administrators, to save the statute of limitations; 2 Saund. 117, 
 e. 1 Hen. Blac. 102. Forrest's Rep. Exchequer, 98 ; and though it has 
 been considered that a count upon an account stated by an executor as 
 such, of moneys due and owing from hi7n in that character, cannot be join- 
 ed with counts on promises by the testator, on the ground that such account 
 stated makes the executor personally liable, (1 Hen. Blac. 108, 114. 2 
 Saund. 1 17, d. Tidd. Prac. 3d edit. 12. 2 Bos. & Pul. 224,) yet it is sub- 
 mitted that such an account would not make the executor personally liable, 
 and as it has been decided that an account stated ivith an executor of mo- 
 neys due and owing to him as such, may be joined with counts on promi- 
 ses to the testator, it is presumed thattliis question would now meet with a 
 different decision. Forrest's Rep. Exch. 98. 6 East, 405 to 412. 10 
 East, 313. Whenever an executor, &c. is sued, upon promises by him 
 in that character, the words "as executor," &.c. must be inserted in each 
 count. 2 Bos. & Pul. 424. 
 
 3dly. Consequences of misjoinder. The consequences of a misjoinder 
 are more important than the circumstance of a particular count being de- 
 fective, for in the case of misjoinder, however perfect the counts may res- 
 pectively be in themselves, the declaration will be had on a general demur- 
 rer, or in arrest of judgment, or upon error; 2 Bos. & Pul. 424. 4 T. R. 
 347. 1 Hen. Blac. 108 ; the demurrer for misjoiner must be to the whole 
 declaration, and not merely to the defective count or breach. 1 M. &. S. 
 355, 36G. Tidd's Prac. Gth edit. 11. The plaintiff cannot, if the decla- 
 tion be demurred to, aid the mistake by entering a nolle prosequi so as to 
 prevent the operation of the demurrer ; 1 Hen. Blac. 110, 111, 3, 4. 4 T. 
 R. 360. Tidd's Prac. 3d edit. 630. 1 Saun. 207, c. ; though the court
 
 208 OF THE PARTIES TO THE ACTION. [book 3. 
 
 will in general give the plaintiff leave to amend by striking out some of the 
 counts on payment of costs. 4 T. R. 348. In some cases, however, a 
 misjoinder may be aided by intendment after verdict, ('2 Lev. 110. Com. 
 Dig. Action, G. 2 Vin. Ab. 47, pi. 6,) and by taking separate damages, 
 or by entering a rcmittit damna, the misjoinder may be aided ; 2 M. & S. 
 533. 11 Mod. 196. 2 Vin. Ab.48, pi. 9. 3 T. R. 433; and though it is 
 reported to have been decided, that if assumpsit and trover be joined, and 
 there be a verdict for the defendant on the count in trover, that does not 
 cure the declaration ; 3 Lev. 99. 2 Lev. lOL T. Raym. 233. 1 Salk. 
 10. 3 Wils. 352. 2 Saun. 117, d.; that doctrine is now over-ruled. 2 
 M. &S. 533. Hob. 219. Glib. Eject. 52. Adams Eject. 1st edit. 30L 
 
 There are no rules connected with the science of pleading so important 
 as those which relate to the persons who are to be the parties to the action ; 
 for if there be any mistake in this respect, the plaintiff is, in general, com- 
 pellable to abandon his suit and to proceed ds novo, after having incurred 
 great expense : when, with respect to most other objections, they do not 
 thus affect the proceeding in its inception, and occasion comparatively but 
 small expense. The general rule is, that the action should be brought in 
 the name of the party whose legal right has been affected, against the par- 
 ty who committed the injury, 8 T. R. 332. 1 E. 499, or by or against their 
 personal representatives ; and therefore a correct knowledge oi legal rights, 
 and of wrongs remediable at law, will, in general, direct by and against 
 whom the action should be brought. But, as in the application of this rule, 
 difficulties frequently occur, and as there are many particular rules relating 
 to the joinder of persons in actions, and to the mode in which, and the 
 tme when, a mistake of parties should be objected to or be rectified, it is 
 advisable, before we consider the form of the action, and the pleadings there- 
 in, to take a concise view of these rules, which I shall consider under two 
 general heads. First, when the action is m form* ex contractu; and second- 
 ly, when it is in form ex delicto : and under each of these heads I shall 
 state, first, who are to be the plaintiffs; and, secondly, who are to be the 
 defendants. 
 
 1. In actions in form ex contractu. The rules which direct who are to 
 be the parties to an action in form ex contractu, whether as plaintiffs or de- 
 fendants, are to be considered, /?rs<, as between the original parties to the 
 contract; and secondly, where there has been a change of parties, interest, 
 or liability. And under the first head, with reference to the interest or lia- 
 bility of the parties, as whether legally, or only beneficially interested, or 
 acting merely as agent, or standing in the situation of joint-tenants, ten- 
 ants in common, partners, &,c. and in the case of several contracting par- 
 ties, who must or may join, or be joined ; and under the second head, where 
 there has been an assignment of interest or change of credit — survivorship 
 between several — death — bankruptcy — insolvency — or marriage. We will 
 consider these rules, first as they relate to the plaintiff in an action. 
 
 2. Plaintiffs. 1st. As between the original parties, and with reference 
 to the interest of the plaintiff in the contract. In general the action on a 
 contract, whether express or implied, or whether by parol or under seal, or 
 of record, must be brought in the name of the party in whom the legal in- 
 terest, in such contract, is vested. Anderson vs. IMartindale, 1 East, 497. 
 Dawes vs. Peck, 8 T. R. 332. 1 Saund. 153, note L Thimblethrop vs. 
 Hardesty, 7 Mod. 116. 2 Saunders on U. and T. 222. Doe d. Hodsden 
 vs. Staple, 2 T. R. 696. Bauerman vs. Radinius, 7 T. R. 664 ; but see 
 
 " A plaintiff frequently lias an election to proceed even for n breach of an express contract either 
 in assumpsit or in case: and when tlie latter form of action is adopted, many of the rules as to tha 
 parties to the action do not apply. See 3 East, 70. 6 T. R. 766. 6 East, 333,6. And therefore I 
 have considered the following rules in their relation to the form of the action, rather than to the sub- 
 ject matter of it.
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 209 
 
 Smith vs. Jameson, 5 T. R. 602, 3. Thus the action against a carrier for 
 the loss of goods, must in general be brought in the name of the consignee, 
 and not of the consignor, Dawes vs. Peck, 8 T. R. 330. 2 Saund. 47, k. 
 Bui. N. P. 36. Godfrey vs. Forzo, 3 P. Wms. 186. Button vs. Solomon- 
 son, 3 B. & P. 684. Brown and others vs. Hodgson, 2 Camp. 36, the law 
 implying the contract by the carrier to have been made with the consignee, 
 in whom the property in the goods was vested by the delivery to the carrier. 
 And though a covenant with several persons be joint and several in the 
 terms of it, yet if the legal interest and cause of action be joint, the action 
 must be brought by all the covenantees: and on the other hand, if the in- 
 terest and cause of action be several, the action may be brought by one 
 only, though the covenant be in the terms of it only joint. 1 Saund. 153, 
 & n. L* And as a covenant to and with A, his executors, administrators, 
 and assigns, and to and with B and her assigns, to pay an annuity to A, 
 his executors, Sec. during B's life, is a joint covenant to A and B, in which 
 they have a joint legal interest, although the benefit be for A only ; there- 
 fore on the death of A, the right of action survives to B, and A's adminis- 
 trator cannot sue on the covenant, because the action follows the nature of 
 the legal interest. Anderson vs. Martindale, 1 East, 497. Rolls vs. Yate, 
 Yelv. 177. 
 
 When a bond is made to A to pay him or a third person a sum of money 
 for the benefit of the latter, the action must be brought in the name of A, 
 and the third person cannot even release the demand. Offly vs. Warde, 1 
 Lev. 235. 2 Inst. 673. Gilby vs. Copley, 3 Lev. 139. 3 B. & P. 149, n. 
 a. 6 Vin. Ab. tit. Covenant, 374. Scholey et al. vs. Mearns, 7 East, 148. 
 Com. Dig. tit. Covenant, A.t And when a deed is made inter partes, (i. e. 
 between A of the first part and B of the second part,) C, a stranger, can- 
 not sue on a covenant therein, though made for his benefit. Gilby vs. Cop- 
 ley, 3 Lev. 139. 3 B. & P. 149, n. a. Salter vs. Kingley, Carth. 76. 2 
 Mod. Ca. 116. 2 Inst. 673. Co. Lit. 231, a. But when the deed is not 
 inteji partes, he may sue whether it be indebted or not. Id. ibid. Com. 
 Dig. tit. Covenant, A. 1. And Cooker vs. Child, 2 Lev. 74. Greene vs. 
 Home, 1 Salk. 197. And upon a single bond or deed poll, reciting that 
 the obligor had received of A £40, for the use of C and D, equally to be 
 divided, to be repaid at such a time as should be thought best for the profit 
 of C and D, it was decided that C and D might maintain separate actions 
 for their respective moieties. Shaw vs. Sheerwood, Cro. El. 729. And 
 when a contract not under seal is made with A to pay B a sum of money, 
 B may sustain an action in his own name : 3 B. &. P. 149, n. a. March- 
 ington vs. Vernon, cited 1 B. & P. 101, n. c. B. N. P. 103, 4. Dutton, 
 et ux vs. Poole, 2 Lev. 210, S. C. 1 Ventr. 318, S. C. Sir T. Raym. 302. 
 SirT. Jones, 102, S. C. Martyn vs. Hind, Cowp. 437. Cramlington vs. 
 Evans, et al., 2 Ventr. 310. Israel vs. Douglas, et al., 1 H. B. 439. Sur- 
 tees et al. vs. Hubbard, 4 Esp. R. 204, ace. 1 Vin. Ab. 333, to 337, cited 
 in 3 B. & P. 149. Crow vs. Rogers, 1 Stra. 592. Bourne vs. Mason et al., 
 1 Ventr. 6. 1 Powel on Cont. 353. B. N. P. 134, cont. : but if the pro- 
 mise had been to pay A for the use of B, A is a trustee, and B, having no 
 legal interest, cannot sue. Cramlington vs. Evans et al., 2 Ventr. 310. 
 Evans vs. Cramlington, Carth. 5. Offly vs. Warde, 1 Lev. 235. Company 
 of Feltmakers vs. Davis, 1 B. & P. 98. 
 
 In general a mere servant or agent, with whom a contract is made on be- 
 half of another, cannot support an action thereon. But when an agent 
 has any beneficial interest in the performance of the contract for coramis- 
 
 • See 2 Mod. 83. 5 Co. 18, b. 1 East, 497. 3 Mod. 26U, and the case of Carthrar r^. Brown, re- 
 ported by Mr. Leigh. 
 tSeellCL. R.251. 
 
 VOL. 2—27
 
 210 OF THE PARTIES TO THE ACTION. [ book 3. 
 
 sion, he, as in the case of a factor, a broker, an auctioneer, a policy-bro- 
 ker whose name is on the policy, or the captain of a ship for freight, he 
 may sustain an action in his own name; in each of which cases, however, 
 the principal or owner might sue. 
 
 2dly. With reference to the number of plaintiffs ; and who ynust joiu. 
 When the contract was made with several, whether it were under seal or 
 by parol, if their legal interest were joint, they must all, if living, join in 
 an action in form ex contractu, for the breach of it, though the covenant or 
 contract with tliem were in terms joint and several : the reason assigned 
 is, that when the interest is joint, if several were to be permitted to bring 
 actions for one and the same cause, the court would be in doubt for which' 
 of them to give judgment; therefore where A declared upon an account 
 stated with him, of moneys due to him and a third person, after verdict 
 judgment was arrested on the ground that the promise, whether express or 
 implied, must, in point of law, be considered as made to all the persons 
 whose debt it was, and therefore they ought to have joined in the action. 
 
 But when the legal interest and cause of action of the covenantees is-^ 
 several, each may sue separately for his particular damage, although the 
 words of the covenant are joint only ; and in case of a joint interest, if two 
 out of three parties have been paid tlieir shares, the third may, in respect- 
 of such severance, sue alone for his proportion.* 
 
 In the case of a deed, if one or more of several obligees or covenantees, 
 ivho ought when living to join, be dead, or did not seal the contract, that 
 fact should be averred in the declaration at the suit of the others, or the 
 defendant may crave oyer, and demur; but if the plaintiff be prepared to 
 prove the death of the party, the omission of the statement of the death in 
 the declaration would be no ground of nonsuit. 
 
 In all cases of contracts, if it appear upon the face of the pleadings that 
 there are other obligees, covenantees, or parties to the contract, who ought 
 to be, but are not joined in the action, it is fatal on demurrer, or on motion 
 in arrest of judgment, or on error; and though the objection may not ap- 
 pear on the face of the pleadings, the defendant may avail himseif of it 
 either by plea in abatement, or as a ground of nonsuit in the trial upon the 
 plea of the general issue. However, when a partner has withdrawn his 
 name from the fum^ although he may continue to receive part of the profits 
 as a dormant partner, it is not a ground of nonsuit that his name is not 
 joined in the action ; but where the name of a person is used in a firm, ho 
 must be a co-plaiutilf, though he has no real interest. When the objection 
 appears on the face of the pleadings, it is sometimes advisable to demur in- 
 order to obtain costs, as each party pays his own costs when the judgment 
 is arrested. 
 
 Who 7nay join. At law, as well as in equity, the courts will not take 
 cognizance of distinct and separate claims or liabilities of dilTcrcnt persons 
 in one suit, though standing in the same relative situation ; and if too many 
 persons be made plaintiffs, the action will fail ; and if the legal interest of- 
 tVvo or more be several, and there be no express contract with all, they must 
 sue separately; where therefore A, B, and C were appointed assignees un- 
 der a commission of bankrupt, and A and B paid each half of the solicitor's 
 bill, it was decided that A and B could not maintain a joint action against 
 C for his proportion of the money paid, but must each bring a separate ac- 
 tion, and A and B having sued jointly, were nonsuited. But when the in- 
 terest is jointly vested in several, they may and ought to join; thus if A 
 
 •'Two sureties joined in nssnmpsit againsi tlicir principal, each liaving pai<I liis proporiion of wlinl 
 llif y were bound. Al'icr veniici lor pluintilVs ilicre was a rule lo sliinv cause wliy a new dial slionld' 
 3>ol Ijc graHted. 1 Carr iSt l';n ne, M. fcsec \u. 2J5. '6 iios. & I'ul. i.'J5.
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 211 
 
 ^nd B in the last case had borrowed money which they paid on their joint 
 credit, they might have joined in the action against C. 
 
 Tenants in common may join or sever in an action on a contract relating 
 to their estate, though they must sever in an avowry for rent, and the de- 
 mand must be de una medietale of the rent, and not of a sum of money 
 generally, though it may be the exact moiety. Joint tenants must, in all 
 -cases, join in an action ex contractu. Parceners also must join in all ac- 
 tions concerning their estate, and if one of them die pending a real action 
 it will abate, though it is otherwise in mere personal actions. 
 
 3dly. When the interest in the contract has been assigned. When the 
 party with whom a bond, simple contract, or other mere personal contract 
 was made, has assigned his interest therein to a third person, the latter can- 
 not, in general, by the common law, sue in his own name ; — personal con- 
 tracts being choses in action, which are not, in general, assignable at law, 
 so as to give the assip-nee a riffht of action in his own name, but he must 
 proceed in that of the assignor, or if he be dead, in the name of his per- 
 sonal representative. [Assignees of all bonds, bills, promissory notes and 
 other writings obligatory whatsoever, may by our law sue in their own name. 
 See book 2, title Assignments.] And in the case of a negotiable bill of ex- 
 change, the assignee may by the custom of merchants sue in his own name. 
 And in case of a covenant running with the estate in land, &,c. an assignee 
 of such estate should be the plaintiff, for any breach of such covenant com- 
 mitted after he became legally entitled to the reversion, and this without 
 even alleging or proving an attornment. And in such case the assignor 
 '.<;annot distrain for rent due before the assignment, nor can he sue for any 
 subsequent breach. 
 
 4thiy. When one of several obligees,. &c. is dead. When one or more 
 -of several obligees, covenantees, partners, or others, having a joint legal in- 
 terest in the contract, dies, the action must be brought in the name of the 
 survivor, and the executor or administrator of the deceased cannot be join- 
 ed, nor can he sue separately, though the deceased alone might be entitled 
 to the beneficial interest in the contract, and the executor must resort to a 
 court of equity to obtain from the survivor the testator's share of the sum 
 recovered : but if the interest of the covenantees were several, the executor 
 of one of them may sue though the other be living. In an action at the 
 suit of a surviving partner, he may include a debt due to him in his own 
 separate right. In the case of a deed, we have seen that it is necessary to 
 declare as surviving obligee, &c. ; but in other cases, where the defendant 
 cannot crave oyer and demur, it does not appear to be necessary to state 
 the death of the deceased partner in the declaration, though it is more usual 
 to do so. 
 
 5thly. In the case of executors or administrators, heirs, &-c. In the case 
 of a mare personal contract, or of a covenant not running with the land, if 
 it were made only with one person, and he be dead, the action for the 
 "breach of it must be brought in the name of the executor or administrator 
 in whom the legal interest in such contract is vested ; and if it were made 
 with several persons, though during the life of the survivor of them, we have 
 seen that the action must be brought in his name, yet upon his death his 
 •executors or administrators alone can sue, and the personal representatives 
 of the partner who first died cannot be joined. If there be several execu- 
 tors or administrators, they ought all to join, though some be under the age 
 of seventeen years, or have not proved the will, or have even refused before 
 the Ordinary. If, however, only one of several executors or administra- 
 tors bring an action either of debt or assumpsit or in tort, it is settled that 
 the defendant can only take advantage of the non-joinder of the co-execu- 
 tor or co-administrator by pleading in abatement after oyer oi the probats
 
 212 OF THE PARTIES TO THE ACTION. [ BOOK 3. 
 
 of letters of administration, that the otlicr executor or administrator there- 
 in mentioned is alive and not joined in the action. This, it is observable, 
 is a material distinction between the effect of the non-joinder of a party 
 when he sues in autre droit, and when in his own right. In the latter case 
 we have seen that the omission would be a cause of nonsuit. An executor 
 may sue as such upon the contract made with him in that character as for 
 goods sold by him as executor, and in other cases when the sum to be re- 
 covered would be assets ; but an executor cannot sue as such upon a pe- 
 nal statute. 
 
 When an executor dies after he has proved the will, his cxcutor, or the 
 executor of such executor, is the party to sue on the contract made with , 
 the original testator, and may declare without noticing the first executor; 
 but an administrator of the first executor, or an executor of the first admin- 
 istrator, cannot sue in that character, and in such case administration de 
 bonis non must be obtained. In a declaration by an administrator de bonis 
 non, a count may be added on a promise to the first administrator. 
 
 8thly. In case of marriage. A feme-covert cannot in any case sue alone 
 unless her husband be civiliter mortuus, or transported for some crime. She 
 may in all cases join in an action with her husband, when the cause of ac- 
 tion would survive to her; or when she is the meritorious cause of ac- 
 tion, and there has been an express contract with her; and she must pin 
 ■when the cause of action would necessarily survive to her. 
 
 As choscs in action of the wife do not by the marriage vest absolutely in 
 the husband until he reduce them into possession, in general he cannot sue 
 alone, but must join with his wife in all actions upon bonds and other per- 
 sonal contracts made with the wife before the marriage, whether the breach 
 were before or during the coverture, and also for rent or any other cause of 
 action accruing before the marriage, in respect of the real estate of the 
 wife. There are indeed decisions and opinions which appear to militate 
 against this rule; but the current of authorities seems fully to establish it, 
 and it is observable that it prevails also in equity and in cases of bankrupt- 
 cy ; and that the rule is the same when the action is brought on a contract 
 made by a feme whilst sole, in which case the husband cannot be sued 
 alone. And when the wife is executrix or administratrix, as lier interest is 
 in autre droit, they must in general join in the action. But if in respect of 
 a contract made to the wife whilst sole, the party thereto, after the mar- 
 riage, give a bond to the husband and wife, or in respect of some new con- 
 sideration, as forbearance, &c. make a parol promise to the husband and 
 wife, they may join, or the husband may sue alone upon such new contract; 
 and if such bond or parol promise were made to the husband alone, he 
 alone should sue thereon, the wife not being privy to the contract; or he 
 should join with the wife on the original contract in cases where it is not 
 merged by a higher security ; and the rule is the same when the feme is 
 executrix or administratrix, though in the latter case it is said that it should 
 be averred in the declaration that she is still living. 
 
 In general, the wife cannot join in any action upon a contract made dur- 
 in£^ the marriage, as for her work and labor, goods sold, or money lent by 
 licr during that time; for the husband is entitled to her earnings, and they 
 shall not survive to her, but go to the j)ersonal rej)resentatives of the hus- 
 band, and she could have no property in the money lent or the goods sold. 
 But when the wife can be considered as the meritorious cause of action, as 
 if a bond or other contract under seal be made to her separately, or with 
 her husband, or in the case of her personal labour, &c. if there be an ex- 
 press promise to her, or to her and her husband, she may join with the hus- 
 band, or he may sue alone; and it has been holden that she may be joined 
 in all cases upon an express promise to her. And a feme covert executrix 
 must join in an action upon any implied promise in respect of the estate
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 213 
 
 of the deceased, as if money, part of the assets of the testator, be receiv- 
 ed by a party after the coverture, in which case the hiisl)and cannot sue 
 alone in assumpsit as for money liad and received to his use, but he and his 
 wife must join, and declare in the character of executrix, tlioii<,rh we have 
 seen that he may sue alone upon an express contract made with him in con- 
 sideration of forbearance, &,c. For rent or other cause of action accruinrr 
 during the marriage on a lease or demise, or other contract relating to the 
 land or other real property of the wife, whether such contract were made 
 before or during the coverture, the husband and wife may join, or he may 
 sue alone ; and when a lease for years has been granted to husband and 
 wife, and the lessor evicts them, they may join, or the husband may sue 
 ^'lone ; and in all actions for a profit, &,c. accruing during coverture in 
 right of the real estate of the wife, they may join, or the husband may sue 
 alone. But in these, and indeed in all cases, if the wife be joined in the 
 action, her interest must be expressly stated in the declaration, and cannot 
 be intended. The effect of joining the wife in an action when the husband 
 might sue alone is, that if the husband die whilst it is pending, or after 
 judgment and before it is satisfied, the interest in the cause of action will 
 survive to the wife, and not to the executors of the' husband, though if he 
 sued alone she would have had no interest. In the case of the civil death 
 of the husband, or even where he has been transported for a term of years, 
 the wife may sue alone upon any contract made with her during that time, 
 even though the term of transportation may have expired, if he have not re- 
 turned to this country. But in the case of a feme sole trader, according to 
 the custom of London she can only sue and be sued in the city courts, 
 and the husband must be joined for conformity. 
 
 If the husband survive, there is a material distinction between cliattels 
 real and choses in action. The husband is entitled to the chattel real by 
 survivorship, and to all rent, &.c. accruing during the coverture ; lie is also 
 entitled to all chattels given to the wile during the coverture in her own 
 right, though not to her rights in autre droit. And choses in action, or con- 
 tracts made with the wife before coverture, except arrears of rent, do not 
 survive to the husband, and he must, to recover the same, sue as adminis- 
 trator of his wife. And he may sue as administrator on a bond to his wife 
 during coverture. And if, pending an action by husband and wife for such 
 chose in action, the wife die, the suit abates, but if they obtain judgment, 
 he may, notwithstanding her subsequent death, issue execution or support 
 an action of debt on such judgment. 
 
 If the wife survive, she is entitled to all chattels real which her husband 
 had in her right, and which he did not dispose of in his life-time, and to 
 arrears of rent, &c. which became due during the coverture upon her an- 
 tecedent demise, or upon their joint demise during the coverture to which 
 she assents after his death, and to all arrears of rent and other choses in 
 action to which she was entitled before the coverture, and which the hus- 
 band did not reduce into actual possession ; and even to a debt due upon a 
 judgment recovered by husband and wife, whether obtained for a debt due 
 to the wife whilst sole, or upon a contract made with the wife during co- 
 verture, where she is the meritorious cause of action ; and she is entitled 
 to a bond given to her and her husband, or to her alone: slie is also enti- 
 tled to all rights of action in autre droit, as executrix or administratrix: and 
 in all these cases where the wife is joined in the action, if the husband die 
 pending the suit it will not abate, and the wife may proceed to judgment 
 ;ind execution, the death of the husband being suggested upon the record. 
 And when a feme executrix marries a debtor to the testator, the right of 
 action is only suspended during the coverture, and if she survive she may 
 in her character of executrix sue the executors of the husband. But if the
 
 214 OF THE PARTIES TO THE ACTION. [ book 3. 
 
 husband make a separate demise of the v/ife's land, his. executor will be 
 entitled to the rent Vvhich became due before his death, and not his surviv- 
 ing wife. 
 
 The consequences of a mistake in the proper parties, in the case of ba- 
 ron and feme, are, that when a married woman might be joined in the ac- 
 tion with her husband, but sues alone, the objection can only be pleaded ia 
 abatement, and not in bar, though the husband might sustain a writ of er- 
 ror ; and if she marry pending the suit, her coverture must be pleaded in 
 abatement at the hrst opportunity, or it cannot be given in evidence. But 
 when a feme improperly sues alone, having no legal right of action what- 
 ever, she will be nonsuited ; and if she iniproperly join in an action wit^ 
 her husband, who ought to sue alone, the defendant may demur, or thr 
 judgment will be arrested, or reversed, on a writ of error. And if the hus- 
 ban'd sue alone, when the wife ought to be joined either in her own right 
 or in autre droit, he will be nonsuited ; or if the objection appear on the 
 record, it will be fatal in arrest of judgment or on error. 
 2. We come next to speak of the parties defendant. 
 1st. As between the original parties ; and with reference to the liability 
 of the party. The action upon an express contract must in general be 
 brought against the party who made it, either in person or by agent; but 
 difficulties frequently occur in regard to implied contracts, vvhich are creat- 
 ed by law in respect of the existing debt or duty ; in these the action should 
 ibe against the person who is subject to the legal liability. 
 
 'Partners, tenants in common, &c. At law one partner or tenant in com- 
 mon cannot in general sue his co-partner or co-tenant in any action 'inform 
 ,ex contractu, but must proceed by action of account, or by bill in equity,; 
 ;-a rule founded on the nature of the situation of the parties, the difticulty 
 ;at law^ of adjusting complicated accounts between them, and the propriety 
 ;arising from the confidence reposed by the parties in each other, of their 
 'being examined upon oath, which can only be effected in a court of equity. 
 Therefore, in the case of a partnership, one partner cannot at law recover 
 :a sum of money received by the other on account of the firm, unless on a 
 'balance struck that sum is found to be due to him alone. And in an action 
 by several as executors, a plea in bar that the promises were made by the 
 • defendants jointly with one of the plaintiffs' is sufficient. But if one of two 
 or more partners expressly covenant or agree to account, Sec and negleot 
 to do so, an action may be supported by the others ; and if an account be 
 stated, and one partner expressly promise to pay the balance appearing to 
 be due to the other, the latter may sue at law ; and in the case of a per- 
 sonal chattel, or of trees severed from the land, if one of two or more joint- 
 tenants or tenants in common, by the sale thereof, convert the thing into 
 money, the joint interest is determined, and each hath a separate interest 
 for a sum certain, and may support money had and received against the 
 other ; and one partner may maintain an action for money had and receiv- 
 ed against the other partner for money received to the separate use of the 
 former, and wrongfully carried to the partnershij) account ; and a partner 
 may recover money paid to his co-partner for the purpose of being paid 
 over, as the plaintiff's liquidated share of a debt to their joint creditor, if it 
 be not so applied, and the plaintilF be obliged to pay such joint creditor. 
 So one of several co-sureties in a bond, who has been obliged to pay more 
 than his proportion, may recover against any one of the others his propor- 
 tion of the money paid under the bond. And unless there be a partnership, 
 one of several parties interested in profits may in general proceed at law 
 against a person who has received his share : thus if a sailor engage on a 
 whaling voyage, and is to receive a certain proportion of the profits of the 
 voyage in lieu of wages, when the cargo is sold, ho may maintain an action
 
 <illAP. 13] OF THE PARTIES TO THE ACTION. 215 
 
 for his wages against the captain, and shall not be considered as a partner; 
 and when the agreement between two does not constitute a partnership as 
 between themselves, but only an agreement in favor of one as a compen- 
 sation for trouble and credit, he may sue the other, though as between third 
 persons both might be liable as partners. 
 
 2ndly. With reference to the number of the defendants ; and who must 
 be joined. When there are several parlies, if their contract were joint they 
 should be made defendants, and if one of them be dead, it is more proper 
 to state in the declaration that the contract was made by him as well as by 
 the survivor : it seems, however, that no advantage can be taken, thougii 
 the declaration do not notice the deceased. 
 
 ^ With respect to the mode of taking advantage of the omissioii of a party 
 who ought to be made a co-defendant, there is a material distinction be- 
 tween this case and that of co-plaintiffs. We have seen that if a person 
 who ought to-join as plaintiff be omitted and the objection appear upon the 
 pleadings, the defendant may demur, move in arrest of judgment, or bring 
 a writ of error ; or if the objection do not appear on the pleadings, the 
 plaintiff, except in the case of co-executors or co-administrators, will be 
 nonsuited. But in the case of defendants, if a party be omitted, whether 
 he be sued upon a personal contract, or as perner of the profits of a real- 
 estate, as in debt for a rent-charge, the objection can only be taken by ple.i 
 in abatement verified by affidavit, unless it appear on the face of the decla- 
 ration, or some otlier pleading of the plaintift", that the party omitted is 
 still living, as well as that he jointly contracted, in which case the defen- 
 dant may demur, or move in arrest of judgment, or sustain a writ of error. 
 There is, however, this objection in the case of a joint contract to the non- 
 joinder of one or more of the several parties liable, that if judgment be ob- 
 tained against one, in a separate action against him on such contract, the 
 plaintiff cannot afterwards proceed against the parties omitted, and conse- 
 quently loses their security. 
 
 When the contract is several as well as joint, the plaintiff is at liberty 
 to proceed against the parties jointly, or each separately, though their in- 
 terest be joint. But if there be more than two parties to a joint and se- 
 veral contract, as where three obligors are jointly and severally bound, the 
 plaintiff must either sue them all jointly, or each of them separately, [1 H. 
 & M. 61. 1 Mun. 40G. See also 3 Mun. 1&7,] though if two only be im- 
 properly sued, the objection must be taken by plea in abatement ; and- 
 where parties are sued separately, the breach may be assigned in both, and 
 a recovery and execution against the body of one, producing no actual 
 satisfaction, will be no bar to an action against the other ; and when the 
 contract was joint and several, and tlie debt or demand considerable, it was 
 formerly most advisable to proceed separately ; for if all the parties were 
 joined, and one of them died after judgment and before execution, the re- 
 medy at law against the assets of the deceased was determined; [but it is 
 otherwise now in Virginia. 1 R. C. ch. 98, § 3.] 
 
 Who nwy be joined. It has already been observed that at law as well 
 as in equity the courts will not take cognizance of distinct and separate 
 claims or liabilities of different persons in one suit, though standing in the- 
 same relative situations; and therefore in an action ex co/i/yac/u against 
 several, it must appear on the face of the pleadings that their contract was 
 joint, and that fact must also be proved on the trial ; and if loo ??j any per- 
 sons be made defendants, and the objection appear on the pleadings, cillier 
 of the defendants may demur, move in arrest of judgment, or support a, 
 writ of error ; and if the objection do not appear upon the pleadings, the 
 plaintiff may be nonsuited upon the trial, if he fail in proving a joint con- 
 tract : for though ui actions in form ex delicto, as in trespass or case, one
 
 216 OF THE PARTIES TO THE ACTION. [ book 3. 
 
 defendant may be found guilty and the other acquitted ; yet in covenant, 
 debt, or other action in form ex contractu, a verdict or judgment cannot in 
 general be given in a joint action against one defendant without the other; 
 (see Post. 271 ;) and therefore in an action of assumpsit against three, two 
 only of whom were liable to be sued, and the party not liable, together with 
 one of those who was liable, suffered judgment by default, and the other par- 
 ty pleaded the general issue, a verdict was found for the defendants on the 
 ground that the plaintifT having declared as upon a promise by three defen- 
 dants, consequently, to entitle him to recover, he should have proved a pro- 
 mise) either express or implied, binding uj)on all the three : 1 East, 5"2. 3 
 T. R. 66'2 : and where the plaintiff declared on a joint and several promissory 
 note against all the makers jointly, and one of them, by liis plea, admitted 
 liis hand-writing to the note, but the other defendants pleaded non-assump- 
 sit, the plaintiff* was non-suited for not proving the hand-writing of tlie de- 
 fendant, who by his plea had so admitted it; 1 Esp. Rep. 135; and though 
 a contract be proved to have been in fact made by all the defendants, yet 
 if in point of law it is not obligatory either on the ground of infancy, (Sed 
 vide, 2 Ran. 174, 179. 5 John. Rep. IGO,) coverture, &c. at the time it 
 was entered into, the plaintiflf would be nonsuited, and having commenced 
 his action against too many parties, he could not avoid the objection by en- 
 tering a JioUe prosequi as to the infant or feme covert, but must discontinue 
 and commence a fresh action, omitting such parties, and in which, should 
 the defendants plead the non-joinder of the infant or the feme covert in 
 abatement, the plaintiff may reply the infancy or coverture. But when 
 one of the defendants is discharged from liability by matter subsequent to 
 the making of the contract, as by his bankruptcy and certificate, the failure 
 on the trial as to him on such ground does not preclude the plaintiff from 
 recovering against the other parties, and should he plead his certificate a 
 nolle prosequi as to him may be entered : and in debt on a penal statute at 
 the suit of a common informer, or of the party aggrieved, for an offence 
 which may be committed by several jointly, the plaintiflf will succeed if he 
 prove either of the defendants to be liable, for in this case the action, 
 though in form ex contractu, is founded upon a tort ; so against executors, 
 though the plaintiff' may fail as to one, on the plea of plene administravit, 
 he may recover against the other, and the defendant who is acquitted is 
 not even entitled to costs. 
 
 As the consequences of the joinder of too many defendants, in an ac- 
 tion in form ex contractu, are in general so important, it is advisable in cases 
 of doubt as to the proper parlies to be made defendants, to frame the de- 
 claration, when practicable, in case, in which form of action, as we shall 
 licreafter see, tlie joinder of too many defendants, though for the breach 
 of a contract, is in general no ground of objection : or if the plaintiff be 
 compellable to declare in an action in form ex contractu, it is most advisa- 
 ble, in such case of doubt, to proceed only against those defendants who 
 are certainly liable, in which case we have seen the non-joinder can only 
 be taken advantage of by a plea in abatei^icnt. 
 
 3dly. In case of change of credit, and of covenants running with land, 
 &,c. In general in the case of a mere personal contract, the action for the 
 breach of it cannot be brought against a person to whom the contracting 
 ]>arty has assigned his interest, and the original party alone can be sued: 
 thus if one demise cattle or goods, and the lessee covenant for himself and 
 his assigns at the end of the term to deliver such cattle or goods, and the 
 lessee assign the cattle. Sec. this covenant will not bind the assignee, for it 
 is merely a thing in action in the personalty, and wants such privity as ex- 
 ists between the lessor and lessee of real property in respect of the rever- 
 sion ; and if two partners dissolve their partnership, and one of them cove-
 
 CHAP. 13] OP THE PARTIES TO THE ACTIOX. 217 
 
 nant with the other that he will pay all the debts, a creditor mubt neverthe- 
 less sue both. There may however in some cases be a change of credit, by 
 agreement between the parties, so as to transfer the liability Irom the origi- 
 nal contracting party to another, or to one only of the original parties ; thus 
 in the case of a tenancy from year to year, if the landlord accept another 
 person as tenant in the the room of the former tenant, without any surren- 
 der in writing, such acceptance may be a dispensation of any notice to quit, 
 and the original tenant may be discharged ; and where two ])artners gave 
 a joint bill of exchange for a partnership demand, and when the bill be- 
 came due the holder took the separate bill of one, it is reported to have been 
 decided that the other was thereby discharged. So if one take the securi- 
 ty of the agent of the principal, with whom he dealt, unknown to the prin- 
 cipal, and give the agent a receipt as for the money due from the principal, 
 in consequence of which the principal deals differently with his agent on 
 the faith of such receipt, the principal is discharged, although the security 
 fail ; though if the principal were not prejudiced he would not be discharged. 
 But where one of three joint covenantors gave a bill of exchange as a col- 
 lateral security, not accepted in satisfaction of the debt, the judgment re- 
 covered on the bill was decided to be no bar to an action of covenant against 
 the three. The consignor of goods may be primarily liable for the freight, 
 but the consignee or purchaser, if he accept the goods in pursuance of the 
 usual bill of lading, may be sued for the same, unless it be known to the 
 master of the ship that he acted only as agent for the consignor; and the 
 indorsee of the bill of lading requiring the delivery to order on payment of 
 freight is liable, though he only acted as broker for the consignee. But 
 where there is a charter-party under seal providing for payment of freight 
 by the freighter, and the goods are received under an indorsed bill of lad- 
 ing, by which they are deliverable to the freighter or order, he or they pay- 
 ing freight as per charter-party, there is no implied contract on the part of 
 the indorsee of the bill of lading to pay freight to the owner of the ship. 
 
 Upon a covenant running with the Zcjirf which must concern real proper- 
 ty or the estate therein, the assignee of the lessee is liable to an action for 
 a breach of covenant after the assignment of the estate to him, and though 
 he have not taken possession ; but his liability ceases when he assigns his 
 interest, though even purposely to an insolvent person. And if the cove- 
 nant be merely collateral and personal, an assignee is not in any case liable, 
 and the lessee alone can be sued. 
 
 When there is an express covenant in a lease to pay rent or perform anj^ 
 other act, the original lessee and his personal representatives having as- 
 sets are liable to an action of covenant during the lease, notwithstanding, 
 before the breach complained of, the interest in the lease may have been 
 assigned, and though the lessee may have become bankrupt, or an insol- 
 vent debtor, or the lessor or the assignee of the reversion may have accept- 
 ed rent of the assignee. But an action cannot be supported against those 
 parties for a breach of covenant implied by law, committee after acceptance 
 of rent from the assignee ; nor can the lessor, after such acceptance of the 
 assignee, maintain an action of debt against the lessee or his representa- 
 tives, even upon an express covenant. 
 
 An under-lessee who has not the whole of the lessee's interest assigned to 
 him, cannot be sued by the original lessor for any breach of covenant con- 
 tained in the original lease, though for voluntary and not mere permissive 
 •waste he would be liable to an action on the case. 
 
 In the case of a. joint contract, if one of the parties die, his executor of 
 
 administrator is at law discharged from liability, and the survivor alone can 
 
 be sued ; and if the executor be sued, he may either plead the survivorship 
 
 in bar, or give it in evidence under the general issue ; but in equity tha 
 
 VOL. 2—28
 
 218 OF THE PARTIES TO THE ACTION. [book 3. 
 
 executor of the deceased party is liable, unless in some instances of a sure- 
 ty : and if the contract were several, or joint and several, the executor of 
 the deceased may be sued at law in a separate action ; but he cannot be 
 sued jointly with the survivor, because one is to be charged de bonis testa- 
 toris, and the other de bonis propriis. It is usual to declare, at least in 
 some counts, against the survivor as such, noticing the death of his co-obli- 
 gee or co-partner; but it should seem that the survivor may be declared 
 against without noticing the deceased, and in an action against such survi- 
 vor a debt may be inckided, though it became due from him since the death 
 of his partner; and when the survivor is sued for his own separate debt, he 
 may set off a demand due to him as surviving j)artner. 
 
 5thly. In the case of executors or administrators, heirs, and devisees* 
 When the contracting party is dead, his executor or adminislralor, or in case- 
 of a joint contract, the executor or administrator of the survivor, is the par- 
 ty to be made defendant ; and an^ executor of a lessee may be sued as 
 such for a breach committed by the assignee of a lease since the death ; 
 and covenant lies against executors in every case, though they be not nam- 
 ed ; unless it be a covenant to be performed by the testator in person, and 
 which consequently the executor cannot perform, or the breach of some 
 personal contract, where the remedy dies with the person, as a breach of 
 ])romise to marry. If a person intermeddle as executor with the estate of 
 the deceased, he may in general be sued as executor de son tort, although 
 there be a lawful executor, and in such case he is uniformly declared against 
 as if he were a lawful executor, though the party died intestate, and he 
 may be joined in the same action with the lawful executor, though not with 
 the lawful administrator: and if the husband of an executrix after her death 
 detain part of the goods of the testator, he may be sued as executor de son 
 tort ; so if a stranger take away the goods of the deceased, and there be 
 no lawful executor, he also is liable to be sued as executor de son tort, 
 though he claim them as his own; but if there be a lawful executor or ad- 
 ministrator, the stranger cannot be sued as executor de son tort. And no 
 person can ever be sued as administrator de son tort, nor can an executor 
 ile son tort of an executor de son tort, be sued as such at law. 
 
 If there be several executors they should all be sued, in case they have 
 all administered and have assets, or the defendant may plead the non-join- 
 der in abatement ; but if one have not administered, or if no assets have 
 come to his hand, he may be omitted. The plaintilf, however, when he 
 sues all, will succeed if he recover against any one of the defendants, and 
 the defendant who obtains a verdict will not be entitled to his costs ; and 
 as it may be advisable to take judgment of assets quando, &c. against such 
 defendant, should he plead plcnc administravit, it is in general advisable to 
 join all the defendants who may be named as executors or administrators 
 in the will or letters of administration. If a married woman be executrix, 
 fJie husband must be jointul in the action ; and an infant sole executor can- 
 not be sued till he be of full age, nor can an executor be sued as such for 
 money lent to him, or upon a penal statute. 
 
 II tin; contract were under seal or of record, the heir of the party con- 
 tracting is lialjlc to an action for the breach of it, when expressly named in 
 the contract, provided he have Ic^-al assets by descent irom the obligor. 
 And if there be a devisee, (otherwise than for the payment of debts, or in 
 pursuance of a marriatre contract entered into before marriage,) he may be 
 sued in an action of debt, for the breach of a contract of the testator under 
 seal or of record, but the heir must be joined in the action ; and an action 
 of covenant cannot in any case be supported against a devisee, for a breach 
 of contract in the time of the testator ; and though the devisee bo an infant, 
 he cannot pray the j)arol to demur by reason of his nonage, such privilege
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 219 
 
 being confined to an infant heir. An heir or devisee having a legal estate, 
 are liable to an action for the breach of a covenant running with the land 
 committed in their own time. If there be several heirs, as in the case of 
 gavel-kind, or of parceners, they should all be joined, or the defendant may 
 plead in abatement; and a devisee must be sued with the heir jointly, at 
 law as well as in equity ; though an executor cannot in any case be sued 
 jointly with the heir. 
 
 Gthly. In case of marriage. In general a feme covert cannot be sued 
 alone at law ; and when a feme sole who has entered into a contract mar- 
 ries, the husband and wife must in general be jointly sued, though the hus- 
 band state an account, and expressly promise to pay the debt or perform the 
 contract. But if he in respect of some new considerations, as for fori)car- 
 ance, &c. expressly undertake in writing to pay the debt, or perform the 
 contract of the feme, he may be sued alone on such undertaking. And 
 when rent becomes due, or there is a breach of covenant during coverture 
 upon a lease to the feme whilst sole, the action may be against both, or 
 against the husband alone ; but the feme can in no case be sued upon a 
 mere personal contract made during coverture, though after the death of the 
 husband she expressly promise to perform it; but covenant on the warran- 
 ty in a fine, or on a covenant running with the land of the wife demised by 
 her during the coverture, may be supported against her; and it is said that 
 upon a lease to the husband and wife for her benefit, the action may be 
 against both. And if the husband be civiliter morluus, [as perhaps when 
 confined as a convict in the penitentiary,] or even transported for a term of 
 years, the wife may be sued alone upon a contract made by her during that 
 time. In the case of a feme covert executrix or administratrix, she must be 
 joined with the husband in an action on any personal contract of the de- 
 ceased ; but for rent due during the coverture on a lease which the wife has 
 as executrix, the husband may be sued alone. 
 
 When the husband survives, he is not liable to be sued in that character 
 for any contract of the ferae made before the coverture, unless judgment 
 had been obtained against him and his wife before her death, and if she die 
 before judgment the suit will abate ; but if the husband neglect during her 
 life to reduce her choses in action into possession, the creditor may sue her 
 administrator for debts due before her marriage, and for rent incurred dur- 
 ing the coverture, or upon a judgment obtained against husband and wife; 
 in case of her death he may be sued alone. 
 
 In case the wife survive, she may be sued upon all her unsatisfied con- 
 tracts made before coverture; but the bankruptcy and certificate of the 
 husband will discharge her from all liability to satisfy debts which could 
 have been proved under his commission ; and if the husband and wife be 
 sued jointly, his bankruptcy may be pleaded in bar. 
 
 If the husband be sued alone upon the contract of his wife before cover- 
 ture, and the objection appear upon the face of the declaration, the defen- 
 dant may demur, move in arrest of judgment, or bring a writ of error ; and 
 if the contract were mis-described as being that of the husband, the plain- 
 tiff would be non-suited. But if the wife be sued alone upon her contract 
 before marriage, she must plead her coverture in abatement, or bring error 
 coram nobis, and coverture in such case cannot be pleaded in bar or given 
 in evidence upon the trial as the ground of nonsuit; and if she marry pend- 
 ing an action against her, it will not abate, but the plaintiff may proceed to 
 execution without noticing the husband. But if a feme covert be sued upon 
 her supposed contract made during coverture, she may in general plead the 
 coverture in bar, or give it in evidence under the general issue, even in the 
 case of a bond. And if the husband and wife be improperly sued jointly 
 on a contract after marriage, the action will fail as to both.
 
 220 OF THE PARTIES TO THE ACTION. [ BOOK 3. 
 
 II. In actions inform ex delicto. The rules which direct who are to be 
 the parties to an action in form ex delicto, whether as plaintiffs or defen- 
 dants, may, as in actions in form ex contractu, be considered with reference, 
 1st, to the interest of the plaintiff in the matter affected, and the liability 
 of the defendant ; 2ndly, the number of the parties, and who must or may 
 join or be joined ; 3dly, where there has been an assignment of interest, 
 &c. ; 4thly, in the case of survivorship ; othly, where the party injured, cmt 
 committing the injury, is dead ; Cthly, in the case of bankruptcy or insol- 
 vency; and 7thly, in that of marriage. 
 
 Plaintiffs. 1st. With reference to the iw/eres^ of the plaintiffs. The ac- 
 tion for a tort must in general be brought in the name of the party whose 
 legal right has been affected ; and a cestui que trust or other person having 
 only an equitable interest cannot in general sue in the courts of common 
 law, against his trustee, or even a third person, unless in cases where the 
 action is against a wrong-doer, and for an injury to the actual possession 
 of the cestui que trust. Many of the rules and instances which have been 
 stated in respect to the person to be made the plaintiff in actions in form 
 ex contractu here also govern and are applicable. Actions in form ex delicto 
 are for injuries to the absolute or relative rights of persons, or to personal or 
 real property. 
 
 The action for an injury to the absolute rights of persons, as for assaults, 
 batteries, wounding, injuries to the health, liberty and reputation, can only 
 be brought in the name of the party immediately injured, and if he die the 
 remedy determines. With respect to injuries to the relative rights of per- 
 sons, the husband may sue alone for injuries which have occasioned loss or 
 deprivation of the society of his wife, or her assistance in his domestic af- 
 fairs, such as criminal conversation, or violent battery occasioning an ill- 
 ness of the wife for some time or expense in her cure ; and in such action 
 the husband may include a demand in trespass or case for an injury to his 
 own person, or to his personal or real property ; but if the battery or other 
 act were not sufficiently injurious to prove the allegation per quod consortium 
 amisit, or that the husband was put to expense, he cannot sue alone, but 
 the action must be in the name of the husband and wife for her personal 
 suffering, and in which case no demand for an injury to the husband, either 
 by loss of the society of his wife, or expense in her cure, injury to her 
 wearing apparel, or other cause of action in which the husband alone is in 
 point of law interested, can in strictness be included. In the case of mas- 
 ter and servant, the master may sue alone for the battery or debauching of 
 his servant, though no relation, when there is evidence to prove a conse- 
 quent loss of service ; but if there be no evidence of such loss an action 
 cannot be supported in the name of the master, but the servant must sue 
 alone for the battery ; or where there was a promise of marriage, for the 
 breach of such promise. A parent may perhaps sue in that character for 
 the taking away of his child, but he cannot support an action for debauch- 
 ing his daughter, or beating his child, unless there be evidence to support 
 the allegation ;)er^»0(i servitium amisit. In cases of the battery of the wife, 
 the daughter, or the servant, if there be any evidence sufficient to support 
 an action in the name of the husband, parent, or master, it is frequently 
 most advisable to proceed accordingly, because in such action if the plain- 
 tiff recover less than 40s. damages he will be entitled to full costs. The 
 wife, the child, or the servant, having no legal interest in the property of the 
 husband, the parent, or master, cannot support an action for an injury to 
 them. 
 
 The absolute or general owner of personal property having the right of 
 immediate possession, may in general support an action for any injury 
 thereto, though he have never had the actual ppsscssion, it being a rule of
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 221 
 
 law that the property in personal chattels draws to it the possession. So, 
 though at the time when the injury was committed, the goods were in the 
 actual possession of a servant, carrier, or other bailee, yet if the general 
 owner had the right of immediate possession, the action may be in his name, 
 or it may be in the name of the person having actual possession, but only 
 a special property, as by a factor, a carrier, a pawnbroker, or an agister of 
 cattle, or against a stranger, by any person having the actual possession at 
 the time of the injury ; but a mere servant having only the custody of goods, 
 and not responsible over, cannot in general sue. And though in the above 
 instances the action may be brought by the general or special owners of 
 goods against a stranger, yet both actions cannot be supported at the same 
 time, and a judgment obtained by one is a bar to an action by the other. 
 And when the general owner has not the right of immediate possession, as 
 where he has demised goods for a term, he cannot maintain trespass or tro- 
 ver even against a stranger ; though if the injury were sufficient to affect 
 his reversionary interest, he may support a special action on the case ; and 
 a recovery in an action by the party having a possessory interest, would be 
 no bar to an action for an injury to the reversionary interest. A landlord 
 has in legal consideration the possession of timber, though not excepted 
 in the lease, so that though it be cut down pending the term, if it be car- 
 ried away, he may maintain trespass or trover, the interest of the lessee in 
 the trees determining instantly they are cut down. 
 
 The person in possession of real property corporeal, whether lawfully or 
 not, may sue for an injury committed by a stranger, or by any person who 
 cannot establish a better title ; and in trespass to land, the person actually 
 in possession, though a cestui que trust, should be the plaintiff and not the 
 trustee ; though in ejectment it is otherwise, and the demise must be in the 
 name of the party legally entitled to the possession, although the beneficial 
 interest may be in another. In the case of real property, there is not that 
 constructive possession as in that of personalty, and the party entitled to 
 possession cannot maintain trespass, unless he has had actual possession, 
 though he have the freehold in law. A person having the immediate rever- 
 sion or remainder in fee or in tail or for a less estate, may support an ac- 
 tion on the case for waste, &c. injurious to his estate ; but he cannot sue 
 in trespass when the possession is lawfully in his tenant or other person, but 
 must sue in case. The tenant may support trespass against a stranger for 
 an injury to his possession, and the immediate reversioner may, at the same 
 time, support an action on the case, if the injury were sufficient to preju- 
 dice his interest; and a recovery by one will be no bar to an action by the 
 other. When trees are excepted in a lease the lessee has no interest there- 
 in, and cannot sue even a stranger for cutting them down, though he might 
 for the trespass to the land ; and in such case the lessor may support tres- 
 pass against the lessee or a stranger, if he either fell or damage them ; but 
 if there be no exception of the trees in the lease, the lessee has a particular 
 interest therein, and may support trespass against the lessor or a stranger 
 for an injury to them during the term : but the interest in the body of the 
 trees remains in the lessor as part of his inheritance, and he may support 
 an action on the case against a lessee or a stranger for any injury thereto, 
 or even trover, if they be cut down and carried away. Most of these rules 
 prevail also in the case of an injury to real property incorporeal, and if there 
 be any injury to such right, an action may be supported, however small the 
 damage: and therefore a commoner may maintain an action on tlie case 
 for an injury done to the common, though his proportion of the damage be 
 found to amount only to a farthing. 
 
 2dly. With reference to the number of the plaintiffs. When two or more 
 persons are jointly entitled, or h9,ve a joint legal interest in the property af-
 
 222 OF THE PARTIES TO THE ACTION. [ book 3. 
 
 fectcd, they must in general join in the action, or the defendant may plead 
 in abatement; and though the interest be several, yet if the wrong com- 
 plained of be an entire joint damage, the parties may join in the action ; 
 but as the courts will not in one suit take cognizance of distinct and sepa- 
 rate claims of different persons, therefore where the cause of action as well 
 as the interest is several, each party injured must sue separately. 
 
 Therefore for injuries to the person, several parties cannot in general sue 
 jointly, as for slander, battery, or false imprisonment of both, and each must 
 bring a separate action ; but two partners in trade may join in an action 
 for words spoken of them in the way of their trade ; and joint-tenants or 
 coparceners may join in action for slander of their title to the estate; and 
 husband and wife may sue jointly for a malicious prosecution and impri- 
 sonment of both, or the husband may sue alone ; and it appears to be a 
 general rule that two persons may join or sever, though their interest be se- 
 veral, if the injury complained of were a joint damage to both. 
 
 In actions for injuries to persojial property, joint-tenants and tenants in 
 common must join, or the defendant may plead in abatement : but parties 
 Jiaving several and distinct interests, cannot in general join ; as if the goods 
 of A and B, the separate property of each, be unlawfully distrained, they 
 cannot join in repleven ; but where goods are bailed to two, and only one 
 has the possession in fact, and a stranger carries them away, both may 
 have detinue or trespass, or the one who had actual possession may sue 
 alone. 
 
 In actions for injuries to real property, joint-tenants and parceners must 
 join in real as well as personal actions, or the non-joinder may be pleaded 
 jn abatement ; and if one of several joint-tenants die pending a real action, 
 ;it will abate, as the survivor is entitled to a different estate ; but it is other- 
 'V/ise in personal and mixed actions. Tenants in common must in general 
 -sever in real actions, and in ejectment a joint demise would be improper; 
 :but in personal actions, as for a trespass or nuisance to their land, they may 
 join, because in these actions, though their estates are several, yet the da- 
 images survive to all, and it would be unreasonable when the damage is thus 
 entire to bring several actions for a single trespass : a tenant in common 
 may, however, in general, sue separately, as in ejectment for his undivided 
 share, or in trespass for the mesne profits, or in debt for double value against 
 a person who has held over after the expiration of his tenancy. 
 
 In actions in form ex delicto, and which are not for the breach of a con- 
 tract, if a party who ought to join be omitted, the objection can only be 
 taken by plea in abatement, or by way of apportionment of the damages 
 on the trial ; and the defendant cannot, as in actions in form ex contractu, 
 give in evidence the non-joinder, as the ground of nonsuit on the plea of 
 the general issue, or demur, or move in arrest of judgment, or support a 
 writ of error, though it appear upon the face of the declaration, or other 
 pleading of the plaintiff, that there is another party who ought to have join- 
 ed : and if one of several part-owners of a chattel sue alone for a tort, and 
 the defendant do not plead in abatement, the other part-owners may after- 
 wards sue alone for the injury to their undivided shares, and the defendant 
 cannot plead in abatement of such action. 
 
 If, however, too many persons be made co-plaintiffs, the objection, if it 
 apj)ear on the record, may be taken advantage of either by demurrer, in ar- 
 rest of judgtnent, or by writ of error ; or if the objection do not appear on 
 the face of the pleadings, it would be a ground of nonsuit on the trial, 
 though if two tenants in common join in detinue of charters, it is said if 
 one be nonsuit the other shall recover. 
 
 3dly. When the interest in the property has been assigned. Injuries ex 
 delicto arc not assignable by act of the party, nor is the right to sue for
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 223 
 
 them in general transmitted by law to his rei)roscntativcs ; and tliorefore an 
 heir cannot maintain an action for waste conunilled in the lime of his an- 
 cestor, nor the grantee of a reversion for waste committed before tlie grant. 
 Yet a devisee may support an action for the CGntimianre of a nuisance 
 erected in the lifetime of the testator, for every coniinaance gives a new 
 cause of action. 
 
 4thly. When one of several parties interested is dead. When one or 
 more of several parties interested in the ])roperty at the time the i-ijury 
 was committed is dead, the action shouhl he in the name of the survivor, 
 and the executor or administrator of the deceased cannot be joined, nor 
 can he sue separately ; and therefore to an action of trover brouglit l)y the 
 survivor of three partners in trade, it cannot be objected that the two do- 
 ceased partners and the plaintiff were joint merchants, and consecpienlly 
 that in respect of the lex mercatoria the right of survivorsiiip did not exist, 
 for the legal right of action survives, though the beneficial interest may not. 
 [A variety of provisions are to be found in our statutes to prevent the abate- 
 ment of suits. See 1 R. C. ch. 128, § 38. Sess. acts, 1828, ch. 20. 18;M, 
 eh. 8, § 5. 1825, ch. 15, § 2.] 
 
 5thly. In case of the death of the party injured. We have seen that the 
 right of action for the breach of a contract, upon the death of either party, 
 in general survives to and against the executor or administrator of each ; 
 but in the case of torts, when the action must be in form ex delicto, for the 
 recovery of damages, and the j)lea thereto not guilty, the rule at common 
 law was otherwise, it being a maxim that actio personalis moritur cum per- 
 sona, and we shall find that the statute 4 Edw. III. c. 7, (1 II. C. ch. J04, 
 § 64,") has altered this rule only in its relation io personal property, and in 
 favor of the personal representatives of the party injured ; but if the action 
 can be framed in form ex contractu, this rule does not apply. We will con- 
 sider the rule as it now affects actions for injuries to the person, and to 
 personal and real property. 
 
 In the case of injuries to the person, whether by assault, battery, false 
 imprisonment, slander, or otherwise, if either the party who received or 
 committed the injury die, no action can be supported either by or against 
 the executors or other personal representatives, for the statute 4 Edw. III. 
 c. 7, (1 R. C. ch. 104, § 64,) has made no alteration in the common law ia 
 this respect. 
 
 At common law in case of injuries to personal property, if either party 
 died, in general no action could be supported, either by or against the per- 
 sonal representatives of the parties, where the action must have been in 
 form ex delicto, and the plea not guilty ; but if any contract can be implied, 
 as if the wrong-doer converted the property into money, or if the goods re- 
 main in specie in the hands of the executor of the wrong-doer, at common 
 law assumpsit for money had and received may be supported by or against 
 the executors in the former case, and trover against the executors in the 
 latter. [And now by I R. C. ch. 104, § 64, trespass de bonis asportatis 
 may be maintained by or against executors or administrators, though the 
 wrong was committed in the testator's lifetime.] It has been well observed 
 that the taking of goods and chattels was put in the statute merely as an 
 instance and not as restrictive to such injuries only, and that the term tres- 
 pass must with reference to the language of the times, when the statute was 
 passed, signify a wrong generally ; and accordingly the statute has been 
 construed to extend to every description of injury to personal property by 
 which it has been rendered less beneficial to the executor, whatever the form 
 of action may be ; so that an executor may support trespass or trover, case 
 for a false return to final process, and case or debt for an escape, &c. on 
 final process ; and though it has be(in doubted whether an executor can
 
 224 OF THE PARTIES TO THE ACTION. [ ROOK 3. 
 
 sue for an escape on mesne process in the lifetime of his testator, on prin- 
 ciple it appears that he may ; and he may support debt for not setting out 
 tithes, or debt against an executor, suggesting a devastavit in the lifetime 
 of the plaintiff's testator, or case against the sheriff for removing goods 
 taken in execution, without paying the testator a year's rent ; or an action 
 of ejectment or quare impedit, for the disturbance of the testator. 
 
 But with respect to injuries to real property, if either party die, no action 
 in form ex delicto can be supported either by or against their personal re- 
 presentatives ; and though the statute might bear a more liberal construc- 
 tion, the decisions have confined its operation to injuries to personal pro- 
 perty, and therefore an executor cannot support an action of trespass quare 
 clausum fregit, or merely for cutting down trees, or other waste in the life- 
 time of his testator. 
 
 7th]y. In case of marriage. The wife having no legal interest in the 
 person or property of her husband, cannot in general join with him in any 
 action for an injury thereto ; except in an action for a joint malicious pro- 
 secution of both, in which they may join in respect of the injury to both, 
 6r the husband may sue alone. 
 
 For injuries to the person, personal or real property of the wife com- 
 mitted before the marriage, when the cause of action would survive to the 
 wife, she must join in the action, and if she die before judgment therein it 
 will abate. But in detinue to recover personal chattels of the wife in the 
 possession of the defendant before the marriage, it is said that the husband 
 must sue alone, because the law transfers the property to him, and the wife 
 has no interest; [sed quare ;'\ though in detinue for charters of the wife's 
 inheritance they may join, on account of the continuing interest of the 
 wife in the estate to which they relate. 
 
 When an injury is committed to the person of the wife during coverture^ 
 by battery, slander, &c. the husband and wife must join, if the action be 
 brought for the personal suffering or injury to the wife, and the declaration 
 ought to conclude to their damage, and not to that of the husband alone ; 
 for the damages will survive to the wife if the husband die before they are 
 recovered ; and care must be taken not to include in the declaration any 
 statement of a cause of action, for which ihe husband alone ought to sue. 
 If the battery, &c. of the wife deprive the husband for any time of her com- 
 pany or assistance, or if she be maliciously indicted, and the husband be 
 thereby put to expense, he may sue separately for such consequential inju- 
 ries, and he may in the same action proceed for a battery or other injury to 
 himself. And for words spoken of the wife not actionable of themselves, 
 but which occasion some special damage to the husband, he must sue 
 alone. 
 
 With respect to personal property when the cause of action had only its 
 inception before the marriage, but its completion afterwards, as in the case 
 of trover before marriage, and conversion during it, or of rent due before 
 marriage, and a rescue afterwards, the husband and wife may join or sever 
 in trover or trespass, though not in detinue. But when the cause of action 
 has its inception as well as completion after the marriage, the husband 
 alone must sue, the legal interest in personalty being vested by the marriage 
 in him ; and therefore a declaration in trover at the suit of the husband and 
 wife should state that the wife was possessed before marriage, and if it be 
 stated that the husband and wife were possessed, the defendant may de- 
 mur, for the possession of the wife is in law the possession of the husband, 
 and so is the property ; and the same rule prevails in replevin, though if 
 {he husband and wife join therein, and the defendant avow, it will after ver- 
 dict be intended that the taking was before the coverture, and that the 
 plaintiffs then had a joint property ; and though the wife may join in tres'
 
 CHAP. 13.] OP THE PARTIES TO THE ACTION. 225 
 
 pass for cutting down corn upon her land, yet she cannot for carrying it 
 away. However, a feme covert executrix may and ought to join with her 
 husband, the declaration stating that she sues in autre droit. And there 
 are some cases in which though the produce of the wife's labour, &.c. be 
 the property of the husband, yet in respect of her being the meritorious 
 cause of action she may be joined, as in the case of the dippers at Tun- 
 bridge Wells. 
 
 In real actions for the recovery of the land of the wife, and in a writ of 
 waste thereto, the husband and wife must join ; a rule which, we have seen, 
 obtains also in detinue of charters. But when the action is merely for the 
 recovery of damages to the land, or other real property of the wife during 
 the coverture, or tor a tort which prejudices a remedy by husband and wife, 
 as a rescue, &c. the husband may sue alone, or the wife may be joined, her 
 interest in the land being stated in the declaration. But a demand for re- 
 moval of personal property, as corn or grass when severed from the land, 
 ought not in the latter case to be included, because, as we have seen, the 
 entire interest in personalty is vested in the husband. 
 
 If the husband survive, he may support an action of trespass, &c. for 
 any injury to the land of the wife committed during the coverture, but not 
 an action merely for the battery of the wife, without stating special damage 
 to himself; and in the latter case, if the wife die pending the action it Avill 
 abate. If the wife survive, any action for a tort committed to her or to her 
 personal or real property before marriage, or to her person or real estate 
 during the coverture, will survive to her; and she may include in one ac- 
 tion trespasses to her land, committed as well in the lifetime of her hus- 
 band as since his decease. 
 
 The consequences of a mistake in the proper parties in the case of hus- 
 band and wife, may be collected from the preceding observations, and seem 
 to be nearly the same in actions in form ex delicto as in those ex contractu. 
 If the wife be improperly joined in the action, and the objection appear 
 from the declaration, the defendant may in general demur, move in arrest 
 of judgment, or support a writ of error, though we have seen that after ver- 
 dict the mistake may be aided by intendment; and if the husband sue alone 
 when the wife ought to join, either in her own right or in autre droit, he 
 will be non-suited; for though in general the non-joinder of plaintiffs in 
 an action for a tort can only be pleaded in abatement, yet in those cases 
 the party suing had some legal interest in his own right, in the property af- 
 fected, but the husband in the case of the battery, &.C. of his wife has re- 
 ceived no personal injury unless a loss of her society or expense ensued. 
 
 Defendants. As between the original parties, and with reference to their 
 liability. In personal or mixed actions, in form ex delicto, the person com- 
 mitting the injury either by himself or his agent, is in general to be defen- 
 dant; but real actions can only be supported against the claimant of the 
 freehold. All natural persons are liable to be sued for their own tortious 
 acts, unconnected with or in dis-affirmance of a contract ; and therefore, 
 though an infant cannot in general be sued in an action in form ex contrac- 
 tu, unless for necessaries, he is liable for all torts committed by him, as for 
 slander, assaults and batteries, &c. ; and also in detinue for goods deliver- 
 ed to him for a purpose which he has failed to perform, and which goods 
 he refuses to return. But a plaintiff cannot in general, by changing his 
 form of action, charge an infant for a breach of contract, as for the negli- 
 gent or immoderate use of a horse, &c. ; nor can he be a trespasser by prior 
 or subsequent assent, but only by his own act. A married woman is liable 
 for torts actually committed by her, though she cannot be a trespasser by 
 prior or subsequent assent ; and though a lunatic is not punishable crmii- 
 nally, he is liable to a civil action for any tort hq may commit. Corpora- 
 voL. 2—29
 
 22G OF THE PARTIES TO THE ACTION. [ BOOK 3, 
 
 lions and incorporated companies may be sued in that character in many- 
 instances for damages arising from the neglect of a duty imposed on them 
 by particular statutes ; and though it has been supposed that a corporation- 
 cannot be sued in that character in trespass or replevin, and that the action 
 must be brought against each person who committed the tort by name, it 
 has recently been decided, that an action of trover is sustainable against a 
 corporation in that character. A cestui que trust cannot in general support 
 any action at law against his trustee for any mis-management of the estate ; 
 nor can one joint-tenant or tenant in common of a personal chattel, sue 
 liis co-tenant at law in trover, or for taking away the chattel, but for de- 
 stroying or spoiling it an action may be supported, and one tenant in com- 
 mon of real property may support ejectment, or trespass for mesne profits, 
 against his co-tenant, when there has been an actual ouster, or case for 
 waste to the land or trees ; and though a party-wall has been erected at 
 the joint expense of the two proprietors, yet, if one add to the height, and 
 the other pulls down the addition, an action of trespass lies against him for 
 the injury to the moiety of the party making such addition. 
 
 All persons who direct or assist in committing a trespass, or the conver- 
 sion of personal property, are in general liable as principals, though not 
 benefitted by the act, and therefore trover may be supported against a per- 
 son who illegally makes a distress or seizes goods, though the same were 
 taken by him in the character of bailiff for another, or as a custom-house 
 officer, &c. And where several are concern-ed, they may be jointly sued, 
 Avhether they assented to the act before or after it was committed, unless 
 the party be an infant or a feme covert, who, we have seen, cannot be sued 
 in respect of a subsequent assent, and no person can be guilty of a forcible 
 entry by such assent. If, however, a person sue out execution, and give a 
 bond of indemnity to the sheriff to induce him to sell the goods of anath- 
 er, this is a sufficient interference to subject him to an action ; so if he be 
 in company with the sheriff's officer at the time of the execution, or adopts 
 his act by receiving goods or money, but the mere act by a stranger of mak- 
 ing an inventory or drawing a notice of distress is not such an interference 
 as will subject him to an action ; and though trespass may be supported 
 against a sheriff for his bailiff's taking the goods of A under an execution 
 against B, it cannot against the phiintiff in the action, unless he actually 
 interfered or assented to tlie levy. 
 
 The liability to an action in respect of reed property, may be for misfea- 
 zance or mal/eazance, as for obstructing ancient lights ; or for nonfeazance, 
 as for not repairing fences, private ways, water courses, 8cc. In these casea 
 the action should in general be against the occupier, and not against the 
 owner, if the premises were in the possession of his tenant, unless he cove- 
 nanted to repair: but if the owner, having erected a nuisance, demise the 
 land, an action may be supported against him, though out of possession, 
 for the continuance of it, for by the demise he affirmed such continuance; 
 and every occupier is liable for the continuance of the nuisance on liis land, 
 &.C. thougli erected by another, if he refuse to remove the same after no- 
 tice. When there are several owners or persons chargeable as joint-ten- 
 ants or tenants in common, in respect of their real property, though the ac- 
 tion be in form ex delicto, they should all be made defendants, or the party 
 who is sued alone may plead in abatement. 
 
 2dly. With reference to the number of the parties. There are some 
 torts which in legal consideration may be committed by several, and for 
 which a joint action may be supported against all the parties ; but if in le- 
 gal consideration several cannot concur in the act complained of, separate 
 actions must be brought against each ; thus a joint action may be brought 
 against several for a malicious prosecution, an assault and battery, or for.
 
 CHAP. 13.] OF THE PARTIES TO THE ACTION. 227 
 
 composing and publishing a libel, for not setting out tithe, or for keeping 
 a dog to kill game, not being qualified ; but a joint action cannot be sup- 
 ported against two for verbal slander, and there ought to be separate ac- 
 tions against each ; nor will debt on a penal statute lie against several for 
 what in law is a separate offence in each, as against two proctors for not 
 obtaining and entering their ceriificates, or against several for bribery. And 
 if a joint action of trespass be brought against several persons, the plaintiff 
 cannot declare for an assault and battery by one, and for the taking away 
 of goods by the others, because these trespasses are of several natures. 
 These rules, however, do not obtain in criminal proceedings so as necessa- 
 rily to defeat an indictment against several for distinct offences in separate 
 counts, though the court have a discretionary power to quash the indict-* 
 ment, where inconvenience might arise from the joinder of many persons 
 for different offences. 
 
 if several persons be made defendants jointly, where the tort could not 
 in point of law be joint, they may demur, and if a verdict be taken against 
 all, the judgment may be arrested or reversed on a writ of error; but the 
 objection may be aided by the plaintiff's taking a verdict against one only; 
 or if several damages be assessed against each, by entering a nolle prosequi 
 as to one after the verdict and before judgment. In other cases, where in 
 point of law several persons may be jointly guilty of the same offence, the 
 joinder of more persons than were liable in a personal or mixed action in 
 form ex deliclo, constitutes no objectio*i, and one of them may be acquitted, 
 and a verdict taken against the others. On the other hand, if several per- 
 sons jointly commit a tort, the plaintiff in general has his election to sue all 
 or any of the parties, because a tort is in its nature a separate act of each 
 individual ; and therefore in actions in form ex delicto, as trespass, trover, 
 or case for malfeazance, against one only for a tort committed by several, 
 he cannot plead the non-joinder of the others in abatement or in bar, or 
 give it in evidence, under the general issue ; for a plea in abatement can 
 only be adopted in those cases where regularly all the parties must be join- 
 ed, and not where the plaintiff may ioin them all, or not, at his election. 
 And even if it appear from the declaration or other pleadings, that the tort 
 was jointly committed by the defendant and another person, no objection 
 can be taken. It has been considered that this rule cpplies not only in ac- 
 tions strictly for torts unconnected with contract, but also in actions in form 
 ex delicto, for raisfeazance and malfeazance, though in effect for the breach 
 of a contract, as in cetse against common carriers and bailees for negli- 
 gence. But when an action on the case is merely for the nonfeazance of 
 a contract, as for a breach of a warranty on a sale, the joinder of too many 
 defendants will be the ground of nonsuit; and it should seem, that if a 
 joint contractor be not included, the defendant may plead his non-joinder 
 in abatement. There is a settled distinction between mere personal actions 
 of tort, and such as concern real property ; for if one''tenant in common 
 only be sued in trespass, trover, or case, for any thing respecting the land 
 held in common, as for not setting out tithe. Sec. he may plead the tenancy 
 in common in abatement. And in an action of debt for money lost at 
 play, the defendant may plead in abatement, that the money was due from 
 others as well as from himself; such action, though given by statute, being 
 founded on contract. These distinctions between the effect of too many 
 or too few persons being made defendants in actions in form ex contractu 
 and in those ex delicto, may in some cases render it advisable to adopt the 
 latter form of action, when it is doubtful who should be made the defen- 
 dants ; and in an action on the case, trover, or replevin, no inconvenience 
 can arise, because if one of the defendants be acquitted, he will not be en- 
 ■titled to costs ; though in trespass it is otherwise, unless the judge certify
 
 228 OF THE PARTIES TO THE ACTION [ BOOK 3. 
 
 that there was reasonable cause for making the acquitted person a defen- 
 dant. Where separate actions have been brought against several defen- 
 dants for the same single act of trespass, the party against whom the last 
 action was commenced may plead the pendency of the first in abatement. 
 A recovery against one of several parties to a joint tort frequently precludes 
 the plaintiff from proceeding against any other party not included in such 
 action ; thus in an action against one for a battery, or for taking away the 
 plaintiff's posts, or destroying grass in a field where several persons are 
 concerned, the recovery against one will be a bar to an action against the 
 others ; and where the plaintiff had previously recovered in an action against 
 his servant for quitting his service, it was decided that he could not also sup- 
 port an action against the person for seducing away such servant ; and in 
 these cases the court will, in general, on a summary application, stay the 
 proceedings in the second action, where it is manifest that the entire da- 
 mages have been recovered in the first. But where the evidence and the 
 damages in the two actions might be different, as where two persons on 
 different occasions have published the same libel, separate actions may be 
 supported against each. So the recovery against one party in an action 
 for criminal conversation, is no bar to an action against another party for a 
 similar injury. 
 
 3dly. Where the interest has been assigned, &c. As in the case of a 
 breach of covenant, so in that of torts, the assignee of an estate is not lia- 
 ble for an injury committed before he came to the estate ; but if he conti- 
 nue a nuisance, he may be sued for such continuance ; though prior to the 
 action, there should, in some cases, be a request and a neglect to abate the 
 nuisance ; and if a tenant for years erect a nuisance, and make an under- 
 lease to B, an action lies against either ; and if A take the goods of C, 
 and B take them from A, C may have his action against A or B at his elec- 
 tion. 
 
 4thly. In case of the death of the wrong-doer. At common law upon 
 the death of the wrong-doer, the remedy for wrongs ex delicto, and uncon- 
 nected with contract, in general determines ; though the statute before cit- 
 ed gives remedy against the personal representative in case of trespass de 
 bonis asportalis. 
 
 For injuries to the person, if the wrong-doer die before judgment the re- 
 medy determines, and there is no instance of an action having been sup- 
 ported for such injuries against his personal representatives. In general, 
 also, no action in form ex delicto, as trover, case, or trespass, can be sup- 
 ported against an executor, for an injury to personal property, committed 
 by the testator ; though if the testator converted the property into money, 
 assumpsit lies against his executor; or if the property came in specie to 
 the possession of the latter, trover would be sustainable against him, though 
 not in the character of executor. And, though we have seen that debt 
 may be supported by an executor for an escape on final process, it cannot 
 against the executor of a sheriff or goaler ; for though the action is not in 
 form ex delicto, it is considered as founded on a tort, the negligence of the 
 deceased sheriff; but where a sheriff has levied money under an execution, 
 and dies before he has paid it over, his executors may be sued either in debt 
 or scire facias upon his return of fieri-feci, or by action of assumpsit, as 
 for money had and received. An action cannot be supported against an 
 executor for a penalty forfeited by the testator under a penal statute ; and 
 though it has been holden that debt lies against an executor, for treble the 
 value of tithes which his testator ought to have set out, that decision has 
 been doubted. At common law no executor was answerable for a devasta- 
 vit by his testator; but by statute, [I R. C. ch. 104, § 5,] 30 Car. II. c. 7, 
 (explained and made perpetual by 4 & 5 W. & M. c 24, s. 12,) "the exe-
 
 CHAP. 14.] PROCEEDINGS IN SUITS. 229 
 
 cutors or administrators of any executor or administrator, whether rightful 
 or of his own wrong, who shall waste the estate of his testator or intestate, 
 shall be liable and chargeable in the same manner as their testator or intes- 
 tate would have been if they had been living." So that since these statutes, 
 if a judgment be obtained against an executor who afterwards dies, an ac- 
 tion may now be brought against his executor or administrator upon the 
 judgment, suggesting a devastavit by the first executor. But it has been 
 considered that an executor de son tort of an executor de son tort cannot 
 be sued as such by virtue of these statutes. 
 
 For injuries to real property no action in form ex delicto can in general 
 be supported against the personal representatives of the wrong-doer ; though 
 if trees, &c. be taken away and sold by the testator, assumpsit for money 
 had and received lies against his executor, or trover if they remain in specie, 
 and the executor refuse to restore them, and a court of equity will frequent- 
 ly afford relief against the executor of the wrong-doer, though at law the 
 action moritur cum persona ; and therefore where a tenant for life cut down 
 timber and died, relief was decreed against his executors in favor of the re- 
 mainderman ; and there is an exception to the common law rule in the case 
 of the executors of a deceased rector or vicar, &c. against whom the suc- 
 cessor may support an action on the case for waste and dilapidations per- 
 mitted by the deceased. 
 
 6thly. In the case of marriage. Actions for torts committed by a woman 
 before her marriage must be against husband and wife jointly ; for torts 
 committed by the wife during coverture, as for slander, assaults, &c. or for 
 any forfeiture under a penal statute, they must also be jointly sued ; and 
 the plaintiff cannot in the same action proceed also for slander, assault, or 
 other tort committed by the husband alone ; nor can the husband and wife 
 be sued jointly for the slander of both. But for assaults or other wrongs, 
 in which two persons may concur, the husband and wife may be sued joint- 
 ly for the act of both, and the acquittal of the husband will not preclude 
 the plaintiff from recovering. Detinue can only be supported against the 
 husband. But if a woman convert goods before her marriage, or during it, 
 without her husband, trover may be supported against her and the husband ; 
 and for a conversion by husband and wife the action may be against him 
 alone. A feme covert can only be sued for her own actual wrong or tres- 
 pass, and cannot become a trespasser merely by her previous or subsequent 
 assent during coverture ; but she may be jointly sued with her husband for 
 enticing away or harboring the servant of another. In an action of tres- 
 pass, &c. against husband and wife, for her tort before or during coverture, 
 if she die before judgment, the suit will abate ; but if the husband die or 
 become bankrupt, her liability will continue. 
 
 If the wife be sued alone for her tort before or after marriage, she must 
 plead her coverture in abatement, and cannot otherwise take advantage of 
 it; but if the husband and wife be sued jointly for torts of which they 
 could not in law be jointly guilty, as for the slander of both, if the objec- 
 tion appear on the face of the declaration the defendant may demur, move 
 in arrest of judgment, or support error. 
 
 CHAPTER XIV. 
 
 OF THE PURSUIT OF REMEDIES BY ACTION ; FIRST, OF THE ORIGINAL WRIT. 
 
 The course of proceeding in the courts of this commonwealth, in the 
 prosecution of actions, differs so very materially from the English practice, 
 that I shall better attain my abject by presenting the student with an origi-
 
 ^30 FROCEEDINCfS IN SUITS. [ book 8. 
 
 nal sketch, than by attempting to interweave Mr. Blackstone's account with 
 my own remarks. In doing this, however, I shall proceed upon the sup- 
 position, that the eighteenth and nineteenth chapters of the third book of 
 the commentaries have been carefully examined, since an acquaintance 
 with the English system not only conduces to the clear comprehension of 
 our own, but is also absolutely necessary to enable us to read understand- 
 ino"ly the cases in the British reporters. 
 
 The great and frequent changes in our system of laws, indeed, renders it 
 difficult to keep pace with legislative enactments. The Editor of the Vir- 
 ginia edition of Blackstone's Commentaries gave, in 1803, a valuable sy- 
 nopsis of the mode of proceeding in suits in Virginia, which has become 
 utterly obsolete since the abolition of the district court system, and the 
 erection of the superior courts upon its ruins. Hence, it became necessary 
 when 1 commenced my course of lectures that I should conform thein to 
 the new state of things, and mark out the changes that had been effected, 
 by copious observations. This labor also has been rendered in no inconside- 
 rable degree useless ; for since those lectures were published, an important 
 statute has been enacted, changing so essentially the law in relation to the 
 prosecution of actions, as to render necessary an entirely new view of the 
 object. I propose to oft'er this in the following sheets. 
 
 An attention to the Appendix of the late Editor of the Commentaries 
 will have satisfied the student that at an early period we threw off" in Vir- 
 ginia many of the cumbrous trappings of justice, and satisfied ourselves 
 with a simple machinery, which united in itself the advantages of that from 
 which it was a deviatioai, while it combined with them cheapness and expe- 
 dition. The experiment so far succeeded that the legislative body have 
 from time to time pushed the principle of simplicity in judicial process far- 
 ther and farther, by lopping oft' first one and then another of its useless ap- 
 pendages. Thus we find that at the time of the publication of Judge 
 Tucker's Blackstone, and even so late as the compilation of my original 
 course of lectures, appearance bail was required in all actions where bail 
 was demandable at all. This appearance bail, which answered to the spe- 
 cial bail in the English courts, was bound for the defendant's appearance to 
 the action, and as he could only appear by giving what ive call special bail, 
 (which answers to the bail above in England,) he was always fixed for the 
 debt by the omission to give this special bail. Yet he was permitted (if he 
 was a solvent person) even to enter himself special bail at any time before 
 the suit was tried, and thus change entirely the nature of his responsibility. 
 For the appearance bail was bound for the debt itself, if special bail was not 
 given ; but becoming special bail, he only became bound for the surrender 
 to prison of the defendant's person. Hence it was the uniform practice for 
 the appearance bail to enter himself special bail, in order to relieve him- 
 self from his responsibility in part, in case the defendant did not relieve 
 him by finding other special bail ; nor was this ever omitted except through 
 accident or mistake. Thus it happened that by some casualty the bail was 
 sometimes fixed for the debt, though he might have been relieved had he. 
 entered himself special bail ; and, on the other hand, in nine cases out of 
 ten, the complicated machinery of appearance and special bail proved to 
 be unnecessary, as the proceedings almost always resulted in special bail 
 being given. These considerations have at length induced the legislature 
 to abolish appearance bail altogether, and now upon a defendant's being 
 taken, if bail is re(iuirod, the sheriff" proceeds to take special bail at once, 
 who is liable only (or the forthcoming of the defendant's body. This al- 
 teration in the law has produced a material change in the mode of pro- 
 ceeding in personal actions, as will be presently explained. At present we 
 shall proceed to shew how the several species of actions are commenced.
 
 CHAP. 14.] PSOCEEDINGS IN SUITS. 231 
 
 1. The prosecution of a writ of right, which is the only real action now 
 used in our courts, is always by original or praecipe quod reddat, as we have 
 already seen in some detail under the head of writs of right. 
 
 2. In mixed actions, also, so called because the party recovers not only 
 the realty, but damages, (such as the action of waste,) the suit is commenc- 
 ed by original. For the process in all such- actions at the common law 
 was by original ; and our statute has provided (I R. C. ch. 128, § 34,) that 
 process in all real actions shall be according to the course of the common 
 law. The form of the original may be found in Jac. Law Diet. Waste. 
 
 3. In actions of ejectment, as we have already seen, the suit is com- 
 menced by the delivery of a copy of a declaration in ejectment, accompa- 
 nied by a notice to appear and defend the suit, and there is no writ, either 
 original or otherwise, sued out. Enough, however, has been said of this 
 action elsewhere. 
 
 4. We proceed, therefore, to the subject of the prosecution of personal 
 actions, which include not only, as we have seen, injuries to the person, as 
 assault and battery,; or to the personal property as trespass de ivjuria or de 
 bonis asportatis ; but also breaches of contract, as the non-payment of 
 debts and th"e breaches of covenants, and even injuries to real property, 
 nuisances, and the like. All these are commenced by the same species of 
 process. 
 
 And here we must remark, that in Virginia the capias or capias ad re- 
 spondendum is the first or original process in the commencement of all per- 
 sonal actions (except in cases of defendants who are privileged from arrest, 
 in which a summons is substituted for the capias.) It is a writ directed toi 
 the sheriff of tlie county in which the defendant resides, or is supposed 
 most likely to be found, and issuing from the clerk's office of that court in 
 which- the plaintiff proposes to prosecute his action, commanding him to 
 take the body of the defendant and him safely keep, to answer the plaintifT 
 of a plea of debt, covenant, &c. &c. This writ must always be issued from 
 the office of that court in which by law the suit is required to be brought ;- 
 and hence it becomes necessary to advert first to the subject of the juris- 
 diction of the court in personal actions, (for real and mixed actions and 
 ejectments must always be brought in the superior or county court of that 
 county in which the land lies.) 
 
 On the subject, then, of the jurisdiction in personal actions, it is enacted 
 that "except where it is otherwise expressly provided, no capius ad re- 
 spondendum shall be issued against any person in any other county or cor- 
 poration than that in which he resides, until a non est inventus has been re- 
 turned in his own county or corporation upon a capias for the same cause 
 of action ; and every writ issued contrary to this provision, is directed to 
 be considered void, and to be dismissed upon the first calling thereof." (I 
 R. C. ch. 128, § 41.) The objection can only be made, however, by plea 
 in abatement. 1 Mun. 284. 2 Mun. 240. To this provision there are 
 three exceptions contained in the same section : 1. That where two per- 
 sons are jointly or jointly and severally bound for the performance of any 
 ^contract or payment of money by bond, covenant, or otherwise, (which of 
 course will include assumpsits,) they may be sued jointly in any county in 
 which either of them reside, and the process maybe served on the non-re- 
 sident defendant if he be found therein. 2. Though the person sued does 
 not reside in the county where the suit is brought, yet if the cause of ac- 
 tion arose there, the court will have jurisdiction. Thus, if I reside in 
 Berkeley, but purchase goods in Frederick, or execute my bond there, or 
 commit an assault and battery, or trespass on lands there, the suit rnay be 
 properly brought there, provided I can be taken in the county; but it can- 
 not issue from Frederick to the sheriff" of Berkeley, commanding him to-
 
 232 PROCEEDINGS IN SUITS. [book 3. 
 
 take my body and have it before the court of Frederick. 3. If a person 
 has no fixed residence in the commonwealth, a writ may be issued against 
 him in any county in which he may be found. See Post. 234. 
 
 This statute has removed, I conceive, the difficulties which often existed 
 at the common law, as to laying the venue, as it is called ; and by it is also 
 to be determined the question whether particular actions are local or tran- 
 sitory. Thus at common law there was often much dispute whether the 
 action for rent was local or transitory. 1 Saun. 241, b. n. 6, 241, n. 5. But 
 our law provides that all actions of debt for rent in arrear, actions for use 
 and occupation, actions of trespass and for waste, may be prosecuted in the 
 superior or inferior courts of the county where the defendant may be found, 
 in like manner as transitory actions may be. 1 R. C. ch. 113, § 14. This 
 subject will be resumed hereafter under the head of pleading. 
 
 The practitioner having upon the principles of these acts (ch. 128, § 41, 
 and ch. 113, § 14,) determined the matter of jurisdiction of the court, next 
 proceeds to file with the clerk a memorandum in the following form or to 
 the following effect : 
 
 To the Clerk of the Superior Court [or County Court as the case may ie] 
 
 of County; Issue A. B. vs. C. D. debt for $\i)0. Damage $50. 
 
 Endorse debt on bond bail required. A. H. P. Pllfs Atto. 
 
 This form is to be varied, of course, according to the nature of the suit, 
 and number of the parties [plaintiffs or defendants.] It would seem, from 
 the form in Mr. Blackstone's Appendix, that the capias in debt in England 
 did not specify damages ; but with us the damages are always inserted in 
 the writ. 
 
 Upon the payment of the tax of the writ, the clerk upon the above or- 
 der proceeds to issue the capias. This tax [which is usually paid by the 
 attorney for his client, who is bound to reimburse it,] amounts to one dol- 
 lar or writs of subpa;nas in chancery in the county court, and to one 
 dollar and fifty cents on writs in the superior court, or subpoenas in chan- 
 cery in superior courts of chancery. The capias with us is in the form fol- 
 lowing : 
 
 The commonwealth of Virginia, to the sheriff of Frederick county, greet- 
 ing : You are hereby commanded to take Thomas Thriftless, if he be found 
 within your bailiwick, and him safely keep, so that you have his body before 
 the justices of our said county court, (a) at the court-house thereof, on the 
 Monday before the first Tuesday in March next, (b) to answer Wm. Touch- 
 penny of a plea of debt for five hundred pounds, (c) damage one hundred 
 dollars, and have then there this writ. 
 
 Witness, Thomas Allen Tidball, clerk of our said county court, at the court- 
 house aforesaid, the first day of February, 1825, and in the 50th year of the 
 commonwealth. T. A. Tidball, C. F. C. 
 
 (a) If in the superior court, the words are, " before the judge of our su- 
 perior court for the county of Frederick." 
 
 (b) In the superior court the return day may be to any rule day. Here 
 the return day is to March court. 
 
 (c) The sum here inserted must be the amount of the bond either in 
 pounds or dollars, according as the bond itself is so. 
 
 On the back of the writ an endorsement is made thus : 
 
 "Debt on bond— bail required." A. H. Powell, P. Q." 
 
 In like manner aa endorsement must be made in all other actions. For 
 
 example, 
 
 In covenant. "Covenant — bail required." 
 
 In case sur assumpsit. "Assumpsit — no bail required." 
 
 In case for breach of contract. "Case to recover damages for breach of 
 
 parol agreement— no bail required."
 
 CHAP. 14.] PROCEEDINGS IN SUITS. 233 
 
 In case for an injury. "Case to recover damages for slanderous words — 
 no bail required." 
 
 In trover. " Trover — no bail required." 
 
 In detinue. "Detinue — bail required." 
 
 In assault and battery. " Trespass, assault and battery'— no bail requir- 
 ed." And so in like cases. 
 
 The writ thus issued and endorsed is placed in the hands of the sheriflf, 
 who is to proceed to execute the same. In those cases where bail is not 
 demanded by the writ, the service of it consists merely in a personal notice 
 of it given to the defendant, the process in such cases being in effect no 
 more than a summons ; or he may take the engagement of an attorney 
 practicing in the court endorsed upon the writ to appear for the defendant, 
 which engagement ought never to be entered into, however, unless the at- 
 torney is thereto authorized ; and when entered into, must be fulfilled un- 
 der certain penalties prescribed by law. But if the action be one of those 
 in which bail is required, and there is endorsed on the writ the true species 
 of action, then the sheriff is bound literally to perform the precept thereof 
 by committing the defendant to close custody, unless he shall give bail, as 
 hereinafter described. Hence it may be seen how essential the endorse- 
 ment on the writ is ; for if the action be one in which bail might lawfully 
 be demanded, yet is the sheriff excused for not taking bail unless the true 
 species of action, and that bail is required, be endorsed upon the original 
 writ or subsequent process, for he is not bound to look into the body of 
 the writ to see whether he ought to take bail. See 1 Wash. 153, 154. On 
 the other hand, if the action be one in which bail cannot be lawfully de- 
 manded, if the true species of action required be not endorsed by the plain- 
 tiff or his attorney, [or by the clerk, by their direction, which amounts to 
 the same thing,] the suit shall be dismissed with costs. 1 R. C. ch. 128, 
 § 42, 43. No plea is necessary in this case. The court will inspect the 
 writ on defendant's motion, which motion should be made at farthest during 
 the term next after the judgment was confirmed in the oflice. 1 Wash. 153. 
 
 It behoves us, therefore, to inquire in what cases can bail be demanded. 
 And here it may be remarked, that in some cases bail is demanded as a 
 matter of right by the party himself who commences the suit, but in others 
 it can only be required under an order of a judge or justice of the peace. 
 
 I. Bail may be demanded as of right in actions of debt founded upon 
 any writing obligatory, bill, or note in writing, for the payment of money or 
 tobacco, and in all actions of covenant or detinue. 1 R. C. chap. 128, § 
 43. But in an action of debt on a judgment, bail is not demandable as of 
 right, because it is not within the description of a writing obligatory, &c. 
 And in like manner it may here be observed that bail cannot be demanded 
 on bonds with collateral conditions. 4 Ran. 413. These are such as (if 
 not single bonds) are to be defeasanced by the payment of a lesser ascer- 
 tained sum, called the principal, and which no assessment by a jury is ne- 
 cessary to estimate and render certain : — they are such as, when declared 
 on, do not require a particular breach to be assigned in order to the assess- 
 ment of damages by a jury. On the contrary, if there be no ascertained 
 principal sum for which judgment can be rendered, and if a particular as- 
 signment of breaches is necessary to notify the defendant of the object of 
 the suit, the bond is one with collateral condition. Gilb. 191. 2 Call, 238, 
 239. 6 Cranch, 82. Thus a bond in the penalty of £100, conditioned to 
 pay £50, is a money bond. But if the condition be to deliver one hundred 
 bushels of wheat, or make a title to land, or such like, it is a bond with 
 collateral condition. 
 
 The undertaking of the endorser of a negotiable note is not considered 
 as a note for payment of money within the meaning of this act, and the 
 VOL. 2—30
 
 2S^4 FROCEEDINGS IN SUITS. [boo»3. 
 
 endorser cannot therefore be held to bail as matter of right. And hence, 
 if the action be brought jointly against drawer and endorsers, bail cannot 
 be demanded without the direction of a judge or justice of the peace upon 
 affidavit according to the provisions which will be presently mentioned. 4 
 Ran. 152. 
 
 2. Bail is demandable in actions upon statutes authorizing bail to be tak- 
 en. 1 R. C. ch. l->8, § 4:3. 
 
 3. Bail can in no case be demanded as of right of heirs, (see Bac. Bail 
 B,) or of executors or administrators in any suit brought to establish the 
 plaintiff's demand against the decedant's estate ; notwithstanding the ac- 
 tion be upon bond for payment of money. For the debt is not their debt. 
 But in an action suggesting a devastavit, or upon the executor's or admi- 
 nistrator's bond, bail may be directed upon proper affidavit ; for the charge 
 is then personally against them. But not without affidavit under our law, I 
 conceive : for the judgment is not within the language of the act. 
 
 In the cases above enumerated, we perceive the arbitrary power of de- 
 manding bail is vested in the plaintiff, because of the nature of the action 
 which he has brought. A dangerous power it is, and not unfrequently 
 abused. Its liability to abuse is obvious from a single illustration. If I give 
 my bond for $1000, and it is all paid ofi' but $50, I must go t-o jail unless 
 
 1 can give bail for the original amount of the bond, if the plaintiff chooses 
 to demand it. It were to be wished that our practice corresponded with 
 that of other states, where bail cannot be demanded on a bond without an 
 affidavit of the amount due upon it. 
 
 4. In no other case but those enumerated can the plaintiff demand bail 
 as of right ; but in all other personal actions it shall be lawful for any judge 
 of the general court, or any justice of the peace for any county or corpo- 
 ration, upon proper affidavit verifying the justice of the plaintiff's action and 
 shewing probable cause of apprehension that the defendant will depart from 
 the jurisdiction of the court so that process of execution cannot be served 
 upon him, to direct bail to be taken by endorsement on the writ, and the 
 sheriff shall govern himself accordingly. 
 
 Before this act the nature of the affidavit was left somev/hat indefinite. 
 Great strictness seems always to have prevailed as to affidavits to hold to 
 bail. 1 Wils. 1-2 1, 231, 229, 239. Str. 1209, 1210, 1226. 2 Barn. & Aid. 
 526. See also 2 E. 453. 3 E. 309. 7E. 194. 11 E. 315. 1 H. B. 10. 
 
 2 T. R. 716, 717. 2 T. R. 55. 3 T. R. 575, 364. As to executors or 
 assignees, see 1 T. R. 83. 2 B. & P. 293. They must swear to their be- 
 lief of the justice of the debt. The affidavit of the original creditor or con- 
 tracting party must be positive, and shew the nature of the demand. See 
 5 T. R. 552, and the authorities above. 
 
 If the affidavit is defective on which the defendant is held to bail, the 
 defect, it is said, cannot in general be supplied. 5 T. R. 552. 1 B. &, P. 
 227. The objection cannot be made where bail has been given in conse- 
 quence of the bad affidavit, for giving bail is considered a waiver of the de- 
 fect. 7 T. R. 375. 1 East, 330. 1 M. & S. 230. Where, however, the 
 defendant has not given bail and is yet in custody, and moves to be dis- 
 charged because of the insufficiency of the affidavit, a supplemental affida- 
 vit is sometimes admitted — and very reasonably, I should think. 1 H. B. 
 285. No counter affidavit can be received. 2 E. Rep. 453. 
 
 Where bail is improperly required by a magistrate's endorsement on af- 
 fidavit, the motion should be to discharge the bail, — not to dismiss the suit. 
 Said rightly I conceive by Leigh arg. 3 Ran. 51. 
 
 5. But though bail may not be demanded by the writ, the court may, for 
 good cause shewn, rule the defendant to give bail, and refuse to permit 
 him to plead ; or may set aside his plea and proceed to judgment against
 
 CHAP. 14.] PHOCEEDINGS IN SUITS. 285 
 
 him if he refuse to give bail, or may cause him to be arrested and commit- 
 ted to prison. 1 R. C. eh. 128, § 50. 
 
 When bail is required, the sheriff must literally obey the writ by arrest- 
 ing the defendant. An arrest must be by seizing or touching the defen- 
 dant's body, or by any other act whereby the defendant can be considered 
 as being within the power of the officer; a matter of which we shall treat 
 hereafter more fully. After touching the defendant, the sheriff " may justi- 
 fy breaking open the house in which he is to take him : otherwise he has 
 no such power; but must watch his opportunity to arrest him. For every 
 man's house is looked upon by the law to be his castle of defence and asy- 
 lum, wherein he should sufTer no violence. Which principle is carried so 
 far in the civil law, that for the most part not so much as a common cita- 
 tion or summons, much less an arrest, can be executed upon a man within 
 his own walls." 
 
 Suitors, witnesses, and others, attending any courts of record on business, 
 are not to be arrested during their actual attendance. 8 T. R. 536. 1 R. 
 C. ch. 131, § 7. ISalk. 544. Process must not be executed on Sunday. 1 
 R. C. ch. 78, § 19. 
 
 Formerly, as has already been observed, when a writ requiring bail came 
 into the hands of the sheriff he was bound to take appearance bail and an 
 appearance bail bond, out of which provision sprung a variety of decisions, 
 but now (see Sess. Acts, 1825, ch. 22, ) this useless and cumbrous contri- 
 vance is abolished, and the lav/ provides that the sheriff where bail is re- 
 quired shall not take appearance bail or an appearance bail bond, but that 
 the defendant shall be discharged from custody upon giving good special 
 bail to the action. This ig done by the bail entering into what is called a 
 recognizance, by which he engages for the defendant that in case he is cast 
 in the suit, he (the defendant) will satisfy the condemnation of the court, 
 or render his body to prison in execution for the same, or that he (the bail) 
 will do it for him. See the form 1 R. C. ch. 128, § 51. When the defen- 
 dant, therefore, is taken by the sheriff, he may discharge himself by procur- 
 ing some person to become bail for him by entering into such a recognizance. 
 If this is done before the return day of the writ, the recognizance may be 
 taken by the sheriff himself, and certified in the same manner as justices of 
 peace or judges certify such recognizances ; but in this case it must be also 
 accompanied by a certificate, underwritten, subscribed, and sealed by the 
 bail, of his acknowledgment of the recognizance. See the form, Sess. Acts, 
 1825, ch. 22, § 2. When the defendant does not give bail before the re- 
 turn day of the writ, the sheriff commits him to prison, and after the return 
 day his power of taking bail ceases, but the defendant may then procure 
 some person to enter his bail by recognizance, acknowledged before any 
 judge of the general court, or any justice of the peace, or mayor, recorder, 
 or alderman of any corporation. The recognizance of bail is in all cases 
 to be returned to the clerk of. the court where the action was brought, and 
 the bail is entitled to a bail piece certifying his having become bail, which 
 bail piece gives him the pov/er to take the defendant when he pleases, and 
 discharge himself by delivering him again to prison. See the form, 1 R. 
 C. ch. 128, § 52. 
 
 The writ of capias ad respondendum in the county courts must be always 
 made returnable to the first day of the quarterly term next ensuing the date 
 of the writ. In the superior courts it may be returnable either to the first 
 day of the ensuing term or to some previous rule day. Tliis was for a short 
 time also the law as to the county courts, [see 1 R. C. ch. 128, § 70,] but 
 the provision was soon repealed. See Sess. Acts, Feb. 1822, ch. 18. 
 
 The capias may be executed by the sheriff at anytime before the return 
 day is past, and it must be so executed, or his power to execute that writ is
 
 236 PROCEEDINGS IN SUITS. [ BOOK 3. 
 
 gone, and a new process called an alias, which is but a continuation of the 
 other, must issue. It being executed, the defendant must regularly appear 
 according to its command on the appearance day in the office. The ap- 
 pearance day was formerly the day after the rising of the court, but now 
 the defendant must appear on the return day of the writ. 1 R. C. ch. 128, 
 § 42. It has been decided that the appearance on any of the rule days, at 
 the rules to which the writ is returnable, is good. By White J. in the su- 
 perior court. The rules are continued open six days. This appearance 
 does not consist in the personal attendance of the defendant at the clerk's 
 office ; for in actions where no bail was required, if an attorney entered an 
 appearance for the defendant on the docket, that was sufficient: — and though 
 where appearance bail was demanded and given, there could be no suffi- 
 cient appearance without the defendant's procuring special bail, yet even 
 then the bail was permitted to defend the suit, and an attorney might have 
 appeared for him. At present, however, where the defendant gives bail, 
 the appearance of an attorney for the defendant is a sufficient appearance, 
 because, as we have seen, the bail so given is not mere appearance bail, 
 but is special bail or bail to the action ; and if the defendant does not give 
 bail and is imprisoned, that itself is sufficient, and he must not be proceed- 
 ed against as a defendant who has not appeared, but may enter his appear- 
 ance in custody. 1 R. C. ch. 128, § 29. 
 
 Before we proceed, however, it is proper here to remark the peculiar 
 character of the undertaking in the action of detinue. The form of that 
 undertaking may be seen by reference to the Sess. Acts, 1825, ch. 22, § 5. 
 The substance of it is, that the defendant will satisfy the condemnation of 
 the court by restoring the property or paying the value with the damages 
 and costs, or that the defendant will render his body to prison in execution 
 for the same, or that the bail will do it for him. From this phraseology it 
 would seem that the bail was no farther bound than to see that the defen- 
 dant either satisfied the judgment or rendered his body to prison, and that 
 either would discharge him ; but by the following section it is expressly pro- 
 vided that the surrender of the body of the defendant by the bail in an ac- 
 tion of detinue shall only discharge him from the payment of the alternative 
 value and damages and costs, and shall not discharge him from the obliga- 
 tion to deliver the specific thing, unless the distringas for the specific thing 
 be superseded by the order of the court. For the relief of the bail, howev- 
 er, the same act farther provides that at any time after judgment the bail 
 may take possession of the specific property recovered, and deliver it to the 
 plaintiff; provided it be so delivered before the distringas is superseded for 
 the specific thing, and also before the time in which the bail may exonerate 
 himself by a surrender of the principal. Before judgment a court of chan- 
 cery is authorized to protect the bail against any danger apprehended from 
 the sale, removal, or concealment of the property. Sess. Acts, 1825, ch. 
 22, § 7, 8, 9. 
 
 If the original capias or first process is not executed, then the ulterior 
 steps of the plaintiff depend upon the return of the sheriff. 
 
 1. If the sheriff returns that the defendant is no inhabitant of his county 
 or corporation, the writ shall abate and be dismissed if the court has juris- 
 diction over such county or corporation only. 1 R. C. ch. 128, § 60, ch. 
 78, § 18. But this provision does not affect or repeal that part of the 41st 
 section, which in the case of joint defendants authorizes a suit in the coun- 
 ty where either resides, and further directs process from the same court to 
 issue and be served even on the non-resident defendant if he be found 
 therein. 
 
 2. If the defendant is returned not found, the plaintiff may either sue 
 out an rilias or ^pluries until the defendant shall be arrested, or a testatum
 
 CHAP. 14.] PROCEEDINGS IN SUITS. 237 
 
 capias where the defendant shall have gone into another county or corpor- 
 ation ; or he may sue out an attachment against the defendant's estate to 
 enforce an appearance. 1 R. C. ch. 128, §01. Before speaking of these 
 in their order, it behooves us to observe, that no officer is authorized to re- 
 turn no7i est inventus unless he shall have actually been at the dwelling house 
 or place of abode of the defendant, and not finding him, shall have left 
 there an attested copy of the writ or process ; and where the defendant is 
 a known inhabitant of any county and not of the county of such officer, 
 he is bound to return the truth of the case. 1 R. C. ch. 78, § 18. A she- 
 riff", therefore, cannot return non est inventus as to an inhabitant of another 
 county. If he do, it is a false return, and he is punishable. Having pre- 
 mised thus much, we proceed with the process. 
 
 3. Upon the return of the non est inventus the plaintiff" may sue out an 
 alias capias, which is like the capias, except that after the words " we com- 
 mand you," are inserted these words, " as at another time you have been 
 commanded ;" and if this is in like manner returned, a j)Iuries may issue, 
 which 's like the alias, except that instead of the words " at another time," 
 the words "as more than once" are used. See 3 Black. Com. App. xv. 
 for the form. If the pluries be returned non est inventus, the court orders a 
 proclamation against the defendant, warning him to appear on a certain 
 day, or that judgment will be rendered against him ; which proclamation 
 must be published three successive couri days (i. e. as I understand it, of 
 three successive courts,) at the door of the courthouse of the county or cor- 
 poration to which the last process was directed, and also three times in 
 some public newspaper ; and if the defendant fails to appear, the same pro- 
 ceedings are had as in other cases of default. 1 R. C. ch. 128, § 64. 
 
 4. If the defendant has gone to another county, a testatum capias may 
 issue to that county. This 1 understand to apply only to the case of a de- 
 fendant who has left the county of his residence, in which the suit is brought. 
 The testatum capias is directed to the sheriff of the county to which he has 
 gone, commanding him to take the defendant if he be found in his baili- 
 wick, and reciting that a non est inventus has been returned, and that it is 
 testified that the defendant is lurking and wandering about his county. 
 
 5. The plaintiff, where he cannot get his process served on the defen- 
 dant, and a non est inventus is returned, may, if he prefers it, instead of an 
 alias or pluries or testatum capias, sue out an attachment against the de- 
 fendant's estate to compel an appearance. If the defendant desires to re- 
 lease his effects, he may do so by entering his appearance and giving spe- 
 cial bail in case he shall be ruled so to do, but if he does not, the plaintiff 
 may file his declaration and proceed to final judgment as if the defendant 
 had been arrested, and the goods attached may be sold as goods taken on 
 a. fieri facias. 1 R. C. ch. 128, § 61. From these provisions it is obvious 
 the attaching officer should, if it be in his power, attach enough to satisfy 
 the debt. A failure to do so might render him liable, in the event of the 
 defendant's eloigning his property before they could be reached by execu- 
 tion. 
 
 6. If the sheriff returns that he is kept off by force of arms, the plaintiff 
 may either sue out an alias or pluries, as the case may be, or proceed in 
 his suit as if the process had been executed. 
 
 Having offered to the student this concise view of the mode of proceed- 
 ing to compel the appearance of the defendant, I proceed to remark, that 
 in those cases where bail is required, if the officer serving the writ should 
 discharge the defendant without bail, or should not return the recognizance 
 of bail to the office with the writ, he is regarded as special bail; and if he 
 prove insufficient, then he and his securities are liable to an action on their 
 official bond. But it must be observed that the high sheriff and not the de-
 
 238 PROCEEDINGS IN SUITS. { book 3. 
 
 puty is the person who is thus to be looked upon as bail, and proceeded 
 ao-ainst as such, though the omission may have been by his deputy. [See 
 1 Wash. 159, 325. Though decided under the former law, the principle, 
 it is presumed, applies to the present act.] So, too, if the bail taken be in- 
 sufficient at the time of taking him as such, the officer taking it is consid- 
 ered bound with the bail, and liable in the same manner as if lie had joined 
 in the recognizance, and if he should be insufficient his securities are liable 
 to an action on the official bond. But the sufficiency or insufficiency of the 
 bail is a matter to be determined by the court before which the cause is de- 
 pending; and the objection or exception may be made by the plaintiff at 
 any time before the trial of the cause. 13ut if the bail be good at the lime 
 the recognizance is entered into, the sheriff is absolved, though he become 
 insolvent afterwards. So if after the return day of the writ the defendant 
 procures bail to be taken before a justice of peace, and the bail even at that 
 time should be insolvent, the justice taking it is not liable. Yet in either 
 case the plaintiff may at any tune before trial except to the sufficiency, and 
 if the exception be sustained, the court may rule the defendant to give other 
 special bail, and if he fails to do so within the time appointed, they may 
 refuse him permiseion to plead, or set aside his plea, and award a writ of 
 inquiry, or proceed to judgment, or cause him to be arrested and commit- 
 ted to prison. These provisions have very much simplified the proceed- 
 ings in our courts, and have relieved the profession from many knotty queS' 
 tions which arose under former laws. 
 
 Having thus laid before the student the mode of proceeding to bring the 
 defendant before the court to answer to the demand of the plaintiff, I pro- 
 ceed to remark on the consequences to the defendant if he fails to appear. 
 These are the same whether bail be demanded upon the writ or not, and 
 whether the defendant has given bail or is committed to prison. In either 
 of these cases, if he fails to enter his appearance at the rules in the clerk's 
 office, the plaintiiff may enter a rule commonly called a conditional order 
 against him for his default. This common order, which is in effect a con- 
 ditional judgment, is entered in a rule book kept by the clerk for that pur- 
 pose. The terms of it are, that unless the defendant shall appear at the 
 rules in the clerk's office on the next rule day (which is always one month 
 after) judgment will be entered up against him for want of appearance. If 
 this order be not complied with at the next rule day by the defendant's ap- 
 pearing according to its requisitions, it then stands confirmed, and thereup- 
 on what is called an office judgment is entered up by the clerk in his office, 
 for the debt or other specific thing demanded, unless the plaintiff, conceiv- 
 ing himself entitled to damages, chooses to have a writ of inquiry to ascer- 
 tain them ; or unless the action sounds merely in damages, or the demand 
 is for an uncertain sum, in which cases a writ of inquiry is awarded of 
 course. This writ of inquiry is in form an order to summon a jury to in- 
 quire of the damages or amount of the demand, which cannot be done in 
 the office, but must be done under the superintendence of the court itself. 
 
 A writ of incjuiry is necessary in all cases where the action sounds in 
 damages, whether the judgment be in the office or by the Cdurt upon de- 
 murrer. See Post. 271, 316. And so even in debt, for money lent, not 
 alleged to be founded on specialty or note. G Mun. 454. And though 
 not generally necessary in actions on specialties, as is stated hereafter, yet 
 if there be judgment by default on an instrument on which credits are en- 
 dorsed, the plaintiff must either admit the credits or take a writ of inquiry ; 
 for the clerk is bound to notice the credits, if the judgment is by default 
 and there is no ascertainment of them by verdict on a writ of inquiry. Sec 
 5 Ran. 326. Judgments by default obtained in the office for want of ap- 
 pearance, or bail, or plea, in which no writ of inquiry shall be awarded, and
 
 CHAP. 14.] PROCEEDINGS IN SXJITS. 239 
 
 which shall not be set aside at the next succeeding court, and all nonsuits 
 and dismissions at rules not so set aside, shall be considered as final judg- 
 ments as of the last day of the term, and executions may issue thereon ac- 
 cordingly, (1 R. C. ch. 128, § 79,) and the clerk should enter the judgment 
 as of the last day of the term succeeding the office judgment. If he fails 
 to do so, however, it is a clerical misprision only, and amendable. 1 Mub. 
 56. And in an action of debt upon such judgment, if the entry has not 
 been made, and the judgment be declared on as of that term, the variance 
 is immaterial ; ibid ; otherwise when the declaration neither averred a con- 
 firmation of tho office judgment, nor shewed that the term was past before 
 suit brought. 3 Mun. 119. 
 
 The judgment entered in the office, if not set aside at the next term, is 
 always final in actions of debt on bonds or single bills, or other writing for 
 payment of money ; for as by law the clerk must issue the execution on all 
 such instruments of interest as well as principal, the damages are nominal, 
 viz. one cent, and a writ of inquiry is therefore not necessary ; except, in- 
 deed, where from the long time the borvd with condition to pay money has 
 been running on interest, it is necessary to find damages to cover the ex- 
 cess of interest above the penalty. 
 
 But though the judgment in the offi.ce will be confirmed and final if not 
 set aside at the next term, yet the defendant may then set it aside on his en- 
 tering his appearance, and pleading some issuable plea ; by which is mean* 
 a plea in bar of the action and not a plea in abatement or other dilatory 
 plea. See 1 Wash. 27. Moreover, when bail is not demanded on the 
 writ, the court may require, for good cause shewn, the defendant to give 
 bail to the action as a prerequisite to his appearing and pleading to issue, 
 and unless it be given, the office judgment will stand coafirmed, and on the 
 rising of the court execution may issue. 
 
 In all actions in which a writ of inquiry is awarded, the office judgment 
 may be set aside at any time before it is executed ; although the law says, 
 "at the succeeding term." 6 Wheat. 477. See 1 Cranch, 177, where it is 
 said to be a matter of discretion at any future term to permit the filing of a 
 special plea. I think this is a misconception of the Virginia practice, for a 
 special plea goes as much to the merits as the general issue. The distinc- 
 tion is this, I conceive : — that after the office judgment court, the defendant 
 v/ill not be permitted to file a plea which will delay the cause except at the 
 court's discretion. See 1 Gilmer, 1, 7. But though the writ of inquiry be 
 not set aside, the defendant may, I con-ceive, introduce evidence on the 
 question of the amount of damages,, though he cannot, without setting aside 
 the judgment, contest his title to some damages. This, however, rarely 
 occurs, as in all cases it is better for the defertdant to set aside the writ of 
 inquiry so as to be let into a full defence. 
 
 I have said that the office judgment may be set aside upon the defen- 
 dant's pleading some issuable plea. The practice of the old general court 
 was very liberal in permitting the defendant to plead even a plea which did 
 not'make or tender an issue, provided the justice of the case was thereby 
 promoted, and the object of the party did not appear to be delay. 1 Wash. 
 27. 
 
 A plea in abatement is not an issuable plea within the meaning of this 
 act, nor admissible to set aside an office judgment. 2 Call, 63, 67. 1 
 Mun. 285. Unless the abateable matter has arisen puis darrein continuance. 
 2 Call, 49. 
 
 But a general demurrer is an issuable plea, and ought to be admitted to- 
 set aside an office judgment. 4 H. & M. 477. So is the statute of limi- 
 tations. 1 Gil. 1, 7. And though the office judgment was set aside by 
 the plea of non-assumpsit only, and the application was to add the plea of
 
 240 PROCEEDINGS IN SUITS. [ BOOK 3. 
 
 the statute of limitations, liberty to do so was not denied where the appli- 
 cation was not unreasonably delayed. Ibid. 
 
 I shall here terminate this sketch with some remarks as to the proceed- 
 ings against the special bail. 
 
 The person taking special bail shall at the same time, if required, deliv- 
 er to the person or persons entering into a recognizance of special bail, 
 a bail piece in substance stating that the defendant is delivered to bail on a 
 cepi corpus. 'Tis always safe to require this bail piece, [3 Mun. 119,] for 
 it is not only the authority or warrant of the bail to take his principal, but 
 it is the evidence to the sheriff of the bail's right to surrender, and of his 
 own rio-ht and duty to commit the defendant. For the authority of the 
 bail to take his principal, see 7 John. R. 145. He has a right to take him 
 into custody, and deliver him over to the sheriff in discharge of his under- 
 taking. 
 
 "Every special bail may surrender the principal before the court where 
 the suit hath been or shall be depending at any time before the appearance 
 day of the first scire facias returned executed or of the second returned 
 nihil." 1 R. C. ch. US, § 54. 
 
 It will be remembered that the undertaking of the special bail in his re- 
 cognizance is, that the defendant shall pay and satisfy the condemnation of 
 the court or render his body in execution for the same, or that the bail will 
 do it for him ; i. e. will either surrender the defendant in custody or will 
 pay the debt himself. To absolve himself, therefore, from this liability, 
 which may in the event of the principal's absconding make him liable for 
 the debt itself, the law permits him at any time before judgment [and even 
 after judgment within the above mentioned time] to take the bail by virtue 
 of his bail piece and surrender him in custody. This surrender may either 
 be to the court, in which case the court orders the defendant to be com- 
 mitted to the custody of the sheriff or jailor, if the jtlaintijf or his attorney 
 desire it; or it may be made to the sheriff, sergeant, or jailor of the county 
 or corporation where the original writ was served, who are bound to give 
 a receipt for the defendant's body and commit him to jail. This receipt is 
 to be transmitted to the clerk of the court, and the bail must give notice 
 forthwith to the plaintiff, his agent or attorney at law, if to be found in the 
 county or corporation. By such surrender the bail is discharged. When 
 the surrender after judgment shall be made to the officer, he shall keep the 
 defendant in his custody (as if he had been taken on a casa) for twenty 
 days, unless the creditor sooner consents to his discharge, and if within 
 twenty days the creditor does not in writing charge the debtor in execu- 
 tion, he shall be discharged, but in that case is subject to be taken upon any 
 future execution upon the same judgment. 1 R. C. ch. 128, § 54. 
 
 The defendant, we have seen, is upon the surrender by the bail committed 
 to custody. If the surrender be before judgment, he may at any time be- 
 fore the judgment again be liberated upon giving other special bail. 1 R. 
 C. ch. 128, § 57. But if he be in custody at the time of the judgment he 
 cannot afterwards give bail : and if he should be discharged (after judg- 
 ment and surrender) upon giving bail, it would be an escape and the officer 
 would be liable for the debt. 
 
 Besides the provisions above mentioned, there are also other necessary 
 provisions where the defendant being already in jail on other process, or in 
 the penitentiary, the bail desires to surrender him and discharge himself. 
 See for these 1 R. C. ch. 128, § 55, 58. As to the manner of obtaining an 
 exoneretur, see sect. 5G. 
 
 I proceed next to shew the course of proceeding where the creditor 
 finds it necessary to pursue the bail and make him discharge the debt or 
 demand.
 
 CHAP. 14.] PROCEEDINGS IN SUITS. 241 
 
 Upon obtaining his judgment, the creditor who [seeing no hopes of 
 making the amount of his demand out of the defendant by an execution 
 against his goods and chattels] desires to take measures for charging the 
 bail, issues his capias ad satisfaciendum, or casa as it is usually called, di- 
 rected to the proper officer, and commanding him to take the body of the 
 defendant to satisfy the demand, &c. If the defendant is taken on this 
 writ or execution, the bail is discharged. But if he cannot be taken, and 
 the sheriff returns the casa not found, the creditor proceeds to issue his 
 scire facias against the bail, which is a writ directed to the sheriff com- 
 manding him to summon the defendant to appear on a certain day named 
 in the writ, to shew cause, if any he can, why judgment on his recogni- 
 zance should not be entered up against him for the demand of the plaintiff.* 
 The bail may, even after the issuing of the first scire facias, surrender the 
 principal, if he can catch him, provided he does it before that scire facias 
 is returned executed. Or, if the first scire facias should not be executed, 
 or should be returned nihil, (i. e. nothing whereby the bail can be summon- 
 ed,) the surrender may be made at any time before a second scire facias 
 shall be returned executed or returned nihil : but not afterwards. Yet as in 
 strictness the bail was bound that the principal should be taken upon the 
 casa, and as the discharge upon his surrender afterwards is but matter of 
 favor, the costs in such cases are adjudged against him. 1 R. C. ch. 128, 
 § 54. And if no such surrender is made, then judgment is rendered against 
 him on the scire facias for the amount of the original judgment against the 
 defendant for whom he was bail. 
 
 Where a scire facias was made returnable to an improper term, it was 
 considered merely void and quashed. 2 Wash. 213. Formerly the scire 
 facias was returnable to the court. Now it is returnable at the option of 
 the plaintiff, either to the first day of the next succeeding term, or in the 
 clerk's office on some previous rule day. 1 R. C. ch. 128, § 70. And it 
 may be executed at any time before the return day is passed. 
 
 We have said that at any time before a scire facias has been returned 
 executed, or two have been returned nihil, the bail may discharge himself. 
 But the return of "no inhabitant," or of "not found," is not a suffi- 
 cient return of " nihil." The return should be that the defendant to the 
 scire facias (the bail) had nothing in his (the sheriif's) bailiwick by which 
 he could be summoned. 5 Mun. 407. Sed vide 1 R. C. ch. 128, § 66, 67. 
 
 Where bail is bound for two defendants, and after judgment duly surren- 
 ders one, who is not charged in execution, but is discharged by the plaintifTs 
 order, this is no satisfaction of the judgment, nor does it exempt the bail 
 from the necessity of surrendering the other. 4 Mun. 516. If he had 
 been charged in execution and then discharged, it would have been other- 
 wise. 
 
 To the account we have given of the proceedings in the prosecution of 
 actions, it is proper to add that in actions against the governor, privy coun- 
 cillors, judges, and sheriffs, instead of the capias a summons issues, which 
 must be served ten days before the return day, and thereupon the cause 
 proceeds as upon a capias executed. 1 R. C. ch. 128, § 68. 
 
 There is another mode of commencing a suit where a debtor attempts to 
 remove himself privately out of the county or corporation, or absconds or 
 conceals himself so that the ordinary process of law cannot be sued out 
 against him, which is by suing out a warrant of attachment. This is done 
 upon complaint made to a justice of the peace, who is in such case autho- 
 rised to grant such warrant ; and being a special remedy adapted to the 
 emergency of the case, it may be issued and even executed on a Sunday, 
 
 * How the scire facias may be executed see 1 K. C. ch. 123, § C6, 67. See also acts of IC^i.*, ch. 37, 
 *5 3, as to notices to absent paitiep. 
 
 VOL. 2—31
 
 242 PROCEEDINGS IN SUITS. [ book 3. 
 
 provided the debtor be actually moving or absconding on that day ; which 
 is a proceeding not authorised in any other civil case except upon escapes 
 out of prison or custody. This warrant may be levied upon any personal 
 property of the party absconding, wherever found; or it may be served up- 
 on any person indebted to, or having any effects of, the party absconding 
 in his possession, who is then called a garnishee, and is thereupon compel- 
 lable to appear at the next court, and answer upon oath what he is indebt- 
 ed to, or what effects he hath in his hands of the party absconding. And 
 if the party absconding shall not replevy the attachment, which he may do 
 by giving sufficient security to the sheriff for his appearance, or by putting 
 in bail to the action, if ruled thereto by the court, the plaintiff shall have 
 judgment for the whole debt, and the goods attached shall be sold ; and in 
 case there be a garnishee, and judgment be rendered against him, the plain- 
 tiff shall have execution against him for the amount thereof; and in both 
 cases he may have execution against the defendant's estate, or his person, 
 if he can be found, for any balance that may remain due. But before any 
 person can be entitled to this extraordinary course of proceeding, he must 
 enter into bond with security in double the sum to be attached, payable to 
 the defendant, with condition to satisfy all costs, and also all damages 
 which may be recovered against him for suing out the attachment, in case 
 he shall be cast in his suit. This bond is to be taken by the justice issuing 
 the attachment, and is to be returned to the next court of the county or 
 corporation, otherwise the attachment is void : and the defendant will be 
 entitled to such damages as he can prove that he hath sustained by the 
 plaintifTs vexatious proceeding. See 1 R. C. ch. 123, § 1. 
 
 In the same act there are also provisions enablintr third persons who may 
 lay claim to the attached effects to assert their rights by interpleading. § 
 i^, 16. And sundry clauses provide for the recovery and security of small 
 debts by attachment, in case of debtors removing, or intending to remove ; 
 to all v.hich I must content myself with referring the student : as also to 
 the following cases : 3 Call, 413. 455. 2 H. Sc M. 308. 6 3fun. 5S5. 1 
 6ilm. 34, 142. 1 Wash. 74. 2 H. &, M. 48, from which it will, among 
 other things, appear, that this act being an innovation upon the common 
 law, must be strictly construed and the remedy strictly pursued : and the 
 rather as it is violent and harsh, and directed against those who are usually 
 both distressed and friendless. 
 
 Lastly. Before we terminate our view of the mode of proceeding in the 
 prosecution of actions in Virginia, we must advert to certain summary pro- 
 ceedings, which are authorised by our laws in certain cases, deemed by the 
 legislature particularly entitled to speedy redress. Such are the cases of 
 demands of securities against their principal or co-securities ; plaintiffs 
 against sheriffs who fail to pay money.s received by them ; clients against 
 their attorneys for money collected ; clerks and other officers against she- 
 riffs who have collected and failed to accounts for their fees ; overseers of 
 the poor against the same officers for poor rates, and the commonwealth for 
 taxes; high sheriffs against their deputies; and motions on delivery or 
 forthcoming bonds, and on replevy bonds for rent. In these (and perhaps 
 in other cases which may have escaped me) a remedy is given by motion 
 upon ten days' notice, and judgment is thereupon rendered in favor of the 
 party for his demand, upon which judgment he may issue execution as in- 
 other cases. See 1 R. C. ch. 116, as to securities : ch. 76, § 9, as to attor- 
 neys : ch. 70; as to sheriffs:.
 
 CHAP. 15.] OF PLEADINX3. 243 
 
 CHAPTER XV. 
 
 OF PLEADING. 
 
 " Pleadings are the mutual altercations between the plaintiff and defen- 
 dant ; which at present are set down and delivered into the proper oflice in 
 writing, though formerly they were usually put in by their counsel ore tenus, 
 or viva voce, in court, and then minuted down by the chief clerks, or pro- 
 tlionotaries ; whence in our old law French the pleadings arc frequently 
 denominated the parol." 
 
 Courts of justice having been instituted for the purpose of adjusting dis- 
 putes between members of the community, the first step towards the ac- 
 complishment of their object is to call upon the parties to exhibit their 
 complaint and their defence, or in common parlance, to tell their respective 
 stories. The inartificial mode in which litigants would themselves do this, 
 would contribute little to the purposes of justice. Hence certain rules 
 have been adopted to effect its ends. In order that each party may dis- 
 tinctly be informed of what is alleged by his adversary, the plaintiff is called 
 on to set forth his charge distinctly, and the defendant is required to state 
 with equal precision the ground of his defence. 
 
 That the vexation of perpetually changing the grounds of attack and de- 
 fence may he avoided, the pleadings are required to be in writing, so that 
 no difference can exist as to what has been really alleged by the parties re- 
 spectively. 
 
 Moreover the introduction of extraneous -matter is re^probated, since that 
 is always calculated to embarrass and confound. Hence, instead of inar- 
 tificial detail, the law is rigorous in confining the parties to a succinct and 
 precise statement of the facts upon which they respectively rely, omitting 
 nothing which is essential to their case, and clogging the pleadings witE 
 nothing impertinent or irrelevant. 
 
 In short, the system of special pleading is a sound and beautiful system 
 ■of logic. Wo all have experienced that a person in the wrong, in main- 
 taining his case is apt to shift his ground as he is pressed — to deny at one 
 moment the facts alleged by his adversary, and in the next his inferences 
 from those facts, and to throw into his argument a thousand irrelevant mat- 
 ^ters calculated to obscure the truth, and to hide the real character of the 
 /transaction from the eye of his judge. It is the province of special plead-.- 
 -ing to remedy this. Its object is to compel each party to make a distinct 
 and complete, but unvarnished statement of his case. Does the plaintiff 
 set forth his statement imperlectly, so as that a cause of action docs not 
 distinctly appear? The deicndant may demur, and either compel him to 
 be more specific, or to renounce his action because he is unable to be so. 
 J3oes he fill his declaration with irrelevant matter calculated to confound 
 the plain and simple jury who are to try the case ? The defendant may de- 
 mur for that cause, and compel him to strike it out. Does he altogether 
 ■omit any averment or allegation which forms an essential ingredient in hia 
 case ? The defendant may demur, or arrest the judgment on the verdict if 
 he obtains one. On the other hand, the defendant must not prevaricate. 
 His plea must be a direct answer to the declaration, and must offer some 
 single ground of defence. He either pleads and denies the plaintiflT's facts, 
 or, admitting them, he demurs and denies that they give him a right of ac- 
 tion. But each of these grounds of defence must be kept distinct from the 
 other; and indeed, at common law, both could not be resorted to, even 
 though they were kept distinct. For it is illogical and calculated to con- 
 found the truth, for a party to mingle matters essentially independent of 
 ?each other. No investigation can be properly conducted unless one thing
 
 244 OF PLEADING. [ BOOK 3. 
 
 only is examined at a lime. Ifcnce duplicity in pleading (or the setting up 
 two distinct matters of diifence in the same plea) is decidedly reprobated, 
 and where this fault is committed the plaintifl* may demur to the plea of the 
 defendant. 
 
 The system of special pleading is thus designed to compel the parties (if 
 I may so speak) to argue fairly, and to throw ofT all extrinsic matter, and 
 bring their dispute, or each matter of it at least, to some one determinate 
 point for the decision of the court, or the examination of the jury. It has 
 the further advantage of enabling the litigants to dispense with all testimo- 
 ny except what relates to the very matter to be tried, and thus to avoid the 
 heaviest expense of every lawsuit. Thus in an action of slander, if the de- 
 fendant pleaded justilication he could not also plead not guilty at common 
 law, and therefore the plaintilf was not under any necessity to produce 
 ivitnesscs to prove the words. And even now, though he is permitted to 
 plead both matters in distinct pleas, yet if he pleads justification alone, he 
 dispenses with proof of the words, and thus the attendance of witnesses 
 to establish them is unnecessary. 
 
 It must be confessed, however, that the common law was rather rigorous 
 in tying down the defendant to a single defence; since it often happens 
 that witnesses fail to establish, from delect of memory, what the party may 
 reasonably expect to prove, or they may swear to what is untrue. Where 
 this is the case, there seems no good reason why, if the party has another 
 good defence, he should not be permitted to use it, provided it" is kept dis- 
 tinct and separate. Thus in the action of slander. I may not have spok- 
 en the words ; yet a suborned witness may swear that I did. Why, then, 
 if I can prove the words to be true, shall 1 not be permitted to do so ? For 
 if the plaintiir really is as bad as the words represent him to be, he ought 
 not to recover. Hence our law has provided that the defendant may plead 
 as many several matters of defence as he may think proper, and though 
 they are inconsistent with each other, they arc permitted, provided they are 
 kept separate and in distinct branches of the pleadings. 
 
 I have thought this short exposition might tend to shew to the student 
 that the strictness of special pleading, so much complained of, is really cal- 
 culated to promote justice and a fair trial, rather than to obstruct it, provid- 
 ed the counsel on both sides understand their business. Ignorance on one 
 side and dexterity on the other, sometimes, indeed, enable the skilful to 
 obtain advantajjes ; but no two accomplished pleaders ever complained that 
 injustice was the result of their being tied down rigidly to the rules of spe- 
 cial pleading. Every one, indeed, who understands it, at once perceives 
 that it is a system of the most rigorous and accurate logic, and must of 
 course, like every system of logic, eminently conduce to tlie discovery of 
 the truth. 
 
 In the excellent work of Mr. Stej)hen on the principles of pleading in 
 civil actions, which cannot be too strongly recommended to the student, 
 and of which I shall for his benefit freely avail myself in the following dis- 
 quisition, he remarks, that as the object of all plendi:ig or judicial allegation 
 is to ascertain with precision the subject for decision, so the main object of 
 the English system is to ascertain it by the production of an issue, p. 1 15. 
 The pleadings in that system are so conducted as always to evolve some 
 question of law or fact disputed between the parties, and proposed by the 
 one and accepted by the other as the matter to be decided between them. 
 The question so produced is called the issue. Id. Thus ihv plaintifl" in 
 his declarnlion sets forth his complaint at large. The defendant may deny 
 that the tracts, if true, constitute a ground ot action, and this denial leads at 
 once to an issue in law ; that is, to the submission of a singlC; distinct; and
 
 CHAP. 15.] OF PLEADING. 245 
 
 material queslion of law, decisive of the rights of the parties, to the court, 
 the tribunal invested by the common law with the decision of legal ques- 
 tions ; for it is a maxim, ad qumstiones juris respondent judices ad quasli- 
 ones facti respondent juraiores. The defendant, however, may deny the 
 facts stated in the declaration, instead of the effect of those facts, and may 
 thus propose the truth of them for trial : which trial must regularly be had 
 by the jury according to the maxim referred to ; and as the plaintiff has 
 rested his £ase upon these facts, he cannot refuse, when there is a direct 
 and express denial, to accept this proposition of the defendant. His ac- 
 ceptance is declared by joining issue. The defendant may not, however, 
 desire to deny the plaintiff's allegation altogether, because he is aware that 
 it is true, and yet he may have a good defence against his demand. Thus 
 if A is sued for a debt due by bond, he may by his plea confess that he did 
 make such a bond, and avoid the conclusion against him that he owes the 
 debt, by pleading that the plaintiff had released it. This release could on- 
 ly be by deed, which he must produce and rely upon. If the plaintiff does 
 not admit that he made such a deed, he may, by his replication, altogether 
 deny it, and propose for trial the truth of that fact, which is done by tender- 
 ing an issue; and as the defendant has rested his defence upon the exis- 
 tence and validity of this deed of release, he cannot refuse to accept this 
 proposition or tender of issue. He therefore accepts it, which is done by 
 Aj« joining the issue. But the plaintiff, perhaps, may be willing to admit 
 that he did execute the release, and may confess it, and avoid the effect of 
 it by alleging that it was delivered, not to the defendant himself, but to a 
 third person as an escrow, to be delivered over upon the defendant's doing 
 a certain other act ; e. g. upon the defendant's making a good title to a 
 tract of land. This drives the defendant to answer to this new matter, by 
 his rejoinder : in which he may take issue by denying the delivery as an 
 escrow ; or he may confess that the release was so delivered, and avoid the 
 effect of the admission by alleging that he had made a good title. If the 
 plaintiff denies this, he may by a sur-rejoinder propose or tender an issue 
 upon that fact, and the issue so tendered must be joined by the defendant, 
 since he has at length, by his rejoinder, rested his case upon that point. 
 Thus the pleadings may be carried through the various stages of pleas, re- 
 plications, rejoinders, sur-rejoinders, rebutters, and sur-rebutters, and even 
 farther, (though no names have been invented for any subsequent pleadings,) 
 at every stage throwing out of the case what is admitted by the parties, and 
 bringing them at last to the actual subject of difference between them. As 
 Mr. Stephens well observes, (p. 449,) the alternate allegations are so manag- 
 ed, that by the natural result of that contention, the undisputed and imma- 
 terial matter is constantly thrown q/f until the parties arrive at a demurrer or 
 traverse, [that is, a direct denial by one party of a fact alleged and relied on 
 by the other,] upon which a tender of issue takes place on the one hand 
 and an acceptance of it on the other ; and the question involved in the de- 
 murrer or traverse is thus mutually referred to the decision of the proper 
 tribunal. 
 
 The production of an issue thus defined and explained is, then, the great 
 object of pleadinor ; and it cannot but strike the most common observer 
 that it is not without great advantages in the decision of controversies be- 
 tween parties litigant. 1. It gives to each a distinct view of his adversa- 
 ry's pretensions, and of the grounds upon which his own demands, or his 
 defence, must ultimately rest ; so that each partv comes prepared (if the is- 
 sue be upon a matter of fact) to sustain himself by such testimony as he 
 can produce upon the single point in question. 2. TTie undisputed and 
 immaterial matter being- constantly thrown off, the parties are relieved from
 
 246 OF PLEADING. [ BOOK 3. 
 
 the trouble and expe^ise ef summoning witnesses, or procuring evidence, 
 except upon the single pleading which constitutes the issue. 3. The 
 course of" pleading having the effect of producing an issue in law by de- 
 murrer, or an issue in fact by plea, replication, &c. the matter of law and 
 the matter of fact are kept perfectly distinct, so that the first is always re- 
 ferred to the decision of the court, and the second to that of the jury ; and 
 thus the embarrassment consequent upon the submission of a variety of 
 complicated questions at once is not only avoided, but the jury are relieved 
 from the duty of solving legal difficulties above their comprehension. 4. 
 The parties having themselves, by the operation of their "contention, or 
 mutual altercation by pleading," throw.n off the undisputed and immate- 
 rial matter, and evolved the real subject of dispute by presenting a single 
 question of fact, the jury are relieved from that principal difficulty in the 
 examination of all questions, viz. the discovery of the precise point upon 
 which the controversy turns. $t must, however, in candor be confessed, 
 :that these desirable objects are not universally attained, or attainable, even 
 by the system of pleading known to our law ; since it sometimes happens 
 that the issue will involve both matters of law and fact, and that a variety 
 of matters rr.ay be presented at the same time to the jury for their decision. 
 These are perhaps, however, but the imperfections inseparable from all hu- 
 cnan institutions. 
 
 In order to secure, as far as may be, the desirable objects for which the 
 ^systera of pleading has been constructed, it has been found necessary to 
 require that the issue in which the pleadings result should have the quali- 
 fies of being malerial, single, and cerlaki. 
 
 1. If the point on which the issue is joined be immaterial, that is, of such 
 .a character that the decision of that point by the jury will not enable the 
 icourt to decide the cause, it is obvious that it cannot answer the very end 
 'Of pleading, and the parties would have the expense and trouble of a trial 
 'Without any advantageous result : for after the verdict of the jury o>n this 
 -immaterial issue, the court could not pronounce judgment on the facts thus 
 found, but must set aside the proceedings as far back as the imperfect plead- 
 ing, and compel the parties to plead de novo. This is what is called a re- 
 pleader. Hence it is essential tliat the parties should be careful never to 
 join issue upon an immaterial point. The consequences of doing so will 
 be again more fully adverted to. 
 
 'Z. The issue made up must be upon a single point in reference to each 
 single and distinct claim of the ]>laintiff ; and in order to effect this, dupli- 
 city in pleading is reprobated. The plaintiff, it is true, may in many cases 
 set up in his declaration a variety of distinct claims, to each of which there 
 may be distinct pleas and of course distinct issues: and so, too, as the law 
 now stands, there may be several distinct pleas to the same count in a de- 
 claration ; as, tor instance, not guilty and son assault to an action for as- 
 sault and battery ; but these defences must be pleaded separately in distin&t 
 pleas. For if they were pleaded together in the same plea, the plaintiff 
 would have to reply to them both in the same replication, which would in- 
 troduce inevitable confusion ; since several issues would then be made up 
 in the same branch of the pleadings. 
 
 3. It is essential to the issue that it be certain, not merely in point of 
 distinction but of jiarticularity. Thus it liappens that in many cases the 
 time and place when and where an act is alleged to have been done, and 
 in others the quantity and value of the goods demanded, must be stated 
 with convenient certainty. And though tlve original occasion of this re- 
 quisition, which has been ingeniously suggested by Mr. Stephen, no longer 
 applies, yet it is certainly as necessary now as it ever can have been here-
 
 CHAP. 15.] OF PLEADING. 247 
 
 tofore, to give notice to the adverse party how to defend himself upon the 
 charge. See 2 E. 260. 1 T. R. 748. 1 Tnun. 54-3. The certainty re- 
 quired by this rule of pleading, it is said, signifies a clear and distinct state- 
 ment, so that it may be understood by the opposite party, by the jury who 
 are to ascertain the truth of such statement, and by the court who are tO' 
 give judgment. Cow. 082. Com. Dig. Pleader, C. 17. Less certainty is 
 requisite when the law presumes that the knowledge of the facts is pecu- 
 liarly in the opposite party ; and so when it is to be presumed that the party 
 pleading is not acquainted with minute circumstances. 1-3 East, 112.- 
 Com. Dig. Pleader, C. 26. 8 East, 85. General statements of facts ad- 
 mitting of almost any proof, are objectionable; 1 M. &.S.441. 3 M. &S. 
 114 : but where a subject comprehends multiplicity of matter, there, in or- 
 d«r to avoid prolixity, general pleading is allowed. 2 Saund. 411, n. 4. 
 8 T. R. 462. 
 
 It is obvious, indeed, that unless there be adequate certainty in the plead- 
 ings, and in the issue resulting from them, there will not be presented to* 
 the minds of the jury such' a distinct, plain,, and intelligible question, as the 
 nature of the trial by a jury renders particularly necessary; and the effect 
 would be to render their deliberations confused, and their verdict also too 
 uncertain to enable the court to pronounce its judgment understandingly 
 thereupon. 
 
 Having premised' these general remarks, we shall now proceed to consi- 
 der more particularly the several parts of pleading, and to set forth the rules- 
 and principles which govern them respectively. 
 
 1. Of the declaration, narratio, or count. This is the narration or tale of 
 the plaintiff, declaring or giving an account of his cause of action. In real- 
 actions it is most properly called the coxml, which is derived from the French 
 word conte, a narrative. In personal actions it is called the ceclaration ; 
 but where, as often happens, the plaintiff sets forth several distinct demands^ 
 or the same demand in several ways, these distinct statements are usually 
 denominated counts, and the whole together constitute the declaration. 
 
 Thus with' a view to accommodate his declaration to the evidence as it 
 may chance to turn out upon the trial, in an action upon the case upon an^ 
 assumpsit for goods sold and delivered, the plaintiff usually counts or de- 
 clares, first, upon a settled and agreed price between him and the defen- 
 dant ; as that they bargained for twenty pounds : and lest he should fail in 
 the proof of this, he counts likewise upon a quantum valebant ; that the de- 
 fendant bought other goods, and agreed to pay him so much as they were 
 reasonably worth ; and then avers that they were worth other twenty pounds ; 
 and so on in three or four different shapes ; and at last concludes with de- 
 claring that the defendant had refused to fulfil any of these agreements, 
 whereby he is endamaged to such a value. And if he proves the case laid 
 in any one of his counts, though he fails in the rest, he shall recover pro- 
 portionate damages. This course is pursued also in other cases, where 
 the pleader is doubtful whether one mode of stating his case is sufficient 
 in point of law, or capable of proof in point of fact ; and at the same time 
 perceives another by which the apprehended difficulty may probably be 
 avoided. Not choosing to rely on either exclusively, he adopts both, and 
 inserts the second statement of the same matter, in the shape of a second 
 count, as if he were proceeding for a separate cause of action. 
 
 Of the form and constituent parts of the declaration. To illustrate this 
 part of our subject, I shall again lay before the student the declaration in 
 an action of debt for the purpose of commentary, only premising that the 
 declaration must always shew forth the plaintiff's right, the injury sustain- 
 ed, and the consequent damage ; and this with cartainty, precision, and* 
 brevity.
 
 248 OF I'LEADING. [ BOOK 3. 
 
 TENTH JUDICIAL DISTRICT, FREDERICK COUNTY, set. (1.) 
 
 A B (2) complains of C D (^) in custody, 8^-c. of a plea that he render to 
 him (i) the sum of $500 current moneij of Virginia, which he owes to 
 him, and unjustly detains from him : for that whereas, the said C D here- 
 tofore, to wit, on the first day of January, 1825, (5) at the parish of 
 Frederick and county aforesaid, by his certain loriling obligatory, sealed 
 with his seal, and to the court noio here shewn, acknowledged himself to be 
 held and firmly bound unto the said A B in the said sum of $500 above 
 demanded, to be paid to the said A B when he, the said C D, should be 
 thereunto afterwards requested. Yet the said C D, though often requested, 
 hath not yet paid the said sum, nor any jtart thereof, to the said plaintiff , 
 hut to pay the same hath hitherto wholly refused, and still refuses so to do, 
 to the damage of the jilaintiff $50, and therefore he sues. 
 
 JOHN DOE. RICHARD ROE. P. P. A. H. P. j)ro qucrcnte. 
 
 The figures in parenthesis are used to designate the different parts of the 
 declaration for the purpose of reference in the comments which follow : 
 
 (1.) The purpose of this is to designate the court in which the action is 
 brought, as well as the county in which the venue is laid. For it is a rule 
 that '' all pleadings must be properly entitled of the court and term," Step. 
 4 1"2, and therefore, (though this is the usual mode with us,) yet in strictness 
 the formula should be perhaps yet more precise ; as thus, "Tenth Judicial 
 District, Superior Court for Frederick County, May Term, 1829. Frede- 
 rick County, to wit :" for the county where the action is laid, is always 
 placed at the commencement, and in the margin of the declaration. Step. 
 ^99. A\ ithin this county the venue is always laid (as at figure 5 " at the 
 parish of Frederick and county aforesaid ;") a matter which it behoves us 
 to explain rather more particularly. 
 
 According to the original constitution of the trial by jury, it appears that 
 the jury consisted of persons who were witnesses of the facts to be tried, 
 or at least supposed to be in some measure personally cognizant of them. 
 Accordingly, the venire facias, (which was a writ directing the sheriff to 
 summon a jury,) commanded him to summon them from the immediate 
 neighborhood where the facts occurred. Step. 153. This neigborhood 
 constituted the venue, (a barbarous derivative from venire,) being the place 
 whence the jury was to come ; and the venue could not be laid in a more 
 extensive division or section of a county than vl parish. Now, in order to 
 point out where the sheriff should summon his jury, it was made necessa- 
 ry that the declaration should contain a reference to the vicinia or neigh- 
 borhood in which the injury was declared to be done, that the clerk might 
 issue the vc/uVe/acias accordingly. The sheriff was at first held to a strict 
 obedience to this writ, and was bound to summon jurors from the parish, 
 town, or hamlet where the venue was laid : but in process of time, when 
 jurors began to be summoned, not as tvitnesses, but only as judges, though 
 the form of the wrii continued unchanged, the practice was relaxed, and 
 hundreders as well as parishioners came to be summoned, till at lenth it 
 was provided by statute that the venire should be awarded of the body of 
 the county where the issue is triable. 4 Ann, ch. 16. See 1 R. C. ch. 75, 
 § 10. Since this time, the form of the writ in England has been to summon 
 twelve good and lawful men from the body of the county. With us, where 
 no venire facias actually issues, the sheriff summons the juries for service, 
 during each term of the court, indiscriminately from the whole county, and 
 when a cause is called in court, and a jury is wanted for the trial of it, he 
 calls Irom his panel (which is a list made up of persons thus summoned) 
 twelve men who arc thereupon swora to try the issue, or to inquire of da- 
 mages, as the case may be.
 
 CHAP. 15.] OP PLEADING. 2 19 
 
 It must be farther observed, that with us the laying a venue continues to 
 be practised, but seems to be mere matter of form. See 1 Wash. 81, 67. 
 3 H. &. M. 309. 5 Mun. 27. The want of it (if error even on demurrer) 
 is cured by a verdict or judgment by nil dicit. 1 R. C. ch. 128, § 103. In- 
 deed, in Virginia, the legislative intention seems to have been to give juris- 
 diction with reference to the person, rather than to the place where the in- 
 jury is done, or the contract made. Thus the general rule is, that the de- 
 fendant must be sued in the county where he resides ; and if he does not 
 reside in the county where a suit is brought, the sheriff must return " no in- 
 habitant," and the writ will abate. 1 R. C. ch. 128, § 41, CO, ch. 78, § 18. 
 The exceptions to this rule are, 
 
 1. Where the cause of action arose in the county ; as where goods were 
 bought or a note was given in it, the defendant, if he can be taken in that 
 county, 77iai/ be sued there. 
 
 So, too, if the defendant commits a trespass in a county other than that 
 wherein he resides, he may be sued where the wrong was done, if he can 
 be there taken, though he reside elsewhere. Ashby rs. Kiger, not reported. 
 
 2. Where a non est inventus has been returned against him in his own 
 county, he may be sued in any county where he may happen to be found, 
 and can be taken. 
 
 3. Where he is jointly bound with others residing in any county, he may 
 be sued and taken if he be found therein. 
 
 4. If he is a non-resident of the commonwealth, he may be sued in any 
 county where he can be taken. 
 
 5. Writs of right, and other real actions, and ejectments, are local ac- 
 tions, and can only be brought in the county where the land lies which is 
 the subject of controversy. These are the only local actions in Virginia. 
 A correspondent difference is known to the English law between local and 
 transitory actions, though under the former term are comprehended many 
 vi'hich, with us, would be deemed to be embraced by the latter ; such as 
 trespass quare clausum or trespass on the case for waste committed, and the 
 like. In the local actions above mentioned, the venue must always be truly 
 laid, and, as we have said already, such actions must of course be brought 
 in the county where the land lies. In transitory actions, which may be 
 brought any where, the venue is always laid within the county where the 
 action is brought ; but where the place where a contract was made appears 
 upon the face of the contract itself to have been in another county, though 
 the venue must still be laid in the county where the suit is brought, yet it 
 must be with a videlicit, as has been already explained, in treating of the 
 declaration in debt. Mr. Stephen, indeed, lays down this as the rule in all 
 cases where transitory matters are alleged out of their true place. How- 
 ever this may be, the result of the whole of these doctrines seems to be, 
 that in transitory actions the laying the venue is a matter of /orm, and con- 
 stitutes no material part of the issue. So that one place may be alleged, 
 and another proved. Yet it must be remembered, that it is otherwise 
 where the place of the transaction constitutes essentially a part of the plain- 
 tiffs title or right to sue ; for then it becomes matter of substance and must 
 be truly stated. 
 
 (2.) In the common pleas in England, the declaration commences with 
 a short recital of the writ thus : "CD was summoned to answer A B of a 
 plea that he render to him £10, which he owes him and unjustly detains ; and, 
 therefore, the said A B by his attorney complains," &-c. In Virginia, our 
 forms pursue more nearly the manner of declaring in the King's bench, 
 which omits the recital in italics, and commences abruptly with the state- 
 ment of the complaint. It will be observed, that declarations and plead- 
 ings are always in the third person, and framed, in short, as if they were 
 VOL. 2—32
 
 250 OF PLEADING. [ BOOK 3. 
 
 extracts from a complete record of the wliole suit; though the record is by 
 the present jiractice not drawn up until a subsequent period, and is in fact 
 a transcri])t irom thon, the reason of which has been ingeniously explained 
 by the author before (pioted ; page 35. 
 
 '(3.) The declaration here alleges the defendant to be in custody; but 
 this is now merely matter of form and equally prevails, whether the defen- 
 dant is or is not in actual custody, or is out on bail, or was never even held 
 to bail. 
 
 (4.) The declaration here proceeds to set forth the plaintiff's demand 
 distinctly, and the ground on which it rests, and concludes with an allega- 
 tion of the injury on the part of the defendant and a statement of the da- 
 mages he himself has sustained. In personal and mixed actions, this is 
 doe°med essential ; but in droiturel actions no damages were recoverable at 
 common law, and none were therefore laid. In personal actions for a liqui- 
 dated debt or a specific chattel, the damages are usually laid at a small 
 sum ; but where the action sounds in damages, (as is the case with assump- 
 sit, covenant, trespass, slander and the like,) they should be laid high enough 
 to cover any amount which may be awarded by the jury, since the plaintiff 
 never can have judgment for more than he has demanded. 
 
 The declaration always concludes with these words, " and thereupon he 
 brings suit," &-c. " inde producit sectam," &c. By which words, stcit or sec- 
 ta (a sequendo) were anciently understood the witnesses or followers of 
 the plaintiff. For in former times the law would not put the defendant to 
 the trouble of answering the charge, till the plaintiff had made out at least 
 a probable case. But the actual production of the suit, the secla, or follow- 
 ers, is now antiquated, and hath been totally disused, at least ever since 
 the reign of Edward the Third, though the form of it still continues. 
 
 At the end of the declaration are added also the plaintiff's common 
 pledges of prosecution, John Doe and Richard Roe, which, as we before 
 observed, are now mere names of form ; though formerly they were of use 
 10 answer to the king for the amercement of the plaintiff, in case he were 
 nonsuited, barred of his action, or had a verdict or judgment against him. 
 
 In actions at the suit of an executor or administrator, immediately after 
 the conclusion "to the damage, &.c." and before the pledges, a profert of 
 the letters testamentary, or letters of administration, should be made. Bac. 
 Ab. Executor, C. Doug. 5, in notes. But the omission is aided unless 
 the defendant demur specially. 
 
 It is a rule of pleading that the declaration in every case must be con- 
 formable to the original writ; with this qualification, however, that in ge- 
 neral it may and does, and indeed ought, so i'ar to vary from the writ as to 
 state the cause of action more specially. Yet a variance between the de- 
 claration and the writ could only be taken advantage of by plea in abate- 
 ment or by writ of error (Sleph. 4-24,) or motion in arrest of judgment ; 
 and these two lasL modes of making the objection are taken away by the 
 statutes of Jeofail. The first, viz. by plea in abatement, is also in a great 
 degree impracticable according to the modern practice. For such a plea 
 cannot be rendered available without what is called oyer of the writ. The 
 object of praying oyer of the writ is to spread it upon record in order to show 
 the variance between it and the declaration, if the latter does not conform 
 to it. Without oyer no such advantage can be taken ; 2 Wash. 212. 7 E. 
 383 ; for though the writ is even without oyer considered as part of the re- 
 cord for purposes of amendment, and for the sujjport of the proceedings, 
 yet it is not so for the purpose of reversing them, unless made so by oyer; 
 Ibid. 2 Mun. 2iJ7. 3 H. & M. 502. 4 H. St M. 309, 310; except iu 
 cases of judgment by delauk for want of an api)earance. 4 Ran. 413. 
 And in England, where oyer of the writ is deni'anded in order to enable
 
 CHAP. 15.] OP PLEADING. 251 
 
 the defendant to plead a variance between the declaration and the writ, or 
 to show the writ to be abateablc, it is usual in the court of King's bench 
 to refuse it. See Doug. 227. 3 B. & P. 398. 1 B. &. P. 646. 7 E. R. 
 383. And it is said by Lord Mansfield to be also the practice of the com- 
 mon pleas. Where, however, oyer is demanded to enable the party to avail 
 himself by plea of the protection of the law, as where he is improperly 
 sued out of his own county, it would doubtless be allowed.* 
 
 If the plaintiff neglects to file his declaration on the rule day at which 
 the process is returned executed, the defendant may give him a rule to de- 
 clare, and if he fails or neglects to do so at the next rule day, which is one 
 month after, or if he at any time fails to prosecute his suit, (1 R. C. ch. 128, 
 § 72,) he is adjudged not to follow or pursue his remedy as he ought to do; 
 " and thereupon a nonsuit, or non prosequitur, is entered ; and he is said to 
 be nonpros'd. And for thus deserting his complaint, after making a false 
 claim or complaint, (pro falsa clamor e sua,) he shall not only pay costs [but 
 also the farther sum of $5 for his nonsuit, 1 R. C. ch. 128, § 72,] to the 
 defendant. A retraxit differs from a nonsuit, in that the one is negative, 
 and the other positive : the nonsuit is a mere default and neglect of the 
 plaintiff, and therefore he is allowed to begin his suit again, upon payment 
 of costs ; but a retraxit is an open and voluntary renunciation of his suit, 
 in court, and by this he for ever loses his action. [See 4 Mun. 207, a case 
 turning on this distinction.] A discontinuance is somewhat similar to a 
 nonsuit ; for when a plaintiff leaves a chasm in the proceedings of his 
 cause, as by not continuing the process regularly from day to day, and time 
 to time, as he ought to do, the suit is discontinued, and the defendant is no 
 longer bound to attend; but the plaintiff must begin again, by suing out a 
 new original, usually paying costs to his antagonist." 
 
 In England it is a familiar practice to direct a plaintiff to be nonsuited. 
 With us it is otherwise. Our courts adhere to the original definition of the 
 term. Thus, nonsuit is the failure of the plaintiff to pursue his remedy. 
 So long as he does pursue it regularly, the court has no power to direct a 
 nonsuit, however well satisfied they may be that he cannot recover. They 
 may advise it, but the ])lainliff has a right to refuse, and the remedy of the 
 court is to instruct the jury, and grant a new trial if the verdict is against 
 their instruction. 1 Wash. 89, 219. If, however, the court directs a non- 
 suit, and the plaintiff excepts to the opinion of the court only as to the law 
 i)f his case, but not as to the direction of the nonsuit, he cannot reverse the 
 judgment afterwards for that error. 1 Wash. 138. 
 
 The rule just laid down admits, however, of exception ; for if an action 
 'ie brought in any court where it shall appear either by the plaintiff's own 
 shewing, or the verdict of a jury, that a justice of peace had cognizance, 
 the plaintiff shall be nonsuited. 1 R. C. ch. 71, § 30. 
 
 All nonsuits in the office for want of prosecution according to the rules 
 prescribed by law, are considered as final judgments after the end of the 
 term succeeding. Ch. 128, § 79. 
 
 The plaintiflf cannot suffer a nonsuit after the jury retire from the bar. 1 
 R. C. ch. 128, § 95. 
 
 Of the defence. " When the plaintiff hath stated his case in the decla- 
 ration, it is incumbent on the defendant within a reasonable time to make 
 his defence and to put in a plea ; else the plaintiff will at once recover judg- 
 ment by default, or nihil dicit of the defendant. 
 
 *See Tidfl's Practice, 455 to 439. These irregularities, it would seem, are settled and corrected 
 where they are material, as in bailable cases, in a summary way bv the court. See 4 East, !38J,ana 
 the other cases cited by Tidd. See also 1 Sauii. 318, n. 3. In 6 T. R. 3&, the court refused to set 
 aside mere irregularity even on motion. Error, however, will lie (where there is a bad originaij 
 ^vithout oyer: but it may be defeated (in England) by the master of the Rolls grauting a new origi- 
 nal, or amending the first. See also 7 T. R. 5^99. 2 Wilson, 395.
 
 252 • OF PLEADING. [ book 3. 
 
 " Defence, in its true legal sense, signifies not a justification, protection, 
 or ffuard, which is now its popular signification; but merely an opposing 
 or '^denial (from the French verb defendre) of the truth or validity of the 
 complaint. It is the contestatio litis of the civilians : a general assertion 
 that the plaintiff hath no ground of action, which assertion is afterwards 
 extended and maintained in his plea. For it would be ridiculous to sup- 
 pose that the defendant comes and defends (or, in the vulgar acceptation, 
 justifies) the force and injury, in one line, and pleads that he is not guilty 
 of the trespass complained of in the next. It is in the sense above men- 
 tioned, also, that in writs of right, the tenant always comes and defends the 
 right of the demandant and his seisin, jus praedicti S. et seisinam ipsiuSy 
 (or else the seisin of his ancestor, upon which he counts, as the case may 
 be,) and the demandant may reply, that the tenant unjustly defends his, the 
 demandant's right, and the seisin on which he counts. All which is ex- 
 tremely clear, if we understand by defence an opposition or denial, but it is 
 otherwise inexplicably difficult. 
 
 " The courts were formerly very nice and curious with respect to the na- 
 ture of the defence, so that if no defence was made, though a sufficient 
 plea was pleaded, the plaintiff should recover judgment : and therefore the 
 book entitled novae narrationes or the n«w ialys, at the end of almost every 
 count, narratio, or tale, subjoins such defernce as is proper for the defendant 
 to make. For a general defence or denial was not prudent in every situa- 
 tion, since thereby the propriety of the writ, the competency of the plain- 
 tiff, and the cognizance of the court, were allowed. By defending the 
 force and injury, the defendant waived all pleas of misnomer ; by defend- 
 ing the damages, all exceptions to the person of the plaintiff; and by de- 
 fending either one or the other when and where it should behoove him, he 
 acknowledged the jurisdiction of the court. But of late years these nice- 
 ties have been very deservedly discountenanced: though they still seem to 
 be law, if insisted on." 
 
 Before defence the defendant was by common law entitled to demand 
 one imparlance or licentia loquendi, provided the suit was commenced by 
 capias or latitat without any special original ; and farther time might also 
 have been granted by consent of the court; the professed object of all 
 which was to enable him to imparl or confer with the plaintiff and thereby 
 terminate their difference amicably. Our law in effect allows an impar- 
 lance to the defendant when he has appeared to the writ, by giving him 
 till the next rules (one month after his appearance) to answer the declara- 
 tion. There are in our statutes no provisions as to imparlances, (except in 
 the case of a writ of right, 1 R. C. ch. 128, § 34.) They are recognized 
 by Mr. Hening in his form of a rule book. Lawyer's Guide, pa. 7. I do 
 not perceive how they can be compatible with the strict regulations as to 
 the time of pleading at the rules prescribed by the act of assembly. 1 R. 
 C. ch. 128, § 73. They may be allowed upon motion however for reason- 
 able cause by the court. 
 
 " There are also other previous steps which may be taken by a defendant 
 before he puts in his plea. He might formerly, in real actions, demand a 
 view of the thing in question, in order to ascertain its identity and other 
 circumstances. It may now, as formerly, crave oyer of the writ, or of the 
 bond, or other specialty upon which the action is brought : that is, to hear 
 it read to him ; the generality of defendants in the times of ancient sim- 
 plicity being supposed incapable to read it themselves, whereupon the whole 
 is entered verbatim upon the record, and the defendant may take advantage 
 of any condition or other part of it, not stated in the plaintiff's declaration. 
 In real actions, also, tlic tenant mny pray in aid, or call for assistance of an- 
 other, to help him to plead, because of the feebleness or imbccihty of his
 
 CHAP. 15.] OF PLEADING. 253 
 
 own estate. Thus a tenant for life may pray in aid of him that hath tlie 
 inheritance in remainder or reversion ; and an incumbent may pray in aid 
 of the patron and ordinary, that is, that they shall be joined in the action, 
 and help to defend the title." 
 
 So too, at common law, in certain cases, the defendant or tenant might 
 vouch the warrantor, and if he was an infant he might pray that the parol 
 might demur, that is, that the progress of the suit might be suspended till 
 he attained his full age. But all views and vouchers are taken away by 
 our statute, 1 R. C. ch. 128, § 31, and it is moreover provided that the pa- 
 rol shall not demur for infancy, either at law or in equity. § 32. 
 
 " When these proceedings are over, the defendant must then put in his 
 excuse or plea. Pleas are of two sorts ; dilatory pleas, and pleas to the 
 action. Dilatory pleas are such as tend merely to delay or put off the suit, 
 by questioning the propriety of the remedy, rather than by denying the in- 
 jury : pleas to the action are such as dispute the very cause of suit. The 
 former cannot [in England] be pleaded after a general imparlance, which 
 is an acknowledgment of the propriety of the action. For imparlances are 
 either general, of which we have before spoken, and which are granted of 
 course; or special, with a saving of all exceptions to the writ or count, 
 which may be granted by the prothonotary ; or they may be still viore spe- 
 cial, with a saving of all exceptions whatsoever which are granted at the 
 discretion of the court." 
 
 In Virginia, pleas of this description cannot be pleaded on setting aside 
 an office judgment, for they are not issuable pleas within the meaning of 
 the act of assembly, which only permits an office judgment to be set aside 
 on the defendant's pleading to issue immediately. 1 R. C. ch. 128, § 77. 
 1 Mun. 285. 2 Call, 63, 67. They are not, however, to be filed, I con- 
 ceive, on the return of the writ, or before declaration filed, (1 T. R. 277. 
 5 T. R. 210. 2 Chitty's Rep. 7. 1 Petersdorff, 33,) but should be plead- 
 ed at the first rules after the declaration filed, at the latest, for at those rules 
 the rule to plead expires, and if there be no plea there will be judgment 
 by nil dicit. 
 
 Dilatory pleas are, 1. To the jurisdiction of the court. 2. To the disa- 
 bility of the plaintiff, as that the plaintiff is an alien enemy, or a feme co- 
 vert, or a fictitious person, or in any way disabled to sue. 3. To the disa- 
 bility of the defendant, as by a feme covert who is sued without her hus- 
 band. (3 T. R. 627.) 4. In abatement ; " which abatement is either of 
 the writ or the count, for some defect in one of them ; as by misnaming the 
 defendant, which is called a misnomer ; giving him a wrong addition, as 
 esquire instead of knight ; or other want of form in any material respect. 
 Or, it may be, that the plaintiff is dead ; for the death of either party is at 
 once an abatement of the suit. And in actions merely personal, arising ex 
 delicto, for wrongs actually done or committed by the defendant, as tres- 
 pass, battery, and slander, the rule is that actio personalis moritur cum per- 
 sona : and it never shall be revived either by or against the executors or 
 other representatives. For neither the executors of the plaintiff have re- 
 ceived, nor those of the defendant have committed to their own personal 
 capacity, any manner of wrong or injury. But in actions arising ex con- 
 tractu by breach of promise and the like, where the right descends to the 
 representatives of the plaintiff, and those of the defendant have assets to 
 answer the demand, though the suits abated at common law by the death 
 of the parties, yet they might be revived against or by the executors : being, 
 indeed, rather actions against the property than the person, in which the 
 executors have now the same interest that their testator had before. 
 
 But, in Virginia, neither suits at law or in equity now abate by death even 
 before verdict, if the suit can be maintained by or against executors or admi-
 
 254 OF PLEADING. [BOOK 3. 
 
 nistrators.* But a scire facias issues against tlic defendant, or, if he be 
 dead, against liis executors or administrators, to shew cause why the suit 
 should not be proceeded in to final judgment. 1 R. C. ch. 128, § 37, 38. 
 And if no cause be shewn the case proceeds. If one of two or more 
 plaintiffs die, the death of one shall not abate the suit, if the cause of ac- 
 tion be such as survives to the other, but the action shall proceed in his 
 name. Ibid. If, in any case, either party die between verdict and judg- 
 ment, judgment is entered ae if both were living. Ibid- If, however, the 
 plaintiff' die before verdict or decree, the suit will be discontinued if a scire 
 facias be not sued out by the proper representative at or before the second 
 terra after the suggestion of the death on record. 
 
 Every plea in abatement must be verified by aflldavit of {he party ofCer- 
 ing it. 1 R. C. ch. 128, § 33. It would seem in England to be otherwise. 
 Lumley vs. Foster, Barnes's notes, 344. From Mr. Blackstone's book 3, 
 pa. 3t)2, it seems that probable matter shewn to the court will suffice. 
 
 It is a rule, that in all pleas in abatement the defendant " must give the 
 plaintiff a better writ ;" that is, he must not only shew that there is error, 
 but at the same time correct the mistake, so as to enable the plaintiff to 
 avoid the same objection in another suit. Thus if he pleads in abatement 
 a misnomer, (that he is misnamed in the writ.) he must shew what his true 
 name is. And this requisition is often a criterion to distinguish matter of 
 abatement from matter in bar. Matter in bar impugns the right of action 
 altogether. Matter in abatement does not ; and if a better writ can be giv- 
 en, the plea ought not to be in bar. 4 T. R. 227. Thus if I sue A B as 
 executor and he is administrator, the error is matter of abatement, for though 
 I cannot sue him in the former character, I may in the latter, and there- 
 fore he can " give me a better writ " by shewing that he is not executor 
 but administrator. But if he was neither one nor the other, and he is sued 
 on the contract of his supposed testator, he may plead in bar that he is not 
 executor or administrator, for this plea shews that he is not suable at all 
 as the decedent's representative. 
 
 It is also a rule, that dilatory pleas must be pleaded at a preliminary stage 
 of the suit. They are in general not allowed after a full defence, or gene- 
 nera! imparlance ; nor after oyer of the writing declared on, nor after a plea 
 in bar. Nor is a plea in abatement, as has been already said, an issuable 
 plea, within the meaning of the act, which allows the defendant to set aside 
 an office judgment upon pleading to issue, 2 Call, 63, 67. 1 Mun. 285, 
 unless the abateable matter has arisen since the last continuance; 2 Call, 
 49; as that the plaintiff being a feme sole, has since married. 
 
 The order of pleading as established at the present day, is, 1. To the 
 jurisdiction. 2. To the disability ; first, of the plaintiff and then of the de- 
 fendant. 3. To the count or declaration. 4, To the writ ; and here first 
 to its form for matter apparent on its face, and then for matter dehors ; se- 
 cond, to the action of the writ; e. g. where the case is in case and the 
 matter of it shews it ought to have been trespass vi ct cirmis. 5, To the 
 action itself in bar thereof. All these may be pleaded successively, provid- 
 ed they are overruled upon demurrer ; for on dilatory pleas the judgment is 
 that the defendant respondeat ouster. But the defendant can neither plead 
 successively two pleas of the same kind, (e. g. two pleas to the jurisdiction,) 
 nor can he vary the order above mentioned ; for by pleading any one of 
 these several kinds of plea, he is taken to waive or renounce all pleas of a 
 kind prior in the series. Nor can the defendant plead one of these pleas 
 after another, where instead of a demurrer there has been an issue in fact 
 
 * Aclinns of irespnss or trover for poods of llio testator mav be mainfaincd by or against executors 
 or administrators. 1 R. C. ch. 104, ^ 61. See 4 I\lun. IIJG. ('ow. 371. 1 Saun.'21l), n. 1. So of tres- 
 pass Ibr mesne profits. Gilm. 3'JJ. And the dainages recovered are assets in all llicse cases.
 
 CHAP, 15.] OF PLEADING. 255 
 
 taken upon that other. For if the judgment on that issue is for flie defen- 
 dant, it either terminates or (in case of a plea of suspension) suspends ths 
 action; and if for the plaintiff it is absolute, for he shall upon the verdict 
 have judgment for his debt or damages, which ouoht to be assessed by the 
 same jury in their verdict upon the matter of abatement. 2 Wils. 368. 2 
 Saun. -210, g. n. 3. 1 Chitty, 455. 
 
 "All pleas to the jurisdiction conclude to the cognizance of the court: 
 praying 'judgment, whether the court will have further cognizance of the 
 suit ;' pleas to the disability conclude to the person ; by praying 'judg- 
 ment, if the said A, the plaintiff", ought to be answered ;' and pleas in abate- 
 ment (when the suit is by original) conclude to the writ or declaration ; by 
 praying 'judgment of the writ, or declaration, and that the same may be 
 quashed ' cassetur, made void, or abated ; but, if the action be by bill, the 
 plea must pray 'judgment of the bill,' and not of the declaration ; the bill 
 being here the original, and the declaration only a copy of the bill. 
 
 " When these dilatory pleas are allowed, the cause is either dismissed 
 from that jurisdiction, or the plaintiff is stayed till his disability be removed ; 
 or he is obliged to sue out a new writ, by leave obtained from the court ; 
 or to amend and new-frame his declaration. But when on the other hand 
 they are overruled upon demurrer as frivolous, the defendant has judgment 
 of respondeat ouster or to answer over in some better manner." 
 
 If the plaintiff, upon the filing of a plea in abatement, acknowledges his 
 error by entering a cassetur billa or breve [let the declaration or writ be 
 quashed] he is not liable to costs. Tidd, 8 edi. 737. But it is otherwise 
 if he goes on to trial, and the issue in fact is found for the defendant. Ld. 
 Ray. 337. Neither party is entitled to costs upon a demurrer to a plea m 
 abatement. Id. 992. 
 
 Where the defendant either waives the preliminary objections which we 
 have been considering, or judgment on any of the foregoing pleas has been 
 given against him on demurrer, he must, if he designs to defend the cause, 
 either demur to the plaintiff's declaration, (which matter we shall hereafter 
 consider,) or plead. 
 
 2. A plea to the action : that is, an answer to the merits of the com- 
 plaint. This is done by confessing it in the whole or in part, or denying it. 
 
 " A confession of the whole complaint is not very usual, for then the de- 
 fendant would probably end the matter sooner ; or not plead at all, but suf- 
 fer judgment to go by default. Yet sometimes, after tender and refusal of 
 a debt, if the creditor harasses his debtor with an action, it then becomes 
 necessary for the defendant to acknowledge the debt, and plead the tender; 
 adding, that he has always been ready, tout temps prist, and still is ready, 
 uncore prist to discharge it: for a tender by the debtor and refusal by the 
 creditor will in all cases discharge the costs, but not the debt itself; though 
 in some particular cases the creditor will totally lose his money." But fre- 
 quently the defendant confesses one part of the complaint, (by a cognovit 
 actionem in respect thereof,) and traverses, (that is. denies) the rest. Thus 
 he may plead that " he cannot gainsay the plaintiffs action against him as to 
 £50, part of the debt in the declaration mentioned, and as to the other £60^ 
 the residue of the said debt, he saith that he hath paid the same." A spe- 
 cies of this sort of confession is the payment of money into court, which 
 is for the most part necessary in pleading a tender, and is itself a kind of 
 tender to the plaintiff; " by paying into the hands of the proper officer of 
 the court as much as the defendant acknowledges to be due, together with 
 the costs hitherto incurred, in order to prevent the expense of any farther 
 proceedings. This may be done upon what is called a motion; which 
 is an occasional application to the court by the parties or their counsel, in 
 cyder to obtain some rule or order of court, which becomes necessary in-
 
 256 OF PLEADING. [ book 3. 
 
 the progress of a cause; and it is usually grounded upon an affidavit, (the 
 perfect tense of the verb affido,) being a voluntary oath before some judge or 
 officer of the court, to evince the truth of certain tacts, upon which the motion 
 is o-rounded : though no such affidavit is necessary fur payment of money 
 into court. If, after the money paid in, the plaintilF proceeds in his suit, it 
 is at his own peril : for, if he does not prove more due than is so paid into 
 court, he shall be nonsuited and pay the defendant costs ; but he shall still 
 have the money so paid in, for the defendant has acknowledged that to be 
 his due. To this head may also be referred the practice of what is called 
 a set-off: whereby the defendant acknowledges the justice of the plaintiff's 
 demand on the one hand; but on the other sets up a demand of his own, 
 to counterbalance that of the plaintiff, either in the whole or in part : as, if 
 the plaintiff sues for ten pounds due on a note of hand, the defendant may 
 set off nine pounds due to himself for merchandise sold to the plaintiff, 
 and in case he pleads such set-off, must pay the remaining balance into 
 court." 
 
 It must be observed, however, that whether the defendant confesses or 
 denies the charge of the declaration, his plea must be a full answer to the 
 whole declaration. Thus he may confess the whole without a tender, and 
 then judgment will be entered for the plaintiff's demand ; or he may con- 
 fess the whole and plead a tender, and bring the money into court ; or he 
 may confess the action as to part and deny it as to part ; but if he does not 
 make defence against the whole declaration the plaintiff may take judg- 
 ment for the part undefended ; and if he defends for the whole and sets 
 forth matter which shews him to be discharged only as to part, the plaintiff 
 may demur to his plea, because the facts alleged in the plea do not sustain 
 the defence he has set up. 
 
 Pleas that totally deny the cause of complaint are called pleas in bar, 
 and arc either the general issue, or a special plea. 
 
 1. "The general issue, or general plea, is what traverses, thwarts, and 
 denies at once the whole declaration ; without offering any special matter 
 whereby to evade it. As in trespass either vi et armis, or on the case, non 
 cidpabilis, not guility ; in debt upon contract, nihil debet, he owes nothing ; 
 in debt on bond or in covenant non est factum, it is not his deed ; on au 
 assumpsit, non assumpsit, he made no such promise ; in detinue, non deti- 
 net ; and in replevin, 7wn cepit. Or in real actions, nul tort, no wrong 
 done ; nul disseisin, no disseisin ; and in a writ of right, the mise or issue 
 is, that the tenant has more right to hold than the demandant has to de- 
 mand. These pleas are called the general issue, because, by importing an 
 absolute and general denial of what is alleged in the declaration, they 
 amount at once to an issue : by which we mean a fact affirmed on one side 
 and denied on the other. 
 
 " Formerly the general issue was seldom pleaded, except when the party 
 meant wholly to deny the charge alleged against him. But when he meant 
 to distinguisli away or palliate the charge, it was always usual to set forth 
 the particular facts in what is called a special plea ; which was originally in- 
 tended to apprise the court and the adverse party of the nature and circum- 
 stances of the defence, and to keep the law and the fact distinct. And it 
 is an invariable rule, that every defence which cannot be thus specially 
 pleaded, may be given in evidence upon the general issue at the trial. But 
 the science of special pleading having been frequently perverted to the pur- 
 poses of chicane and delay, the courts have of late in some instances, and 
 the legislature in many more, permitted the general issue to be pleaded, 
 which leaves every thing open, the fact, the law, and the equity of the case : 
 and have allowed special matter to be given in evidence at the trial. And, 
 though it should seem as if much confusion and uncertainty would follow
 
 CHAP. 15.] OF PLEADING. 25f 
 
 from so great a relaxationi of the strictness anciently observed, yet experi- 
 ence has shewn it to be otherwise ; especially with the aid of a new trial, 
 in case either party be unfairly surprised by the other. 
 
 2. "Special pleas, in bar of the plaintifTs demand, are very various, aft- 
 cording to the circumstances of the defendant's case. As, in real actions, 
 a general release or a fine, both of which may destroy and bar the plaintiff's 
 title. Or, in personal actions, an accord, arbitration, conditions perform- 
 ed, nonage of the defendant, or some other fact which precludes the plain- 
 tiff from his action. A justification is likewise a special plea in bar ; as in 
 actions of assault and battery, son assault demesne, that it was the plaintiff^s 
 own original assault; in trespass, that the defendant did the thing com- 
 plained of in right of some office which warranted him so to do; or, in an 
 action of slander, that the plaintiff is really as bad a man as the defendant 
 said he was." 
 
 Also a man may plead the statutes of limitation in bar; or the time lim- 
 ited by law beyond which the plaintiff cannot lay his cause of action. This 
 by the act 1830, ch. 30, is in all writs o^ formedon, twenty years next after 
 the cause of action accrued ; in writs of right, twenty-five years where the 
 demandant rests upon the seisin of his ancestor, and twenty years where 
 he relies on his own seisin ; in other possessory actions, on the seisin of 
 the ancestor twenty-five years, and on the party's own seisin twenty years j 
 in trespass quare clausum, and in trespass, detinue, trover, and replevin, as 
 also in actions of assumpsit, debt upon simple contract, and actions on the 
 case except for slander, five years : in actions of assault and battery, wound- 
 ing and imprisonment, three years; in slander, one year; in actions on 
 store accounts for goods sold and delivered, one year; and in actions on 
 penal statutes one year. 1 R. C. ch. 169, § 60^ 
 
 "The use of these statutes of limitation is to preserve the peace, and to 
 prevent those innumerable perjuries which might ensue, if a man were al- 
 lowed to bring an action for any injury committed at any distance of time< 
 Upon both these accounts the law therefore holds, that ' interest reipuUicae 
 ut sit finis litium :' and upon the same principle the Athenian laws in gen- 
 eral prohibited all actions where the injury was committed five years before 
 the complaint was made. If therefore in any suit, the injury or cause of 
 action happened earlier than the period expressly limited by law, the de- 
 fendant may plead the statutes of limitation in bar: as upon an assumpsit, 
 or promise to pay money to the plaintiff, the defendant may plead non aS" 
 sumpsit infra quinque annos ; he made no such promise within five years J 
 which is an effectual bar to the complaint. 
 
 " An estoppel is likewise a special plea in bar; which happens where a 
 man hath done son>e act, or executed some deed, which estops or precludes 
 him from averring any thing to the contrary. As if tenant for years (who 
 hath no freehold) levies a fine to another person. Though this is void as 
 to strangers, yet it shall work as an estoppel to the cognizor ; for if he af- 
 terwards brings an action to recover these lands, and his fine is pleaded 
 against him, he shall thereby be estopped from saying that he had no free- 
 hold at the time, and therefore was incapable of levying it." 
 
 From the definition of estoppels, and from the instances which are given 
 of them in the books, it is obvious that they shut up all inquiry, and though 
 they seem in some instances necessary to put an end to litigation, yet they 
 often prevent a party from making a just defence, which but for the estop- 
 pel it would be in his power to make. In short, in the quaint language of 
 the ancient law, they conclude a man to allege the truth, and they are 
 therefore deservedly odious in law, (Co. Littr 352,) and entirely disregard* 
 ed in equity. 
 
 toL. 2—33
 
 253 OF PLEADIN&. \i BOOK 3. 
 
 Estoppels may either be by matter of record, as an admission in plead- 
 inf, putting in bail by a wrong name, &c. ; or by deed, as a bond, the con- 
 sideration of which cannot be inquired into at law ; or by matter in pais, 
 as entry and acceptance of an estate, or an acceptance of rent, and the 
 like.* 
 
 Various rules are laid down to prevent this doctrine working injustice. 
 Thus : a mere recital does not work an estoppel in a deed : strangers can 
 take no advantage of an estoppel, nor shall they be bound by it ; though 
 privies in blood or in estate shall. Estoppels shall be mutual and bind both 
 parties, or they shall bind neither : they are never taken notice of unless 
 relied on in the pleading, and they must be pleaded with the greatest cer- 
 tainty, or what is called certainty to every intent. See 1 Chitiy, 237. Bac. 
 Pleading I. 11. Estoppel against estoppel leaves the matter at large. 
 
 When the party pleads or replies an estoppel, he should not tender an 
 issue or conclude as in other pleas. He should conclude, relying on the 
 estoppel, with a prayer of judgment, whether the party, against his own 
 acknowledgment, should be permitted to plead or allege what is set forth 
 by him ; if he concludes, as in case of a plea, without relying on the es- 
 toppel, he will lose the benefit of it. 1 Saun. 325, n. 4, Chitty, 617. 
 
 If the other party denies that the estoppel concludes him, he demurs, as 
 in Carthew, 65. 3 E. 318, 351. 6 T. R. 62. Willes, 10. If there is 
 matter to avoid it, he replies or rejoins, as in 1 Saun. 257. 
 
 Special pleas are usually in the affirmative, sometimes in the negative. 
 "When they advance some new fact not mentioned in the declaration they 
 must be averred to be true in the common form,-—" and this he is ready to 
 ■verify;" but it is not necessary, though usual, to conclude negative pleas 
 thus ; for a negative cannot be proved. Steph. 438, 439. Co, Litt. 303. 
 Nor is this necessary in pleas of the general issue ; those always contain- 
 ing a total denial of the facts before advanced by the other party,, and 
 therefore putting him upon the proof of them. 
 
 " The conditions and qualities of a plea (which, as well as the doctrine 
 of estoppels, will also hold equally, mutatis mutandis, with regard to other 
 parts of pleading) are, 1. That it be single and containing only one mat- 
 ter ; for duplicity begets confusion." This rule applies to the declaration 
 as well as to the subsequent pleadings. Its meaning is, that the declara- 
 tion must not, in support of a single demand, allege several distinct mat- 
 ters, by any one of which that demand is sufficiently supported. As if in 
 assumpsit a quantum meruit and an indebitatus assumpsit for the same work 
 and labour be laid in the same count. Yet notwithstanding this rule, there 
 may be several counts, as we have already seen, all constituting together 
 one declaration. But in these several counts, the allegations in each are 
 kept separate and distinct; they purport to be for different claims, and the 
 indebtedness in each is carefully set forth to be for " another" sum of mo- 
 ney, and not for that set forth in a preceding count. The purpose of these 
 several counts is to enable the plaintifl' to adapt his case to the evidence 
 as it may turn out. -For this end, the same state of facts are differently 
 represented in the different counts. Thus in an action for goods sold at 
 a certain agreed price, I should demand by one count the stipulated sum. 
 But as I may possibly fail to prove that any price was agreed on, I must 
 add a fjuantum valebant, under which, if no agreed price be proved, I may 
 recover what they were reasonably worth. And it may be useful to ob- 
 serve here, that, on this principle, the four following counts, or some of 
 them, are usually inserted, viz. : those for money lent and advanced ; — for 
 
 * Ab to eeloppelg, and admissioiiB wliicli niav oi)erate as such, see 1 Snun. on PI. and Ev. 44 ptt 
 Mm'-.J Slarkip. part ),:jf)a. yiaikie. p,4i I 4, Ct.. :^. 3 E. 36j. tl Barn. iSo Aid. G6'2. I ii»nn. WS- 
 M. i. H»b. 'm. 'M.
 
 CHAP. 15.] or PLEADING. 259 
 
 money paid, laid out, and expended ; — for money had and received, and 
 for money due on an account stated, which are usually called the money 
 counts. This is done, because it often happens that when the special counts 
 cannot be proved, the cause of action will resolve itself into one of these 
 general pecuniary forms of demand, and thus the plaintiff's evidence may 
 fit them and give him a verdict on one of them, though lie fails as to all 
 the rest. So, too, the same statement of facts may be varied by omitting 
 in one count some matter stated .in another. In such a case, the more spe- 
 cial count is used lest the omission should render the other insufficient in 
 point of law ; the more general is adopted, because if good in point of law, 
 it will relieve the plaintiff from proving such omitted matter in point of 
 fact. If the defendant demur to the more general count and take issue on 
 the special count, the plaintiff has a chance of succeeding on both. If the 
 defendant do not think proper to demur, but takes issue on both, the plain- 
 tiff will have no occasion at the trial to rely on the special count, but will 
 succeed by merely proving that which is general, unless under our act the 
 court upon motion of the defendant directs the jury to disregard it as faulty. 
 See Steph. 287. 
 
 With respect to the subsequent pleadings, the meaning of the rule is, 
 that none of them shall contain several distinct answers to that which pre- 
 ceded it; and the reason is, that it would lead to several issues on the same 
 plea, replication, 8cc., and thus beget confusion. Thus to debt on bond, if 
 the defendant pleaded non est factum and a release in the same plea, it 
 would offend against two established rules ; for it would be both double and 
 inconsistent; double, because either allegation would be a sufficient bar; 
 and inconsistent because the allegation of a release admits the original va- 
 lidity of the bond which the non est factum denies. And even though the 
 release be badly pleaded, (as, without setting forth that it was under seal,) 
 the plea is still double, for the plea of a release offers a material issue, and 
 if issue be joined upon it the exception to its informality could not be 
 made after verdict. But if two matters be pleaded and one be immaterial, 
 that does not render the plea double, for no good issue can be taken on an 
 immaterial plea, though it may be ever so formally pleaded, and we must 
 remember that the objection to double pleading is that it offers more than 
 ane subject of issue. 
 
 Of the rule that forbids duplicity in pleading, there are several modifica- 
 tions. Thus, if th-ere are two defendants, each might always have -ple&ded 
 distinct matters of defence, even before the statute which allowed the de- 
 fendant to plead as many pleas as he deemed advisable : but here observe, 
 that if defendants unite in their plea, they cannot sever in their rejoinder 
 or other later stage of pleading. So too in covenant, when several breaches 
 are assigned in the declaration, (which is not regarded as duplicity, since 
 each breach goes to sustain a different demand for^damages,) the plea not 
 only may, but ought to answer to the whole, otherwise the plaintitf would 
 take judgment by nihil dicit for so much as is not answered. Indeed, 
 pleading double consists in offering two or more distinct bars in the same 
 plea, and not in pleading a variety of matters, all of which go together to 
 make up but one bar. So that the defendant may always make distinct an- 
 swers to such parts of the declaration as set forth different matters of 
 claim or complaint. In like manner, where there are several counts in the 
 same declaration, those being in effect distinct declarations, distinct pleas 
 may be put in to each ; or the defendant may plead to one, and demur to 
 anotlier; and thus there may be on the several counts a severance in the 
 subsequent pleadings and the production of several issues. But ivhether 
 one or more issues are produced, if the decision in law or fact be for the 
 plaintiff on any one or more counts, he is entitled to judgment pro tanto,
 
 260 or PLEADING. [ BeOK 3. 
 
 though he fail as to the remainder. Lastly, it is now by statute, 1 R. C. 
 ch. 128, § 88, provided that the plaintiflT in replevin, and the defendant in 
 all other actions, may plead as many several matters whether of law or of 
 fact as he shall think necessary for his defence : and this though the de- 
 fences be inconsistent. 2 Mun. 101. And he may both demur and plead 
 to the declaration or to the same count in the declaration. 4 H. &. M. 277. 
 Wliere the defendant demurs and pleads, the demurrer, however, must first 
 be decided. 1 Mun. 518. 5 Mun. 7. 
 
 When the defendant avails himself of the privilege allowed by the sta- 
 tute, (which in Virginia is absolute, and not dependant, as in England, upon 
 the leave of the court,) the plaintiff may either demur to all the pleas, or 
 demur to one, and reply to another, or make several replications to each. 
 The result is a corresponding severance in the subsequent pleadings which 
 are thus branched out into different ramifications, leading to the produc- 
 tion of several issues, and never becoming (after having thus branched out) 
 at all connected with each other. But ivhethcr one or more issues be pro- 
 duced, if the decision, lohether of law or of fact, be in the defendant' s favour 
 as to any one, he is entitled to judgment in respect to that subject of de- 
 mand to ivhich the successful plea relates, though he fail as to the remainder. 
 And if the successful plea was pleaded to the whole declaration he is entitled 
 to judgment generally, though the plaintiff should succeeed as to all the other 
 pleas. Stephen, 292, 
 
 It may not be improper to remark, however, that the statute only allows 
 distinct pleas to be pleaded, and does not allow the duplicity of pleading 
 several distinct and complete matters of defence in the same plea; for this 
 is as erroneous now as it was before the statute. 
 
 A corrollary from the rule we have been considering is, that there cannot 
 be a demurrer and issue in fact to the same matter, and this is an invari- 
 able rule except (with us) in the case of the defendant's answer to the de- 
 claration. He is permitted, under the words of our act, to demur and 
 plead; but the plaintiff cannot demur and reply, nor can the defendant de- 
 mur and rejoin ; for this provision of the statute does not extend to the 
 pleadings subsequent to the plea. 1 Ran. Lang vs. Lewis. 
 
 2. "Pleadings must be direct and positive and not argumentative;" that 
 is to say, the allegation of fact must be in a direct and absolute form, and 
 must not be left to be collected by inference and argument only, however 
 inevitable such inference may seem to be. Thus, in trespass de bonis as- 
 portatis, it is no good plea to say that the plaintiff never had any goods, 
 though it is an infallible argument, that if so the defendant could not be 
 guilty. The plea should be not guilty, or that the property of the goods 
 was hi the defendant or in a third person. It is from this rule inferred, that 
 neither two affirmatives nor two negatives make an issue. Thus, if in plead- 
 ing, I allege that A died seized in fee, and my adversary replies that he died 
 seized in tail, this is not a good issue ; for the seizin in fee is only denied 
 by argument or inference ; there should be added a traverse " without that 
 I was seized in fee" which would constitute a direct denial. So if I al- 
 lege that I demanded an abstract of title of the plaintiff, which he failed to 
 deliver, he should not reply argumentatively that he did not fail, but direct- 
 ly that he did deliver. G E. 557. 
 
 3. Pleadings must have convenient certainty of time, place, persons, 
 quantity, value, and the like : yet, as the proof in many cases need not 
 correspond with the allegation, there seems to be little reason in the rule 
 in such cases, and, accordingly, the omission is cured by the statute of Jeo- 
 fails. 
 
 This certainty is principally required to enable your adversary to under- 
 stand what is to be proved on your part, that he may prepare himself to com'
 
 CHAP. 15.] OF PLEA DING. 261 
 
 bat the allegation by the necessary proof; though other reasons seem to 
 have formerly prevailed for the establishment of this rule. Steph. 297- 
 Th us, 
 
 1. As to place. The declaration, as we have seen, must lay are/me, i. e. set 
 forth the scene or i)lace of the transaction ; and this must still be truly laid 
 •in real actions, though, since the change in the constitution of juries, in 
 actions of a transitory character, in which the locus in quo is immaterial, the 
 place is not traversable and the declaration may therefore lay it in any coun- 
 ty the plaintiff pleases. The same rule applies to the i)lea and subsequent 
 proceedings with a slight modification; local facts must be laid truly; but 
 transitory facts must be laid in the county where the venue is laid by the 
 plainti(f, and not where the defendant pleases. 
 
 2. As to time. In personal actions the pleadings must allege the fiine of 
 the transaction, and when a continuando is laid, the duration must be shewn. 
 Moreover the time laid must neither be impossible nor inconsistent with the 
 fact laid. But this rule does not apply to matters of inducement merely, 
 or to facts that are not traversable. And though the time must be laid, 
 another and different time may be proved, provided it be laid under a vide- 
 Jicit, thus ; "for that the said C D heretofore, to wit, on the Jst of Janua- 
 ry, 1830;" and provided also the time does not form a material point in the 
 merits of the case. Thus in usury, the time of the forbearance, and of 
 course the day from whence the forbearance began to run, is material ; and 
 though laid under a videlicit it must be proved as laid. 6 T. R. 463. 5 
 Taun. 2. Cow. 671. 
 
 3. As to quantity and value. These should be laid, in general, in actions 
 of trespass de bonis asportatis, in detiiiue, trover, and trespass for injury to 
 goods ; and care should be taken to lay enough in quantity, or number and 
 value ; for though, as in relation to time and place, so in relation to quan- 
 tity and value, it is not necessary that the proof should correspond with the 
 averment, unless where it forms part of the merits of the case, yet a judg- 
 ment cannot in general be rendered upon a verdict obtained for a larger 
 quantity or value than is alleged. An allegation of quality generally re- 
 quires to be strictly proved as laid. Steph. 319. 
 
 4. As to persons. The names of the parties to the suit must be truly 
 stated : though an error herein is only matter in abatement, and cannot 
 avail at the trial, or on a plea in bar. The names of third persons must be 
 truly stated, if known, and a variance is fatal at the trial. If the name be 
 jiot known, it must be so alleged. 
 
 5. When in pleading any right or authority is set up in respect of pro- 
 perty, real or personal, some title must be alleged in the party or in him 
 from whom he claims authority ; and the proof must correspond with the 
 allegation. On this subject, the student may advantageously consult Steph. 
 321. 
 
 6. Where the party justifies under a writ, warrant, precept, or other au- 
 thority, he must set it forth particularly in pleading and prove it accordingly. 
 
 7. Whatever is alleged in pleading, must be alleged with sufficient cer- 
 tainty. The object of this is to enable the adversary to understand the pre- 
 cise character of the demand or defence, and to narrow the issue to the 
 point really in dispute. Thus in an action of covenant, it is not sufficient 
 to allege that the defendant had broken his covenant, but the plaintiff" must 
 proceed to assign the breaches ; i. e. to set forth wherein the covenant was 
 broken : for otherwise the defendant might be driven to the necessity of 
 incurring expense and trouble in defending himself upon points not really 
 in dispute ; and after all might mistake or misapprehend the particular 
 grievance complained of. Yet with respect to this rule which requires cer- 
 vtainty in the allegations of the parties, these liiaaitations, it is said, must be
 
 262 OF PLEADING. [ book 3. 
 
 observed ; 1- That it is unnecessary to state what is merel)' matter of evi- 
 dence; or 2. Facts of which tlie court takes notice ex officio, [see 2 Chit- 
 ty's Black. 231, in note,] or 3. Facts which would more properly come 
 from the other side ; or 4. Facts which are more in the knowledge of the 
 opposite party ; or 5. Matters which are necessarily implied ; or (j. Which 
 the law will presume ; such as a party's innocence of fraud or crime ; nor 
 7. Is greater particularity required than the nature of the thing to which 
 the plea relates, will conveniently admit ; and 8. A general mode of plead- 
 ino- is allowed where great prolixity is thereby avoided ; or 9. Where, from 
 the nature of the case, the allegation on the other side must reduce the 
 matter to certainty. 10. Less particularity is required, in stating matter of 
 indueement or aggravation, than in the main allegations. 11. With re- 
 spect to acts valid at common law, but regulated as to the mode of per- 
 formance by statute, it is suflicient to use such certainty of allegation as 
 sufficed before the statute. Steph. 348 to 375. 
 
 4. The fourth rule which I shall mention, is, that the plea of the defen- 
 dant shall ansvv'er the plaintiffs declaration in every material point ; and in 
 like manner as to the subsequent pleadings, each must be an answer to the 
 whole of that v.-hich is previously adversely alleged. Thus in covenant 
 where several breaches are set forth, if the defendant does not plead per- 
 formance generally, (which would be an answer to the whole,) but pleads 
 performance as to one matter only and leaves the breach as to another un- 
 answered, the plaintiff would take judgment by nil dicit as to this last, and 
 demur or reply as to the remainder. So in trespass for cutting two hun- 
 dred trees, if the defendant defends as to one hundred only, and justifies as 
 to them without answering as to the other hundred, the plaintiff might 
 tcke judgment for this hundred, and have an inquiry of damages thereupon 
 and demur or reply to the justification as to the other. And here the dis- 
 tinction must be observed between professing to answer as to the whole, 
 (i. e. denying the plaintiff's action altogether in the commencement of the 
 plea thus: " and the said defendant by his attorney comes and defends the 
 Vv'rong and injury when, &c. and says that the said plaintiff, his action afore- 
 said, ought not to have against him," &c.) and making defence or profes^ 
 sing to answer only as to part ; (that is, only denying in part the plaintiffs 
 right to sue, thus: "and the said defendant as to one hundred dollars, part 
 of the debt in the declaration mentioned, saith, that the said plaintiff, his 
 action thereof against him ought not to have and maintain," &.c,) — For if 
 the defendant professes to answer as to the whole, and then sets forth facts 
 which only sustain this general defence in part, his plea is bad ; and the 
 plaintiff should demur ; and if he does so he will have judgment. But if 
 the defendant professes to answer only as to part, and then sets forth facts 
 to sustain not that only, but more, the plaintiff may yet take judgment for 
 all not professedly answered to. On the other hand, if instead of doing this 
 he demurs, he thereby discontinues his action, for the plea is good as far as 
 it goes and is not therefore demurrable ; but not having answered to the 
 whole demand there was nothing to impede the plaintiff for the residue ; 
 and his failure to proceed to judgment is a discontinuance. Yet the error, 
 it is said, will be cured after verdict. Step. 233. 
 
 Again, it is a rule that every pleading is taken to confess such traversable 
 matters alleged on the other side, as it does not traverse. Thus in covenant, 
 a plea of a release admits the execution of the indenture of covenant, as it 
 does not traverse it. The effect of this admission is extremely strong; for 
 it concludes the party in that suit, so that the jury cannot find against it, 
 and, moreover, it is conclusive of that fact in any subsequent action be- 
 tween the same parties. Hence has arisen the protestation in pleading. 
 When the pleader passes by, without traversing it, any traversable fact and
 
 enAp. 15.] or PLEADING. 263 
 
 at the same does not wish to be concluded by it in another action, he makes 
 collaterally or incidentally to his main pleading, a declaration importing 
 that this fact is untrue ; and this is called a protestation ; and though it has 
 no effect upon the action in which the plea is jjleaded, it excludes the con- 
 clusion against the pleader in anothtr action. For the farther doctrines as 
 to this matter the student may consult Mr. Stephen's lucid essay. 
 
 5. A fifth rule is that a plea must admit or confess the fact it justifies. 
 3 T. R. 298. 1 Saund. 28. 
 
 6. A traverse or denial must never be taken on an immaterial allegation ; 
 for that would lead to an immaterial issue ; but where there are several ma- 
 terial allegations the party may traverse which he pleases. 
 
 7. Pleadings must not be repugnant nor insensible nor ambiguous, and if 
 there be two meanings the least favourable to the pleader is to be adopted. 
 Nor should any pleading present a negative pregnant, which means such a 
 form of negation as implies an affirmative. 
 
 8. Pleadings should not be in the alternative. 
 
 9. Nor should they be by way of recital, as has been already explained 
 in relation to declaring with a quod cum. 
 
 10. Pleadings are to be pleaded according to their legal effect. 
 
 11. They should observe the known forms of expression in the most ap- 
 proved precedents, and should have the formal commencements and con- 
 clusions. 
 
 12. A pleading which is bad in part is bad altogether; and so if two 
 plead jointly a justification which does not appply to both, it will avail 
 neither. They should in such case sever in their pleas. 
 
 13. Surplusage is to be avoided. 
 
 14. There must be no departure in pleading. A departure is when the 
 party in any pleading deserts the ground that he took- in his last antece- 
 dent pleading, and resorts to another. Thus in debt on bond conditioned 
 to abide by an award. Defendant pleads no award; plaintiff replies and 
 sets out an award, and the defendant then rejoins that he has performed the 
 award. This is a departure ; for the rejoinder, instead of supporting the 
 plea, in effect admits it to be false. Of this we shall again speak presently, 
 
 15. When a deed is alleged under which the party claims, or justifies, pro- 
 fert must be made. 
 
 16. All affirmative pleadings which do not conclude to the country, must 
 conclude with a verification. 
 
 For further information and illustration of these rules Imust content 
 myself with referring to the treatise already cited more than once, where 
 the subject is treated in a most masterly manner. 
 
 " It is also a rule in pleading, that no man be allowed to plead spe-* 
 cially such a plea as amounts only to the general issue, or a total denial of 
 the charge; but in such case he shall be driven to plead the general issue in 
 terms, whereby the whole question is referred to a jury. But if the defendant, 
 in an assise or action of trespass, be desirous to refer the validity of his title 
 to the court rather than the jury, he may state his title specially, and at the 
 same time give colour to the plaintiff, or suppose him to have an appear- 
 ance or colour of title, bad indeed in point of law, but of which the jury 
 are not competent judges. As if his own true title be, that he claims by 
 feoffment, with livery from A, by force of which he entered on the lands in 
 question, he cannot plead this by itself, as it amounts to no more than the 
 general issue, nul tort, nul disseisin, in assise, or not guilty in an action of 
 trespass. But he may allege this specially, provided he goes farther and 
 says, that the plaintiff claiming by colour of a prior deed of feoffment without 
 livery entered ; upon whom he entered ; and may then refer himself to the 
 judgment of the court which of these two titles is the best in point of law.-
 
 264 OF PLEADING. [ DOOK 3. 
 
 "When the plea of the defenflant is thus put in, if it does not amount 
 to an issue or total contradiction of the declaration but only evades it, the 
 plaintift* may plead again, and reply to the defendant's plea* either travers- 
 ing it; that is, totally denying it; as if on an action of debt upon bond 
 the defendant pleads solvit ad diem, that he paid the money when due, here 
 the plaintiff in his replication may totally traverse this plea by denying that 
 the defendant paid it: or, he may allege new matter in contradiction to the 
 defendant's plea; as when the defendant pleads no award made, the plain- 
 tiff may reply and set forth an actual award, and assign a breach: or the 
 replication may confess and avoid the plea, by some new matter or distinc- 
 tion consistent with the plaintiff's former declaration ; as, in an action for 
 trespassing upon land whereof the plaintiff is seized, if the defendant shews 
 a title to the land by descent, and that therefore he had a right to enter, 
 and gives colour to the plaintiff, the plaintiff may either traverse and totally 
 deny the fact of the descent ; or, he may confess and avoid it, by replying, 
 that true it is that such descent happened, but that since the descent the 
 defendant himself demised the lands to the plaintiff for term of life. 
 
 "To the replication the defendant may reyoiw, or put in an answer called' 
 a rejoinder. The plaintiff may answer the rejoinder by a sur-rejoinder : 
 upon which the defendant may rebut: and the plaintiff answer him by a 
 sur-rebuUer. Which pleas, replications, rejoinders, sur-rejoinders, rebut-- 
 ters, and sur-rebutters, answer to the exceptio, replicatio, diiplicalio, tripli-- 
 catio, and quadruplicatio, of the Roman laws. 
 
 " The whole of this process is denominated the pleading : in the several 
 stages of which it must be carefully observed, not to depart or vary from the 
 title or defence, which the party has once insisted on. For this (which is 
 called a departure in pleading) might occasion endless altercation. There- 
 fore the replication must support the declaration, and the rejoinder must 
 support the plea, without departing out of it. As in the case of pleading 
 no award made, in consequence of a bond of arbitration, to which the 
 plaintiff replies, setting forth an^ actual award ; now the defendant cannot 
 ?ejoin that he hath performed this award, for such rejoinder would be an 
 entire departure from his original plea, which alleged that no such award 
 was made : therefore he has now no other choice, but to traverse the fact 
 of the replication, or else to demur upon the law of it. 
 
 " Yet in many actions the plaintiff, who has alleged in his declaration a 
 general wrong, may in his replication, after an evasive plea by the defend- 
 ant, reduce that general wrong to a more particular certainty, by assigning 
 the injury afresh with all its specific circumstances in such manner as 
 clearly to ascertain and identify it, consistently with his general complaint; 
 which is called a new or novel assignment. As if the plaintiff in trespass 
 declares on a breach of his close in D ; and the defendant pleads that the 
 place where the injury is said to have happened is a certain close of pas- 
 ture in D, which descended to him from B his father, and so is his own 
 freehold ; the plaintiff may reply and assign another close in D, specifying 
 the abuttels and boundaries, as the real place of the injury. 
 
 " It hath previously been observed that duplicity in pleading must be 
 
 'As to the severni replications in general, see 1 Chit, on P. 4 ed. 500 to 5IS; and as to their forms 
 and parts in particular, Id. 518 to 555. The general qualities of a replication are, that it mn.-t answer 
 the plea, and answer so much of it as it professes to answer, or it will be a discontinnance; Com. Dig. 
 tu. Pleader, F. 4, VV. 2. 1 Saund. 338; and it mnst answer the plea directly, not argunientaiively; 10 
 Last, 205; it inu.n not depart from tl-.e declar.iiion. 2 Saund. 84, a. n. 1. Co. Lit. 304, a. 2 Wils. 
 98. See IChit. on PI. 55G to 5G(J. It must he certain, and it is said that more certainty is requisite in 
 a replication than a declaration, though certainty to a common intent is in general suflicieni; Com. 
 Dig. Pleader, F. 17. 12 East, 203; and histly, itmnst not be double, or in others words, contain two 
 answers to the same pica; 10 East, 73. 2 Camp. 17(5, 177. Com. Dig. Pleader, F. IG; and the plaintiff 
 cannot reply double under the 4 Ann. c. IG. Fortes. 335,unless in replevin,2 B. & P. 368, 376; and 
 more particularly as to these qualities, see 1 Chit, on PI.55Gto5G2. An entire replication badinpait 
 i» bad for Iha wholff. Com. Dig. Pleader, F. 25. 3 T. 11.370. lSma<l.^,n.d.-Ckitty,
 
 CHAP. 15.] OP PLEADING. 265 
 
 avoided. Every plea must be Bimple, entire, connected, and confined to 
 one single point : it must never be entangled with a variety of distinct in- 
 dependent answers to the same matter ; which must require as many dif- 
 ferent replies, and introduce a multitude of issues upon one and the same 
 dispute. For this would often embarrass the jury, and sometimes the 
 court itself, and at all events would greatly enhance the expense of the par- 
 ties. Yet it frequently is expedient to plead in such a manner as to avoid 
 any implied admission of a fact, which cannot with propriety or safety be 
 positively affirmed or denied. And this may be done by what is called a 
 protestation, which has been already explained. 
 
 " In any stage of the pleadings, when either side advances or affirms any 
 new matter, he usually (as was said) avers it to be true ; ' and this he is 
 ready to verify.' On the other hand, when either side traverses or denies 
 the facts pleaded by his antagonist, he usually tenders an issue, as it is 
 called : the language of which is different according to the party by whom 
 the issue is tendered ; for if the traverse or denial comes from the defend- 
 ant, the issue is tendered in this manner, 'and of this he puts himself up- 
 on the country,' thereby submitting himself to the judgment of his peers; 
 but if the traverse lies upon the plaintiff, he tenders the issues, or prays the 
 judgment of the peers against the defendant in another form ; thus: ' and 
 this he prays may be inquired of by the country.' " And when either party 
 tenders the issue, the other adds " and the said plaintiff [or defendant as 
 the case may be] doth so likewise." This is called the similiter ; the en- 
 try in the old law latin having been " et prcedictus querens similiter." Where 
 there is a special plea and a replication tendering an issue, to make up a 
 formal issue there must be a similiter or joining of issue on the replication. 
 If the defendant does not choose to enter the similiter, the clerk cannot 
 do it against his will. Ibid. For the defendant has a right to a rule to re- 
 join. Gilmer, 228. Sed vide Steph. 254, and 2 Bing. 384. 
 
 "But if either side (as, for instance, the defendant) pleads a special ne- 
 gative plea, not traversing or denying any thing that was before alleged, 
 but disclosing some new negative matter ; as, where the suit is on a bond, 
 conditioned to perform an award, and the defendant pleads negatively, 
 that no award was made, he tenders no issue upon this plea; because it 
 does not yet appear whether the fact will be disputed, the plaintiff not hav- 
 ing yet asserted the existence of any award ; but when the plaintiff replies, 
 and sets forth an actual specific award, if then the defendant traverses the 
 replication, and denies the making of any such award, he then, and not 
 before, tenders an issue to the plaintiff. For when in the course of plead- 
 ing they come to a point which is affirmed on one side, and denied on the 
 other, they are then said to be at issue ; all their debates being at last con- 
 tracted into a single point, which must now be determined either in favour 
 of the plaintiff or of the defendant." 
 
 An issue is a single, certain, and material point issuing out of the alle- 
 gation of the parties, and arising fr(>m an affirmation on the one side, and 
 a denial on the other. From this definition may be deduced the essentials 
 of an issue. 
 
 1. It must be upon a single point. Thus if the defendant pleads that 
 he requested the plaintiff to deliver an abstract of his title, which the plain- 
 tiff refused, the issue cannot properly be made up both on the request and 
 the refusal ; the plaintiff may select which he pleases, and reply " that the 
 defendant never requested him," or "that he did deliver it." But he can- 
 not reply both, and if he does, and the issue is made up on both, it is er- 
 roneous, and a repleader will be awarded. 
 
 2. It must be certain : for if it be uncertain what is the point in dispute, 
 the dispute never can be fairly tried. 
 
 rot. 3—34
 
 <266 OV PLEADING. [ book 3. 
 
 3. It must be material. An immaterial issue is where a material allega- 
 tion is not denied or traversed, but an issue is taken on some other point, 
 which, though found by the verdict, would not determine the merits of the 
 case, but would leave the court at a loss to determine for which of the par- 
 ties to give judgment. 2 Saun. 319, n. 0. In such case it is obvious there 
 ouo-ht to be a repleader ; in other words, the verdict must be set aside and 
 the" parties compelled to amend their pleadings from the point where the 
 first error was committed. 
 
 A distinction, however, must be observed between an informal issue up- 
 on a material fact, and an issue, however formally joined, on an immaterial 
 fact ; since the former is cured by the statute of Jeofails, whereas the latter 
 is not. 1 Chitty, 631. See 1 Lev. 3-2. 
 
 A distinction is also to be observed where the issue is merely immaterial, 
 and those cases in which a defective ground of defence or insufficient mat- 
 ter is formally stated.* If the verdict in the first case be found for the party 
 committing the error, it may be set aside and a repleader awarded to enable 
 him to state his defence in a proper manner. But in the latter, as he shews 
 a defective defence, and yet has a verdict in his favour, it can be of no use 
 to award a repleader, while at the same time he ought not to have judgment 
 rendered for him on the verdict. The judgment, therefore, is entered 
 against him at once non obstante veredicto, (the verdict to the contrary not- 
 withstanding.) 1 Chitty, 634. 
 
 If the defendant be sued as heir and devisee, and he pleads no assets by 
 descent, and issue is joined, this is an immaterial issue, and a repleader 
 should be awarded ; for he ought also to have confessed or denied assets 
 by devise. I Call, 257. 
 
 So if he pleads the word "justification " only, the plea is bad, and on a 
 verdict in his favor a repleader will be awarded, for he ought to have shewn 
 how he justified. 2 Call, 379. 
 
 So non-assumpsit within five years, without saying " next before the in- 
 stitution of the suit," relates to the time of pleading, and not to the institu- 
 tion of the suit. And an issue joined thereupon is immaterial ; for the ma- 
 terial question is, whether the party assumed within five years before ema- 
 nation of the writ. 3 Call, 248. 
 
 4. There must be an affirmation on one side and a denial on the other. 
 To constitute this there must be a joining of issue between the parties, al- 
 though the want of this is sometimes cured by a verdict. Thus if there 
 are two pleas filed, and only one appears to be joined, a verdict rendered 
 between the parties will be set aside. See 4 Mun. 430. 2 Call, 514. The 
 addition of the similiter after a plea which imports the general issue is ne- 
 cessary to complete the joinder of issue, yet the omission is cured by a ver- 
 dict. 1 Wash. 363. 
 
 "Issue, exittis, being the end or object of all the pleadings, is the fourth 
 part or stage of an action, and is either upon matter of law, or matter of 
 fact. 
 
 " An issue upon matter of law is called a demurrer : and it confesses the 
 facts to be true, as stated by the opposite party" ; so far as they are sub- 
 stantially well pleaded; "but denies that, by the law arising upon those 
 facts, any injury is done to the plaintiff, or that the defendant has made out 
 a legitimate excuse ; according to the party which first demurs, demoratur, 
 rests or abides upon the point in question. As, if the matter of the plain- 
 tiffs complaint or declaration be insufficient in law, as by not assigning any 
 sufficient trespass, then the defendant demurs to the declaration : if, on the 
 other hand, the defendant's excuse or plea be invalid, as if he pleads that 
 he committed the trespass by authority from a stranger, without making out 
 
 • Sec Tost, Sm, 31}, 310.
 
 CHAP. 15.] OF PLEADING. 267 
 
 the stranger's right ; here the plaintiff may demur in law to the plea : and 
 so on in every other part of the proceedings, where either side perceives 
 any material objection in point of law, upon which he may rest his case. 
 
 "The form of such demurrer is by averring the declaration or plea, the 
 replication or rejoinder, to be insufficient in law to maintain the action or 
 the defence ; and therefore praying judgment for want of sufficient matter 
 alleged. Sometimes demurrers are merely for want of sufficient /orm in 
 the writ or declaration." But as these exceptions are often vexatious, it 
 has been enacted that where a demurrer shall be joined in any action, the 
 court shall not regard any other defect or imperfection in the writ, return, 
 declaration, or pleading, than what shall be specially alleged in the demur- 
 rer, as causes thereof, unless something so essential to the action or defence, 
 as that judgment, according to law and the very right of the cause, cannot 
 be given, shall be omitted. 1 R. C. ch. 128, § 101. This statute does not 
 comprehend demurrers to pleas in abatement. ^ Hen. & Mun. 314. 2 
 Maule & Sel. 485 ; which is taken from the 27 Eliz. ch. 5, and 4 Ann, ch. 
 16. This provision gives rise to the distinction between a general and spe- 
 cial demurrer. A general demurrer is sufficient where the objection is on 
 matter of substance ; for when there is a defect in substance, there must 
 be something wanting, so essential to the action or defence, as that judg- 
 ment cannot be given according to the very right of the cause, in favor of 
 the party whose pleading is demurred to. But where the objection turns 
 only on matter of form ; that is, where, notwithstanding the objection, 
 enough appears to entitle the party to judgment on the merits of the cause, 
 or, as the statute has it, according to the very right of the case, the party 
 demurring must specially set down all his objections at the foot of his de- 
 murrer; and to these objections, upon the argument of the cause, he will 
 be strictly confined, unless he can also shew matter of objection in point 
 of substance, which he may do, whether specially set forth or not. Hence 
 a special demurrer has the effect also of a general demurrer, but not e con- 
 verso ; and therefore, in cases of doubt, the special demurrer is to be pre- 
 ferred. 
 
 A defendant may demur to the plaintiff's declaration, either in whole or 
 in part. If there are several counts in the declaration, some of which are 
 good, he should demur to those which are bad only, or the judgment will 
 be against him. 1 Saun. 286. 2 Saund. 380. 1 H. & M. 361. And so 
 as to several breaches, some of which are well laid. 1 Chitty, 643. Yet 
 where there is an improper joining of actions or parties in the suit, the de- 
 murrer for the misjoinder should be to the whole declaration. On the other 
 hand, however, if a plea be bad in part, it is bad in the whole, and if only 
 demurred to in [)art by the plaintiff, it will be a discontinuance. Ibid. 2 
 Saun. 124. 1 T. R. 40. 3 T. R. 376, cited 1 Chitty, 643. 
 
 The ground of demurrer must appear upon the face of the pleadings de- 
 murred to; so that v.'here a party desires to demur for a variance between 
 a deed and the description given of it in the declaration or plea, he must 
 crave oyer, by which it is spread on the record, and becomes part of the 
 plaintiff's declaration, and not of the defendant's plea. 
 
 A party should not demur when he is conscious of having committed the 
 first fault in pleading ; for upon the argument of a demurrer, the court will, 
 notwithstanding the defect of the pleading demurred to, give judgment 
 against the party whose pleading was first defective in substance ; 5 Cranch, 
 257. 3 Cranch, 229. Variance on oyer is matter of substance ; Idem ; 
 but this rule does not apply to mere errors in point of form, for pleading 
 over aids many such errors. 1 Chitty, 647. Steph. 164. 
 
 Though on demurrer to one count in a declaration it be adjudged bad, 
 yet the plaintiff may proceed to trial on the other counts; and so if a de- 
 murrer be to one of several pleas. 2 Call, 39, 374.
 
 268 OF PLEADING. [BOOK 3. 
 
 A defendant may plead and demur at the same lime to the declaration. 
 4 H. & M. 277. But a plaintiff cannot reply and demur to the same plea. 
 1 Ran. 281. See 4 Mun. 466. And where the defendant both demurs 
 and pleads to the declaration, the demurrer should be first tried. 2 Mun. 
 518. 5 Mun. 1. An error herein is not, however, sufficient of itself to 
 arrest the judgment. If the demurrer in such case be overruled, the court 
 then proceeds to try the issue in fact upon the plea, before it enters up a 
 judgment. 2 Mun. 88. 
 
 If the defendant pleads several pleas, and the plaintiff demurs to one of 
 them, and the demurrer is overruled, judgment final goes against him un- 
 less he has leave to withdraw his demurrer. 
 
 A general demurrer is an issuable plea which may be received to set aside 
 an office judgment. 4 H. & M. 277. 
 
 Where a party demurs to a whole declaration, and the demurrer is over- 
 ruled because some of t^e counts are good, the defendant may nevertheless 
 move the court to direct the jury to disregard the faulty count. But if he 
 fails to do so, and the verdict is general, it will not be disturbed. 1 H. &. 
 M. 361. 
 
 Before the provision above mentioned in the act 1 R. C. ch. 128, § 101, 
 was introduced, a party might demur without shewing forth his objections. 
 Now they are specified ; and if his adversary perceives that the objections 
 are valid, or even if the court has adjudged them to be so, he asks and 
 usually obtains leave to amend ; 1 Wash. 313. See 2 Bac. App. 354 ; for 
 the very intent of the act requiring mistakes in form to be shewn for cause 
 of demurrer, was to give the party an opportunity of amending. 
 
 So, also, if a party demurs, and finds the opinion of the court is likely to 
 be against him, he may even after argument obtain leave to withdraw his 
 demurrer, and plead or reply de novo : and even after the opinion of the 
 court has been pronounced on the demurrer, it is in its discretion to give 
 leave to withdraw it; Sellon's Prac. 340, citing Say. 312. See Tidd's 
 Prac. 450, 655. Doug. 385, 452 ; and such leave is with us usually given, 
 though there are cases in the English books in which it has been refused. 
 1 E. 391. 1 Bur. 321. See 2 B. & P. 482. 3 B. & P. 1 1, 12. 
 
 In the United States' courts, indeed, it has been decided that an amend- 
 ment to a plea may be allowed by the court below, after the plea has been 
 on demurrer adjudged to be bad, and the judgment has been affirmed in 
 the court of error. 6 Cranch, 206. In this case, however, the cause was 
 in court, and going on, on other pleadings. Whether upon like principles 
 the demurrant would have leave to withdraw the demurrer where a judg- 
 ment against him has been affirmed, was not decided. 
 
 With these qualifications, however, it may be remarked, that the judg- 
 ment on demurrer is always as peremptory as if it had been rendered upon 
 a verdict found on an issue in fact. The judgment where the defendant 
 has demurred and his demurrer is overruled, or where on the plaintifl^'s de- 
 murrer his plea. Sec. are adjudged bad, and he does not obtain leave to 
 amend, is not that he shall answer over (respondeat ouster,) but it is that 
 the plaintiff shall recover. So too the judgment against the plaintiff on a 
 demurrer is equally peremptory and final. See Tidd's Prac. 478, 479. 
 
 As to amendments it may here be observed, that to promote justice, ver- 
 dicts have been set aside and a new trial granted in order to enable a plain- 
 tiff to amend his declaration. 7 T. R. 132. Clarke vs. Doster, Winch. 
 Sup. Court. Amendments are sometimes made in small matters after ver- 
 dict without a new trial. See Strange, 1151. Comb. 4. So where a juror 
 has been withdrawn the plaintiff may amend. 3 Call, 522. 
 
 When one party is permitted to amend, or amends without leave, the 
 other has a right to plead de novo, whether the new plea be material to the
 
 CHAP. 15.] OF PLEADING. 269 
 
 defence or not. 1 Wash. 363. But if he does not amend, and proceeds 
 to trial on his former plea, he cannot afterwards demand a repleader. 2 
 Call, 2-2. 
 
 So where a defendant obtains leave to amend his pleading, he has his 
 election to make the amendment or not ; and if he fail to make it, the is- 
 sue upon the plea as it stood must be tried, and the leave to amend is con- 
 sidered as waived. 2 Call, 1. 
 
 If the declaration be amended by consent, after issue joined on a plea 
 to the action, the defendant ought not to be permitted to plead in abate- 
 ment any variance between the amended declaration and the writ which 
 equally existed between the writ and original declaration. 3 Mun. 159. 
 
 It has been already remarked that the party by demurring admits the 
 truth of all such facts as are well pleaded. Upon principles of fair reason- 
 ing, he who denies that certain facts have the legal operation for which an- 
 other contends, must take it for granted \\\ the argument that those facts 
 are true. In like manner, and in consonance with these principles, a de- 
 murrer which brings a matter of law in question, is construed to be an ad- 
 mission or confession of the facts demurred to. The converse of the pro- 
 position is equally true, so that he who takes issue upon the facts, or denies 
 their truth, is considered as admitting upon the trial of the issue, their suf- 
 ficiency in point of law. Hence if a defendant demurs to the plaintifl''s 
 declaration, and it is adjudged good, the court does not then proceed to in- 
 quire whether the matters alleged in it are true, for they were admitted to 
 be so by the demurrer, but it proceeds at once to give judgment against the 
 defendant, unless he has some other plea yet remaining to be tried. It is 
 the same thing where the defendant demurs to the replication or any other 
 part of the pleadings of the plaintiff, and his demurrer is overruled. So if 
 the plaintiff demurs to defendant's plea, he admits it to be true, and if the 
 court considers it good in law, judgment is rendered against the plaintiff 
 without inquiring farther into the truth of the facts. In all these cases, 
 however, the party demurring may, by applying at a proper time, obtain 
 leave to withdraw his demurrer and take issue on the facts, as has been al- 
 ready observed. 
 
 These principles were so strictly adhered to at common law, that a par- 
 ty was never permitted to plead and demur at the same time, since that was 
 considered as inconsistent and contradictory. By our statute, however, and 
 by the construction given to it, the defendant may now both plead and de- 
 mur to the same declaration, or to the same count in the declaration. 
 The plea and demurrer are still considered as separate and distinct branch- 
 es of the pleadings, entirely independent of each other; and in deciding 
 on them thus distinctly, the common law rule yet prevails, " that by taking 
 issue upon the fact, the validity of the declaration in law is admitted ;" and 
 e contra, that by demurring, the truth of the facts is conceded. But it must 
 not be forgotten, that although a demurrer admits all facts that are suffi- 
 ciently pleaded, it is not regarded as admitting those facts which are not 
 sufficiently pleaded. Bac. Pleas, N. 3. 
 
 Moreover, although taking issue in fact is considered so far as an admis- 
 sion of the sufficiency in point of law of the opposite pleading, that upon 
 the trial of the issue no objection can be taken to its sufficiency, (except 
 under that section of our law which authorises the court to direct the jury 
 to disregard a faulty count,) yet after the trial is passed, the court in giving 
 judgment may look into the whole record, and if there is any substantial 
 defect in the pleading of the successful party, advantage may be taken of 
 it by motion in arrest of judgment, or by motion for judgment nan obstante 
 veredicto, [notwithstanding the verdict,] or by writ of error according to the 
 circumstancea. This subject, and that of (he effect of pleading over in
 
 270 OF PLEADING. [ book 3. 
 
 curintT defects of adversary pleading, will be more properly considered else- 
 where. 
 
 " It will now be useful to examine the considerations, by which in a view 
 V to the state of the law as above explained, the pleader ought to be governed 
 in making his election to demur or plead." 
 
 "He is first to consider, whether the declaration or other pleading op- 
 posed to him, is siifiicient in substance and form to put him to his answer. 
 If sufficient in both, he has no course but to plead. On the other hand, if 
 insufficient in either, he has ground for demurrer ; but whether he should 
 demur or not is a question of expediency, to be determined upon the fol- 
 lowing views : If the pleading be insufficient m form, he is to consider 
 whether it is worth while to take the objection, recollecting the indulgence 
 which the law allows in the way of amendment ; but also bearing in mind, 
 that the objection, if not taken, may be aided by pleading over, or (after 
 pleading over) by the verdict and statute of Jeofails. If he chooses to de- 
 mur, he must in such case demur specially, lest upon general demurrer he 
 should be excluded from the objection. On the other hand, if there be in- 
 sufficiency of substance, he is to consider, whether that insufficiency be in 
 the case itself, or in the manner of its statement ; for, on the latter suppo- 
 sition, it might be removed by amendment, and it may not, therefore, be 
 worth while to demur. And, whether it be such as an amendment would 
 remove or not, a farther question will arise, whether it be not expedient to 
 pass by the objection for the present and plead over. For a party by this 
 means often obtains the advantage of contesting with his adversary by an 
 issue in fact in the first instance, and of afterwards urging the objection 
 in law, by motion in arrest of judgment or writ of error. This double aim, 
 however, is not always advisable, for though none but formal objections are 
 cured by the statutes of Jeofail, some defects of substance, as well as form, 
 are aided, by pleading over, or by a verdict ; and therefore, unless the fault 
 be clearly of a kind not to be so aided, a demurrer is the only mode of ob- 
 jection to be relied on. The additional delay and expense of a trial, is 
 also sometimes a material reason for proceeding by demurrer, and not wait- 
 ing to move in arrest of judgment, or to bring a writ of error ; and a con- 
 current motive for adopting that course [in England] is, that costs are not 
 allowed when the judgment is arrested, nor where it is reversed upon writ 
 of error ; (each party in these cases paying his own ;) but on demurrer the 
 party succeeding obtains his costs." These judicious observations of Mr. 
 Stephen must however, with us, be qualified by the remark, that the party 
 prevailing at law in Virginia recovers costs, (1 R. C. ch. h28, § 23,) and 
 that as the defendant may both plead and demur to the declaration under 
 our law, it seems most advisable for him to do so where the declaration is 
 supposed to be liable to objection. 
 
 Having thus disposed of the subjects of pleading and demurring, it will 
 be proper to observe, that "during the whole of these proceedings, from 
 the time of the defendant's appearance in obedience to the writ, it is ne- 
 cessary that both the parties be kept or continued in court from day to day, 
 till the final determination of the suit. For the court can determine 
 nothing, unless in the presence of both the parties, in person or by their 
 attorneys, or upon default of one of them, after his original appearance and 
 a time prefixed for his appearance in court again. Therefore, in the course 
 of pleading, if either party neglects to put in his declaration, plea, replica- 
 tion, rejoinder, and the like, within the times allotted by the standing rules 
 of the court, the plaintifl', il" the omission be his, is said to be nonsuit, or 
 not to follow and pursue his complaint, and shall lose the benefit of his 
 writ : or, if the negligence be on the side of the defendant, judgment may 
 be had against him, for such his default. And, after issue or demurrer 
 joined, as well as in some of the previous stages of proceeding, a day is
 
 CHAP. 
 
 15.] OF PLEADING. 271 
 
 continual!)' given and entered upon the record, for the parties to appear on 
 from time to time, as the exigence of the case may require. The giving of 
 this day is called the continuance, because thereby the proceedings are con- 
 tinued without interruption from one adjournn)ent to another. If these 
 continuances are omitted, the cause is thereby discontinued, and the de- 
 fendant is discharged sine die, without a day, for this turn ; for by his ap- 
 pearance in court he has obeyed the command of the king's writ; and, 
 unless he be adjourned over to a certain day, he is no longer bound to at- 
 tend upon that summons ; but he must be warned afresh, and the whole 
 must begin de novo. 
 
 "Now, it may sometimes happen, that after the defendant has pleaded, 
 nay, even after issue or demurrer joined, there may have arisen some new 
 matter, which it is proper for the defendant to plead ; as that the plaintiff, 
 being a feme-sole, is since married, or that she has given the defendant a 
 release, and the like : here, if the defendant takes advantage of this new 
 matter, as early as he possibly can, viz., at the day given for his next ap- 
 pearance, he is permitted to plead it in what is called a plea c^ puis dar- 
 rein continuance, or since the last adjournment. For it would be unjust to 
 exclude him from the benefit of this new defence, which it was not in his 
 power to make when he pleaded the former. But it is dangerous to rely 
 on such a plea without due consideration ; for it confesses the matter which 
 was before in dispute between the parties. And it is not allowed to be put 
 in, if any continuance has intervened between the arising of this fresh 
 matter and the pleading of it ; for then the defendant is guilty of neglect, 
 or laches, and is supposed to rely on the m.erits of his former plea. Also, 
 it is not allowed after a demurrer is determined, or verdict given ; because 
 then relief may be had in another way, namely, by writ of audita querela, 
 of which hereafter. And these pleas, puis darrein continuance, when brought 
 to a demurrer in law or issue of fact, shall be determined in like manner 
 as other pleas. 
 
 " We have said, that demurrers, or questions concerning the sufficiency o( 
 the matters alleged in the pleadings, are to be determined by the judges of 
 the court, upon solemn argument by counsel on both sides, and to that end 
 a demurrer-book is made up, containing all the proceedings at length, 
 which are afterwards entered on record ; and copies thereof are delivered 
 to the judges to peruse. The record is a history of the most material pro- 
 ceedings in the cause, entered on a parchment roll, [or record book with 
 us,] and continued down to the present time ; in which must be stated the 
 original writ and summons, all the pleadings, the declaration, view or oyer 
 prayed, the imparlances, plea, replication, rejoinder, continuances, and 
 whatever further proceedings have been had ; all which are entered verba- 
 tiin on the roll, [or complete record book with us,] and also the issue or de- 
 murrer or joinder therein." In Virginia, however, at present, complete 
 records are only made up in certain specified cases. See 1 R. C. ch. 128, 
 § 99, amended by Sess. Acts, 1820, ch. 31. 
 
 When the pleadings are made \\\), if they terminate in a demurrer, the 
 papers are handed to the judges, and "the matter of law upon which the 
 demurrer is grounded is upon solemn argument determined by the court, 
 and not by any trial by jury ; and judgment is thereupon accordingly given. 
 As, in an action of trespass, if the defendant in his plea confesses the fact, 
 but justifies it causa venationis for that he was hunting ; and to this the 
 plaintiff demurs, that is, he admits the truth of the plea, but denies the jus- 
 tification to be legal: now, on arguing this demurrer, if the court be of 
 opinion that a man may not justify trespass in hunting, they will give judg- 
 ment for the plaintiff: if they think that he may, then judgment is given 
 for the defendant. Thus is an issue in law, or demurrer, disposed of.
 
 272 OP PLEADING. [ BOOK S. 
 
 " An issue of fact takes up more form and preparation to settle it ; for 
 here the truth of the matters alleged must be solemnly examined and esta- 
 blished by proper evidence in the channel prescribed by law. To which 
 examination of facts, the name of trial is usually confined ;" of which we 
 shall presently proceed to treat at large. 
 
 We must here remember that an " issue of fact is where the fact only, 
 and not the law, is disputed. And when he that denies or traverses the 
 fact pleaded by his antagonist has tendered the issue, thus: 'and this he 
 prays may be inquired of by the country ;' or, ' and of this he puts himself 
 upon the country;' it may immediately be subjoined by the other party, 
 ' and the said A B doth the like." Which done, the issue is said to be 
 joined, both parties having agreed to rest the fate of the cause upon the 
 truth of the fact in question. And this issue of fact must, generally speak- 
 ing, be determined, not by the judges of the court, but by some other me- 
 thod ; the principal of which methods is that by the country, ^cr^ais, (in 
 Latin per palriam,) that is, by jury." 
 
 Before we proceed to the consideration of the several species of trial, I 
 will take leave to illustrate the course of proceeding in the prosecution of 
 a suit, from its commencement until an issue is made up for trial, by some 
 farther remarks. 
 
 The young practitioner in commencing his career is frequently embar- 
 rassed by trifles, however well stored his mind may be with legal knowledge, 
 unless he has made himself acquainted in an attorney's office with the usual 
 forms of proceeding. To obviate this in some measure, I shall here offer 
 to the student a short abstract of the steps to be taken in the commence- 
 ment and prosecution and defence of suits. I shall take the case of an 
 action of debt on bond, noting occasionally, so far as it may seem neces- 
 sary, any material diff"erence between the course of proceeding in that and 
 in other actions. 
 
 1. The proceedings on the part of the plaintiff". 
 
 When a bond is presented for the purpose of having a suit instituted on 
 it, the practitioner must first examine whether it is for payment of money, 
 or with collateral condition. If the former, he is entitled to demand bail : 
 in the latter case he cannot without the special order of a justice. Sup- 
 pose, then, it be a bond given by C D to A B, in the penalty of $1000, 
 with condition for payment of $500. The suit must be brought for the 
 penalty, and the attorney must file his memorandum with the clerk, accord- 
 ing to the form given heretofore, directing such damages to be inserted in 
 the writ as he pleases. The amount is not important in debt on bond 
 for payment of money, (because the penalty covers the interest,) except 
 where the bond is so old that the principal and interest may exceed the 
 penalty. In that case, as the plaintiff" may get the excess in the shape of 
 damages, and as he can never get judgment for more damages than he de- 
 mands by his writ, he must take care to lay damages enough. 
 
 Care must be taken to name the parties correctly ; and the safest way as 
 to the name of the defendant is to be governed scrupulously by the signa- 
 ture of the bond; vide 1 Chitty, 221, citing 3 Taun. 504; for though the 
 name be not accurately spelt in the signature, the defendant cannot deny 
 it ; or if he does by pleading in abatement, the plaintiff" may reply that he 
 sealed the bond and signed it by the name thereto affixed, and so estop hinl 
 from denying it. If, indeed, A B execute a bond, and sign the name E F, 
 to it, or any other name totally diff'erent from his own, he may be sued by 
 his right name, and the plaintiff in declaring may allege that " he, the said. 
 A B, by the name of E F, sealed and delivered the same. See 2 B. & P. 
 338. Wats, on Part. 164, [223.] 2 Salk. 462. 1 Lord Ray. 335.
 
 CHAP. 15.] OF PLEADING. 273 
 
 If part of the obligees in the bond be dead, tlie suit must be brought in 
 the name of the survivor or survivors, and the writ directed to be issued as 
 follows : " A B and C D, surviving obligees of A B, C D, E F, and G H." 
 If all be dead, the suit must be brought in the name of the executor or ad- 
 ministrator of that obligee who survived all the others. 
 
 On the other hand, if any of the obligors be dead, suit may be brought 
 either against the survivor or survivors, or against the executor or adminis- 
 trator of any of those who are dead. 1 R. C. ch. 98, § 3. This was 
 not so in England. 3 Call, 268. 1 Mun. 181. But one suit cannot be 
 brought against the surviving obligor or obligors, and the representatives of 
 the deceased obligors, (3 Call, 521,) as the judgment against them respec- 
 tively would be incongruous. Where suit is against surviving obligors, the 
 writ should be directed to be issued " vs. A B and C D, surviving obligors 
 of A B, C D, and E F,'* and so of the like : and where the bond is joint, 
 it is essential that the death should be stated in the declaration. 3 Mun. 187. 
 If there be sever sdjoiiit obligors, the suit, if they are alive, can only be 
 brought against them jointly; but if the bond bind the obligors jointly and 
 severally to pay the money, they may be sued jointly or severally. And 
 the rule here is, that you may sue one only, but if you sue more than one 
 (and others be living) you must sue all, for the bond must be taken as alto- 
 gether joint or altogether several, and you cannot sue any intermediate 
 number. 1 H. &. M. 61. Hence if any of the omitted obligors be dead, 
 that must be made to appear on the face of the declaration, as we have 
 elsewhere seen. 
 
 The writ being duly issued, it becomes the duty of the counsel to attend 
 the rules at the return day, though the management of the case at the rules 
 is too generally left to the clerk. If the capiasbe not executed, an alias is 
 directed, or an attachment where it is supposed that that will be most effec- 
 tual. If it be executed and no bail be taken, and the sheriff returns, " com- 
 mitted for want of bail," and the defendant is still in custody, the plain- 
 tiff files his declaration, (of which, however, when the defendant is in ac- 
 tual custody, he must serve him with a copy ; Tidd's practice ;) and if the 
 defendant enters an appearance, the plaintiff gives him at once a rule to 
 plead. And so if the writ be executed and the defendant be out on bail, 
 if he enters an appearance, the plaintiff immediately gives him a rule to 
 plead at the following rules. But if the sheriff returns the writ executed, 
 and the defendant, whether in custody or not, fails to appear, the plaintiff 
 files his declaration, and takes what is called a common order against him. 
 The substance of this order is, that unless the defendant enters an appear- 
 . ance at the next rules, and pleads to issue, judgment will be entered up 
 against him for the plaintifTs demand. 
 
 2. Let us now consider what is to be done at these rules by the counsel 
 of the defendant. 
 
 If the defendant is in custody and desires to be set at large, he must give 
 special bail, to which end his bail must enter into a recognizance, of which 
 the form is" given in 1 R. C. ch. 128, § 51. Great care must be taken to 
 commit no error in stating the names of the parties, or the court where the 
 suit is pending, or the nature of the action; for if the action be falsely de- 
 scribed, the bail, when sued, may plead to the scire facias that there is no 
 such record as that recited in the recognizance. Upon the recognizance 
 being entered into, it must be filed, and the defendant is thereupon dis- 
 charged from custody. He may then have an appearance entered for him 
 'lat the rules by his attorney. 
 ^ If the defendant is in custody and unable to give special bail, he may 
 1^ proceed to defend himself as if he had given bail, for the custody of his 
 bo'dy is equivalent. 
 
 VOL. 2—35
 
 274 OF PLEADING. ^ BO OK 3. 
 
 If the defendant, being in custody and unable to give bail, is conscious 
 of the justice of the debt, and wishes to take the insolvent debtor's oath, 
 he cannot until there is a judgment. Until the act of February, 1819; he 
 was therefore compelled to lie in jail until the next term, but that act now 
 provides that he may confess the judgment in the office, and then proceed 
 to take the oath in order to his discharge. See this act, 2 R. C. pa. 585. 
 
 If the defendant gave bail when the writ was executed, or entered after- 
 wards into a recognizance of special bail before a magistrate, he is then 
 entitled to appear and plead. 
 
 3. We return again to the plaintiff. Upon the appearance of the defen- 
 dant at the return day, the plaintiff may file his declaration if he pleases, 
 though he is not bound to do so until the next rules. If he wishes to ex- 
 pedite his cause, he will file his declaration immediately, and take a com- 
 mon order against the defendant if he does not appear, or give him a rule 
 to plead if he does. Until he files his declaration he can do neither. See 
 2 Mun. 333. 4 Mun. 483. The entry on the rule book in the first case 
 is, " declaration filed and common order against defendant." In the se- 
 cond case it is thus, "declaration filed and rule to plead." 
 
 4. At the following rules the first step is to be taken by the defendant, 
 unless the plaintiff omitted to file his declaration, in which case he should 
 now do it. If the declaration was filed at the appearance day, and there 
 was a common order, or, a rule to plead, the defendant, if he does not wish 
 an office judgment entered up against him, must now take some step. If 
 there was a common order, he must now appear, which he may do by at- 
 torney, but he must also plead to issue immediately. If he does not, the 
 common order will be confirmed against him, or, in other words, there will 
 be an office judgment entered up against him. 
 
 If at the first rules he appeared, and the plaintiff filed his declaration and 
 gave a rule to plead, the defendant must now plead, or judgment will be 
 entered against him for want of a plea. If he wishes delay he should 
 plead, and where any defence is intended, it is now safest to demur also ; 
 for it is adjudged that a parly may, under the act 1 R. C. ch. 128, § 68, both 
 plead and demur to the same declaration. 4 Mun. 466. And as the late 
 statute of Jeofails cures all errors of substance as well as form in a decla- 
 ration which is not demurred to, (1 R. C. ch. 128, § 103,) the best course 
 is always to demur as well as plead where a defence is intended. 
 
 The defendant having pleaded, gives the plaintiff a "rule to reply," by 
 entering those words in the rule book. The plaintiff may, however, reply 
 immediately ; and where he is desirous of expediting the proceeding, he 
 should do so, and give the defendant a rule to rejoin. Formerly it was the 
 practice, when the plainlitT replied any matter which he supposed brought 
 the pleadings to an i^sue between himself and the defendant, for him or the 
 clerk to enter what is called the similiter, or in other words to make up the 
 issue. But this seems now irregular. The clerk cannot put in the simili- 
 ter without the authority and against the consent of the party, but he must 
 give a rule to rejoin. Gil. 228. Sed vide Steph. 254. 
 
 In ordinary cases, however, of actions of debt, the parties are brought to 
 an issue at an early stage. The pleadings in disputed cases sometimes run 
 out into rejoinders, sur-rejoinders, rebutters, and sur-rebutters, all which are 
 to be entered at rules in the same manner as pleas and replications. 
 
 If the process has issued against several defendants, and it is returned 
 executed on some and not executed on others, the plaintifl" may abandon 
 liis suit as to them, or file his declaration and proceed against those who 
 have been taken in the manner above detailed, and take an alias, or pluries, 
 or an attachment, if he prefers it, against the others, and proceed against 
 them as thry are frotn time to time arrested. Such at least seems fairly to-
 
 CHAP. 15.] OP PLEADING. 1275 
 
 be inferred from the case of Moss rs. Moss's administrators, (4 H. & M. 
 293,) which was a suit on a joint and several bond against six obligors ; 
 the capias was only executed on two : it was held that the plaintiff was not 
 bound to sue out farther process against the rest, but might take judgment 
 against those two.* And this was decided upon the uniform practice of the 
 old general court, where there were several defendants, and only part ar- 
 rested, to proceed to judgment as to these, and discontinue as to the others; 
 or to go on to get judgments against them as they are from time to time 
 arrested, until satisfaction has been received. Ibid. This practice is en-< 
 tirely at variance with the English rule, (see Strange, 473,) and was deci- 
 ded to be incorrect by the federal court, (7 Cranch, 201,) before they were 
 informed of the above decision of Moss vs. Moss's administrators. This 
 last case now gives the law of the subject, though I incline to think the 
 opinion is much questioned by some of the judges of the present court of 
 appeals. As to the necessity of a joint judgment, where the action is up- 
 on a joint contract, see 2 Ran. 174, 313, 44G, 481. 3 Ran. Taylor rs. 
 Beck. 
 
 The cause being now at issue, is put upon the court docket for trial : or 
 if the defendant has, by failing to appear or plead, permitted a judgment 
 to be entered in the office against him, the office judgment is entered upon 
 the docket, and is called at the next term, when it must be set aside ; for if not 
 set aside during the term, it is, as we have seen, confirmed and made final ; 
 and this without any act of the court, since the confirmation or final judg- 
 ment is not entered on the record. For it is provided 1 R. C. ch. 128, § 
 79, that " all judgments, by default, obtained in the office, for want of ap- 
 pearance, or bail or plea, in which no writ of inquiry shall be awarded, and 
 which shall not be set aside on some day of the next succeeding term, as 
 aforesaid ; and all non-suits and dismissions, obtained in the office, and not 
 so set aside, shall be considered as final judgments of the last day of the 
 term, and executions may issue thereupon accordingly. Every such exe- 
 cution in favor of the plaintiff, in any action of debt, founded upon any 
 bond, bill, promissory note, or other writings, for the payment ot money 
 or tobacco, shall be issued, as well for interest until paid, upon the princi- 
 pal sum due, from the time when such bond, bill, promissory note, or other 
 writing was payable as for such principal sum and costs." See Post. 316, 
 317. 
 
 It remains to say a few things on Uie subject of the rules to which such 
 frequent allusion has been made. 
 
 It must be obvious to the student, that as the intervals between the terms 
 of our superior courts is considerable, and as the steps preparatory to the 
 trial of the cause are numerous, the most vexatious delays would arise if 
 these steps could only be taken in court. Perhaps, too, the legislature 
 have supposed that the attention to this mechanical part of the business 
 would absorb too much of the time of the court, if it was to be done in 
 term time. Hence the law has provided that it may be conducted by the 
 clerk and the parties in the clerk's office, at certain specified days, which 
 
 * There can be little doubt that the law as laid down in Mos= vs. Moss's administrators is in con- 
 flict with general principles, and with the rules of (he courts of Great Britain. Parties who are sued 
 upon a joint contract have a right to expect that all the joint oblitjors should be brought before the 
 court if practicable, that each niav have the aid of his i'ellows, both in the defence of the action 
 and in ihe responsibility for the demand. But where the whole line of process against a party ruD9 
 out without forcing an appearance, as in case of outlawry, or where he is out of the country, and so 
 aor amenable to process, (I Wils. 78. 1 Wash. 9,) or where he has been proceeded against in equity 
 to the utmost extent of its process, these proceedings may go on against the other defendant without 
 liiuo. 1 Vez. 195. 2 Mad. 1G7. So too 1 conceive with us, when there is a return of no inhabitant 
 as to one, for upon that return no further process can issue against the defendant so returned. But 
 where the process is returned sot executed merely, I should deem it essential upon principle that the 
 plaintiff should sue out new process according to law to enforce an appearance ; and until the line 
 of process iias exhausted no judgment against the other defendant woulu be deemed rej^ular.
 
 276 OF PLEADING. [ BOOK 3. 
 
 are called the rule days, because on those days the parties alternately pro- 
 cure the entry by the clerk of certain orders, which are commonly called 
 rules, upon the rule book. By these rules each party alternately calls upon 
 his adversary to take the necessary steps in his cause under pain of its be- 
 ing dismissed for want of prosecution in the case of the plaintiff, or of a 
 judgment being rendered for the demand in case of the defendant. All 
 rules to declare, plead, reply, rejoin, or for other proceedings, must, by law, 
 be given regularly from month to month, and entered in the rule book, and 
 each rule expires on the succeeding rule day. 1 R. C. ch. 128, § 74. In 
 the county and corporation courts, and also in the superior courts and the 
 general court, the rule days are holden on the first Monday in every month, 
 and are continued from day to day not exceeding six days ; Id. § 69 ; which 
 six days, like the days of a term of the court itself, make in the legal fiction 
 but one day. The rules taken in the office are always under the control 
 of the court, who are empowered to correct them, or to set them aside, as 
 may seem right, and also to reinstate any cause discontinued during the 
 preceding vacation. Id. § 77. 
 
 I shall here subjoin a short abstract of a rule book, with a view of ex- 
 plaining more distinctly the mode of taking the rules. In the Lawyer's 
 Guide, pa. 7, the student will find the form of a rule book, and the manner 
 of taking the rules by Mr. Hening. The abolition of appearance bail has 
 however introduced great alterations, besides which, there are some things 
 in his mode of taking the rules (such as the imparlances) which I do not 
 think justified by the law. I am aware that there are many differences in 
 this matter between the clerks of our courts. The sketch which is here 
 presented I have endeavored to conform to the law and to the practice es- 
 tablished in the superior courts in which I have practiced as counsel. 
 
 Form of a rule book, exhibiting the manner of entering rules by the par^ 
 ties in a cause : —
 
 CHAP. 15.] 
 
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 278 t)F TRIAL. t BOOK 3. 
 
 CHAPTER XVI. 
 
 OF THE SEVERAL SPECIES OF TRIAL. 
 
 " Trial is the examination of the matter of fact in issue : of which there 
 are many diflierent species, according to the difference of the subject, or 
 thing to be tried : of all which we will take a cursory view in this and the 
 subsequent chapter. For the law of England so industriously endeavors 
 to investigate truth at any rate, that it will not confine itself to one or to a 
 few manners of trial ; but varies its examination of facts according to the 
 nature of the facts themselves : this being the one invariable principle pur- 
 sued, that as well the best method of trial, as the best evidence upon that 
 trial which the nature of the case affords, and no other, shall be admitted 
 in the English courts of justice. 
 
 "The species of trials in civil cases are seven. By record; by inspec' 
 tion, or examination; by certificate ; by icitnesses ; by icagcr of battel ; by 
 wager of law ; and by jury. 
 
 I. " First, then, of the trial by record. This is only used in one particu- 
 lar instance : and that is where a matter of record is pleaded in any action, 
 as a fine, a judgment, or the like ; and the opposite party pleads, ' nul tiel 
 record,' that there is no such matter of record existing : upon this, issue is 
 tendered awd joined in the following form, ' and this he prays may be in- 
 quired of by the record, and the other doth the like ;' and hereupon, the 
 party pleading the record has a day given him to bring it in, and proclama- 
 tion is made in court for him to ' bring forth the record by him in pleading 
 alleged, or else he shall be condemned ;' and, on his failure, his antagonist 
 shall have judgment to recover. The trial therefore of this issue is merely 
 by the record; for, as Sir Edward Coke observes, a record or enrolment is 
 a monument of so high a nature, and importeth in itself such absolute ve- 
 rity, that if it be pleaded that there is no such record, it shall not receive 
 any trial by witness, jury, or otherwise, but only by itself." Thus where 
 an action of debt or scire facias is brought upon a judgment, if the defen- 
 dant denies its existence or perceives that it has been misrecited in the de- 
 claration or scire facias, he pleads nul tiel record; which plea being joined 
 and the record produced, it is examined by the court and compared with 
 the recital, and if there be a material variance, the judgment is, " that there 
 is no such record." A like course is pursued where the defendant relies 
 upon a record, the existence of which the plaintiff' denies. 
 
 The principle on which the law considers a record of such absolute ve- 
 rity that it cannot be contradicted, is obvious. If it were otherwise, it would 
 be difficult to see where a litigation would end ; and as the administration 
 of justice is entrusted by the organization of government to the courts, it 
 must be taken for granted that what they have done in a matter submitted 
 to their jurisdiction, and which they have committed to record, must be 
 right, unless it has been reversed in the manner prescribed by the laws. 
 Were it otherwise confusion would ensue, and conflicting decisions of dif- 
 ferent courts of the same country would be the consequence. Hence the 
 judgment of a domestic court of record is not only conclusive of the right 
 which it establishes, but of ihc facts which it directly decides. 4 Cranch, 
 43fi. 
 
 But these reasons obviously do not apply to the judgments or decrees of 
 foreign courts ; for to them is not confided by our laws and constitutions 
 the power of deciding on the rights and property of our people. Their 
 decisions are not considered as entitled to the respect paid to our own ; 
 and accordingly it is the established principle that a foreign judgment is 
 not conclusive upon the parties, but is examinable in our courts. Hence 
 the plea to an action of debt on a foreign judgment is nil debet, which puts
 
 CHAP. 16.] OF TRIAL. 279^ 
 
 in issue the debt itself; instead of mil tlel record, which only denies the 
 existence of the judgment. If, indeed, the adjudications of foreign courts 
 were conclusive, the principle would lead to very serious results. It would 
 be impossible to draw a line of distinction, and thus the judgments of Hayti 
 and Algiers, though rendered upon principles arbitrary and despotic, and 
 in irreconcileable conflict with those of our own institutions, would become 
 absolutely binding. 
 
 But, though the adjudications of foreign courts are not conclusive, the 
 comity of our law attributes to them a certain degree of weight, provided 
 they do not appear on their face to be contrary to reason and justice ; as 
 where they are rendered against a party who had no notice that he was 
 sued. 1 Camp. 63. 9 East, 195. 1 Dall. 261. 8 John. 86. And while 
 (he law permits them to be examined into and contested, it considers them 
 as prima facie evidence until they are contradicted. Hence we find the 
 rule laid down as well established, that a judgment in a foreign court is 
 prima facie evidence of a debt, but has only the force of a simple contract 
 between the parties. Philips, [272.] Doug. 1. 
 
 It is not perhaps easy to say how far a party may proceed in this re-ex- 
 amination of the ilecision of a foreign court. Whether he shall be con- 
 fined to shewing that the decision is arbitrary, unjust in principle, or con- 
 trary to the laws of nations, or may be permitted to go into a re-examina- 
 tion of the whole case, and contest the facts upon which it is founded and 
 the conclusions drawn from them, does not appear to be very clearly set- 
 tled. I incline, however, to the latter opinion ; that the judgment of the 
 foreign court has but the force of a simple contract between the parties; 
 that the consideration or grounds of that judgment may of course be ex- 
 amined into ; 4 T. R. 493 ; that as the party voluntarily submits himself to 
 our jurisdiction, the judgment is only looked upon as matter in pais, as a 
 consideration prima facie sufficient to raise a promise ; that it is of course 
 to be examined, as all other considerations of promises are examinable, and 
 for that purpose evidence will be received either to prove that the founda- 
 tion of it was a foreign ordinance manifestly unjust and contrary to the 
 laws of nations, (Mayne vs. Walter, cited Gil. 24,) or that it was contrary 
 to the law of the country where it was pronounced, (2 H. B. 410,) or that 
 the facts upon which it was founded were not sufficient to justify the adju- 
 dication. See Buller's opinion, cited Philips, [271,] and Judge Parsons' 
 opinion, cited 272, in note. He seems to admit in broad terms that the 
 merits of the foreign judgment may be inquired into. 9 Mass. Rep. 462„. 
 A ditferent sentiment is said to have prevailed, however, in Lee vs. Hop- 
 kins, Winchester superior court. 
 
 But although a foreign judgment is only prima facie evidence of a debt 
 for which the suit abroad was instituted, or of the facts which it establishes 
 when they come collaterally in question, (Gil. 16,) yet for some purposes it 
 is conclusive. As where it is in rein; in other words, where it settles and 
 determines the right of property, it is conclusive and absolute as to that 
 right. 4 Cranch, 436. Gil. 22. So, too, an acquittal of a crime under a 
 criminal prosecution, or a discharge from a demand arising in the foreign 
 state, or a decree as to the validity of a marriage contracted there, are all 
 conclusive evidence of the matters so established. See Norris's Peake, 
 101, 102. 
 
 The doctrine of the finality of a discharge from a demand which has 
 been asserted in a foreign state, where the defendant has had a judgment 
 rendered in his favour, rests upon a sufficiently obvious distinction between 
 the situation of the plaintiff and defendant in this matter. Where a plain- 
 tiff seeks in our courts to enforce a judgment of a foreign court against an 
 individual under the protection of our laws, we are at liberty in our courts-
 
 280 OF TRIAL. [ BOOK 3. 
 
 of justice to examine into the merits of such judgment ; for the suit of the 
 plaintiff is an appeal to our comity only as a nation, since there is no obli- 
 gation on one sovereign to execute within his dominion a sentence ren- 
 dered out of it. Hence, in such cases, the sentence, though prima facie 
 evidence, is examinable, and the defendant may impeach the justice of it, 
 (2 Kent, 102,) or shew that it was irregularly or unduly obtained. But when 
 a plaintiff has invoked a foreign jurisdiction which has pronounced against 
 his demand, the pica of this judgment against him in bar of an action for 
 the same cause, is final and conclusive, provided the subject, the parties 
 and grounds of the judgment, be the same. It becomes by such judgment 
 res judicata, and the exceptio rei judicata is an absolute bar. This is said 
 to be a principle of general jurisprudence, founded on public convenience, 
 and sanctioned by the usages and courtesy of nations. 2 Kent, 102. 
 
 We must, also, in cases of this description, advert to the difference be- 
 tween those in which the fact, or the right established by the foreign judg- 
 ment, is the matter in (piestion, and those where the existence of such a 
 decision is alone sufficient to charge the party. Where the latter is the 
 real question between the parties, it is conclusive :* as where the defendant 
 agreed to indemnify the plaintiff (who had been his partner abroad) against 
 all claims against the partnership, a judgment obtained against the partner- 
 ship in the foreign court was conclusive, it appearing that the defendant 
 had notice of it and was a party. Philips, [272.] So where the plaintiff 
 sued the defendant for money paid by the plaintiff as a security under a 
 judgment of a foreign state, that judgment was considered as conclusive, 
 unless impeached by evidence of fraud or collusion ; 4 Mun. 241 ; for in 
 this case, whether the judgment was just or unjust was unimportant, as the 
 defendant was bound to stand in his security's shoes, and relieve him from 
 its consequences. Its existence, therefore, alone was in question ; its va- 
 lidity was out of the case, unless it was obtained by fraud. 
 
 How far the sentence of a foreign court of admiralty is evidence in our 
 courts, see Gil. IG. 4 Cranch, 185, &c. 434. 4 Mun. 53. Norris's Peake, 
 101, &c. and the cases there cited. Certain political considerations seem 
 to have had much weight on the minds of the judges in deciding the case 
 in Gilmer's Reports. 
 
 It remains to be considered in what light are the several states of this 
 union to be considered in relation to this question.! It was long ago de- 
 cided that the several states, with respect to their municipal laws, are to 
 be considered as foreign to each other. 2 Wash. 282. And this principle 
 has been affirmed by Judge Washington in reference to bills of exchange. 
 Lonsdale vs. Brown, Oct. 1821. But the constitution of the United States 
 (art. 4, § 1,) declares that "full faith and credit shall be given in each state 
 to the public acts, records, nuA judicial inoceedings of every other state," 
 
 *A Bcciirity who pays an usurious bond in invilum, is entitled to recover frnm tiieprincip;*! on mo- 
 tion. 1 lMas!-a. Rep. l39. Our act seems to consider the judjjnient against tiie surety as conclusive 
 unless collusion be shewn. ) RC. ch. 116. 
 
 t Ireland was considered as no part of " the realm " by I,ord Ilardivicke. See Otway vs. Ram- 
 say, cited in note to 4 15arn. & Cre3.411. 10 C. I,. II. 37;j. And, even after theuiiion, it was decid- 
 ed that aa Irish Judgment was not a record in England, and that assumpsit would lie on it. Idem. 
 
 If judijtncHtB of our sister slates have the force of judgtnents here, it becomes an important inquiry 
 whether they are of superior dignity to specialties in iheadminislraiinii of decedents' estates. Lord 
 Ch. J. Abbot seemed to think another consequence miyht be, that if judgments in Ireland were ta 
 be treated as judgments in England they would bind lands there. 'I'his, 1 think, is going too far, 
 though there are many difficulties growing out of the rule which makes the judgments of one juris- 
 diction conclusive in another. Thus, on the borders of this state and the stale of Oliio, it is a com- 
 mon practice for th« Virginia debtor to give with his bond a power of attorney to confess judgment 
 in Ohio; which judgment, when confessed, is sued upon in this state as conclusive, and thus our law, 
 as to such powers, is evaded. Again, if judgment be confessed under such a power in Ohio lor an 
 usurious debt, and an notion be brought upon it here, it may not, perhaps, be easy to point out the 
 course which the debtor may pursue for his redntss, particularly since the recent rigorous adjudica- 
 tions on the subject of injunctions, in the cases of Thon>psuut?.s. Woodi &c. at Lewisburg,ana!!3i»ilh 
 V3. Weaver, at Kichmond, Jnnuaiy, liJ35.
 
 CHAP. 16.] OF TRIAL. 281 
 
 and that congress may prescribe the manner of authentication and the ef- 
 fect thereof: and a law of congress lias accordingly declared that the re- 
 cords and judicial proceedings of every state, when authenticated accord- 
 ing to its provisions, shall have such faith and credit given to them in every 
 court within the United States, as they have by law or usage in the courts 
 of the state from whence they are taken. Notwithstanding these decla- 
 rations, the decisions of the courts of the different states are very conflict- 
 ing on this subject. In New York it has been determined that the judg- 
 ment of another state is a simple contract debt, and that assumpsit will lie 
 on it. 5 John. 132. And, it has been held, that in an action on such judg- 
 ment, it was to be regarded as a foreign judgment, the constitution and all 
 acts of congress requiring only that credit should be given to the contents 
 of the record, but that the effect or operation of it remained as at common 
 law. 1 Caines, 4G9. 8 John, 173. These opinions are supported by a 
 case in Massachusetts, (1 Mass. Rep. 401,) but are, however, strongly im- 
 pugned by other decisions. See 15 John. Rep. 121. 9 Mass. Rep. 462. 
 2 Dall. 302. 1 Cranch, 285. 7 Cranch, 308, 481. See, also, 3 Wheat. 
 234, and Kent's Commentaries. 
 
 Though no case is to be found on this subject in our Virginia reporters, 
 yet the opinion has been expressed by one of our superior courts, that the 
 judgment of another state has, by virtue of the constitution and law of con- 
 gress, the same conclusive effect as a judgment of our state courts. Per 
 White, J. at Winchester.* 
 
 It has been also decided here that a judgment of the federal circuit court 
 of another state, is conclusive in the tribunals of this state. Bush vs. M'Al- 
 ister, Winchester superior court. But the same court has held that the 
 judgment of the courts of the District of Columbia are to be considered as 
 foreign judgments. Lee vs. Hopkins. For that district is not a state with- 
 in the meaning of the constitution. 2 Cranch, 445. And if not, it is fo- 
 reign to us upon the principle of the decision in 2 Wash. 262, and the other 
 cases above cited. 
 
 The mode of authentication of records is prescribed by an act of con- 
 gress. 
 
 As the plea of nul tiel record is to be tried by the court and not by the 
 jury, it ought not to conclude " and of this he puts himself on the country," 
 but it should conclude with a verification, and praying judgment whether 
 the plaintiff should maintain his action, &c. 4 Mun. 466. 
 
 A special provision is to be found for the case of records which have been 
 injured or destroyed, in 1 R. C. ch. 130. 
 
 II. "Trial by inspection or examination, is when, for the greater expedi- 
 tion of a cause, in some point or issue being either the principal question or 
 arising collaterally out of it, but being evidently the object of sense, the 
 judges of the court, upon the testimony of their own senses, shall decide 
 the point in dispute. For, where the affirmative or negative of a question 
 is matter of such obvious determination, it is not thought necessary to sum- 
 mon a jury to decide it ; who are properly called in to inform the conscience 
 of the court in respect of dubious facts : and therefore, when the fact, from 
 its nature, must be evident to the court either from ocular demonstration 
 or other irrefragable proof, there the law departs from its usual resort, the 
 verdict of twelve men, and relies on the judgment of the court alone. As 
 in case of a suit to reverse a fine for non-age of the cognizor, or to set 
 aside a statute or recognizance entered into by an infant ; here, and in other 
 cases of the like sort, a writ shall issue to the sheriff, commanding him 
 that he constrain the said party to appear, that it may be ascertained by the 
 view of his body by the king's justices, whether he be of full age or not; 
 
 * 2 Leigh, 172, Accoidaut. 
 
 TOL. 2 — 36
 
 282 OF TRIAL. ['book 3. 
 
 ' lit per aspectum corporis sui constare poterit jtisticiariis noslris, si praedic- 
 tus A sit plcnae aetatis iiecne.' If, however, the court has, upon inspection, 
 any doubt of the age of the party, (as may frequently be the case,) it may 
 proceed to take proofs of tlie fact ; and, particularly, may examine ihe in- 
 fant himself upon an oath of voire dire, ventatem dicere, that is, to make 
 true answer to such questions as the court shall demand of him : or the 
 court may examine his mother, his godfather, or the like. 
 
 "In like manner if a defendant pleads in abatement of the suit that the 
 plaintiff is dead, and one appears and calls himself the plaintiff, which the 
 defendant denies : in this case the judges shall determine by inspection and 
 examination, whether he be the plaintiff or not. Also, if a man be found 
 by a jury an idiot analivitate, he may come in person into the chancery 
 before the chancellor, or be brought there by his friends, to be inspected 
 and examined whether idiot or not : and if, upon such view and inquiry, it 
 appears he is not so, the verdict of the jury, and all the proceedings there- 
 on, are utterly void and instantly of no efiect. 
 
 "Another instance in which the trial by inspection may be used, is when 
 upon an appeal of maihem, the issue joined is whether it be maihem or no 
 maihem, this shall be decided by the court upon inspection ; for which pur- 
 pose they may call in the assistance of surgeons. And, by analogy to this 
 in an action of trespass for maihem, the court (upon view of such maihem 
 as the plaintiff has laid in his declaration, or which is certified by the judges 
 who tried the cause to be the same as was given in evidence to the jury,) 
 may increase the damages at their own discretion ; as may also be the case 
 upon view of an atrocious battery.* But then the battery must likewise be 
 alleged so certainly in the declaration, that it may appear to be the same 
 with the battery inspected. 
 
 " Also, to ascertain any circumstances relative to a particular day past, it 
 hath been tried by an inspection of the almanac by the court. Thus, upon 
 a writ of error from an inferior court, that of Lynn, the error assigned was 
 that the judgment was given on a Sunday, it ai)pearing to be on 26 Febru- 
 ary, 26Eliz. and upon inspection of the almanacs of that year, it was found 
 that the 26 of February in that year actually fell upon a Sunday : this was 
 held to be a sufficient trial, and that a trial by a jury was not necessary, al- 
 though it was an error in fact : and so the judgment was reversed. But, ia 
 all these cases, the judges, if they conceive a doubt, may ord^r it to be tried 
 by jury. 
 
 III. " The trial by certificate is allowed in such cases where the evidence 
 of the person certifying is the only proper criterion of the point in dispute. 
 For, when the fact in question lies out of the cognizance of the court, the 
 judges must rely on the solemn averment or information of persons in such 
 a station as affords them the most clear and complete knowledge of the 
 truth. As, therefore, such evidence (if given to a jury) must have been 
 conclusive, the law, to save trouble and circuity, permits the fact to be de- 
 termined upon such certificate merely.'"' 
 
 In illustration of this mode of trial, P.lr. Blackstone proceeds to enume- 
 rate a variety of cases to which it is a]iplicab!e, but none of which are 
 known to our law. It may not be improper, however, to observe, that though 
 the trial by certificate is, perhaps, unknown in the practice of our courts, 
 yet are there many instances in which the ordinary modes of proof by the 
 testimony of sworn witnesses may be substituted or supplied by the certifi- 
 cates of the accredited officers of the law. Thus, a copy of the record of 
 a court is sufficiently authenticated by the certificate of the clerk that it is 
 a true copy from the records in his office, even though such certificate be 
 unaccompanied by any aflidavit. Whereas, if from any cause the copy of 
 *Tliii> pnner i» novsr fxpriiicd by ihe coui is in \ir;;inia. and is contiuiy to the spirit of oiir laws.
 
 CHAP. 16.] OF TRIAL. 283 
 
 a record cannot be had from the proper officer, no copy would be deemed 
 a true copy, unless proved by deposition to have been copied from and com- 
 pared with the original by the deponent. 
 
 . It is also material here to remark, that when it becomes a question what 
 the law of a foreign state is, that question is to be tried by the jury and not 
 by the court ; and the party who pleads it should therefore conclude to the 
 country, and not to the court : per Buller, Doug. 1 : for foreign laws are 
 considered as fads, which, like other facts, must be proved to exist before 
 they can be received in a court of justice ; 2 Cranch, 236. 4 John C. C. 
 520; and being regarded as matters of fact, they must be tried by the jury 
 and not by the court. The courts of one country cannot judicially take no- 
 tice of the laws of another, and therefore the testimony of witnesses of 
 competent skill and knowledge, or other evidence, must be produced to 
 prove what those laws are. Norris's Peake, 111, &c. 14 Mass. Rep. 455. 
 1 P. Wms. 431. 
 
 It becomes then important to know what kind of testimony is sufficient 
 to prove what the law of a foreign country is. And here there is an obvious 
 distinction between the written and unwritten law of a foreign country. 
 The written law can only be proved by a duly authenticated copy of the 
 statute itself; for the law always requires the best evidence of which the 
 case is susceptible. When I say it must be duly authenticated, I mean that 
 it must be authenticated in the manner hereinafter mentioned, unless the 
 laws and usages of the country do not admit of it. Where that is made to 
 appear, the court will not require what is thus proved to be unattainable ; 
 but until such proof be afforded it will not be presumed that a civilized na- 
 tion will refuse those acts for authenticating instruments which are usual, 
 and are deemed necessary for the purposes of justice. 2 Cranch, 237. The 
 usual and most proper modes of authentication of foreign judgments are, 
 1. By an exemplification under the great seal (or seal of the nation) : 2. 
 By a copy proved to be a true copy by the oath of a person who has made 
 it, or has compared it with the original : 3. By the certificate of an officer 
 authorized by law, which certificate must itself be properly authenticated. 
 If these modes of authentication be beyond the reach of the party, and so 
 proved to be, other testimony of an inferior nature may be received. 2 
 Cranch, 238. 1 Peters, 225. 5 Ran. 126. We must remark, however, 
 that the mere difficulty or expense or inconvenience of obtaining it, does 
 not exc-use the failure to produce the best testimony, or justify the introduc- 
 tion of that which is inferior. The impracticability only of acquiring it 
 will have this efl'ect. 
 
 Printed copies of the laws of a foreign state are not evidence, unless duly 
 authenticated. 1 Peters, .382. In 1 Dall, 462, however, the court of Penn- 
 sylvania unanimously decided that the printed laws of Virginia were admis- 
 sible without authentication. 
 
 The authentication of the statutes of a foreign state ought, like that of 
 judgments, to be either by ati exemplification under the great seal, or by a 
 proved copy taken from the original, or by certificate of an officer thereto 
 legally authorized, which certificate must be legally authenticated. The 
 great seal of a foreign state proves itself, 3 Leigh, 816; — admitted arg-wen- 
 do, 3 Wheat. 624. So of the seals of the states of this union. 4 Dall. 
 416. But the seal of a newly created government, not yet acknowledged 
 as an independant state, does not prove itself. 3 Wheat. 610. 4 Wheat. 
 298. See Norris's Peake, 191, &c. 
 
 As to the unwritten law of a foreign state, that can only be proved by 
 parol, and the evidence of witnesses of competent skill and knowledge is 
 consequently admissible to establish what it is. 6 Cranch, 274. 1 John. 
 585. 3 John. 105. The court itself will also assist the jury in ascertain-
 
 284 OF TRIAL BY JURY. [ BOOK 3. 
 
 in<y it. Cowper, 174. But when it is ascertained, it is the province of the 
 court to construe it and decide on its effect. 1 Peters, 2-25. 
 
 IV. "A fourth species of trial is that by witnesses, per testes, without the 
 intervention of a jury. This is the only method of trial known to the civil 
 law ; in which the judge is left to form in his own breast his sentence upon 
 the credit of the witnesses examined : but it is very rarely used in our law, 
 which prefers the trial by jury before it in almost every instance." This 
 mode of trial is the accustomed mode in the courts of equity, which decide 
 upon the depositions of witnesses without the intervention of a jury, except 
 in those cases where issues are directed to satisfy the conscience of the 
 chancellor, and in issues devisavit vcl non, which are specially required by 
 statute, where the validity of a will is called in question. 
 
 In the courts of law, too, in various cases, where they exercise powers, 
 which, under the English system of jurisprudence, were exercised by the 
 eeclesiastical courts or other tribunals proceeding upon the principles of 
 the civil law, the court, without a jury, take cognizance of the question of 
 fact, as well as of law, and decide upon the examination of witnesses. 
 Such are the cases of probate of wills, and granting letters of administra- 
 tion, and letters testamentary. Such, too, are certain cases connected in 
 6ome degree with the police of the country, as the establishment of roads, 
 or ferries, or mills, in which the court of itself decides, without the assist- 
 ance of a jury, many of the most important questions, although others are 
 confided solely to the jury of inquest required to be taken by the sheriff, 
 under a writ of ad quod damnum. 
 
 V. Of the trial by battle, which is next mentioned by Mr. Blackstone, 
 we have not a trace in Virginia. It is now abolished in England. 59 Geo. 
 in. ch. 46. 
 
 VI. The sixth species of trial mentioned by Mr. Blackstone, is the wager 
 of law ; which is entirely disused in Virginia, if indeed it be yet in force 
 here. Yet as we have no express adjudication which authorizes its exclu- 
 sion from the enumeration of the different species of trial, I deem it my 
 duty to recommend to the student Mr. Blackstone's account of it. It 
 has, indeed, been lately decided in England still to exist. 1 Bos. & Pul. 
 291. 2 B. & C. 538. 4 Dow. & Ryl. 3. [Chitty's note, 3 B. C. 341.] 
 It can only be resorted to, however, in the action of debt on simple contract, 
 the action of detinue and the action of account, technically so called. I 
 have never known it attempted, though thousands of cases of the two first 
 descriptions are daily occurring. The Bill of Rights, Art. 11, has been sup- 
 posed by the late annotator on Blackstone's Commentaries, to have abolish- 
 ed the trial by battle ; and if, as to that, his inference be fair, it is equally 
 strong against the wager of law. 
 
 CHAPTER XVII. 
 
 OF THE TRIAL B'^ JURY. 
 
 The subject of our next inquiries, will be the nature and method of the 
 trial by jury, which is also usually termed in the law the trial ;>cr ^ais, or 
 by the country. 
 
 Trials by jury in civil causes are said by Mr. Blackstone to be of two 
 kinds, extraordinary and ordinary. The latter only, I believe, are known 
 among us, unless we designate as extraordinary the juries summoned up- 
 on writs of ad quod damivnn, or in cases of forcible entry and detainer. 
 We have, indeed, an extraordinary jury for the trial of impeachments, of 
 which the etudent will find an account in 1 R. C. ch. 168. But the object
 
 CHAP. 17.] OF TRIAL BY JURY. 285 
 
 of our particular attention at this time, is the ordinary trial by jury, which 
 is the peculiar favorite of our system of laws, and to which the bill of rights 
 and the constitution of the United States have attributed the highest degree 
 of sanctity. Bill of rights, art. 11. C. U. S. art. 3, § 2, art. 9. See also, 
 1 R. C. ch. 166, nearly a transcript from Magna Charta. 
 
 Of this ordinary trial by jury, as existing at this time in Virginia, the fol- 
 lowing account may, perhaps, prove satisfactory; though the student will 
 find his labor amply repaid in perusing with attention Mr. Blackstone's 
 history of the more complicated course of proceeding in the English courts 
 of justice. 
 
 "In England when an issue is joined, by these words, 'and this the said 
 A prays may be inquired of by the country,' or ' and of this he puts him- 
 self upon the country, — and the said B does the like,' the court awards a 
 writ of venire facias upon the roll or record, commanding the sheriff 'that 
 he cause to come here on such a day, twelve free and lawful men, liberos et 
 legales homines, of the body of his county, by whom the truth of the mat- 
 ter may be better known, and who are neither of kin to the aforesaid A, 
 nor the aforesaid B, to recognize the truth of the issue between the said 
 parties.' And such writ was accordingly issued to the sheriff]" according 
 to the course of the common law, but it is in fact never issued with us ; for 
 after the issue is made up, and the cause is placed upon the docket, it 
 stands ready for trial, whenever it shall in its turn be called by the court. 
 The sheriff* indeed, though he receives no specific order to summon a jury 
 for the trial of any particular case, is by law directed to summon every day 
 of the session of the court a sufficient number of jurors for the dispatch 
 of the business of the day ; and from the list of jurors so summoned, he 
 himself details or calls twelve persons qualified as the law directs, who are 
 sworn at the clerk's table to try the issue or issues joined between the 
 plaintiff" and defendant, and to give a true verdict according to the evidence. 
 
 " If the sheriff" be not an indiff'erent person ; as if he be a party in the 
 suit, or be related by either blood or affinity to either of the parties, he is 
 not then trusted to return the jury, but the venire shall be directed to the 
 coroners, who in this, as in many other instances, are the substitutes of the 
 sheriff", to execute process when he is deemed an improper person. If any 
 exception lies to the coroners, the venire shall be directed to two clerks of 
 the court, or two persons of the county named by the court, and sworn. 
 And these two, who are called elisors, or electors, shall indiffierently name 
 the jury, and their return is final ; no challenge being allowed to their ar- 
 ray." These salutary provisions of the common law are yet in force in 
 Virginia, although only partially enacted into our statutes. No instance 
 has ever occurred within my recollection, in which elisors or electors have 
 been rendered necessary. 
 
 The trial by jury must be confessed to be on a very unfavorable footing 
 in Virginia. The few regulations adopted by our laws for securing intelli- 
 gent and impartial jurors, are to be found in the 1 R. C. ch. 75. It is there 
 provided that the sheriff"s shall summon for the trial of all cases in the su- 
 perior courts, every day of their session, a sufficient number of qualified by- 
 standers ; it farther gives power to the court, where it deems it necessary 
 to secure the attendance of fit jurors on any subsequent day of the term, to 
 direct the sheriff" to summon previously any number not above twenty-four. 
 Under this power, the courts now usually make such order every day, as 
 of course, directing jurors to be summoned for the ensuing day ; and these 
 are selected, not from by-standers only, but from any part of the county. 
 In land causes, and in all cases depending in the superior courts, jurors 
 must be freeholders, and possessed of a visible estate to the value of three 
 hundred dollara. In the county courts they must have a visible estate of
 
 286 OF TRIAL BY JURY. [ BOOK 3. 
 
 the value of one hundred and fifty dollars. Infants cannot be jurors. Ju- 
 ries de viedietale lingiuR may be directed by the courts respectively. No 
 exception can be taken to a juror after he is sworn, on account of any legal 
 disability. Jurors are punishable by fine and imprisonment for taking 
 bribes. 1 R. C. ch. 148, § 3, ch. 75, § 18. They are also prohibited from 
 conversing even with the sheriff', but by order of court ; and they are re- 
 quired, if they know any thing of the point in issue, to disclose it in open 
 court. In the case of the Commonwealth vs. M'Caull, the duty of jurors, 
 and of officers in whose care they are placed, was mucii discussed. Virg. 
 Ca. 301, 306. To that case I must content myself with referring the stu- 
 dent here. 
 
 " As the jurors appear, when called, they shall be sworn, unless challeng- 
 ed by either party. Challenges are of two sorts ; challenges to the array, 
 and challenges to the polls. 
 
 " Challenges to the array are at once an exception to the whole pannel, 
 in which the jury are arrayed, or set in order by the sheriff" in his return ; 
 and they may be made upon account of partiality or some default in the 
 sheriff^, or his under-ofticcr, who arrayed the panel. And, generally speak- 
 ing, the same reasons that before awarding the venire were sufficient to have 
 directed it to the coroners or elisors, will be also sufficient to quash the ar- 
 ray, when made by a person or officer of whose partiality there is any tole- 
 rable ground of suspicion. Also, though there be no personal objection 
 against the sheriff", yet if he arrays the pannel at the nomination, or under 
 the direction of either party, this is good cause of challenge to the array. 
 Also, by the policy of the ancient law, the jury was to come de viclncto, 
 from the neighborhood of the vill or place where the cause of action was 
 laid in the declaration : and, therefore, some of the jury were obliged to be 
 returned from the hundred in which such vill lay; and, if none were re- 
 turned, the array might be challenged for defect of hundredors." But this 
 has ceased even to be the law in England, and with us the jury has always 
 been summoned from the body of the county. The array, however, may 
 be challenged where an alien is party to the suit, if he has obtained, as he 
 may, an order to summon a jury de medietale linguce, (that is, one half fo- 
 reigners, though not necessarily his countrymen : Hawk. B.2ch. 43, § 42,) 
 and the sheriff has failed to pursue the command of the court. If, indeed, 
 there be not aliens enough in the place, it is an answer to the challenge ; 
 and it may be added, that if both parties are aliens, the privilege of a jury 
 de medietale does not exist. I have never witnessed an instance of such a 
 jury being ordered. 
 
 "Challenges to the polls, in capita, are exceptions to particular jurors ; 
 and seem to answer the recusatio judicis in the civil and canon hiws; by 
 the constitutions of which a judge might be refused u])on any suspicion of 
 partiality. By the laws of England also, in the times of Bracton and Fle- 
 ta, a judge might be refused for good cause ; but now tiie law is otherwise, 
 and it is held that judges and justices cannot be challenged. For the law 
 will not suppose a possibility of bias or favor in a judge, who is already 
 sworn to administer impartial justice, and whose authority greatly depends 
 upon that presumption and idea. And should the fact at any time prove 
 flagrantly such, as tiie delicacy of the law will not presume beforehand, 
 there is no doubt but that such misbehaviour would draw down a heavy 
 censure from those to whom the judge is accountable for his conduct. 
 
 " But challenges to the j)olls of the jury (who are judges of fact) are re- 
 duced to four heads by Sir Edward Coke ; propter honoris respectum ; prop- 
 ter defectum ; propter affectum ; and propter delictum. 
 
 1. " Propter honoris respectum, as if a lord of parliament be impannelled 
 on a jury, he may be challenged by either party, or he may challenge him- 
 eelf." This cause of challenge cannot exist with ua.
 
 CHAP. 
 
 17.] OF TRIAL BY JURY. 287 
 
 2. "Propter defectum, as if a juryman be an alien born, this is defect of 
 birth ; if he be a slave or bondman, this is defect of liberty, and cannot be 
 liber et legalis homo. Under the word homo also, though a name common 
 to both sexes, the female is however excluded, propter defectum sexus ; ex- 
 cept when a widow feigns herself with child, in order to exclude the next 
 heir, and a suppositious birth is suspected to be intended : then upon the 
 writ de venire inspiciendo, a jury of women is to be impannelled to try the 
 question, whether with child or not. But the principal deficiency is defect 
 of estate sufficient to qualify him to be a juror." This depends upon the 
 statute before mentioned, (I R. C. ch. 75,) which fixes the qualifications of 
 jurors as has been already stated. 
 
 3. "Jurors may be challenged propter affectum, for suspicion of bias or 
 partiality. This may be either a principal challenge, or to the favour. A 
 principal challenge is such, where the cause assigned carries with '\t prima 
 facie evident marks of suspicion, either of malice or favour: as, that a ju- 
 ror is of kin to either party within the ninth degree ; that he has been arbi- 
 trator on either side ; that he has an interest in the cause ; that there is an 
 action depending between him and the party ; that he has taken money for 
 his verdict ; that he has formerly been a juror in the same cause ; that he 
 is the party's master, servant, counseller, steward, or attorney, or of the 
 same society or corporation with him : all these are principal causes of 
 challenge; which, if true, cannot be overruled, for jurors must be omni ex- 
 ceplione majores. Challenges to the favour, are where the party hath no- 
 principal challenge : but objects only to some probable circumstances of 
 suspicion, as acquaintance and the like ; the validity of which must be left 
 to the determination of triors, whose office it is to decide whether the juror 
 be favourable or unfavourable. The triors, in case the first man called be 
 challenged, are two indifferent persons named by the court ; and if they try 
 one man and find him indifferent, he shall be sworn ;. and then he and the 
 two triors shall try the next ; and when another is found indiff'erent and 
 sworn, the two triors shall be superseded, and the two first sworn on thje 
 jury shall try the rest. 
 
 4. " Challenges propter delictum, are for some crime or misdemesnor 
 that aflfects the juror's credit and renders him infamous. As for a convic- 
 tion of treason, felony, perjury, or conspiracy ; or if for some infamous of- 
 fence he hath received judgment of the pillory, tumbrel, or the like; or to 
 be branded, whipt, or stigmatized ; or if he be outlawed or excommunicat- 
 ed, or hath been attainted of false verdict, /)rae»u<tt ire, or forgery ; or lastly, 
 if he hath proved recreant when champion in the trial by battel, and there- 
 by hath lost his liberam legem. A juror may himself be examined on oath 
 of voir dire, veritatem dicere, witli regard to such causes of challenge as 
 are not to his dishonour or discredit; but not with regard to any crime, or 
 any thing which tends to his disgrace or disadvantage. 
 
 "Besides these challenges, which are exceptions against the fitness of 
 jurors, and whereby they may be excluded from serving, there are also other 
 causes to be made use of by the jurors themselves, which are matter of ex- 
 emption ; whereby their service is excused, and not excluded." Such is the 
 case of clergymen and physicians, and of the aged and infirm, who are ex- 
 cused at the discretion of the court ; of counsel and attorneys who are con- 
 sidered as exempt from the station which they hold, and of infants who are 
 specially disqualified by particular statute. 1 R. C. ch. 75, § 12. 
 
 According to the course of proceeding in the English courts, if "by 
 means of challenges, or other cause, a sufficient number of unexceptionable 
 jurors doth not appear at the trial, either party may pray a tales. A tales 
 is a supply of such men as are summoned upon the first pannel, in order 
 to make up the deficiency. For this purpose a writ of decern tales, octo 
 talesj apd the like, was used to be issued to the sheriff at cornnion law, 
 
 ^ .;*
 
 288 OF EVIDENCE. [ book 3. 
 
 and must be still so done at a trial at bar, if the jurors make default. Buti 
 at the assizes or }iisi prius, by virtue of the statute 35 Hen. VIII. c. 6, and 
 other subsequent statutes, the judge is empowered at the prayer of either 
 party to award a tales de circumstantibus, of persons present in court, to be 
 joined to the other jurors to try the cause ; who are liable, however, to the 
 same challenge as the principal jurors. [With us a writ of tales is never 
 issued but when the sheriff's pannel is exhausted, he is orally directed by 
 the court to call by-standers.] This is usually done, till the legal number 
 of twelve be completed ; in which patriarchal and apostolical number Sir 
 Edward Coke hath discovered abundance of mystery. 
 
 " When a suflicient number of persons impannelled, or /a/es-men, appear, 
 they are then separately sworn, well and truly to try the issue between the 
 parties, and a true verdict to give according to the evidence ; and hence 
 they are denominated the jury, jwra/a, and jurors, sc.juratores. 
 
 " The jury are now ready to hear the merits ; and, to fix their attention 
 the closer to the facts which they are impanelled and sworn to try, the 
 pleadings are opened to them by counsel on that side which holds the affirm- 
 ative of the question in issue. For the issue is said to lie, and proof is 
 always first required upon that side which affirms the matter in question ; 
 in which our law agrees with the civil ; ' ei incumbit probatio qui dicit, non 
 qui negat ; cum per rerum naluram factum-negantis probatio nulla sit.' The 
 opening counsel briefly informs them of the parties, the nature of the ac- 
 tion, the declaration, the plea, replication, and other proceedings, and lastly, 
 upon what point the issue is joined, which is there set down to be deter- 
 mined. Instead of which, formerly, the whole record and process of the 
 pleadings was read to them in English by the court, and the matter in issue 
 clearly explained to their capacities. The nature of the case, and the evi- 
 dence intended to be produced, are next laid before them by counsel, also 
 on the same side : and when their evidence is gone through, the advocate 
 on the other side opens the adverse case, and supports it by evidence ; and 
 then the party which began is heard by way of reply. 
 
 " The nature of my present design will not permit me to enter into the 
 numberless niceties and distinctions of what is, or is not, legal evidence to 
 a jury. I shall only, therefore, select a few of the general heads and lead- 
 ing maxims, relative to this point, together with some observations on the 
 manner of giving evidence. [The student will consult Peake, Philips, and 
 Starkie on the subject.] 
 
 "And, first, evidence signifies that v/hich demonstrates, makes clear, or 
 ascertains the truth of the very fact or point in issue, either on the one side 
 or on the other; and no evidence ought to be admitted to any other point. 
 Therefore, upon an action for debt, when the defendant denies his bond by 
 the plea of non est factum, and the issue is, whether it be the defendant's 
 deed or no ; he cannot give a release of this bond in evidence : for that 
 does not destroy the bond, and therefore does not prove the issue which 
 he has chosen to reply upon, viz. that the bond has no existence. 
 
 " Again ; evidence in the trial by jury is of two kinds, either that which 
 is given in proof, or that which the jury may receive by their own private 
 knowledge. The former, ox proofs, (to which in common speech the name 
 of evidence is usually confined,) are either written, or parol, that is, by 
 word of mouth. Written proofs, or evidence, are, 1. Records, and 2. An- 
 cient deeds of thirty years' standing, which prove themselves ;* but 3. Mo- 
 
 • Tlie same rule applies to wills thirty years old. 4 T. R. 709, note. Tliis rule is laid down in 
 books of evidence without sufficient explanation of its principle, or of the extent of its application. 
 There seems to be dangerin pcnniitinj; adeed to be read, merely because it bears date above thirty 
 years before its production, and in reqiiiiing r.o evidence, where a forgery may be committed with 
 • he least probability of detection. Chief Baron Gilbert lays down, that where possession has gone 
 agreeably to the limitations of a deed bearing date thirty yeari ago, it may be read without any evi- 
 dence of its execution, though the subscribing witness be still living. Law of Ev.94. For such poa- 
 ■eeeion nfiorda bo etrong a prciumption io favor of the authenticity of tlie deed, as to tupersede tlie
 
 CHAP. 17.] OF EVIDENCE. 289 
 
 dern deeds, and 4. Other writingg must be attested and verified by parol 
 evidence of witnesses. And the one general rule that runs through ail the 
 doctrine of trials is this, that the best evidence the nature of the°case will 
 admit of shall always be required, if possible to be had ; but if not pos- 
 sible, then the best evidence that can be had shall be allowed.* For if it 
 be found that there is any better evidence existing than is produced, the 
 very not producing it is a presumption that it would have detected some 
 falsehood that at present is concealed. Thus, in order to prove a lease for 
 years, nothing else shall be admitted but the very deed of lease itself, if in 
 being ; but if that be positively proved to be burnt or destroyed, (not relying 
 on any loose negative, as that it cannot be found, or the like,) [see 2 Ran. 
 539,] then an attested copy may be produced ; or jmrol evidence be given 
 of its contents. So, no evidence of a discourse with another will be ad- 
 mitted, but the man himself must be produced ; yet in some cases, (as in 
 proof of any general customs, or matters of common tradition or repute,) 
 the courts admit of /tearsay evidence, or an account of what persons de- 
 ceased have declared in their life-time; but such evidence will not be re- 
 ceived of any particular facts. t So, too, books of account, or shop-books 
 
 necessify of any oilier proof of the validity of itsorigin, or of its due exerulion. The court of kiiig'd 
 bench have delermine<l that the mere production of a parish certificate, dated ahove thirty years ago, 
 was sufficient to make it evidence, without giving any account of the custody from which it was ex- 
 tracted. 5 T. R. y.J9. Mr. Christian's note. See 2 Wash. 276. 
 
 * No rule of law is more frequently cited, and more generally misconceived, than this. It is certain- 
 ly true wiien rightly understood; but it is very liuuted in its extent and application. It signifies no- 
 diing more than that, if the liest legal evidence cannot be possibly produced, the next best legal evi- 
 dence shall be admitted. Evidence may be divided into primary and secondary ; and the secondary 
 evidence is as accurately defined by the law as the primary. But in general the want of better evi- 
 dence can never justify the admission of hearsay, interested witnesses, or the copies of copies, &c. 
 VVhere there are exceptions to general rules, these exceptions are as much recognized by the law as 
 the general rule: and where boundr.ries and limits are esliiblished by the law for every case that can 
 possibly occur, it is immaterial what we call the rule, and what the exception. — Mr. Clu-istian's note, 
 
 t It is a general rule that the mere recital of a fact, that is, the mere oral assertion or written entry 
 by an individual, that a particular fact is true, cannot be received in evidence. But the objection 
 does not apply to any public documents made under lawful authority, such as gazettes, proclamations, 
 public siirve>s, records, and other memorials of a similar description, or whenever the declaration or 
 entry is in itself a fact, ami is part of the tes gestae. Stark, on Evid. p. 1,4G, 7. But il is to be care- 
 fully observed, that neither the declaration, nor any other acts of those who are mere strangers, or 
 as it is usually termed, any res inter alias acta, is admissible in evidence against any one, as affording 
 a presumption against him in the way of admission, or otherwise, lb. 5], 
 
 In cases of customs and prescriptive rii;hts, hearsay or traditional evidence is not admitted until 
 some instances of the custom or exercise of the right claimed are first proved. The declarations of 
 parents lespecting their marriage, and the legitimacy of their children, are admitted after their de- 
 cease as evidence. And hearsay is also received respecting pedigrees and the death of relations 
 abroail. Bull. N. P. 294. 2 Esp.784. What lias lieen said in conversation in the hearing of any par- 
 ty, if not contradicted bj' him, may be given in evidence; for, not being denied, it amounts to a spe- 
 cies of confession. But it can only be received where it must be presumed to have been heard by the 
 party, and therefore, in one case, the court slopped the witness from repeating a conversation which 
 had passed in a room where the prisoner was, but at the time while she liad fainted away. It has 
 been the practice of the quarter-sessions to admit the declarations of paupers respecting their settle- 
 ments to be received as evidence after their death, or if living, where they could not be produced. See 
 3T. 11.707, where the judges of the king'sbench were divided upon ihe legality of this practice, and 
 where the subject of hearsay evidence is much discussed. For many years, whilst Lord Mansfield 
 presided in Ihe court of king's bench, the court were unanimously of opinion, that the declarations 
 of a pauper respecting his seiilcment might, after his death, be proved and given in evidence. VVhea 
 Lord Kenyon and another judge were introduced, the court were divided, and the former practice 
 prevailed; but when the court were entirely changed, lliey determined that this hearsay evidence 
 was not founded on any principles of law, anil that the evidence at the quarter-sessions in the cases 
 of settlement ought to be the same as that in all otiier courts, in the trials which could respectively be 
 brought before them. 2 East, 54 & G3. The court of king's bench has decided, that a father's de- 
 claration of the place of the birth of his son is not evidence after the father's death. 8 East, 539. 
 But it would not, probal)ly, lie difficult to prove that this is of the nature of pedigree, and ought to be 
 admitted, as the iaiher's declaration of the time of his son's birth, which has always been legal evi- 
 dence. Ill criminal cases, the declarations of a person, who relates in extremis, or under an appre- 
 liension of dying, the cause of his death, or any other material circumstance, maybe admitted in evi- 
 dence; for the mind in that awful state is presumed to be under as great a religious obligation to dis- 
 close tile truth, as is created by the administration of an oath. But declarations of a deceased per- 
 son ought not to be received, unless ihe court is satisfied, from the circuiustances of the case, that they 
 were made under the impression of approaching dissolution. Leach's Cases, 400. But the decla- 
 rations of a felon at the place of execution cannot be received, as he is incompetent to give evidence 
 upon oath ; and the situation of a dying man isonlv thought equivalent to that of a competent witness, 
 wJiea ha ia sworn. Ibid. 276. By the 1 & 2 Bli. "& Mar. c. 13, depositions taken before a justice of 
 
 VOL. 2—37
 
 290 OF EVIDENCE. [ BOOK 3. 
 
 are not allowed of themselves to be given in evidence for the owner ; but 
 a servant who made the entry may have recourse to them to refresh his 
 memory ; and if such servant (who was accustomed to make those entries) 
 be dead, and his hand be proved, the book may be read in evidence : for, 
 as tradesmen are often under a necessity of giving credit without any note 
 or writing, this is therefore, when accompanied with such other collateral 
 proofs of fairness and regularity, the best evidence that can be then produc- 
 ed. However, this dangerous species of evidence is not carried so far in 
 Eno-land as abroad ; where a man's own books of accounts, by a distortion 
 of the civil law, (which seems to have meant the same thing as is practised 
 with us,) with the suppletory oath of the merchant, amount at all times to 
 full proof. But as this kind of evidence, even thus regulated, would be 
 much too hard upon the buyer at any long distance of time, the statute 7 
 Jac. I, c. 12, (the penners of which seem to have imagined that the books 
 of themselves were evidence at common law,) confines this species of proof 
 to such transactions as have happened witliin one year before the action 
 brought; unless between merchant and merchant in the usual intercourse 
 of trade. For accounts of so recent a date, if erroneous, may be more easi- 
 ly unravelled and adjusted." This statute is not in force in Virginia. 
 
 " With regard to parol evidence, or vntnesses ; it must be remembered, 
 that there is a process to bring them in by writ of stibpcena ad testifican- 
 dum," which commands them to appear at the trial in the penalty of £100 
 for disobedience ; which penalty is, however, mere matter of form, as the 
 penalty for non-attendance is fixed at $16, besides the liability to the ac- 
 tion of the party grieved for damages. This stibpcena is placed in the hands 
 of an officer to execute ; or it may be executed by any private disinterest- 
 ed person; in which latter case, however, if it is designed to fine the wit- 
 ness, or to continue the cause for want of his attendance, the affidavit of 
 the person who served the summons will be necessary. If served by an 
 officer, his return (i. e. his endorsement of service) will suffice ; for as he 
 is sworn duly to execute his office, all his acts are done under the sanction 
 of an oath. The usual mode of proceeding against a witness who fails to 
 appear, thouo-h summoned, is by attachment for his contempt. See 1 R. C. 
 eh. 131, §4.^ 
 
 " AH witnesses, of whatever religion or country, that have the use of their 
 reason, are to be received and examined, except such as are infamous, or 
 such as are interested in the event of the cause. All others are competent 
 witnesses; though the jury from other circumstances will judge of their 
 credibility* Infiimous persons are such as may be challenged as jurors, 
 propter delictum ; and, therefore, never shall be admitted to give evidence 
 to inform that jury, with whom they were too scandalous to associate. In- 
 
 peace in cases of felony, may be read in evirlonce at the trial, if tlie witness dies liefore the tiial. But 
 as the statute confines this to felony, and as it is an innovation upon llie common l;i\v, it cannot be ex- 
 tended to any misdemeanor. 1 Salk. 281. ftlr. Christian's note. [See 1 Wash. l"-23. 2 Wash. 146. 
 4Mun.4:);3. 4Ran.611.J 
 
 *'l"heold rases upon the competency of witnesses have gone upon very subtle grounds. But of late 
 yerrs the court* have endeavored, as far as possible, consistent witli authorities, to let the objection 
 go lo ihe credit, rather than 10 the competency of a witness." Lord iMaiisfield, I T. K. 300. 
 
 It is now established, that if a witness does not immediately gain or lose by the event ol Ihe cause, 
 and il' the verdictt in the cause cannot be evidence cither for or against him in any other suit, he siiall ^ 
 \ie a<ln)inpd as a competent witness, thouiih the circumstances of the case may in some degree lessen 
 liis credibility- 3 '1'. K. 27. 'I'he interest n>usl be a present, certain, vested interest, and not uncer- 
 tain or coniingent ; Doug. 134. 1 T. K. ]G3. 1 P. Wins. 2o7; therefore, the iieir apparent is com- 
 petent in support of the claim of the ancestor, though the remainder-man, iiaving a vested interest, is 
 incompetent. Salk. 2ii3. Ld. Haym.724. A clerk of the company of wire-drawers is competent, in 
 an action against a pei son for acting as an assistant, although the verdict might cause the delendant 
 to be sworn, upon which the clerk would obtain a lee. See Stark, on Ev. p. 4, 74i) 
 
 A servant of a tradesman, from necessity, is permitted in an action by his master to prove the deli- 
 very of goods, though he himself may have purloined them; but in an action brought against the 
 master (or the negligence of his servant, the servant cannot be a witness (or liis master wilTiout a re- 
 lease; for his master may afterwards have his action against the servant, and the verdict recovered 
 against him may be given in evidence in that action to prove the damage which the master has sus- 
 tained. 4T.rv.5S9.
 
 CHAP. 17.] OF EVIDENCE. 291 
 
 terested witnesses may be examined upon a voir dire, if suspected to be 
 secretly concerned in the event ; or their interest may be proved in court. 
 Which last is the only method of supporting an objection to the former 
 class: for no man is to be examined to prove his own infamy.* And no 
 counsel, attorney, or other person, intrusted with the secrets of the cause 
 by the party himself, shall be compelled, or allowed, to give evidence of 
 such conversation or matters of privacy, as came to his knowledge by virtue 
 of such trust and confidence :t but he may be examined as to mere matters 
 of fact, as the execution of deed or the like, which might have come to his 
 knowledge without being intrusted in the cause. 
 
 " One witness (if credible) is sufficient evidence to a jury of any single 
 facts, though undoubtedly the concurrence of two or more corroborates the 
 proof. Yet our law considers that there are many transactions to which 
 only one person is privy ; and therefore does not always demand the testi- 
 mony of two, as (he civil law universally requires. 
 
 "Positive proof is always required, where from the nature of the case it 
 appears it might possibly have been had. But next to positive proof, cir- 
 cumstantial evidence or the doctrine of presumptions must take place; for 
 when the fact itself cannot be demonstratively evinced, that which comes 
 nearest to the proof of the fact is the proof of such circumstances as 
 either necessarily, or usually, attend such facts; and these are called pre- 
 sumptions, which are only to be relied upon till the contrary be actually 
 proved. Stabitur praesutnptioni donee probetur in co7Urarium. Violent pre- 
 sumption is many times equal to full proof; for there those circumstances 
 appear, which necessarily attend the fact. As if a landlord sues for rent 
 due at Michaelmas 1754, and the tenant cannot prove the payment, but pro- 
 duces an acquittance for rent due at a subsequent time, in full of all de- 
 mands, this is a violent presumption of his having paid the former rent, and 
 is equivalent to full proof; for though the actual payment is not proved, yet 
 the acquittance in full of all demands is proved, which could not be with- 
 out such payment ; and it therefore induces so forcible a presumption, that 
 ■no proof shall be admitted to the contrary.! Probable presumption, arising 
 
 *A witness may be examined witli regard to his own infamy, if the confession of it does not 
 suljject him to any liiture punislunent ; as a witness may be asked if he lias not stood in tiie pillory for 
 ■perjury; 4 T. R. 4411; but he cannot be entirely rejected as a witness without the production of the 
 record of conviction, by which he is rendered incompetent. 8 East, 77. Though it has been held, 
 in some oilier cases, that a witness is not bound to arisuer smc\\ questions. 4 Sl.Tri.748. ISalU. J53. 
 4 Esp. 225, 213. It is quite clear that a man-is not bound to answer any questions, either in a court of. 
 law or equity, which may tend to criminate himself, or which may render him liable to a penalty. 
 Sira.444. 3Taunt.424. 8 St. Tri. G. 6ib.649. 16 Ves. 242. 2Ld. Rajm. 1038. ftlitford's Ch. PI. ]5"7 
 As to questions which merely disgrace the witness, there is some difficulty. See Stark, on Ev. pt. 2, 
 J39. Still a witness is in no case legally iiicompeieiit to allege his own turpitude, or to give evidence 
 •which involves liisown infamy ; 2 Stark. Rep. 116. 8 East, 78. HEast,309; or impeaches his own so- 
 lemn acts; 5 M. & S. 244. 7 T. R. 604 ; unless he be rendered incompetent by a legal interest in the 
 event of the cause, or in the record. [See 3 Ran. 316.] It seems to be an universal rule, that a par- 
 ticeps criminis may be examined as a witness in both civil and criminal cases, provided he has not been 
 incapacitated by a conviction of crime. As a clerk who had laid out money which he had embez- 
 zled in illegal insurances, was held to be a competent witness for the master against the insurer. 
 Cowp. 197. So a man who has pretended to convey lands to another, mav prove that he had no title. 
 Ld. Riivm. 1008. A co-assignee ot a ship may prove that lie had no interest in the vessel. Cited in 
 1 T. R.301. The parents may give evidence to bastardize their issue, C T. R. 330, 331, or to prove 
 the legitimacy, ib. : though it is said the sole evidence of the mother, a married woman, sliall not be 
 sufficient to bastardize her child. B.R. H.79. 1 VVils. 310. Chilty. 
 
 t [Jut the principles and policy of this rule restrain it to that confidence only, which is placed in a 
 counsel on solicitor, and which must necessarily be inviolable, where the use of advocates and legal 
 assistants is admitted. But the purposes of public justice supersede the delicacy of every other spe- 
 cies of confidential communication. In the trial of the dwtchessof Kingston, it was determined that 
 a friend might be bound to disclose, if necessary, in a court of justice, secrets of the most sacred na- 
 ture which one sex could repose in the other. And that a surgeon was bound to communicate any 
 information whatever, which he was possessed of in consequence of his professional attendance. 11 
 St. Tr. 243, 246. [2 iMun. 1059. 4Mun. 273.J 
 
 t Presumptions are of three kinds: 1st. Legal presumption?, made by the law itself; 2dly. Legal 
 presumptions to be made by a jury, of law and fact; 3dly. Natural presumptions or presumptions of 
 mere fact. 
 
 1st. Legal presumptions are in some cases absolute, as that a bond or other specialty was executed 
 upon a good consideration, 4 Burr. 2225, so loug as the deed or bond remains unimpeacheu ; but it
 
 292 BILLS OF EXCEPTIOxV. [book 3. 
 
 from such circumstances as usualh/ attend the fact, liath also its due weight : 
 as if, in a suit for rent due in 1754, the tenant ])roves the payment of the 
 rent due in 1755: this nill prevail to exonerate the tenant, unless it be 
 clearly shown that the rent of 1754 was retained for some special reason, 
 or that there was some fraud or mistake : ibr otherwise it Avill be presumed 
 to have been paid before that in 1755, as it is most usual to receive the first 
 rents of longest standing. Light or rash presumptions have no weight or 
 validity at all.* 
 
 "The oath administered to the witness is not only that what he deposes 
 shall be true, but that he shall also depose the whole truth : so that he is 
 not to conceal any part of what he knows, whether interrogated particu- 
 larly to that point or not. And all this evidence is to be given in open 
 court, in the presence of the parties, their attorneys, the counsel, and all 
 by-standers, and before the judge and jury : each party having liberty to 
 except to its competency, which exceptions are publicly stated, and by the 
 judge are openly and publicly allowed or disallowed, in the face of the 
 country: which must curb any secret bias or partiality that might arise in 
 his own breast. t And if, either in his directions or decisions, he misstates 
 the law by ignorance, inadvertance, or design, the counsel on either side 
 may require him publicly to seal a bill of exceptions ; stating the point 
 wherein he is supposed to err; and this he is obliged to seal by statute, [1 
 R. C. ch. 133,] or, if he refuses so to do, the party may have a compulsory 
 writ against him, commanding him to seal it, if the fact alleged be truly 
 stated : and if he returns, that the fact is untruly stated, when the case is 
 otherwise, an action will lie against him for making a false return. This 
 bill of exceptions is in the nature of an appeal ; examinable, not in the 
 court in which the trial takes place, but in the next immediate superior 
 court upon a writ of error, appeal, or supersedeas, as the case may be." 
 
 The law having entrusted to the courts the administration of justice, it is 
 ahvays presumed that every tribunal by whom a cause has been tried has 
 done what was right, unless the contrary apjjcars upon the records of its 
 proceeding; nor unless this does appear, will any appellate court reverse or 
 interfere with the decision of an inferior tribunal. jSfow the pleadings and 
 
 may be impeached on tlie ground of fraud, and tlien tlie consideration becomrs (lie subject of in- 
 quiry. But iu the case of bills of exchange, the presuinplion that it was accepted for a good consi- 
 deration, may bfi rebutted by evidence. So wliere a fine has been levied, it will be implied that U 
 jiasbeen levied with proclamations, a Co. 86, b. unless lebutted, Bui. N. P. 229, and some other like 
 instances; but the presumption in favourof innocence is, il has been held, too strong lo be overcome 
 by an artificial intendment of law. 2 B. &, A. 386. 2dly. Presumptions of law and fact, as that ad- 
 verse enjoyment unqesiioned for twenty years, of an incorporeal hereditamenl, presumes a grant; 
 that a bond has been saiisfied upon whicli no isiierest has been paid, nor oilier acknowledgement 
 made of its existence for a like period ; 2 Stra. G26. 2 Ld. Rayiri. 1370 ; that there has been a con- 
 version in the case of trover, where the defendant refuses to deliver them up. 3d. JNatiiral pre- 
 sumptions. It is the peculiar province of the jury to deal with presumptions of this class; yet v. here 
 the particular facts are inseparably connected according to the usual course of nature, ilie courts 
 themselves will draw the inference, as when a child has been born within a few weeks after the ac- 
 cess of the liusband, ils bastardy will be inferred wilhoul Ihe aid of a jury. 8 East, 193. All Ciises 
 of circumstanlial evidence may be more or less williin this class. Aiul it is obvious that the case 
 put in the text belongs to that division upon which Mr. Clirisiian has made the following remark : 
 
 "Tliis can scarcely be correct: I should conceive that proof may be admitted to repel all pre- 
 sumptions whatever, and even if a receipt should be produced expressly for llierent of (he year 1754, 
 Slill the landlord might sl.cw that it hail been obtained by mistake or fraud, and that no rent had been 
 received at ilie lime." In a case of a similar nature tried before Abboit, C. J. at Guildhall, A. D. 
 J824, the landlord adduced evidence to shew the mitslake, and recovered. 
 
 "It is difficult to Bay what ie a light and rash presumption, if it is any presumption at all. .\ny cir- 
 ciimslance may be proved from which a fair iufcrence can be drawn, though alone il would be too 
 Blight lo support the verdict of the jury, yet it may cormborate other testimonv, and a number of 
 such presiimplions may become of importance. Possimt diversa genera iti conjimgi, nt qucjc singula 
 non nocereril, ea wiiversa la/iguam gramio reiim opprimauC. Matheus de Cr\m.— Chi islian. 
 
 t Matter appearing at the trial can only be made part of the record by bill of cxceplions, or corti- 
 firate of ihe jiidije. That of the clerk ihata paper was read in evidence does not make it part of 
 the record. 4 Kan. IfK. Depositions put into ihe record are not to be presumed to have been read 
 uiilesj It PO appear? by bill of excepiioni, or a rertificaie of lh« judge upon the record. Bowyor v$. 
 Chwnut, 3 Leigh. 6ee Hale'ij index, (ilk forlhconiins bonds.
 
 CHAP. 17.] BILLS OF EXCEPTION. 293 
 
 judgment of the court being all reduced to writing, any error which may 
 have been committed in them may of course be detected. But there is 
 much that takes place on the trial which may be injurious to the party, and 
 ■which would not appear in the record unless some provision of the law re- 
 quired it. Thus if the judge of the inferior court permitted the introduc- 
 tion of improper evidence, or gave the jury incorrect instructions as to the 
 law, the evil would be without redress, but for the remedy afi'orded by a bill 
 of exceptions. This is in fact nothing but a certificate of the judge that 
 certain things were permitted, or opinions given, or instructions refused, 
 upon the trial of the cause, by which the ])arty considered himself ag- 
 grieved, for which reason he excepted (or objected) and prayed his excep- 
 tions to be signed, sealed, and enrolled, in pinsuance of which prayer they 
 were signed, sealed, and enrolled accordingly ; i. e. ordered to be made a 
 part of the record. Thus the appellate court sees what took place on the 
 trial, and if there was error corrects it accordingly. 
 
 Where a party excepts to the opinion of the court, the bill of exceptions 
 is usually prepared and tendered by the counsel. Some nicety is required 
 herein, and practice alone can enable him to acquire the necessary dexte- 
 rity in drawing these instruments. A k\v principles ought to be particular- 
 ly attended to. 
 
 1. As courts set to decide causes and not merely to moot points of law, 
 no court is bound to give opinions or instructions upon general and abstract 
 propositions. It is therefore essential, in drawing a bill of exceptions, that 
 it should shew that the matter of exceptions was material, and connected 
 with the cause. 1 Cranch, 309. 2 H. & M. S63. 4 H. & M. 82. 3 Mun. 
 191. 4 Ran. 600. 5 Ran. 31. 
 
 2. As the decision of the court below is presumed to be correct unless 
 the contrary appears, the bill of exceptions should omit nothing which is 
 necessary to show conclusively that it has erred.* See 1 Call, 28. 4 Ran. 
 317. Hence in all motions the facts must be fully spread upon the bill of 
 exceptions, if the party excepts to the opinion of the court upon the 
 merits. 
 
 3. The facts of the case on which the exception is founded should be ful- 
 ly and clearly stated; for if the case be so imperfectly stated as that the ap- 
 pellate court cannot see how it should be decided, the judgment will be re- 
 versed and a new trial awarded ; 1 Call, 105, 215. 2 Mun. 254. 4 Mun. 
 373. 1 Leigh, 483. 3 Ran. 106. 2 Leigh, 321 ; and this upon the same 
 principle that a repleader is awarded, where a verdict has been found, upon 
 an immaterial issue, or a venire de novo directed upon an imperfect special 
 verdict. And although the imperfect bill of exceptions be tendered by the 
 party who failed upon the trial and who appeals, yet will judgment of re- 
 versal be rendered ; 3 Call, 194 ; so that it is the interest of the successful 
 party, as well as of him who excepts, to see that it does not state the facts 
 imperfectly. 
 
 4. The court not being bound to instruct the jury on the truth of the tes- 
 timony, since that involves the question of the credibility of the witnesses, 
 upon which it is the exclusive province of the jury to decide, a bill of ex- 
 ceptions should never be drawn in terms which would seem to imply that 
 
 ^n instruction had been asked as to the weight of evidence. It should be 
 drawn hypothetically, "if the jury believe that such facts are proved, then 
 that the law is," &c. ; thus leaving the matter of fact to the proper tribunal 
 for its decision. See 1 Wash. 203. 5 Mun. 199. 4 Cranch, 71. See 4 
 Ran. 256. 
 
 *A defective bill of exceptions cannot be aided by another bill of exceptiona filed in th« cauw. 
 Crawford vs. J arret, 2 Leigh.
 
 294 DEMURRER TO EVIDENCE. [ book 3. 
 
 5. The bill cf exceptions should be drawn and tendered before the jury 
 retire from the bar, though it may be drawn up more formally afterwards. 
 1 Salkeld, [238.] Controversy and uncertainty as to what actually occur- 
 red is thus avoided. 
 
 6. Where the exception is taken to the opinion of the court refusing a 
 new trial, which was moved for on the ground that the verdict was against 
 evidence, the facts appearing to the court to be proved, and not the evidence 
 of those facts, should be stated. 6 Mun. 131. 6 Mun. 18. 1 Leigh, 287, 
 340. 2 Leigh, 337. 3 Leigh, 196. And this upon the presumption ihat 
 the court which hears the trial of the cause and the examination of the 
 witnesses, is best qualified to pronounce what facts the evidence establishes. 
 It should however appear upon the bill of exceptions that the facts stated 
 were all that were proved in the cause. 
 
 7. Where the exception is upon the ground that the court rejected testi- 
 mony which was offered, it is sufficient that the bill should state that the 
 testimony teas offered ; but where the opinion of the court is asked upon 
 .facts given in the cause, it should be stated that the party gave in evidence, 
 &.C., not merely that he offered to give such evidence, &,c. 
 
 8. A bill of exceptions ought to be sealed by a majority of the court at 
 least. 3 H. St M. 219, 224. In the county courts, the same court that 
 ;tries the cause ought to sign and seal the exceptions. 
 
 9. It is important to understand in what cases the bill of exceptions is 
 rthe proper remedy. If the party deems the evidence incompetent or im- 
 jDroper, he excepts to its admission ; — but if he believes it inadequate to 
 -make out his adversary's case, he may either demur to it as insufficient, or 
 'move the court to instruct the jury, and except to its opinion if it refuses to 
 .instruct, (2 Wash. 255. 4 Cr. 71,) or gives an improper instruction ; or 
 he may waive those remedies, and go on to trial before the jury. 
 
 10. In like manner, where the declaration is defective, the proper man- 
 ner is to demur to it, or to move in arrest of judgment. He cannot except 
 to the introduction of evidence which is applicable to the declaration, how- 
 ever erroneous the declaration may be in the matter to which the evidence 
 applies. 2 Call, 530. 4 Mun. 444. G Mun. 271. 
 
 11. A bill of exceptions can never have the effect of a demurrer to evi- 
 dence. 1 Wash. 361. 
 
 12. Lastly: It is said in one book that a demurrer to evidence is a waiv- 
 er of a bill of exceptions ; 1 H. & M. 01 ; but this being the dictum of a 
 single judge, cannoi, I conceive, establish the position as law. There 
 seems to me no assignable reason why the demurrer should be deemed a 
 waiver of the exception, more than the proceeding with the trial before 
 the jury. In both cases the party takes two chances of success. Nor does 
 it appear unreasonable that the demurrant should deny the weight of the 
 evidence, after he had objected to its admissibility. If it be either incom- 
 petent or insufficient, it is unjust that he should be charged. It is there- 
 fore right that he should be permitted to contest it in both aspects, and not 
 reasonable to presume that he waives the one because he resorts to the 
 other. 
 
 When a cause is carried to a superior court upon a bill of exceptions, it 
 is our practice to look into the whole record, and if there be error, to re-^ 
 verse tlie judgment for that error, though the court may not have erred in 
 the matter excepted to. 4 H. & M. 200. See 1 Call, 257. 
 
 It appears to be an unsettled question whether the court of appeals has 
 the power of coercing a judge of an inferior court to seal and allow a bill of 
 exceptions regularly tendered and containing the truth of the case. 2 Mun. 
 478. In England a "compulsory writ" lies against the justices, as has been 
 said before ; and this, it seems, issues cut of chancery, and is awarded by
 
 CHAP. 17] DEMURRER TO EVIDENCE. 295 
 
 the chancellor upon petition. See 1 Sch. & Lef. 75, 79- Our law has no 
 such provision, but merely commands that the judges shall seal the bill if 
 tendered. Quare, however, if a mandamus would not lie. 
 
 As to billsof exceptions see Tidd's Practice, 785, Sec. 1 Leigh, 86, 216, 
 287, 340, 483, 598. 
 
 A demurrer to evidence, instead of being carried like a bill of exceptions 
 at once before a superior court, is always in the first instance decided by 
 the court in which the suit is tried. " This happens where a record or 
 other matter is produced in evidence, concerning the legal consetjuences of 
 which there arises a doubt in law : in which case the adverse party may, if 
 he pleases, demur to the whole evidence; which admits the truth (>f every 
 fact that has been alleged, but denies the sufficiency of them all, in point 
 of law, to maintain or overthrow the issue : which draws the question of 
 law from the cognizance of the jury, to be decided (as it ought) by the 
 court." 
 
 In the distribution of the duties of courts and juries, it has been firmly 
 established that it is the province of the court to pronounce upon matters 
 of law, and of the jury to decide upon questions of fact. "Ad (jiicEstiones 
 facti respondent juratores.'' When the parties, however, go to trial of the 
 matter in dispute between them, questions of law and fact are very often: 
 mingled together. Thus upon the trial of a plea to an action upon a bondi 
 that it was delivered as an escrow, if a witness deposes that he saw the de- 
 fendant deliver the bond to the plaintiff himself, to have the effect of a bond, 
 upon a certain condition being performed, two questions are presented; 
 first, the question of fact, " whether the fact testified by the witness is true:" 
 second, the question of law, " whether such a delivery was a delivery of the 
 bond as an escrow." If then the plaintiff fears that the jury may mistake 
 the law of the case, he may move the court to instruct the jury that although 
 they should believe the witness, the fact proved by him did not amount to a 
 delivery as an escrow, but was an absolute delivery, as it was made to him- 
 self and not to a third person; and if the court refuses so to instruct the 
 jury, or gives the contrary instruction, the plaintiff may except to the opin- 
 ion, and file his bill of exceptions ; for he has a right to the opinion of the 
 court upon the matter of law which it is the peculiar province of the court 
 to decide. So the defendant, on his part, may demand the instruction of 
 the court that the facts proved only establish a delivery of the bond as an 
 escrow, and except if the instruction is refused. 
 
 But the law has devised other means for withdrawing the question of law 
 from the jury, who in complicated cases are sometimes embarrassed, and 
 misapply the instruction of the court, however plainly it may be given. 
 One of these modes is a demurrer to evidence. See Doug. 114. This is 
 strongly analagous to a demurrer in pleading. In the latter, the party de- 
 murring admits, as we have seen, the facts alleged by his adversary. In 
 the former, he admits every fact and conclusion which the testimony in 
 the cause may conduce to prove on the pari of his adversary. 2" Call, 588. 
 The reason of this is not only that upon principles of fair argument the 
 party who contests the law of the case, or the weight of the evidence, 
 must of course admit its truth, but also that by the dumurrer he withdraws 
 from the jury the trial of the facts, which it is their province to determine. 
 His adversary then having a right to the trial of the facts by the jury, the 
 law requires the demurrant to admit every fact that may fairly be inferred 
 from the evidence, as he does not think proper to suffer the cause to go 
 before the jury for their decision. 
 
 In a demurrer to evidence, the party demurring states what has been 
 proved in the cause, and concludes with alleging that it is not good and 
 sufficient ugiter to maintain the issue joined on the part of his adversary,. 

 
 296 DEMURRER TO EVIDENCE. [book 3. 
 
 &c., wherefore he demurs thereto in law, and for want of sufficient matter 
 in that behalf he prays judgment, &,c. The other party then joins in de- 
 murrer, alleging that the matter shewn in evidence is good and sufficient to 
 maintain the issue on his part, 8cc. ; and thereupon, the jury find a verdict 
 aorainst the demurrant, subject to the opinion of tlic court upon the demur- 
 rer to evidence filed in the cause. See the form of the demurrer. Bull. N. 
 P. 31-1. It there appears that in England the jury is discharged when the 
 demurrer to evidence is joined. This is by no means universally the case : 
 for where the defendant demurs, tiie damages may be assessed conditional- 
 ly. The most usual course, however, in England, where there is a demur- 
 rer to evidence, is to discharge the jury without farther inquiry ; and if 
 judgment is afterwards rendered for the plaintiflT on the demurrer, a writ of 
 inquiry is then awarded. Tidd's Practice, (r23, 795, 916, The other prac- 
 tice is most usual with us, though cases may occur in which it would be 
 inconvenient. In such cases I have known the English practice pursued. 
 An unconditional verdict is, however, not erroneous, provided the demur- 
 rer be afterwards determined by the court. 1 H. & M. 54. 
 
 The demurrer to evidence is not in all cases proper, and there seems to 
 be some difficulty in drawing the precise line between those cases in which 
 it is admissible, and those in which it is not so. It seems to be agreed that 
 if the evidence offered consist only of a record, or other matter in writing, 
 the adverse party may insist on demurring to the evidence, and the party 
 otfering it must either join in demurrer or waive the evidence. And the 
 reason is, that there cannot be any variance of matter in writing. So where 
 the evidence is by parol, it has been said that if it be certain and determi- 
 nate, the party may demur, and oblige his adversary to join in demurrer. 
 Where, however, it is loose, indeterminate, and circumstantial, it is other- 
 wise. In such cases, the party offering the evidence will not be compel- 
 led to join in demurrer, unless, (where the testimony is loose and indeter- 
 minate,) the demurrant admits the evidence of the fact, or where it is cir- 
 cumstantial, unless he distinctly admits upon the record every fact and eve- 
 ry conclusion which the evidence conduces to prove. He may, however, 
 join in the demurrer, and then every fact is to be considered as admitted 
 wliich the jury could infer in his favor from the evidence demurred to. 2 
 H, B. 167. Tidd, 793, 794. These doctrines are cited with seeming ap- 
 probation by Coalter J. 6 Mun. '3'26. They have not, however, as yet 
 been adopted in extenso in our courts; yet the principle has been affirmed 
 that the party offering the evidence shall not be compelled to join in de- 
 murrer where the evidence consists of parol testimony that is loose, inde- 
 terminate and circumstantial, unless he will distinctly admit every fact and 
 conclusion which such evidence or circumstances conduce to prove : per 
 Roane J, 2 Call, 588, 589, 7 Cranch, 508, In like manner, it is said 
 that the demurrant cannot compel his adversary to join where he offers con- 
 tradictory evidence, or attempts to establish " inconsistent propositions," 
 and thus, so far from admitting, in fact denies the truth of that evidence 
 which his opponent has offered. 7 Cranch, 368, I Mun, 22, 37, It must 
 be confessed, however, that the practice of such distinct admission upon 
 tlie record has not obtained among us, and the ordinary course is to con- 
 sider that as the effect and construction of the demurrer without any distinct 
 admission. See 1 Mun. 29, 
 
 If the evidence set forth in the demurrer tendered by the defendant, shews 
 that the plaintiff ouglit to recover, the appellate court ought not to reverse 
 the judgment of the court below, because it refused to compel the plaintiff 
 to join in demurrer ; — a step which always tends to delay him, in the reco- 
 very of hia demand. 4 Ran. 352.
 
 CHAP. 17.] DEMURRER TO EVIDENCE. 297 
 
 In every demurrer to evidence, the evidence on bofli sides is, by the well 
 established practice of our courts, required to be inserted. 2 Call, 555, 
 574. 4 Ran. 400. 5 Ran. 1. The party who offers it, alleges that the 
 evidence thus exhibited is not good and sufficient in law to support the is- 
 sue joined on the part of his adversary, who on his part joins in the de- 
 murrer if he pleases, or is ruled to do so, by averring that it is good and suf- 
 ficient in law to maintain the issue joined ou his part, or in other words 
 that it is sufficient to support his action or delence, as the case may be. 
 
 The party offering the evidence, however, may waive an objection which 
 he might justly urge to being compelled to join in demurrer. And when he 
 joins the demurrer, every fact is to be considered as distinctly admitted 
 which the evidence would conduce to prove in his favour ; Tidd, 794; or, 
 as it is elsewhere expressed, the court will presume in favour of the party 
 offering the evidence, any and every fact which the jury might have inferred 
 from the testimony in question. But those conclusions must be such as 
 would result from a just and reasonable construction, and not from arbitra- 
 ry inferences. 2 Wash. 203. 1 John. 241. 4 Cranch, 219. 5 Ran. 1. 
 
 Thus far the doctrine is intelligible enough, in those cases where there is 
 no contradictory testimony, and a demurrer is joined between the parties. 
 But where there is contradictory testimony, and the demurrer is joined, 
 some difficulty arises from the decision that all the testimony on both sides 
 ought to be inserted. 2 Call, 555, 574. The difficulty may perhaps be 
 solved by the very recent decision in Green vs. Judith, 5 Ran. 1. In this 
 case the court of appeals not only reiterate the position that the evidence 
 on both sides should be inserted in the demurrer, but they say that the de- 
 murrant must be considered as admitting all that can reasonably be inferred 
 by a jury from the evidence given by the other party ; and as waiving all 
 the evidence on his part which contradicts that offered by his adversary, or 
 the credit of which is impeached ; and as waiving also all inferences from 
 his own evidence, which do not necessarily flow from it. See .3 Leigh, 147. 
 Hence it would seem that the party demurring may have the benefit of his 
 testimony, if it be clear and uncontroverted ; and as the demurrant may 
 also choose to rely on it, there seems to be good reason for requiring the 
 insertion of the whole, subject to the qualifications imposed by the rule or 
 principle first quoted. 
 
 If a demurrer to evidence be tendered in a clear case, the court may for 
 that cause refuse to compel the other party to join in it : 1 Wash. 220. 5 
 Mun. 24. 4 Cranch, 398: for it is a matter within the discretion of the court, 
 according to the circumstances. 7 Cranch, 568. 1 Mun. 35, 36. But the 
 appellate tribunal always inquires whether that discretion has been soundly 
 exercised ; and if not, it will reverse the proceedings accordingly. 1 Mun. 
 36. Hence, whenever a party tenders a demurrer to evidence, and the 
 court refuses to compel the other party to join, the demurrant may except 
 to the opinion of the court, and spread the facts in that way upon the re- 
 cord. 
 
 It is obvious, from what has been said, that a demurrer to evidence is a 
 proceeding sometimes very hazardous to the demurrant, who, as we have 
 seen, is considered as admitting the truth of the testimony against him, and 
 sometimes as waiving his own. It requires also much circumspection on 
 the part of his adversary : for as the demurrer is joined on the sufficiency 
 of the facts proved to maintain the issue on his part, it behoves him to take 
 care that nothing is omitted which is necessary to make out his case. He 
 must therefore have a clear conception of the essentials necessary to sup- 
 port his right of action or his defence, and should be very wary as to the 
 language introduced into the demurrer. For if he fails to make out his 
 case, the court cannot merely for that cause set aside the demurrer and 
 VOL. 2—38
 
 2^8 EVIDE^cr. [book 3. 
 
 grant a new trial ; for if it does, and he obtains a verdict on a subsequent 
 trial, the appellate court will reverse the judgment and enter it for the de- 
 murrant. 2 Call, '241. It must be observed, however, that the whole ope- 
 ration of conducting a demurrer to evidence is, and ought to be, under the 
 direction and control of the court before which the trial lakes place ; 2 H. 
 B. 208 ; and notes of the testimony regularly should be taken under its 
 superintendence. BuUer's N. P. 313. 5 Bac. 468. And if through mis- 
 take or other causes a material fact is omitted, which the court judicially 
 knows to have been proved, the demurrer ought to be amended for the sake 
 of justice, and because the error is in part that of the court which super- 
 intends the trial, and whose privilege and duty it is always to correct its own 
 errors. G Mun. 322. I presume, also, that it is in the power of the court 
 at any time before judgment to grant a new trial, and set aside the verdict 
 and demurrer, on the ground of surprise, or for any reason which would 
 justify the award of a new trial after a verdict on the merits. Though it 
 Iras lately been decided that if a party finds out after a demurrer to evidence 
 that he ought not to have demurred, but should have left his cause to the 
 jury, the court ought not to award a venire de novo. 5 Ran. 1. 
 
 The reason of demurring to evidence is, as has been said, to afford the 
 party a mean of bringing the matter of law before the court. It is some- 
 times the most convenient form in which this can be done, and it is pecu- 
 liarly necessary where there js reason to suppose the jury may refuse to 
 find a special verdict. This they have the power of doing, though they 
 have not a moral right in a civil case to disobey the instructio» of the court 
 directing them to find specialty. 
 
 On the trial of a demurrer to evidence no objection can be taken to the 
 pleadings. Doug. 218. For the question is not whether the pleadings are 
 good, but whether the evidence maintains and supports them such as they 
 are. See Tidd. 71)2. But after the court has pronounced its opinion that 
 the evidence is sufficient to maintain the issue, the demurrant may then 
 move in arrest of judgment. For the opinion pronounced by the court 
 places the cause exactly in the situation in which it would have been, had 
 there been an unconditional verdict. See Doug. 218, 224. 
 
 " As to such evidence as the jury may have in their own consciences, by 
 their private knowledge of facts, it was an ancient doctrine, that this had as 
 mucii right to sway their judgment as the written or parol evidence which 
 is delivered in court. And therefore, it hath been ofien held, that though 
 no proofs be produced on cither side, yet the jury might bring in a verdict. 
 For the oath of the jurors, to find according to their evidence, was con- 
 strued to be, to do it according to the best of their own knowledge." But 
 this doctrine has not only been gradually exploded in England, but is repu- 
 diated by an express legislative provision with us. It declares that jurors 
 knowing any thing relative to the point in issue shall disclose the same in 
 open court. 1 R. C. ch. 75, § 14. They are thereupon sworn to give evi- 
 dence, and are examined and cross-examined as any other witness. 
 
 It has been already remarked, that he who has the affirmative in issue, is 
 first called on and entitled to introduce his testimony. Where the testimo- 
 ny produced is a witness, he first makes a statement of his knowledge of 
 the matter in question, and is then asked such questions by the counsel of 
 the parly calling him, as may be calculated to elicit some fact which may 
 liave escaped his reeollcction in his general detail. When this examina- 
 tion is finished on that side, the i)arty against whom he is introduced is en- 
 tilled to cross-examine him ; and it is irregular and improper, that either 
 party should interrupt or interlcrc with his adversary, while he is engaged 
 in the examination ; — unlcs, indeed, some objection is to be made, which 
 s-hould then be regularly brought before the court for its deci&ion, in order
 
 CHAI>. 17.] VERDICT. 299 
 
 to avoid the confusion and indecorous wrangling which inevitably enaues 
 from a contrary course. 
 
 The jury, after the evidence and arguments are closed, unless the case 
 be very clear, withdraw from the bar to consider of their verdict. In Vir- 
 ginia, the judge does not proceed to sum up the evidence, as is usual in Entr- 
 land, and in some of our sister states ; a course which would probably be 
 deemed with us an invasion of the privileges of the jury trial. In order 
 to avoid intemperance and causeless delay, the jury are confined to a. sepa- 
 rate room or apartment, and according to the ancient practice, were to be 
 kept without meat, d^-ink, fire or candle, until they were unanimously agreed 
 in their verdict; for unanimity is required by our law. And even now, 
 though pending a long trial, the jury may be adjourned, and may even se- 
 parate in civil cases before they retire to consult of their verdict, yet after- 
 wards they cannot unless by consent. 2 Bar. & Aid. 46-2. And, moreover, 
 when kept together by the officer of the court, though by the permission of 
 the judge they are allowed every necessary and comfort, yet every due pre- 
 caution is taken to prevent any excess or improper indulgence. If, indeed, 
 the jurors eat and drank at the charge of one of the parties only, a verdict 
 in his favor will be set aside, though the modern cases evince greater libe- 
 rality, wliere no corruption or secret tampering appears. 4 H. & M. 1. 
 So, too, conversations with either party in relation to the matter in issue, 
 after they have retired from the bar, or receiving fresh evidence in pri- 
 vate, or casting lots for whom they shall find, are good causes for vacating 
 verdicts ; but ascertaining the damages, by each finding an amount of da- 
 mages, and then adding up the several amounts and dividing by twelve, 
 seems not to be so considered, (2 Dall. 55. 1 Mass. Rep. 54.3. Wilson's 
 Bacon,) provided they afterwards agree to the sum thus ascertained. I 
 Ran. 39. 
 
 When the jurors do not agree, a juror is sometimes withdrawn by con- 
 sent ; otherwise they continue impannelled until the rising of the court, 
 and are then discharged ; the old notion of carrying them about in a cart 
 having been long since exploded. 
 
 " When they are all unanimously agreed, the jury return back to the bar ; 
 and, before they deliver tlieir verdict, the plaintiff is bound to appear in 
 -court, by himself, attorney, or counsel, in order to answer the amercement; 
 to which by the old law he is liable, as has been formerly mentioned, in 
 case he I'ails in his suit, as a punishment for his false claim. To be amerc- 
 ed or amercie, is to be at the king's mercy with regard to the fine to be im- 
 posed ; in miserioordia domini regis pro falso clamore suo. The amerce- 
 ment is disused, but the form still continues ; and if the plaintiff does not 
 appear, no verdict can be given, but the plaintiff is said to be non-suit, non- 
 sequitur clamorem suum. Therefore, it is usual for a plaintiff, when he or his 
 counsel perceives that he has not given evidence sufficient to maintain his 
 issue, to be voluntarily nonsuited, or withdraw himself: whereupon the 
 crier is ordered to call the plaintiff : and if neither he, nor any body for him, 
 appears, he is nonsuited, the jurors are discharged, the action is at an 
 end, and the defendant shall recover his costs. The reason of this prac- 
 tice is, that a nonsuit is more eligible for the plaintiff, than a verdict against 
 him : for after a nonsuit, which is only a default, he may commence the 
 same suit again for the same cause of action ; but after a verdict had, and 
 judgment consequent thereupon, he is for ever barred from attacking the 
 defendant upon the same ground of complaint." 
 
 And by our law it is expressly provided, that the plaintiff shall not be 
 permitted to suffer a nonsuit, after liie jury retire from the bar. 1 R. C. ch. 
 128, § 95.
 
 300 VERDICT. [book 3. 
 
 " A verdict, rcrediclum, is either privy or puhlir. A privy verdict is 
 when the judge hath left (-r adjourned the court : and the jury, being 
 agreed, in order to be delivered from their confinement, obtain leave to give 
 their verdict privily to the judge out of court ; which privy verdict is of no 
 force, unless afterwards affirmed by a public verdict given openly in court; 
 wherein the jury may, if they please, vary from the privy verdict. So that 
 the privy verdict is indeed a mere nullity ; and yet it is a dangerous prac- 
 tice, allowing time for the parties to tamper with the jury, and, therefore, 
 very seldom indulged : [nevertheless it has been decided that the parties to 
 a cause may agree that the jury may render a privy verdict to the clerk in 
 the office : 1 Call, 24H : a fortiori, to the judge at his chambers : and this 
 has become a very common practice.] But the only effectual and legal 
 verdict is the public verdict : in which they openly declare to have found 
 the issue for the plaintiff, or for the defendant ; and if for the plaintiff, they 
 assess the damages also sustained by the plaintiff, in consequence of the 
 injury upon which the action is brought. 
 
 "Sometimes, if there arises in the case any difficult matter of law, the 
 jury, for the sake of better information, will find a special verdict; which is 
 grounded on the statute of Westm. 2, 13 Edw. 1 c. 30, c. 30, § 2. And 
 herein they state the naked facts, as they find them to be proved, and pray 
 the advice of the court thereon : concluding conditionally, that if upon the 
 whole matter the court should be of opinion that the plaintiff had cause of 
 action, they then find for the plaintiff; if otherwise, then for the defendant. 
 This is entered at length on the record and afterwards argued and deter- 
 mined by ihe court." As to imperfect special verdict, see 4 Ran. 504. 
 2 Mason, 31. 
 
 Another method of finding a species of special verdict, is when the jury 
 find a verdict generally for the plaintiff, but subject nevertheless to the 
 opinion of the judge, on a special case stated by the counsel on both sides, 
 setting forth the facts and submitting the law arising upon them to the de- 
 cision of the court. Sometimes the counsel on both sides make up a case 
 agreed, in which the facts agreed upon are stated, and it is further agreed 
 that judgment for the one or other party shall be entered, according as the 
 court may be of opinion, that upon the whole matter the law of the case 
 is either for the plaintiff or defendant. But in the two former cases, the 
 jury may, if they think proper, take upon themselves to determine, at their 
 own hazard, the complicated question of fact and law; and, without either 
 special verdict or special case, may find a verdict absolutely either for the 
 plaintiff or defendant; yet in civil cases it is certainly their duty to find a 
 special verdict when so directed, and if they refuse, the court would assu- 
 redly grant a new trial, which is the modern substitute for the old common 
 law attaint. 
 
 When the jury have delivered their verdict, and it is duly recorded, they 
 are then discharged, and thus terminates the trial by jury. 
 
 It remains for me, however, to subjoin to what has been said some 
 notice of certain provisions of our law in relation to the depositions of wit- 
 nesses. 
 
 Upon turning to Mr. Blackstone's work, the student will perceive, that 
 after passing a highly wrought culogium upon the system of jury trial as it 
 at present exists in England, he frankly concludes by pointing out some of 
 the defects which attend it. Among these, is the want of compulsive pow- 
 er for the production of books and j)apers in the hands of the parties, and 
 of a provision for taking the depositions of witnesses resident abroad, whose 
 attendance at the trial cannot for that reason be enforced. For the first of 
 these defects our statutes have indeed afforded no remedy ; though the 
 modern practice of our courts has in some measure supplied it. For where
 
 CHAP. 18.] OP JUDGMENT. 301 
 
 one party is in possession of papers or any species of written evidence ma- 
 terial to the other, if notice is given him to produce them at the trial, upon 
 his refusal copies of them will be admitted ; or if no copy has been made, 
 parol evidence of their contents will be received. The court and jury pre- 
 sume in favor of such evidence ; because, if it were not agreeable to the 
 strict truth, it would be corrected by the production of the originals. 2 T. 
 R. 201. If it appears that the party or his counsel have the paper in their 
 possession in court, at the time of the trial, no notice is necessary, for the 
 object of the notice is merely to warn the party to produce the paper, if he 
 does not choose to admit the secondary evidence. Material changes have 
 been made as to these matters by the judiciary act of 1830. 
 
 But in relation to depositions of witnesses, our acts of assembly have 
 been studiously particular. 1 R. C. ch. 131. Whether a witness be a 
 judge, or other officer of government, whose attendance cannot on account 
 of his official duties be procured ; or a resident beyond the sea, or without 
 the limits of the commonwealth, so that his attendance cannot be enforced, 
 commissions may be awarded the party who desires the benefit of his evi- 
 dence, for the purpose of taking his deposition ; which, when taken, may 
 be read as evidence in the cause, provided due notice of the time and place 
 of taking it has been given to the adverse party, and the directions of the 
 act having been otherwise duly complied with. In like manner, if the claim 
 or defence, (as the case may be,) or a material part thereof, depends in the 
 estimation of a party on the testimony of a single witness, or on the testi- 
 mony of a witness who is about to depart the country, or who by age, sick- 
 ness, or otherwise, may be unable to attend the trial, upon affidavit thereof 
 a commission may be awarded the party to take the deposition of such wit- 
 ness. But in these last mentioned cases the depositions are taken only de 
 bene esse, (as it is called — a phrase defying translation into English,) and 
 can only be read as evidence at the trial, in case the witness should be un- 
 able to attend ; which inability, upon offering the deposition as evidence, 
 the party should be prepared to prove, together with the fact that he has 
 been duly summoned, if in the country, or his deposition will be rejected. 
 It would be unnecessarily tedious to enter into a detail of the various pro- 
 visions of this act of assembly. I must content myself, therefore, with re- 
 ferring the student to it, and recommending a diligent examination of its 
 several clauses, since they are of every day's occurrence in the ordinary 
 business of the courts. 1. R. C. ch. 131. 
 
 We shall now proceed to consider the proceedings in a suit at law sub- 
 sequent to the argument of the demurrer, or the trial of the issue. 
 
 CHArTER XVIII. 
 
 OF JUDGMENT AND ITS INCIDENTS. 
 
 " In the present chapter we are to consider the transactions in a cause 
 next immediately subsequent to arguing the demurrer, or trial of the issue. 
 
 " If the issue be an issue of fact ; and, upon trial by any of the methods 
 mentioned in the two preceding chapters, it be found for either the plain- 
 tiff or defendant, or specially ; or if the plaintiff makes default, or is non- 
 suit; or whatever, in short, is done subsequent to the joining of issue and 
 awarding the trial, it is entered on recorc, and is called a. postea. The 
 substance of which is, that postea, afterwards the said plaintiff and defen- 
 dant appeared by their attorneys at the place of trial ; and a jury, being 
 sworn, found such a verdict; or, that the plaintiff, after the jury sworn, 
 made default, and did not prosecute his suit ; or, as the case may happen.
 
 g02 NEW TRIALS. [ book 3. 
 
 This is added to the record ; and tlie history of the cause, from the time it 
 was carried out, is thus continued by the postea. 
 
 " Next follows, sixthly, the judgment of the court upon what has pre- 
 viously passed ; both the matter of law and matter of fact being now 
 fully weighed and adjusted. Judgment may, however, for certain causes, 
 be mspended or finally arrested. So that if any defect of justice happened 
 at the trial, by surprise, inadvertence, or misconduct, the party may have 
 relief, by obtaining a new trial ; or if, notwithstanding the issue of fact be 
 ■regularly decided, it appears that the complaint was either not actionable 
 in^itself, or not made with sufficient precision and accuracy, the party may 
 supersede it by arresting or staying the judgment. 
 
 i. " Causes of suspending the judgment by granting a new trial* are at 
 
 r * As to new trials in general, see Tidd, 8tli od. 934 to 9t9. When there are two contrary verdicts, 
 it is not of course, l)ut in the discretion of the court, to grani a new trial. 2 Bla. K. 963. In an in- 
 
 grounds lor ."elting .. - -, „ = . 
 
 notice of trial, (unless the defendant appearand make defence.) TjuI. N. P. 3-^V. 3 Price, 7-. 
 Salk. 646. 2dly. A vari/ince between ihe issue deliv«red, and the nisi prius record, material to the 
 point in issue. Jjarnes, 464. 2 Stia. 1131 ; and see 8 'I'auiit. 634. 2 li. & A. 47-]. 3rd ly. Where 
 the jury have not been properly returned, 4 T. R. 473; but it is not ground for a new trial, that the 
 attorney for the defendant was the under-shtiriflT, who had the summoning of the jury. 1 Smith R. 
 304. 4ihlv. INlishehaviour of the prevailing party to {\ie jury or witnesses, 7 Mod. 156; distribution of 
 liandbillsin court on the day of trial, and shewn to the jury, reflecting on plaintiff's character. 3 
 Bro. &Bing. 272. Stlily. Unavoidable absence of like attorneys, 3 Taunt. 434. 1 Price, 201 ; or wit- 
 nesses, 2 Salk. 645. 6 Moil. 22. 1 Price, 1 ; or the discovery of new and material evidence since 
 the trial, 2 Bla. Rep. 955 : or where upon the f icts an inference of law arises on a statute, of wiiicli 
 \ lie parties were not then aware, 7 Taunt. 309: In all these latter cases the court will sometimes, 
 cjiosigli rarely, grant a new. trial. 6lkly. If the witnesses, on whose testimony the verdict was ob- 
 tained, have been since convicied of perjury in giving their evidence, M. 22, Geo. 3, K. B. ; or if 
 prol)able ground be laid to induce llie court to belreve that the witnesses ate perjured, they will stay 
 the proceedings on the finding of a bill of indictment against them lor perjury, till the indictment is) 
 .tried, ib.; but the circumstance of an indictment for perjury, having been found against a witness, is 
 no ground of motion for new trial. 4M.&.S. 140. 8 Taunt. 182. 7thly. Misdirection of the judge, 
 4 M. & S. 140. 2 Price, 3. 2 Moore, 80. 8 Taunt. 182; or hisadmitting or receiving evidence con- 
 trary to law. 6 Mod. 242. Gthly. If the jury find their verdict without, or contrary to evidence, 2 
 Hiirr. 936. 3 B. & A. 692 ; but it is not usual where there is evidence on both sides, 2 Sira. 1106. 1 
 Wils. 22. 3 Taunt. 1. 2 IVice, 282, unless <lie judge declare himself dissatisfied with the verdict- 
 Say. Pv,ep. 2C4; see 3 Wils. 3;;. Chilty R. 271. 6 Price, 146, 9ihly. The misbehaviour of the jury 
 in casting lots for their verdict, 2 Salk. 6l5. Bui. N. P. 236 ; but imputed partially or misbehaviour 
 of tlie jury, is listened to with great caution for this purpose. See 2 B. & A. 462. 7 Price, 203. 8 
 Tauni. 26. 3 Brud. & Bing. 272. 5 Burr. 2667. 2 T. R. 281. lOihly. For excessive damages, in- 
 dicating passion or partiality in the jury. IStra. 692. 1 Burr. 609. 3 Wils. 18. 2 Bl. Rep. 929. 
 ■Covt'p. 230. 5 T. R. 257. 7 ib. 529. 11 East, 23. It is not usual to grant a new trial lorsmallnees 
 of damages, 2 Salk. 647. 2Stra. 910. Doug. 509. Barnes, 455, 6; in which latter cise it is said, 
 if the demand is certain, as on a promissory note, the court will set aside a verdict for too small dama- 
 ges, but not where the damages are uncertain. Lastly, it is a general rule, not to grant a new trial, 
 *»»:cept for the misdirection ol the judge, 4 T. 11. 753. 5 ib. 19. 6 Kast, 316. 1 Marsh. 555; or where 
 a point has been saved at the trial, 1 B. & P. 333, in a penal. 2 Stra. 899. 10 East, 268. 4 M. &, S. 
 3:5;). 2(;hitty R. 273. hard or trifling action, 2 Salk. 6.33. 3 Burr. 1306; and an action is considered 
 trilling in this respect, when the sum to be recovered is under 20/., 5 Taunt. 537. 1 Chilli' R. 265, 
 unless the trial is to settle a right of a perinanent naluie. lb. In all these cases, if the verdict be 
 agreeable to equity and justice, the court will not grant a new trial, though there may have been an 
 error in the admission or rejection of pvidfMice. or in the direction ot the judge, if it appear to the 
 court oil the whole matter disclosed by the report thai the verdict ouglit to be confirmed. 4 T. R. 4(3o. 
 
 A new trial cannot be granted in civil cases at the instance of one of peveral defendants, 12 Mod. 
 275. 2Stia. 814, nor for apnr/ only o( the cause of action. 2 Burr. 1224. 3 Wils. 47. But there 
 may be cases in which the new trial is restricted to a particular part ol the record, as if the judge 
 give lea\ e to move on one part or point only, on a stipulation tliat counsel shall not move for any thing 
 else; or if the court think injustice may be done by setting the wlioh; matter at large again, they 
 may restrict the second trial to certain particular points. 4 Taunt. ■j'iG. 
 
 In criminal, cases no new trial can be granted where the defendant has been acquitted. 6 East, 
 315. 4 M. &. S.337. 1 B. A. 64. Where several defendants are tried at the same lime for a misde- 
 meanor, and some are acquitted, and olheis convicted, the court may grant a new trial to those con- 
 victed, if they think the conviction improper. 6 East, 619. 
 
 In civil cases a motion lor a new trial cannot be inad« after an unsuccessful motion in arrest of 
 judgment. 4 Bar. &, Crej. IGO. The gi anting of a new trial is either willioul or upon payment of 
 the costs of ihe former Irial; or such costs are directed to abide the event of the suit. Tlie general 
 rule seems to be, thai if the new trial be granted for the misbehaviour of the jury, or the misdirec- 
 tion of the judge, the costs ^re. not required to be paid by the party applying for a new Irial ; but 
 where the mere error of the jury, or the discovery of fresh evidence is the ground, the costs must 
 be paid by the party moving to set aside the Inrmcr verdict. See Tidd, 8lli ed.945. Chitti/. [Tho' 
 much of the foregoin.j note is inapplicable to the Btate of our practice, yet I have thought it not ad- 
 visable to deprive the Btudent of the benefit o| ita condensed vi«w of ihe cases on the subject of 
 new trials. Editor.]
 
 CHAP. 18.] NEW TRIALS. 803 
 
 present wholly extrinsic, arising from matter foreign to, or dehors, the re- 
 cord. Of this sort are any flagrant misbehaviour of the party prevailing 
 towards the jury, which may have influenced their verdict; or any gross 
 misbehaviour of the jury among themselves: [as separating without leave : 
 sed vide 2 Barn. & Aid. 46-21. Chitty's Rep. 401. Tidd, [940.] 1 
 Leigh, 455:] as also if it appears by the judge's report, certified by the 
 court, that the jury have brought in a verdict without or contrary to evi- 
 dence, so that he is reasonably dissatisfied therewith: or if they have given 
 exorbitant damages ; or if the judge himself has misdirected the jury, so 
 that they found an unjustifiable verdict: for these, and other reasons of the 
 like kind, it is the practice of the court to award a new, or secoud trial. 
 But if two juries agree in the same or a similar verdict, a third trial is sel- 
 dom awarded : for the law will not readily suppose that the vdrdict of any 
 one subsequent jury can countervail the oaths of the two preceding ones;" 
 and by our law 1 R. C. ch. 138, § 97, not more than two new trials can be 
 granted to same party in any case. 
 
 " The exertion of these superintendent powers of the king's courts in 
 setting aside the verdict of a jury and granting a new trial, on account of 
 misbehaviour in the jurors, is of a date extremely ancient." As early as the 
 reign of Charles the II., new trials were granted " upon affidavits; and 
 the former strictness of the courts of law, in respect of new trials, liaving 
 driven many parties into courts of equity to be relieved from oppressive ver- 
 dicts, they are now more liberal in granting them : the maxim at present 
 adopted being this, that (in all cases of moment) where justice is not done 
 upon one trial, the injured party is entitled to another." They are also 
 the substitute for the old common law remedy of attaint, of which the 
 student will find an account in Mr. Blackstone : and they have been found 
 in practice exceedingly salutary and conducive to justice. 
 
 " If every verdict was final in the first instance, it would tend to destroy 
 this valuable method of trial, and would drive away all causes of conse- 
 quence to be decided according to the forms of the imperial law upon de- 
 positions in writing ; which might be reviewed in a course of appeal. Causes 
 of great importance, titles to land, and large questions of commercial pro- 
 perty, come often to be tried by a jury, merely upon the general issue : 
 where the facts are complicated and intricate, the evidence of great length 
 and variety, and sometimes contradicting each other ; and where the na- 
 ture of the dispute very frequently introduces nice questions and subtilities 
 of law. Either party may be surprised by a piece of evidence, which (had 
 he known of its production) he could have explained or answered : or may 
 be puzzled by a legal doubt, which a little recollection would have solved. 
 In the hurry of a trial the ablest judge may mistake the law, and misdirect 
 the jury : he may not be able so to state and range the evidence as to lay 
 it clearly before them, nor to take off the artful impressions which have 
 been made on their minds by learned and experienced advocates. The jury 
 are to give their opinion instanter ; that is, before they separate, eat, or 
 drink. And under these circumstances the most intelligent and best in- 
 tentioned men may bring in a verdict, which they themselves upon cool de- 
 liberation would wish to reverse. 
 /y "Next to doing right, the great object in the administration of public 
 justice should be to give public satisfaction. If the verdict be liable to many 
 objections and doubts in the opinion of his counsel, or even in the opinion 
 of by-standers, no party would go away satisfied unless he had a prospect 
 of reviewing it. Such doubts would with him be decisive: he would ar- 
 raign the determination as manifestly unjust ; and abhor a tribunal which 
 he imagined had done hi.oi an injury without a possibility of redress.
 
 304 NEW TRIALS. [book 3. 
 
 "Grantino" a new trial, under proper regulations, cures all these incon- 
 veniences, and at the same time preserves entire and renders perfect that 
 most excellent method of decision, which is the glory of the English law. 
 A new trial is a rehearing of the cause before another jury ; but with as lit- 
 tle prejudice to either party, as if it had never been heard before. No ad- 
 vantage is taken of the former verdict on the one side, or the rule of court 
 for awarding such second trial on the other : and the subsequent verdict, 
 though contrary to the first, imports no tittle of blame upon the former ju- 
 ry ; who, had they possessed the same lights and advantages, would proba- 
 ably have altered their own opinion. The parties come better informed, 
 the counsel better prepared, the law is more fully understood, the judge is 
 more master of the subject ; and nothing is now tried but the real merits of 
 the case. • • 
 
 " A sufficient ground must, however, be laid before the court to satisfy 
 them that it is necessary to justice that the cause should be farther consi- 
 dered. If the matter be such, as did or could not appear to the judge who 
 presided at nisi prius, it is disclosed to the court by affidavit : if it arises 
 from what passed at the trial, it is taken from the judge's information ; who 
 usually makes a special and minute report of the evidence. Counsel are 
 heard on both sides to impeach or establish the verdict, and the court give 
 their reasons at large why a new examination ought or ought not to be al- 
 lowed. The true import of the evidence is duly weighed, false colours are 
 taken off, and all points of law which arose at the trial are upon full deli- 
 beration clearly explained and settled. 
 
 " Nor do the courts lend too easy an ear to every application for a review 
 of the former verdict. They must be satisfied, that there are strong proba- 
 ble grounds to suppose that the merits have not been fairly and fully dis- 
 cussed, and that the decision is not agreeable to the justice and truth of the 
 case. A new trial is not granted, where the value is too inconsiderable to 
 merit a second examination. It is not granted i- on nice and formal ob- 
 jections which do not go to the real merits. It is not granted in cases of 
 strict right or summum jus, where the rigorous exaction of extreme legal 
 justice is hardly reconcileable to conscience. Nor is it granted where the 
 scales of evidence hang nearly equal : that which leans against the former 
 verdict, ought always very strongly to preponderate. 
 
 " In granting such further trial (which is matter of sound discretion) the 
 court has also an opportunity, which it seldom fails to improve, of supply- 
 ing those defects in this mode of trial which were stated in the preceding 
 chapter ; by laying the party applying under all such equitable terms, as 
 his antagonist shall desire and mutually offer to comply with : such as the 
 discovery of some facts upon oath ; the admission of others, not intended 
 to be litigated ; the production of deeds, books, and papers; the examina- 
 tion of witnesses, infirm or going beyond sea ; and the like. And the de- 
 lay and expense of this proceeding are so small and trifling, that it seldom 
 can be moved for to gain time or to gratify humor. The motion, [usually 
 made at the same time at which the trial took place,] within which term it 
 is usually heard and decided. And, it is worthy of observation, how infinitely 
 superior to all others the trial by jury approves itself, even in the very mode 
 of its revision. In every other country of Europe, and in those of our own 
 tribunals which conform themselves to the process of the civil law, the ])ar- 
 ties are at liberty whenever they please to appeal from day to day, and 
 from court to court, upon questions merely of fact; which is a perpetual 
 source of obstinate chicane, delay," and expensive litigation. With us no 
 new trial is allowed, unless there be a manifest mistake, and the subject- 
 matter be worthy of interposition. The party who thinks himself aggriev-
 
 tHAP. 18.] NEW TRIALS* 305 
 
 ed, may still, if he pleases, have recourse to his writ of attaint after judg- 
 ment; in the course of the trial he may demur to the evidence, or tender 
 a bill of exceptions. And if the first is totally laid aside, and the other 
 two very seldom put in practice, it is because long experience has shewn 
 that a motion for a second trial is the shortest, cheapest, and most effectual 
 cure for all imperfections in the verdict ; whether they arise from the mis- 
 takes of the parties themselves, of their counsel or attorneys, or even of the 
 judge or jury." 
 
 • In the foregoing pages, I have laid before the student the judicious re- 
 marks of Mr. Blackstone, with a condensed note of one of his annotators, 
 on the subject of new trials. I was unwilling to forego the benefit to be 
 derived from them, and now only beg leave to submit to his consideration 
 some other views of this important subject. 
 
 We have seen, that in England, new trials may be granted oti the ground 
 of a misdirection given by the judge to the jury upon the trial of the cause, 
 not less than for other reasons. At one time, indeed, the court of appeals 
 of Virginia appears to have been of a different opinion. 1 Wash. 5. But 
 in a much more recent case, (Gilmer, 41,) the principle is fully recognizedj 
 upon the obvious reason, that though the judge may in the hurry of a jury 
 trial have given an instruction, yet upon reflection he may have discovered 
 his error, and there is no assignable reason why he should not be permitted 
 to correct it. If, indeed, the motion for a new trial on the ground of mis- 
 direction be refused, because he adheres to his former opinion, then the 
 party grieved may except to the opinion, thus refusing the motion, and bring 
 the question before a superior tribunal. • 
 
 New trials may in numerous instances be granted for the misconduct of 
 the jury. Of this description is the finding a verdict against the instruction 
 of the court as to a matter of law ; for they ought to respect and defer to 
 that opinion, as it is the peculiar province of the court to determine what 
 the law is. So if, in a civil case, they are directed to find a special verdict 
 or to save the question of law, and they nevertheless find a general verdict, 
 thus undertaking to decide the law themselves, though instructed to submit 
 it to the proper tribunal, this is misconduct which will be remedied by a 
 new trial. And, in like manner, in the various cases before mentioned of 
 irregular conduct in the jurors, a new trial will be granted and the vitiated 
 verdict will be set aside. 
 
 Applications for new trials, however, are most usually made on the ground 
 of mistake in the jury; or of their verdict being against evidence ; or of 
 the damages being excessive, or inadequate ; or of mistake or surprise of 
 the party upon the trial ; or of the discovery of new evidence. In refe- 
 rence to these matters I deem it not unimportant to lay before the student 
 some of the principles which govern courts of law upon such applications', 
 premising only that a motion for a new trial ought always to be made be- 
 fore a motion in arrest of judgment. 4 Barn. &. Cres. 160. And where it 
 is grounded on the allegation that the verdict is contrary to evidence, the 
 application must always be made to the same court which tried the cause; 
 since judges or justices who did not hear the trial cnnnot be supposed com- 
 petent to pronounce on that question. Yet this ia often difficult in the 
 county courts, as the justices who preside in the trial of causes are conti- 
 nually changing. 
 
 •■*^ A new trial on the ground of the verdict's being contrary to evidence, 
 ought not to be granted in a doubtful case, merely because the court thought 
 the jury would have given a different verdict ; since that would be to as- 
 sume the province of the jury, who are the proper tribunal for trying the 
 fact. 3 Call, 309. And on a motion for a new trial, on the ground that 
 the verdict is contrary to evidence, affidavits or other testimony not used at 
 VOL. 2—39
 
 306 NEW TRIALS. [ BOOK 3. 
 
 the trial cannot be introduced. 6 Mun.437. Nor ought a venire de novo 
 to be o-ranted at a term subsequent to that when a special verdict is render- 
 ed, on the affidavit of a witness, who had beerj examined before the jury, 
 that they had not found certain facts according to the testimony he gave. 
 2 H. & M. 318. See 1 Sel. Prac. 488. To permit such testimony would 
 be to encourage tampering with witnesses. A like consideration forbids 
 the granting new trials, generally upon affidavits of the jurors themselves, 
 showing that they had been guilty of misbehaviour, or had been mistaken, 
 though such evidence by third jiersons would be sufficient ; as where two, 
 jurors swore they were influenced by information given in their jury roora 
 by ene of their body who iiad not been sworn as a witness. 1 H. & M. 
 385. 1 T. 11. 11. "l Wasli. 79. Tidd's Prac. 816. Yet in Cockran vs. 
 Street, 1 W. 79, where by the affidavits of a majority cf the jury a mistake 
 Avas established, and it appeared that the verdict had been rendered under 
 the mistaken idea that the opinion of the majority was to prevail, a new 
 trial was granted. See ai.so the cases cited 1 Sellon's Prac. 488. 
 
 New trials are granted with more hesitation to the plaintiff in ejectment 
 than to the defendant ; because, if the new trial be refused to the latter, the 
 possession is changed. He is turned out and must bring an ejectment to 
 get back possession. The plaintiff does not sustain like inconvenience, 
 ujiless, indeed, the act of limitation might bar a second ejectment, which 
 doubtless would weigh in inducing a court to grant it. See 3 Ran. 477. 
 
 The court may grant a new trial, as we here see, if the damages are 
 deemed excessive ; but the excess, in cases of tort, must be flagrant, so as 
 to afford evidence of passion or prejudice on the part of the jury. And 
 where a new trial is asked on account of excessive damages, if the plaintiff 
 will release the supposed excess, the new trial is refused, (i Mun. 271. if 
 the jury find more damages than are laid in the writ, a new trial must be 
 granted, unless the plaintiff will release the excess. This, however, he 
 may do, and then the judgment may be correctly entered for so much as 
 are laid. 5 Mun. 494. A new trial could not formerly be granted where 
 the damages in actions of tort were inadequate. But now in all cases a 
 new trial may be granted, as well where the damages are too small, as where 
 they are excessive. 1 11. C. ch. 128, § 96. The profession seems to have 
 been inclininij to this opinion even before this legislative provision. See 5 
 Mun. 13. . ^ ^ 
 
 It is a general principle that the discovery of other evidence is not a suf- 
 ficient ground of new trial, if the evidence might have been submitted to 
 the jury by the exercise of due diligence. 4 H. & M. 369. 6 John. C. R. 
 479. 2T. R. 113. 1 Wils. 98. But as the application for a new trial is 
 always to the discretion of the court, if it happens that the party has been 
 surprised upon the trial, or that he has since the trial discovered new mat- 
 ter of dej'ence, or new evidence, of which lie could not by the exercise of 
 due diligence have availed himself, a new trial will be granted. As when 
 important facts might have been disclosed, had all the witnesses to a release 
 relied on by the defendant been examined, a new trial was granted. 3 Wils. 
 38. 
 
 It is in the nature of the thing impracticable to draw the precise line 
 which defines the boundary between cases in which new trials will or will 
 not be granted. Certain g'cnera/ rules can only be laid down. 
 
 Of these the first and principal is, that the granting of a new trial is al- 
 ways matter of discretion in the court. For the object of the ])racticc is t9 
 come at the justice of the case; and the propriety of its exercise must 
 therefore depend upon the whole evidence, and all the circumstances which 
 have come under the view of the tribunal presiding over the trial. From 
 this rule result various principles which the student will find laid down ia
 
 CHAP. 18.] NEW TRIALS. SOT 
 
 the books of practice : such as that a new trial will not be granted where 
 the plaintiff has appeared entitled to the verdict he has obtained, or the ju- 
 ry have found for the defendant, although the evidence might not in strict- 
 ness have applied to the case, provided justice appears to have been done 
 between the parties. 2 Wils. 362. 4 T. R. 468. And therefore, though 
 the ground of the verdict be wrong, yet, if injustice had not been done, or 
 it is clear the plaintiff could recover as much by another form of action, a 
 new trial will not be granted. Burr. 936. On like principles, thouo-h the 
 verdict may not be strictly according to evidence, yet if upon the whole it 
 a^ipears to be on the side of justice and equity, or if the plaintiff has receiv- 
 ed no real injury, and would at most have been entitled to a verdict only for 
 a trifle, it will be sustained. For courts will not minister to the litigious 
 passions, by allowing new trials upon every point of siimmum jus. Burr. 
 53. When, however, a verdict is agreeable both to law and evidence, it 
 will not be di^sturbed because the case seems a hard one. 1 Sell. Prac. 4S8. 
 
 In adherence to the rule that granting a new trial is matter of discretion, 
 to be exercised so as best to serve the ends of justice, the power will not 
 be exerted even where there has been a misdirection of the court, if upon 
 the whole it can be seen that substantial justice has been done. 2 T. R. 4. 
 
 A second rule on this subject forbids the court rashly to invade the pro- 
 vince of the jury, to whom belongs the power of deciding upon the weight 
 of evidence, and the credibility of witnesses. Hence, if there be evidence 
 only on one side, a new trial is more readily granted than where there is 
 contradictory evidence introduced by the contending parties. It is indeed 
 said that, in the latter case, a new trial is never granted. 1 Sell. 467. 1 
 Wils. 22. 3 Wils. 47. Be this as it may, if in such case it be refused by 
 the court below, an appellate court will not interfere, though the evidence 
 be spread upon the record, since the court who tried the cause and heard 
 the witnesses examined may be presumed better qualified to determine as 
 to their credit than the court of error. 
 
 In like manner, in those cases where the damages depend upon mere 
 sentiment and opinion, and there is no rule by which they can be ascer- 
 tained, such as cases of slander, assault and battery, and the like, it is held 
 that the court ought not to set up its judgment in opposition to that of the 
 jury, by granting new trials, unless the verdict be flagrantly excessive, or I 
 presume, since the j)assage of our act, flagrantly inadequate. 1 Sell. 492, 
 4j93. When this is the case it is deemed evincive of passion or prejudice 
 in the jury, which it is the business of a court to correct. There are, in- 
 deed, some actions in which no new trial is ever granted, such as cases of 
 crim. con. and of seduction of a daughter. 4 T. R. 651. 3 Wils. 18. In 
 the first of these cases, however, BuUer, J, dissented ; and with reason, I 
 should think, for, heinous as is the offence, it would seem inconsistent with 
 general principles to refuse a new trial, where an entire disproportion of 
 the daiTiages to the defendant's circumstances, (as where they amounted 
 t© ten times what he was worth,) clearly indicates the predominance of 
 passion in the breasts of the jury. It is the peculiar attribute of sober jus- 
 tice, not to permit even its indignation against vice to disturb its calm se- 
 renity, or to hurry it in excesses by dethroning the judgment and yielding 
 the reins to the passions. See 6 East, 256. 5 Taunt. 277. 2 T. R. 166. 
 
 But though the court will not set up their opinions in opposition to the 
 jury, where the amount of damages is mere matter of sentiment or opinion, 
 yet where (as in matter of contract it often happens) it is matter of calcu- 
 lation, it finds no difficulty in rectifying errors into which the jury may have 
 fallen, and in directing a new trial, unless they be corrected by consent. 4 
 T. E. 658.
 
 308 NEW TRIALS. [ book 3. 
 
 We may mention as a third rule on this subject the principle already ad- 
 verted to, that they will not be granted to parties in order to let them into 
 a defence of which they were apprised at the first trial. 2 T. R. 113. Nor 
 for want of evidence they might then have produced. 1 Wils. 98. Nor 
 because counsel thought it prudent to omit evidence of which they were ad- 
 vised, though it might have gone to mitigate damages. 1 Sell. 489. Nor 
 on account of a mistake by a witness on giving his evidence : for, to grant 
 them in such cases, would be to encourage negligence, to induce counsel 
 to take double chances of success, and to give rise to tampering with wit- 
 nesses. Yet there is, perhaps, nothing in the exercise of this power which 
 more requires that it should be left in the discretion of the court, than new 
 trials on the ground of the discovery of new evidence since the trial. 
 Thus, to refuse a new trial where the party has really discovered new evi- 
 dence of a conclusive character, such as a receipt or release, would be 
 against reason and authority : but to allow it because he has found out other 
 witnesses who would go to strengthen those produced upon the trial, would 
 in many cases lead to very great abuses. Thus, in an action of slander, 
 where the defendant had introduced evidence that the plaintiff was as bad 
 a man as he said he was, it would be no good ground for a new trial that 
 the defendant had found out other testimony to corroborate that which he 
 had given on this point; for that would be infinite. But as no precise line 
 can be drawn, the motion must of necessity be left to the discretion of the 
 court, which will take care that verdicts obtained by surprise shall not be 
 enforced on the one hand, nor new trials obtained by trick, or on frivolous 
 pretexts, on the other. 
 
 It must here be remarked, that there is a difference between a venire de 
 novo and a new trial. A new trial is usually granted on a general verdict, 
 a venire de novo on a special verdict. The latter is usually granted on 
 matter appearing on the face of the record : the former on matter extrinsic. 
 A venire de novo is granted where the verdict is on its face so imperfect 
 that no judgment can be given on it, or where it appears that the jury ought 
 to have found other facts differently. 2 H. & M. 318, Judge Tucker's 
 opinion. 4 Ran. 504. 
 
 A venire de novo is, however, also awarded where the jury are improperly 
 chosen or irregularly returned, or have conducted themselves improperly; 
 or it may be granted on a demurrer to evidence. 2 T. R. 126, in note. 
 Thus, where there are two issues, and the verdict answers to one only, 
 there must be a ve7iire de novo, because part of the cause is left untried. 
 And the distinction is the more important because when a venire de novo is 
 awarded, it is not at the costs of the party who demands it, but the costs of 
 the proceeding abide the general costs of the action. On the other hand, 
 with respect to new trials it is provided, 1 R. C. ch. 128, § 27, that every 
 new trial at law shall be upon condition of paying the costs of the former 
 trial, unless it be granted for misconduct of the opposite party. Even be- 
 fore this section was enacted, it was error, in general, to award a new trial 
 without payment of costs. 1 W. 322. See 3 T. R. 553, where justice 
 BuUer says, " if the verdict is against the justice of the case and the direc- 
 tions of the court, as to the law, a new trial should be directed without 
 costs." Yet with us this discretion must be controlled, I conceive, by the 
 positive enactment of the law. That, however, provides that " the person 
 guilty of misconduct (where the new trial is awarded on that account) shall 
 be adjudged to pay the costs of the former trial." 1 R. C. ch. 128, § 27. 
 It is a general rule, that the costs of a new trial must always be paid before 
 the second trial takes place. When the cause is called for trial, if the par- 
 ty is not ready to pay the costs of the former trial, the other party may de- 
 (Tiand judgment to be entered upon the verdict. In strictnessj indeed, the
 
 CHAP. 18.] CHANGE OF VENUE. 809 
 
 order of a new trial should require the costs to be paid down, or should 
 provide that it should only have effect upon payment of costs within a limi- 
 ted time, so as to enable the opposite party to know whether it is necessa- 
 ry to encounter the expense and trouble of preparing for another trial. But 
 this seems not considered as essential ; thougli the payment of costs is al- 
 ways held to be a condition precedent. 3 Ran. 52. It is usually deemed 
 sufficient, indeed, if the party comes prepared to pay the costs when the 
 cause is called, and the jury is about to be sworn on the new trial. If he 
 does not, the proper course is for the court to set aside the former order and 
 enter judgment on the first verdict. 3 Ran. 55. 
 
 Where a verdict had been rendered for the defendant, and a new trial 
 granted to the plaintiff, who thereupon immediately ordered his suit to be 
 dismissed ; it seems the court ought not to have permitted the dismissal, 
 whereby he might sue again, (as it did not amount to a retraxit,) but judg- 
 ment ought to have been entered on the verdict so as to bar any future ac- 
 tion : this not having been done, no bar existed. See 4 Mun. '207. 
 
 Before we leave the subject of trials, it may not be improper to subjoin 
 the provisions of the law for removing a cause from one court to another, 
 where there is reasonable ground for apprehension that a fair and impartial 
 trial cannot be had. See acts of 1830, ch. 11, § 52. This is called chang- 
 ing the venue, (or neighborhood from which the jury are to be summoned,) 
 a measure which every day's experience demonstrates to be essential to tho 
 purposes of justice. Hence it is provided, that for good cause shewn the 
 general court may direct a cause depending in one circuit to be tried in 
 another; 1 R. C. ch. 67, § S ; and in like manner that any judge of the 
 general court may remove any cause depending in any court within his 
 circuit to the most convenient court in an adjoining circuit. 1 R. C. ch. 
 69, § 51. So, too, it is provided, that the judges of the superior courts shall 
 have power, for good cause shewn, to change the venue in any cause de- 
 pending in either of the courts of his circuit to any other court within the 
 same circuit. 1 R. C. ch. 69, § 51. And to insure a trial by a disinterest- 
 ed tribunal, it is directed tliat if a judge be interested in a suit about to be 
 instituted, it may be brought in an adjacent circuit : or if he be interested 
 in a cause depending, or related to the parties, he may remove it to an ad- 
 jacent circuit. 1 R. C. ch. 69. But if he be Bl party in the suit, the gene- 
 ral court are required to remove the cause for trial at the bar of that court, 
 unless good cause be shewn to the contrary. 1 R. C. ch. 67, § 9. And 
 finally the general court may, for good cause shewn, direct the trial of any 
 cause depending before a superior court of law, to be had by a jury at their 
 own bar. 
 
 In the execution of these provisions of the law certain regulations have 
 been established, to which it is proper to advert. Thus: 
 
 By rule of the general court, " In all motions to change the venue, the 
 petition and affidavit shall set forth the particular facts from which the peti- 
 tioner is induced to believe that he cannot have a fair trial in the county 
 where the venue is laid, or to which the cause has been removed, if the 
 cause assigned by him is of such a nature as to admit of such particular 
 specification : and where the cause assigned is of such a nature as to pre- 
 clude a particular specification, he shall support his application by affida- 
 vits of disinterested persons. In all applications to change the venue, the 
 notice given to the opposite party shall state the cause to be assigned in 
 support of the application." Hall's Dig. Index, 622. 2 Virg. Ca. 88. 
 
 2. The mode of arresting the judgment of the court upon the verdict of 
 the jury, is by what is called a motion in arrest of judgment. And this 
 motion may be made even after an unsuccessful motion for a new trial,
 
 310 ARREST OF JUDGMENT. [ book 3. 
 
 ihouo-li as we have seen it is too late to move for a new trial after an unsuc- 
 cessful motion in arrest of judgment. 
 
 " Arrests of judgment* arise from inlrinsic causes, appearing upon the 
 face of the record. Of this kind are, first, where the declaration varies 
 totally from the original writ; as where the writ is in debt or detinue, and 
 the plaiiitilT declares in an action on the case for an assumpsit : for the 
 orio-inal writ out of chancery being the foundation and warrant of the whole 
 proceedings in the common pleas, if the declaration does not pursue the 
 nature of the writ, the court's authority totally fails. Also, secondly, where 
 the verdict materially differs from the pleadings and issue thereon; as if, in 
 an action for words, it is laid in the declaration that the defendant said, 'the 
 plaintiff is a bankrupt;' and the verdict finds specially that he said, 'the 
 plaintiff wiUl)C a bankrupt.' Or, thirdly, if the case laid in the declaration 
 is not sufhcieut in point of law to found an action upon. And this is an 
 invariable rule with regard to arrests of judgment upon matter of law, 'that 
 whatever is alleged in arrest of judgment must be such matter] as would 
 Vpon demurrer have been sufficient to overturn the action or plea.' As if, 
 on an action for slander in calling the plaintiff a Jew, the defendant denies 
 the words, and issue is joined thereon : now, if a verdict be found for the 
 plaintiff, that the words were actually spoken, whereby the fact is establish- 
 ed, still the defendant may move in arrest of judgment, that to call a man a 
 Jew is not actjoiiable : and, if the court be of that opinion, the judgment 
 shall be arrested, and never entered for the plaintiff. But the rule will not 
 hold e converse, 'that every thing that may be alleged as cause of demurrer 
 will be good in arrest of judgment :'t for if a declaration or plea omits to 
 state .some particular circumstance, without proving of which, at the trial, 
 it is impossible to support the action or defence, this omission shall be 
 ^.ided by a verdict," and this was the case even in the common law, and 
 Independent of the statute of Jeofails. For it is not the statute alone which 
 prohibits objections after a verdict to errors of which the party might have 
 availed himself by demurrer. Long before the statute, a distinction was 
 V/ell settled between those errors which were and those which were not cur- 
 ed by verdict. The distinction was this: when there was any defect, im- 
 perfection, or omission, whether in substance or form, which would have 
 been fatal to demurrer; yet, if the issue joined be such as necessarily to 
 require proof of the facts so defectively or imperfectly stated or omitted, 
 and without proof of which it is not to be presumed that the judge would 
 direct, or the jury would find a verdict, such defect was cured by the ver- 
 dict, even at common law. 4 Ran. 346. As where a promise depends 
 upon the performance of something to be first done by him to whom the 
 promise is made, and the declaration does not aver performance, or that he 
 was ready to perform; yet, if the issue is joined on the part of the defend- 
 ant, and there is a verdict for the plaintiff, such omission is cured even at 
 common law ; because it must be presumed the verdict would not have been 
 
 • Tlie panics cnnnot move in arrest of judgmpnt for nny tliins tliat is aiifed after verdict at com- 
 riion law, or l)y the staltile of amendments, or cured as matter of form by llie statute of Jeofails. See 
 J Saund. 223, n. (1.) It is a general rule that a verdict will aid a title imperfectly set out. l)Ut not an 
 imperfect title. 2 I5iirr. 1159. 3 Wils. 275. 4 T. R. 472. 'J'he defendant cannot move in arrest of 
 judgment fur any thing wliicii lie might liave pleaded in abatement. 2 lila. R. 1 120. Surplusage will 
 imt vitiate after verdict, a? in trover, stating the possession of the goods in plaintift'on the 3d of March, 
 and the conversion by defendant "afterwards, (o irit, on the 1st of Alarcli," it was held that after- 
 wards might stand, and the other words be treated as sin'plusage. Crow. C 428. 'J'he motion in ar- 
 rest of judament, k'.c. may be made in the king's bench at any lime before judgment is given ; 5 T. 
 K. 44.'j. 2 Sira. 845; though a new trial has been previously moved for. Doug. 475, 6. 
 
 If the judgment bo arrested in consequence of mistake of the (orm of action, or otherwise, the 
 
 IiUintiff is at liberty lo proceed de novo in a fresh action. 1 Mod. 2fJ7. Vin. Ab. tit. Judgment, Q.4. 
 }la. K. 831. Eac!) parly pays hisown costs upon the judgment being arrested. Cowp.4l)7. — Chitty. 
 
 tit is said that a party may avail himself on general demurrer of every advantage lie migb' •'*'*• 
 on a motion in airest ofjiidifment and of wo othi>r. Fer Lvonii, J., 1 Hen. it Afiin. 367. Soo 2 
 Burr. 890. 10 p^. 363.
 
 CHAP. 
 
 18 J AliREST OF JUDGMENT. 311 
 
 found, unless the fact had been proved, since without such proof the verdict 
 wouhl be obviously unjust. 
 
 Hence it is considered that " the verdict ascertains those facts, which 
 before from the inaccuracy of the pleadings might be dubious ; since the 
 law will not suppose, that a jury under the inspection of a judge, would find 
 a verdict for the plaintift" or defendant, unless he had proved those circum- 
 stances, without which his general allegation is defective. Exceptions, 
 therefore, that are moved in arrest ot" judgment, must be much more mate- 
 rial andglaring than such as Vv'ill maintain a demurrer: or, in other words, 
 many inaccuracies and omissions, which would be fatal, if early observed, 
 are cured by a subsequent verdict; and not suffered, in the last stage of a 
 cause, to unravel the whole proceedings. Bui if the thing omitted be es- 
 sential to the action or defence, as if the plaintifi' does not merely state his 
 title in a defective manner, but sets forth a title that is totally defective iil 
 itself, or if to an action of debt the defendant pleads not guilty instead of 
 nil debet, these cannot be cured by a verdict for the plaintiff in the first case, 
 or for the defendant in the second :"— for as the party is only held to proof 
 of his allegations, it cannot be presumed that any thing more was proved to 
 the jury than what has been alleged; and if what is alleged and found by 
 the jury shews no ground of action on the one hand, or of defence on the 
 other, no judgment should be given for the party whose case is thus de- 
 fective. 
 
 In like manner and for like reasons, where there was any defect, though 
 in form only, in some collateral parts of the pleadings that were not in is- 
 sue between' the parties, so that there was no room to presume that the de- 
 fect was supplied by proof, there the verdict did not cure them by common 
 law. As where in trespass the defendant justified by prescribing for a right 
 of common upon the plaintiff's land, and the replication did not aver that 
 the cattle were levant and couchant, but the issue was joined only upon the 
 prescriptive right of common, so that no evidence of the fact of the cattle 
 being levant and couchant could have come before the jury ; the omission 
 was not cured by verdict. So in debt on bond by an administrator the de- 
 claration omitted to allege by whom administration was granted, and the 
 defendant pleaded non est factum ; here proof could not upon this issue have 
 been given of the administration, and therefore as it was not stated in the de- 
 claration, nor could be presumed to have been proved, since that fact had no 
 relation to issue, the verdict did not cure it at common law. But yet it 
 was very hard that, for such errors in merely collateral matters, judgment 
 should be arrested, when the party had succeeded before the jury upon the 
 point on which his adversary had chosen to rest his cause. See 1 Saun: 
 228, n. 1. This gave rise to the statute of Jeofails, of which Mr. Black- 
 stone speaks, book 3, page 407. For the common law did not cure many 
 defects of form, such as misjoining of issue, discontinuance, want of aa 
 original writ, or variance between the declaration and writ, or the omission 
 of a profert, or of the words vi et annis, or contra pacein, or of the verifi- 
 cation, or pr out patet per recordum, and, as has been already said, only 
 cured such omissions as must, from the nature of the issue joined, or the 
 point tried, be presumed to have been supplied by proof. Hence it follows 
 as a corollary, that nothing was cured where judgment was by default, for 
 the only principle on which the common law cured an error, or omission, 
 was upon the supposition, from the character of the issue joined, that the 
 defect must have been supplied by proof; but as in case of judgment by 
 default, there was no trial, there was of course no proof produced; hence 
 there is no ground for the presumption, and therefore there is none for 
 curing the defect. See Saun. ubi sup. But the statute of Jeofails goes 
 much farther. See 1 R. C. ch. 128, § 103.
 
 312 ARREST OF JUDGiMEx\T. [ BOOK 3. 
 
 Annthcr remark seems proper before we proceed to examine the statute 
 particularly. As the common law cured such delects as from the nature of 
 the issue joined must be supplied by proof, the statute does not affect such 
 cases : but as the common law neither cured defects of form or substance, 
 unless from the nature of the issue the defect must have been presumed to 
 have been supplied by proof, all such cases are within the statute. Hence, 
 
 If there be an error or omission in form or substance, we must first ex- 
 amine whether upon the issue joined such omission must have been sup- 
 plied by proof: if so, it is cured by common law. 
 
 If not, tlien a reference to the statute is necessary to determine whether 
 it be within its provisions; and. 
 
 If it be neither cured by the comiuon law or statute, the defect is fatal. 
 
 This distinction between cases at common law and cases under the sta- 
 tute which are cured by verdict, is in England extremely important, be- 
 cause the statute of Anne, which provides for the curing of errors after 
 judgment 6?/ default, only cures such as " by any of the statutes of Jeofails" 
 would be cured after a verdict. It does not, therefore, cure (in cases of 
 judgment by default) such errors as were cured at common law by verdict, 
 and hence there may be errors in England cured by verdict, (i. e. by force 
 of the common law,) which are not cured by judgment by default. See 
 Saun. ubi supra. This, however, would seem not to be the case Under our 
 law, the terms of which are general and not limited, as in the statute of 
 Anne. 
 
 There is one principle, however, that pervades both cases at common law 
 and under the statute. It is, that if the plaintiff either states a defective 
 title, or omits altogether to state any title or cause of action, neither the 
 common law nor the statute cures the error or omission ; for the plaintiff 
 need not prove more than is expressly laid in his declaration, or is neces- 
 sarily implied from the facts which are stated. Doug. G58. Saun. ubi sup. 
 4 Ran. 346. If he states a defective title, by his own showing he ought not 
 to recover: if he states no title, the presumption is irresistible that he can- 
 not upon the trial have made out a case entitling him to a judgment, and 
 therefore it will be arrested. But where he has stated a good title defec- 
 tively, then upon the trial he must have gone on to prove his title, because 
 he had stated a title, and there is a ground for the presumption, that as he 
 was under the necessity of going into the title, he must have supplied the 
 defect in the statement of his title by proof, or the jury would not have given 
 him a verdict. This distinction between stating no title or a defective title, 
 on the one hand, and stating a good title or cause of action, defectively, on 
 the other, is well established, and will be found to be recognised in all the 
 adjudicated cases. Thus, in Rushton vs. Aspinal, Lord Mansfield states 
 the rule to be, that where the plaintiff has stated his title or ground of ac- 
 tion defectively, it is a fair presumption, after a verdict in his favour, that 
 all circumstances necessary either in form or substance, <o complete the title 
 so imperfectly stated, must have been proved at the trial, or he could not have 
 recovered. But where he altogether omits to state any title or ground of ac- 
 tion, it cannot be presumed he proved any at the trial, (since he is bound 
 only to prove what is laid in his declaration, or is necessary to any of the 
 facts charged in it.) And even if such proof could be presumed, " no proof 
 at the trial could make good a declaration which contains 720 ground of ac- 
 tion on the face of it," or which on the face of it showed that the plaintiff's 
 title or ground of action was defective ; for this would be to presume that a 
 man had proved before a jury that he had a good title, when, by his own 
 showing, it appears he had not. See Doug. G83. In like manner, in the 
 case of Winston's executors vs. Francisco, 2 W. 187, and in Chichester »s. 
 Vass, 1 Call, 83, it was decided that the statute of Jeofails did not cure the
 
 CHAP. 18.] ARREST OF JUDGMENT. 313 
 
 total want of the averment of a fact which constituted the gist of the ac- 
 tion ; since nothing would be presumed after verdict but what must have 
 been necessarily proved from the averments in the declaration ; and in the 
 succeeding case of Fulgham vs. Lightfoot, 1 Call, 250, it was said, that 
 where facts necessary to the gist of the action are not stated at all, the de- 
 fect is not cured ; but it is otherwise where such facts are stated, but stated 
 imperfectly : see also 2 W. 210: for, as Judge Roane observes, (3 Man. 
 273,) "the court presumes proof to have been given as to facts imperfectly 
 laid, but not as to facts not laid : it only presumes such proof to have been 
 given as is called for by the averments in the declaration." 
 
 These principles are unquestionably settled, unless they have been shaken 
 by the statute of Jeofails, as amended upon the revision of the laws in 1819. 
 Much difference of opinion often arises, indeed, even among the most 
 learned, whether the gist of the action is omitted, or only imperfectly stat- 
 ed ; as may be seen in the case of Laughlin vs. Flood, 3 Mun. 273 ; but 
 whatever difficulty there may be in the application of the principle, the 
 principle itself has been firmly established. 
 
 We proceed next to consider the several clauses of section 103 dis- 
 tinctly. 
 
 1. "No judgment, after a verdict of twelve men, shall be stayed or re- 
 versed for any defect or default in the writ original or judicial, or for a va- 
 riance in the writ from the declaration or other proceedings." See ante 
 247, in note. This clause of our act is more comprehensive than the Eng- 
 lish statute, which, after the word variance, has the qualifying expression in 
 form only. Here, if the declaration is right, the variance from the writ, 
 whether in matter of form or substance, does not seem to be fatal. See 
 Stephens vs. White, 2 W. 203. In England, indeed, where the defendant, 
 in order to take advantage of the variance, craves oyer of the writ, which is 
 otherwise (as we have seen) no part of the record, the court usually re- 
 fuses it unless the justice of the case will be promoted by it. See ante 
 pleading. In the ease of Watson's executors vs. Lynch's heirs, the writ 
 was against four, the declaration and judgment against three only. Judg- 
 ment reversed, not for the variance, I conceive, but because the declaration 
 and judgment were against three only, when it appeared by the writ there 
 were four heirs, all of whoin ought to have been joined. 
 
 2. " Or for any mispleading, insufficient pleading." Under this clause 
 the plea of not guilty in covenant, or in an action of debt, on prison bounds 
 bond is cured by a verdict. 2 W. 143. 1 H. & M. 153. So the plea of 
 "the act of limitations," in those words only, is good after verdict, the 
 plaintiff having replied generally. 4 Mun. 444. In like manner, "pay- 
 ment," "conditions performed," or "covenants performed," in those 
 words only, are considered as sufficient pleas after verdict. So the plea of 
 " fully administered," is good after verdict, though it conclude to the coun- 
 try. . 4 Mun. 466. 
 
 3. "Discontinuance, or misjoining of issue." When the defendant 
 pleads the general issue, and puts himself upon the country, the issue is 
 made up by adding the similiter, " and the said plaintiff likewise." Yet 
 the omission of this is cured by a verdict, for the parties are substantially 
 at issue by the affirmation on one side, and the denial on the other, and the 
 similiter is but matter of form. See 1 W. 363. See 4 Ran. 488. In like 
 manner, after argument of a demurrer and judgment thereupon, it is too 
 late to object that the joinder in demurrer was not entered. Gilmer, 338. 
 
 Where issues have not been, indeed, formally joined, but have been sub- 
 stantially tried and a verdict found upon them, the defect is cured, and no 
 advantage can be taken of the informality. 2 W. 1. Thus, where the de- 
 fendant pleaded payment and fully administered, concluding each with a 
 VOL. 2—40
 
 314 JEOFAILS. [book 3. 
 
 verification, and also pleaded another special plea, and the record stated 
 that the plaintiff replied generally, and issue was thereupon joined, this 
 was, indeed, irregular and informal, because to these special pleas there 
 ought to have been formal replications, &.c. ; yet after a verdict the infor- 
 mality was considered as cured. Ibid. See also 2 Call, 514. 
 
 It must be observed, however, that though the informal joining of issue is 
 cured by the statute, yet, if no issue is in fact made up, the verdict will be 
 set aside; or if the superior court render judgment upon it, the judgment 
 will be reversed. I W. 155. 2 H. & M. 268. 3 Mun. 314. 4 Mun. 
 430. Yet the courts lean very far in support of the proceedings; for 
 Avhere the record stated that the defendant tendered " a plea in writing in 
 these words," (setting forth ^ire pleas,) to which said plea the plaintiff re- 
 plied generally, and issue was joined between the parties; this was consi- 
 dered a replication to all the pleas, and a repleader was not awarded. 4 
 Mun. 60. 
 
 Nor must it be omitted that in a writ of right all the pleadings must be 
 in writing and at full length, and therefore where the defendant put in as a 
 plea the words " usual plea," it was decided that no issue was joined, and 
 after verdict for defendant a repleader was awarded. 2 H. & M. 161. 
 Had the verdict, however, been for the plaintiff, the defendant could not on 
 his motion have had it set aside and a repleader awarded, because it was 
 his own fault. Yet, notv.'ithstanding the principle here stated, if in a writ 
 of right the record states that the demandant " replied generally," the court 
 will intend after a verdict that the replication was filed in writing. 3 H. & 
 M. 309. For the statute extends to writs of right, and if the verdi-ct and 
 judgment be substantially right, though not in the words of the law, they 
 ought not to be disturbed. Ibid. 
 
 It is here proper to remind the student of the distinction formerly advert- 
 ed to, between an informal issue upon a material fact, and an issue how- 
 ever formal upon an immaterial fact. The former is cured by the statute, 
 the latter is not. I Chitty, 631. 1 Leo, 32. 
 
 If there be two issues, and the jury be sworn in general terms to try the 
 issue joined, it is no error if the verdict is sufficiently responsive to both is- 
 sues. 3 Call, 19. But if there be two issues, and the verdict answers to 
 one only, there must be a venire de novo, because part of the cause is left 
 untried. 2 H. & M. 268. For the cases in which a venire de novo is pro-« 
 per, see 2 T. R. 126, in the note. 
 
 4. " Or for mistake of the christian name or surname of either party, 
 sum of money, quantity of merchandise, day, month, or year, in the decla- 
 tion, the name, sum, quantity, or time, being right in any part of the record 
 or proceeding." 
 
 Under this clause the court of error considers an amendment as being 
 actually made in ail cases where it would be proper to allow it to be made. 
 2 W. 103. 
 
 I am not informed whether the case of Jenkins vs. Hurst, 2 Rand. 446, 
 was decided under this clause. That was an action of debt on a simple 
 contract, having the form of a penal bill in which the declaration demanded 
 the penalty. But though this was confessed erroneous, (since the sum 
 due should have been demanded,) yet it was considered as cured. 
 
 It has been more than once remarked, that at common law, where the 
 cause had proceeded to issue, the writ was no part of the record, unless it 
 was made so by oyer. The same principle still prevails, except so far as it 
 is affected by this clause. In the interpretation of the act, however, the 
 courts have decided that the writ is always to be considered part of the re- 
 cord for purposes of amendment, and therefore it may be resorted to with- 
 out oyer to amend by. 2 W. 203. Yet the act having made it a part of
 
 CHAP, lai JEOFAILS. 315 
 
 the record only with a view to sustain the proceedings, the common law 
 rule still prevails, where it is sought to overthow them, instead of support- 
 ing them. 2 Mun. 297. And, therefore, where a party would take advan- 
 tage of a defect in the original writ, or a variance between it and the de- 
 claration, he must still have oyer before he can avail himself of it; and we 
 have seen that oyer in such cases is not usually granted unless the justice 
 of the case requires it. 2 W. 212. 4 H. & M. 309, 310. 2 Mun. 297. 
 
 Under this clause, if the verdict of the jury is for more damages than are 
 laid in the declaration, but those laid in the writ are high enough, the de- 
 claration may be amended by the writ, and the judgment will be entered 
 according to the verdict. 3 H. & M. 502. So if there are no damages 
 laid in the declaration, the court will inspect the writ and supply them from 
 It. 3 H. & M. 268. 
 
 5. "Or for omitting the averment of any matter, without proving which 
 the jury ought not to have given such a verdict." Much has been already 
 said on this clause, and on the necessity of setting forth the gist of the 
 action. 
 
 A declaration on behalf of a co-partnership in the name of the firm, 
 without setting out the partners, will support a judgment after a verdict for 
 the plaintiff, on the general issue. 6 Mun, 219. 
 
 With resjject to blanks in the declaration, it has been adjudged that 
 though in a count for money had and received, the sum alleged to have 
 been received is left blank, yet after a verdict it is immaterial. 3 Mun. 
 550. So, though in assault and battery the time of the battery, or in an 
 action for breach of marriage promise, the time when the marriage was to 
 have taken place is left blank, judgment will neither be arrested nor revers- 
 ed after a verdict. 3 H. & M. 268. 4 Mun. 219. Yet where the decla- 
 ration was blank as to sum, date, assignment and damages, an office judg- 
 menl rendered thereupon was deemed erroneous. 2 Call, 495. But the 
 writ in this case appears to have been also defective. 
 
 Notwithstanding this clause, the student will remember that in actions 
 on assigned bonds, if the declaration does not distinctly assign a failure on 
 the part of all the obligors to pay the amount due to any of the obligees, 
 assignors, &.c. as well as to the plaintiff, it is faulty, and the error is not cured, 
 for therein is the gist of the action. 2 Mun. 282, 518. See also 2 Mun. 
 336. 
 
 If in detinue the declaration omit the words "that the defendant render 
 to the plaintiff," upon non detinet pleaded and issue joined, and a verdict 
 for plaintifi", the error is cured, 6 Mun. 486; for the issue made up on the 
 part of the plaintiff implies the demand. 
 
 6. " Or for setting forth, by way of recital, any matter which ought to 
 have been set forth by averment." This clause was inserted at the late re- 
 visal, with a view to change the law as to what are familiarly called the 
 quod cum cases. Thus we have seen, if in assault and battery or trespass, 
 the declaration begins, 'for that whereas,' and continues by way of recital 
 to the end, it was before this act incurably faulty : 3 H. & M. 127 : and the 
 like principle was applied by the decisions of the courts to debts on bond 
 with collateral conditions, 4 H. & M. 277, and to assumpsit, 3 Mun. 566, 
 and slander, 4 Mun. 261 ; in all which the error was fatal, if the charge in 
 the declaration was throughout by way of recital only. By this act these 
 defects are cured after verdict. The defendant who would avail himself of 
 them, should demur therefore as well as plead. 
 
 7. " Or for not alleging that the suit or matter is within the jurisdiction 
 of the court." On this subject see 1 W. 81, 87. 3 H. & M. 309. 5 
 Mun. 27.
 
 316 JEOFAILS. [book 3. 
 
 8. "Of for not alleging that the property in the declaration mentioned 
 is the property of the plaintiff." Until this clause was inserted in the re- 
 visal of 1819, this error was deemed fatal. 4 Mun. 72. 
 
 9. "Or for any mistake or misconception of the form of action." Until 
 the revisal of 1819 a mistake herein was fatal, as where trespass vi et armis 
 was brought instead of trespass on the case, and vice versa. 2 H. & M. 
 423. How far the provisions of this short clause may be extended, it is im- 
 possible to foresee ; whether it will be construed to break down all the 
 barriers, so sedulously erected by the courts between the several forms of 
 action, or will be restricted within narrower limits, time alone can develope. 
 We have already seen that the error of bringing case instead of trespass is 
 cured after verdict. 2 Ran. 440. Should it be decided that to bring as- 
 sumpsit instead of covenant, or debt instead of assumpsit, or any of them 
 instead of detinue, &c. is no longer material after verdict, it is difficult to 
 divine what will become of the whole system of pleading in a few years. 
 
 10. " Or for any other defect whatsoever in the declaration or pleading, 
 whether of form or substance, which might have been taken advantage of 
 by demurrer, and which shall not have been so taken advantage of." This 
 clause was inserted at the revisal of 1819, and the effect of it has not yet 
 been declared by judicial decision. It seems to me sufficiently comprehen- 
 sive in its language to embrace any conceivable case, and to sweep away at 
 once the train of adjudications which have had their foundations in a de- 
 sire to keep distinct the several forms of actions, and to preserve something 
 like precision in pleading, with a view to attain its great objects. For we 
 must remember that these objects are, first, that each party shall give his 
 adversary fair notice of his claim or defence, that he may not be surprised 
 upon the trial. Secondly, that the plaintiff should state his demand with 
 so much certainty at least as to enable the defendant in any subsequent ac- 
 tion to show by the record that it has been satisfied. Thirdly, to bring 
 before the proper tribunal for trial, some certain, distinct, and simple ques- 
 tion. I shall not enter into any disquisition to show how entirely all these 
 ends of pleading are frustrated by the provisions contained in this clause, 
 should the courts give their full latitude to the expressions used by the le- 
 gislature. They are sufficiently obvious even to the tyro, and every day's 
 practice will serve more fully to develope the inconveniences most likely 
 to flow from such crude legislation. I cannot, however, omit to remind the 
 student of the advice heretofore given, to demur as well as plead in all im- 
 portant cases : by which means the force of this clause is evaded. See 4 
 Ran. 161, 1G3. 
 
 11. The last clause of the statute applies to judgments by «tAi7fZici/, now 
 sum informatus, or after writ of inquiry ; all of which are placed upon the 
 footing of judgments after a verdict. Herein, as has already been observ- 
 ed, our act is more comprehensive than the English statutes. For they 
 only cure (after judgment by default, &c.) such errors as the statutes them- 
 selves cured after verdict, but not such as were cured at common law after 
 verdict only. Our act appears to place the judgment by default after ap- 
 pearance ill all respects on the footing of the judgment after verdict. See 
 1 Saun. 228, n. 1.* 
 
 There are several other sections of the statute of Jeofails to which re- 
 ference must be particularly made before we conclude this subject. 
 
 It is provided, sec. 102, that after issue joined in ejectment on the title 
 only, no exception of form or substance shall be taken to the declaration. 
 
 *In casesof judgment by default for want of appearance, the statute cures nothing. 3Leieli,270. 
 6 "^an. 102. For where there hrs been no appearance, there is no room to infer tiiat ilie party waives 
 ol)jections to proccedinK« he never has seen, iiut where he lias appeared, and s-avs notliingby way 
 of picaor objection, It may fairly Ije inferred that he waives all objection. Hence a judgment by nU 
 dictt IS on the footing of a judymcnt aftcri vcrUict.
 
 CHAP. 18.] JEOFAILS. 317 
 
 Under this clause it has been decided, that if the demise and ouster be laid 
 precedent to the plaintiffs title, the defect is cured. 3 Call, 302. See 3 
 Mun. 93. 4 Mun. 468. 
 
 Sec. 104. " Where there are several counts, one of which is faulty, and 
 entire damages are given, the verdict shall be good, but the defendant may 
 apply to the court to instruct the jury to disregard the faulty count." If he 
 fails to do this the verdict will not be disturbed. 1 H. & M. 361. If the 
 court refuse in such case to instruct, he should except to the opinion. 
 
 If the declaration consist of several counts, some of which only are faul- 
 ty, if the defendant demurs, he must demur specially, for a general demur- 
 rer would be overruled. 1 H. & M. 361. 1 Wilson, 25-2. Ante, 264. 1 
 Saun. 286. 2 Saun. 380. 
 
 Sec. 105. " If in detinue the verdict omit price or value, the court may 
 at any time award a writ of inquiry to ascertain the same." And if the 
 verdict improperly ascertain \a\u.es jointly, a writ of inquiry will be direct- 
 ed. 2 Mun. 195. 2 Call, 313. In detinue, if the jury find for the plain- 
 tiff the slaves in the declaration mentioned, and proceeding to set forth 
 their names mistake one of them, such error may he corrected by reference 
 to the declaration. 4 Mun. 145. See also 5 Mun. 82. 
 
 '•' If on an issue concerning several things in one count in detinue, no 
 verdict be found for part of them, it shall not be error, but the plaintiff shall 
 be barred of his title to the things omitted." Sec. 105. Before this clause 
 was introduced into the act, such a verdict was deemed erroneous and was 
 set aside, and a venire de novo awarded. See 1 W. 76. 
 
 A venire de novo is granted where the jury are improperly chosen or irre- 
 gularly returned, or have conducted themselves improperly, or find an im- 
 perfect verdict ; or it may be granted on a demurrer to evidence. 2 T. R. 
 126, in note. See 4 Ran. 504. 
 
 Sec. 106. " A confession of judgment shall be equal to a release of er- 
 rors." And a relinquishment of plea, and agreeing to the plaintiff's da- 
 mages, is a confession of judgment. 3 Mun. 167. It has also been de- 
 cided, that a confession of judgment on a forthcoming bond, operates as a 
 release of errors in the original judgment and proceedings. 1 Rand. 44. 
 3 Rand. 160. 3 Leigh, 68]. And the reason seems obvious, for if the 
 defendant acknowledges the judgment against him to be just, of what im- 
 portance can it be whether the proceedings in the original cause were re- 
 gular or irregular. 
 
 Sec. 107. "An execution, writ, or other process, appearing to be duly 
 served in other respects, shall be deemed good, though not directed to any 
 
 sheriff." And though directed to the sheriff of county, it may be 
 
 executed by the serjeant of a corporation. Per Taylor, C. 4 H. & M. 404. 
 
 It is proper to add here, that if errors in the proceedings are cured as to 
 one defendant in an action on contract, they are cured as to all. 2 Rand. 
 446. Moreover, though the amendment be not actually made, yet, if the 
 party had a right to make it, it will be considered as made. See Post. 
 
 Besides the various provisions we have noticed, for the prevention of fri- 
 volous objections to the proceedings in courts of law% where the verdict of 
 a jury has been rendered in favor of either party, certain salutary regula- 
 tions iiave been adopted by a comparatively recent statute, for the correc- 
 tion of mistakes in the judgments or decrees of the superior courts of law 
 or equity. It is thereby enacted ; 
 
 1. That where there is a mistake, miscalculation, or misrecital in any 
 judgment or decree, of a superior court of law or equity, of any sum of 
 money, tobacco, wheat, or other thing, or of any name ; and there be in 
 the record any verdict, bond, bill, note, or other writing of like kind, where- 
 by the error can be safely amended, the same may be amended by such
 
 318 EEPLEADER. [ BOOK 3. 
 
 court accordincf to the very truth and justice of the case ; see Winston vs. 
 C. W. 5 Rand., and Marks vs. Garland, and Eubank vs. Ralls, 4 Leigh; 
 and if the cause is depending in the court of appeals at the time of the 
 amendment, or afterwards, that court, upon the inspection of the amended 
 record, shall affirm the judgment if there be no other error. Notice of the 
 motion to amend must be given to the adverse party. 1 R. C. ch. 128, § 
 108. Sec 1 Rand. Bent vs. Patton. 
 
 2. Where any bond, taken by virtue of a distress for rent, or upon execu- 
 tion, is by mistake taken for too much, or where verdict and judgment is 
 rendered for more damages than the plaintiff has demanded, the plaintiff 
 may, even after the term has passed, release the excess ; such release may 
 be made at any time before the cause is removed to an appellate court, either 
 in open court, or by deed attested by the clerk, or his deputy, and the er- 
 ror is thereby cured. Or if the cause is removed by appeal, before the re- 
 lease is made, it may then be made in the appellate court, and that court, 
 after reversing the judgment as erroneously given, is required to enter such 
 judgment as the court below ought to have entered if the release had been 
 filed therein. 1 R. C. ch. 128, § 109, 110. In these cases, however, the 
 error cannot be corrected, unless it be such a mistake, miscalculation, &-c. 
 as amounts to a clerical misprision. An error oi' judgment on the part of 
 the court cannot be so corrected. And hence, in Bent vs. Patton, 1 Ran. 
 25, the judgment having been entered for six per cent, interest on a con- 
 tract carrying only^t-e per cent., and the court of appeals regarding this as 
 an error of judgment in the court, and not a clerical misprision or mistake, 
 would not permit the plaintiff to remit the illegal one per cent, in the court 
 of appeals. 
 
 The student will observe in the 109th clause, that the party has leave to 
 release, and thereby amend the judgment, even after the term has passed in 
 which such judgment was rendered. We shall have occasion hereafter to 
 shew that the common law rules inhibit any alteration by any court what- 
 soever of its judgment or proceedings, at any time after the expiration of 
 the term, when a final judgment may have been rendered therein. 
 
 Returning from the digression into which we have been led by consider- 
 ing the several clauses of the statute of Jeofails, 1 proceed to present an- 
 other state of a cause in which the court will not proceed to give judgment 
 on the verdict of the jury, but will be compelled to arrest or suspend their 
 judgment until other proceedings shall take place. This happens where 
 " by the misconduct or inadvertence of the pleaders, the issue be joined on 
 a fact totally immaterial, or insufficient to determine the right, so that the 
 court upon the finding cannot know for whom judgment ought to be given ; 
 as if, in an action on the case in assumpsit against an executor, he pleads 
 that he himself (instead of the testator) made no such promise ; or if, in an 
 action of debt on bond conditioned to pay money on or before a certain day, 
 the defendant pleads payment on the day ; (which issue, if found for the 
 plaintiff, would be inconclusive, as the money might have been paid before ;). 
 in these cases the court will after verdict award a repleader ; quod partes re- 
 placitent ; unless it appears from the whole record that nothing material 
 can possibly be pleaded in any shape whatsoever, and then a repleader 
 would be fruitless. See ante, 262. And, whenever a repleader is granted, 
 the pleadings must begin de novo at that stage of them, whether it be the 
 plea, replication, or rejoinder, &c. wherein there appears to have been the 
 first defect, or deviation from the regular course." 
 
 It seems to be a rule that a repleader is not grantablo at the instance of 
 the party who committed the first fault in pleading. Doug. 396. 3 H. & 
 M. 388. Tidd's Prac. 813, cited 1 Chitty, 634. The distinction may be 
 illustrated by the case cited from Henning and Munford. Where the dc'
 
 CHAP. 18.] REPLEADER. 319 
 
 fendant to a declaration in slander pleads the word "justification," and a 
 verdict is rendered for him, the plaintiff may demand a repleader; but if 
 the plaintiff had obtained a verdict, the defendant could not have had a re- 
 pleader awarded on account of this fault, for it was a fault of his own. See 
 
 2 Call, 379. In like manner, if in debt on bond with collateral condition, 
 the condition and breach be not set forth in the declaration, and defendant 
 pleads conditions performed, and the plaintiff replies generally, failing still 
 to set forth the breach, a repleader must be awarded if the judgment is in 
 his favour. 5 Mun. 246. It would have been otherwise if defendant had 
 obtained a verdict. A repleader, however, is never awarded where there is 
 enough in th€ record to enable to court to give judgment, or to show that 
 even if the pleading had been proper the judgment must have been the same. 
 
 3 Call, 248. See also 2 H. & M. 161. 3 H. & M. 118. 1 W. 155. 1 
 Chitty, 633. I Saun. 319, n. 6, and particularly 2 Salk. 579. 2 Ld. Ray. 
 922, and 1 Burr. 292, on tl>e subject of repleaders. 
 
 In the valuable edition of Blackstone's commentaries by Judge Tucker, 
 it is stated in a note to the doctrine of repleaders as laid down by the com- 
 mentator, that if the declaration be defective, as well as the subsequent 
 pleadings, no repleader shall be awarded ; and Smith vs. Walker, executor 
 of Michie, I Wash. L35, is cited as the authority in support of this position. 
 I humbly conceive, however, that the case of Smith vs. Walker does not 
 maintain the principle as broadly as it has been laid down by the learned 
 annotator. That was a suit against a father by his son-in-law, upon an al- 
 leged promise to give the plaintiff's wife, on her marriage, as much as he 
 should give to his other children : but the declaration contained no allega- 
 tion that he had given his other children any thing. Thus there was no- 
 thing from which the court could infer that the plaintiff had a right to any 
 thing. The declaration shewing no cause of action, and the record exhib- 
 iting no evidence of the existence of other facts, which might have made out 
 a good case, the judgment was arrested and the suit dismissed, because no 
 good foundation appeared in the cause on which to erect new pleadings. 
 IH. &M. 422, 2 Mun. 518. See 5 Mun. 251. 3 Mun. 258. The 
 books clearly show that if the declaration is not radically defective, that is, 
 if it does not state a defective case, but only states a good case defectively, 
 a repleader may be awarded, and when so awarded the proceedings are set 
 aside up to the writ, an<l the parties begin de novo. See 2 Salk. 579. Bac. 
 Abr. Plead. M. 3 Keble, 664. 1 Chitty, 633. The like principle, I con- 
 ceive, has prevailed in other cases, where, instead of awarding a repleader, 
 the court of appeals have proceeded to reverse the judgments for the plain- 
 tiff in toto, and enter judgment for defendants. In all such cases the plain- 
 tiff's declaration has been radically defective, showing no cause of action 
 whatever ; and as the court of error could not know whether the facts ne- 
 cessary to make a good cause of action did or did not exist, they dismissed 
 his suit accordingly. 
 
 The case of Hill vs. Harvey was that of an office judgment, where the 
 declaration was defective. The judgment being by default and entered in 
 the office, and the writ being in such case considered as an essential part of 
 the record by the operation of the act of Jeofails, because without it the 
 office judgment could not be supported, the court, instead of dismissing the 
 suit, set aside the proceedings up to the writ, and sent the cause back for 
 further proceeding. 2 Mun. 526. 
 
 The principle of this case sufficiently evinces the desire of the court to 
 seize upon any thing which may sustain the party's right to proceed in his 
 suit, where it does not appear that in truth he has no ground of action. 
 Where this appears, it would be useless indeed to turn the parties around
 
 320 JUDGMENT. [book 3. 
 
 to plead de novo. And this, as I understand, is all that is decided in the 
 case of Smith vs. Walker. 
 
 In the same note of Judge Tucker above quoted, he states the following 
 case, citing 1 Call, 257, as his authority : "If one be sued both as heir and 
 devisee upon the obligation of his ancestor, and pleads rien per discent, and 
 no other plea, and thereupon issue be joined and a verdict for the plaintiff, 
 a repleader must nevertheless be awarded, for the issue has only tried the 
 right as to the descent and not as to the devise." The deserved celebrity of 
 this work of the American annotator, and its being in the hands of every 
 student who can procure a copy of it, renders it peculiarly proper to advert 
 to any casual inaccuracies that may have crept into it. I must therefore 
 remark upon this passage, that the case here cited is essentially misstated 
 in an important particular. The verdict was for the defendant, and the re- 
 pleader awarded in behalf of the plaintiff; for the defect being in the de- 
 fendant's plea, the repleader could not on principle have been awarded at 
 his instance or for his benefit. See Doug. -396. 3 H. & M. 388.* 
 
 " If judgment is not by some of these means arrested, it is then to be en- 
 tered on the record. Judgments are the sentence of the law, pronounced 
 by the court upon the matter contained in the record ; and are of four sorts. 
 First, where the facts are confessed by the parties, and the law determined 
 by the court ; as in case of judgment upon demurrer : secondly, where the 
 law is admitted by the parties, and the facts disputed; as in case of judg- 
 ment on a verdict : thirdly, where both the fact and the law arising thereon 
 are admitted by the defendant ; which is the case of judgments by confes- 
 sion or default: or, lastly, where the plaintiff is convinced that either fact, 
 or law, or both, are insufficient to support his action, and therefore aban- 
 dons or withdraws his prosecution ; which is the case in judgments upon a 
 nonsuit or retraxit. 
 
 " The judgment, though pronounced or awarded by the judges, is not 
 their determination or sentence, but the determination and sentence oi the 
 law. It is the conclusion that naturally and regularly follows from the 
 premises of law and fact, which stands thus : against him, who hath rode 
 over my corn, I may recover damages by law : but A hath rode over my 
 corn ; therefore, I shall recover damages against A. If the major propo- 
 sition be denied, this is a demurrer in law : if the minor, it is then an issue 
 of fact: but if both be confessed (or determined) to be right, the conclu- 
 sion or judgment of the court cannot but follow. Which judgment or con- 
 clusion depends not therefore on the arbitrary caprice of the judge, but on 
 the settled and invariable principles of justice. The judgment, in short, is 
 the remedy prescribed by law for the redress of injuries ; and the suit 
 or action is the vehicle or means of administering it. What that remedy 
 may be, is indeed the result of deliberation and study to point out; and, 
 therefore, the style of the judgment is, not that it is decreed or resolved 
 by the court, for then the judgment might appear to be their own ; but, 'it 
 is considered,' consideratum est per curiam, that the plaintiff do recover his 
 damages, his debt, his possession, and the like : which implies that the 
 
 *0n ilie subject of repleaders, Mr. Cliilty gives the following siimirary, which may be useful to 
 tlie student : 
 
 The following rules have been laid down on this subject : A repleader ought never to be allowed 
 till trial, bccau^^e the fault of the issue may be helped after the verdict by the statute of Jeofails 
 2dly. If the repleader be (lenied where it should be granted, or granted where it should be denied, 
 ills error. 3dly. 'I'he lud^'tncnt of repleader is general, and the parties must begin again at the (irst 
 fault wliicli occasioned the immaterial issue. J Lord Raym. lG!t. Thus if the declaration be ill, and 
 the bar and replication are al^o ill, the particsrnusi begin deiiovo: but if the bar be good andlhe re- 
 plication ill, at the replication, a Keb. (iG4. 4ihly. No costs are allowed on either side. 6 T. R. 
 131. 2 B. & P. :i7G. 5thly. That a repleader cannot be awarded after a default at nisi prius; to 
 wliicli may be added, that it can never be awarded after a demurrer or writ of error, but only after 
 issue Joined. 3 Salk. 3()G. Nor where the court can give judgment on the whole record, Willes, 532; 
 and it is not grantablc in favour of the person who made the first fault in pleading. Doug. 396; see 
 2 Saund. 319, b. Chitty.
 
 CHAP. 18.] WRIT OF INQUIRY, 321 
 
 judgment is none of their own ; but llie act of law, pronounced and de- 
 clared by the court, after due dehberation and inquiry. 
 
 " All these species of judgments are either inlcrlociitonj or fatal. Inter- 
 locutory judgments are such as are given in the middle of a cause, upon 
 some plea, proceeding, or default, which is only intermediate, and docs not 
 finally determine or complete the suit. Of this nature are all judgments for 
 the plaintiff upon [demurrers to] pleas in abatement of the suit or action : 
 in which it is considered by the court, that the defendant do answer over, 
 respondeat ouster : that is, put in a more substantial plea. It is easy to ob- 
 serve, that the judgment here given is not final, but merely interlocutory ; 
 for there are afterwards farther proceedings to be had, when the defendant 
 has put in a better answer. 
 
 "But the interlocutory judgments, most usually spoken of, are those in- 
 complete judgments, whereby the right of the plaintiff is indeed establish- 
 ed, but the quantum of damages sustained by him is not ascertained : which 
 is a matter that cannot be done without the intervention of a jury. This 
 can only happen where the plaintiff recovers ; for, when judgment is given 
 for the defendant, it is always complete as well as final. And this happens, 
 in the first place, where the defendant suffers judgment to go against him 
 by default, or nihil dicit ; as if he puts in no plea at all to the plaintiff's 
 declaration : by confession or cognovit actionem, where he acknowledges 
 the plaintiffs demand to be just : or by non sum informatus, when the de- 
 fendant's attorney declares he has no instructions to say any thing in an- 
 swer to the plaintiff, or in defence of his client ; which is a species of judg- 
 ment by default. If these, or any of them, happen in actions where the 
 specific thing sued for is recovered, as in actions of debt for a sum certain, 
 the judgment is absolutely complete." And, therefore, it is very usual in 
 England and in some of the states of this confederacy, (though expressly 
 prohibited under heavy penalties in Virginia, 1 R. C. ch. 76, § 12,) "in or- 
 der to strengthen a creditor's security, for the debtor to execute a warrant 
 of attorney to some attorney named by the creditor, empowering him to 
 confess a judgment by either of the ways just now mentioned, (hy nihil di- 
 cit, cognovit actionem, or non sum informatus,) in an action of debt to be 
 brought by the creditor against the debtor for the specific sum due : which 
 judgnient, when confessed, is absolutely complete and binding. But where 
 damages are to be recovered, a jury must be called in to assess them ; un- 
 less the defendant, to save charges, will confess the whole damages laid in 
 the declaration." This is rarely done, and therefore where the plaintifTs 
 demand is indefinite, and a judgment is entered for him hynil dicit or other- 
 wise at the rules, a writ of inquiry is also awarded. The rule is taken in 
 the rule book in this abbreviated manner, "judgment and writ of inquiry ;" 
 but if made out at length and in proper form, the entry of the judgment 
 would be " that the plaintiff recover his damages, but because the court 
 know not what damages the said plaintiff hath sustained, therefore the 
 sheriff is commanded to summon twelve honest and lawful men to inquire 
 into the said damages." 
 
 " This process is called a writ of inquiry, in the execution of which [in 
 England] the sheriff sits as judge, and tries by a jury, subject to nearly the 
 same laws and conditions as the trial by jury at nisi prius, what damages 
 the plaintiff hath really sustained ; and when their verdict is given, which 
 must assess so7ne damages, the sheriff returns the inquisition, which is en- 
 tered upon the roll in manner of k postea : and thereupon it is considered, 
 that the plaintiff do recover the exact sum of the damages so assessed. In 
 like manner, when a demurrer is determined for the plaintiff upon an action 
 wherein damages are recovered, the judgment is also incomplete, without 
 the aid of a writ of inquiry." In Virginia, however, there is no writ in 
 VOL. 2—41
 
 322 JUDGMENT, [ BOOK 3. 
 
 point of fact; for although the form of awarding a ivrit of inquiry is pre- 
 aerved in the entries of the clerks in V^irginia, yet no writ ever issues, nor 
 is the inquiry made before the sheriff, as in England ; but a jury is sum- 
 moned, as in other cases, and the inquiry is made in court: the only diffe- 
 rence between the proceedings in this case, and in the case of a trial, be- 
 ing that the jury are sworn " well and truly to inquire of the plaintiff's da- 
 mages," instead of " well and truly to try the issue joined." 
 
 This method of ascertaining the amount of the plaintiff's demand, where 
 it arises out of matter of account between the parties, has been found in 
 practice to be extremely defective. Twelve men constitute a very unfit 
 tribunal for the unravelling of entangled accounts, which had best be in all 
 cases submitted to one, two, or three ; but when these twelve men have to 
 adjust unanimonshj the whole transactions of many years within a {aw 
 hours, and before they separate, it is obvious that their decisions must of- 
 ten be imperfect and erroneous. Moreover, where the ascertainment of 
 the damages or amount of the demand merely depends upon calculatiori, 
 there seems to be no necessity for a writ of inquiry. In England, in such 
 cases, the proceeding is peculiarly burdensome and expensive, because the 
 writ of inquiry is not tried at Westminster, but is sent down to be tried be- 
 fore the sheriff of the county where the venue is laid. Hence a practice is 
 now established in the courts of king's bench and common pleas, in actions 
 where judgment is recovered by default upon a bill of exchange or a pro- 
 missory note, to refer it to the master or prothonotary to ascertain. what is 
 due for principal, interest, and costs, whose report supersedes the necessity 
 of a writ of inquiry.* 4 T. R. 275. 1 H. BL 541. It were much to be 
 wished that accounts were generally so referred, as it would have the effect 
 of superseding the necessity of many an expensive and tedious suit in 
 chancery. 
 
 Before the act 1 R. C. ch. 128, § 82, corresponding pretty much with 
 the 8 and 9 W. III., ch. 1 1, the penalty in a bond for the performance of 
 covenants became forfeited upon a single breach thereof. But now by the 
 8th section of that statute, though the plaintiff is permitted to enter up judg- 
 ment for the whole penalty, it can only stand as a pecurity for the dama- 
 ges actually sustained. Mr. Chitty says the plaintiff must then proceed by 
 suggesting breaches on thfe roll, of which it is usual to give a copy to the 
 defendant, with notice of inquiry for the sittings or assizes ; and the dam- 
 ages are assessed upon the writ in the usual way by a jury ; and upon pay- 
 ment of them, execution upon the judgment entered up is stayed, the judg- 
 ment itself remaining as a security against further breaches. See Tidd. 8 
 ed. 632. This statute does not extend to a bond conditioned for the pay- 
 ment of a sum certain at a day certain, as a post obit bond, 2 B. & C. 82 ; 
 nor a common money bond, 4 Ann. c. 16. s. l-'j. 1 Saund. 58 ; nor a war- 
 rant of attorney payable by instalments, 3 Taunt. 74. 5 Taunt. 264 ; 
 though a bond be also given, 2 Taunt. 195 ; nor to a bail-bond, 2 B. &, P. 
 4-16; nor a petitioning creditor's bond. 3 East, 22. 7 T. 11. 300. But 
 all other bonds, either for payment of money by instalments, or of annui- 
 ties, or for the performance of any covenants or agreements, are within the 
 statute. See 8 T. R. 126. 6 East, 550. 2 Saund. 187, n. (c.) 3 M. & 
 S. 156. 1 Chitty on PI. 507. Where the parties in a bond agree that the 
 sum mentioned to be paid on a breach of any of its covenants, shall be ta- 
 ken to be, and be considered as, stipulated damages, the case is not then 
 within the statute, and the whole sum becomes at once payable, according 
 to the terms of the agreement ; for where the precise sum is the ascertain- 
 ed damage, the jurv are confined to it. See 4 Burr.2225. 2 B. & P. 346. 
 1 Camp. 78. 2 T. R. 32. Holt. Rep. 43. 
 
 • See also 2 San t). 107. 7 T. 11.116. Eac. Abr. Uain. L. 8 T. R. 3?J. 5 T. K. G7. IT. I1.1D3. 
 3 Julin. Rep. lO'J.
 
 ciiAP. 18.] COSTS. 823 
 
 " Final judgments arc such as at once put on ond to tlie action, by dc- 
 clarluir that tlie plaintiff has either entitled hiniseltj or has not, to recover 
 the remedy he sues for. In which case, if the judirmont be for the plain- 
 tiff, it is also considered that the defendant be amerced, for his wilful delay 
 of justice in not immediately obeying the writ by rendering the plaintiff liis 
 due ; or be taken up, capiatur, till he pays a fine for the public misdemes- 
 iior which is coupled with the private injury, in all cases of force, of false- 
 hood in denying his own deed, or unjustly claiming property in replevin, or 
 of contempt by disobeying the command of the king's writ or the express 
 prohibition of any statute." This part of the entry of the judgment is now, 
 however, but matter of form, there being in fact no amercement or fine in 
 any case whatever. The fine was abolished in England by a statute of 
 William III., which was never in force with us. Yet it seems to have been 
 as effectually abolished in practice, in Virginia, as if there had been a sta- 
 tutory enactment. In like manner, when the plaintiff fails in his suit, and 
 judgment is given for the defendant, the form is, that " it is considered ih^t 
 the plaintiff for his false clamour be amerced, [or in mercy, according to 
 the accustomed form,] and that the defendant go thereof without day ; that 
 is, without any further continuance or adjournment : the writ commanding 
 his attendance being now fully satisfied, and his innocence established. 
 This amercement is entirely nominal, as in the case of the defendant: but 
 for the prevention of vexatious and groundless actions, it is enacted, that 
 whenever the plaintiff is nonsuited, he shall pay to the defendant five dol- 
 lars for his nonsuit, besides his costs. 1 R. C. ch. 128, § 7'2. 
 
 " Tlius much for judgments ; to which costs are a necessary appendage ; 
 it being now as well the maxim of ours as of the civil law, that ' victus vic- 
 tori in expensis condemnandus est : ' though the common law did not profes- 
 sedly allow any, the amercement of the vanquished party being his only 
 punishment." These costs are taxed by the clerk of the court. 
 
 The law of costs, as now existing in Virginia, will be found in 1 R. C. 
 ch. 128, § 23, &c. to 32 ; and acts of 1823, ch. 28, sec- 4. Upon parts of 
 the first of these acts some remarks may be necessary. It provides, 
 
 Sec. 23. That in all cases at law, except motions, where judgments shall 
 be given for the defendant, or appellee, he shall recover his costs against 
 the plaintiff or appellant, and have execution for the same ; and where in 
 such cases the plaintiff prevails he shall recover costs against the defendant 
 or appellee, unless otherwise provided by law. Here note, 
 
 1. The party prevailing in such cases has a right to his costs, the court 
 having no discretion on the subject. 1 H. & M. 499. 
 
 2. But where a judgment is reversed because of an error in favour of the 
 appellant, the appellee has judgment for costs, for he is the party substan- 
 tially prevailing. 1 W. 381. 2 H. & M. 589. Gil. 230. 
 
 3. This section does not apply to motions even in a court of law; for, 
 by section 24, ou all motions the court may give or refuse costs, unless 
 where it is otherwise by law- 
 Sec. 25. In any cause, whether at law or in equity, and whether appel- 
 late or original, the judgment or decree is rendered against executors or 
 administrators, whether plaintiffs or defendants, for costs, in the same man- 
 ner as costs are taxed against a person suing or sued in his own right. But 
 they are to be levied only of the estate of the decedent, except where in the 
 case of an executor plaintiff the court shall certify as their opinion, tliat in 
 the prudent discharge of his official duty he ought not to have brought the 
 action; and even then the judgment shall be de bonis testator is si, S^ si 
 non de bonis propriis. See act of February, 1823, ch. 28, § 4. 
 
 Even before this act where an executor brought assumpsit, though the as- 
 sumpsit was laid to the executor himself, the judgment was of the goods of
 
 824 COSTS. [book 3. 
 
 the testator if to be had, and only in default of them of the executor's own 
 goods. 1 VV. 1-38. 2 H. & M. 3G1. 
 
 This section contains a proviso that it shall not be " construed to take 
 away or abridge the discretion of a court of equity over the subject of costs." 
 This discretion "is pretty large, hut prima facie the party who fails pays 
 costs." If he would be relieved from them, he must show that there are 
 circumstances in the case sufficient to prompt the exercise of this discre- 
 tion in his favour. See 11 Vez. 462, 3. 1 John. C. C. 182. 
 
 The doctrine of costs on granting new trials, which forms the subject of 
 the 27th section of the act, has been already treated of. 
 
 Sec. 28. This section provides, that where in suits at law, or in equity, 
 the plaintiff resides out of the commonwealth, his suit shall be dismissed 
 unless he gives security for costs within sixty days after notice given to 
 him or his attorney in fact (or at law, Virg. Ca. 123. 4 Mun. 365,) that 
 security is demanded. The notice is usually given by rule, either in court 
 or in the office, and such rule without further service is considered as no- 
 tice. The security is to be filed with the clerk, and is either entered by 
 filing a written undertaking or assumpsit to pay costs, or (which is most 
 usual) an entry of the engagement is made in court by direction of the 
 plaintiff's attorney, or upon the security's appearing and undertaking that 
 he will pay all costs that may be awarded against the plaintiff, and also all 
 officers' fees. Moreover, no clerk is bound to perform official service for a 
 non-resident plaintiff until his fees are secured to him, whether the defen- 
 dant has demanded security for costs or not. 
 
 If a question arises as to the residence of the plaintiff, the onus prob audi 
 is upon him to prove his residence in the commonwealth. 
 
 Under these clauses it has been decided, that though the rule expires, 
 (i. e. though the sixty days have passed,) yet if security be tendered in 
 court at the first calling thereafter, it ought to be received, and the suit 
 should not be dismissed. 4 Mun. 364. But if not given until then, the 
 plaintiff cannot compel the defendant to go to trial, (for he was not bound 
 to make ready for trial, as security was not given.) Gil. 123. Yet it is no 
 cause for a continuance on his own part. 
 
 Where security for costs has been given, the usual course, I believe, has 
 been to distrain the securities for the officers' fees, in case of refusal to pay. 
 Where judgment goes against the plaintiff for the costs, if the security re- 
 fuses or fails to pay, two remedies are used. The defendant may either 
 have an order that he pay the amount, and in case of failure enforce it by 
 rule for an attachment; or he may sue out a scire facias reciting the un- 
 dertaking and the judgment, and calling on the defendant to shew cause 
 why judgment should not be entered against him for the amount. Here- 
 upon judgment may be entered in the same manner as in other cases of 
 scire facias, and execution may then issue accordingly. The former pro- 
 ceeding seems, however, most convenient, but I conceive the rule for an 
 attachment is irregular until an order has been entered directing the pay- 
 ment, and that order has been duly served upon the security. 
 
 Where there are two plaintiffs, security for costs cannot be demanded if 
 either resides in the commonwealth. See 1 E. 431. 
 
 When the cause is called for trial it is too late to demand security for 
 costs. See 5 E. 333. 
 
 Where the party resides in Virginia at the commencement of the suit 
 and moves out, security, I conceive, may well be demanded ; for the act 
 says, " every action commenced or prosecuted in the name," Sec. Quaere. 
 See 4 Mun. 364. 
 
 While, however, the law requires security for the costs from absent de- 
 fendant:', it manifests on the other hand a proper liberality towards poor
 
 CHAP. 18.] COSTS. 325 
 
 persons, whose poverty disables them from prosecuting their demands for 
 justice. It is accordingly provided, 1 R. C. ch. 1-24, that paupers who have 
 cause of action, may prosecute the same> and shall have the benefit of all 
 process, and of the services of the officers of the court, and of counsel, 
 without paying any thing therefor. Leave to sue in forma pauperis is al- 
 lowed on petition stating the facts, and by the English practice, under a 
 late statute, the petitioner must swear that he is not worth £,o over and above 
 his wearing apparel, and the matter of his demand in the suit. It^must be 
 also accompanied by the favorable opinion of counsel, as to his case. Tidd's 
 practice, 68, 69. Similar regulations are enacted as to suits for freedom 
 by negroes or others, who allege that they are illegally held in slavery. 1 
 R. C. ch. 124, § 4, 5. A pauper, however, can recover costs though he 
 pays none, for they are recovered for the benefit of the officers, who are not 
 bound to give their services to his antagonist, although they were bound to 
 give them to him. 
 
 It is material to observe, with respect to the recovery of costs, that with 
 us if the defendant pleads several pleas, one of which is found for him and 
 the other against him, he recovers the general costs of the action, because 
 though he has failed on one plea, yet he has on the whole barred the plain- 
 tiff's demand. The case of an executor defendant seems to be peculiar, 
 and the authorities, indeed, in some degree conflicting Thus : 
 I Where an executrix pleaded — 1 , non assumpsit — 2, ne unques ex. — 3, plene 
 administravit, and issues on the first pleas were found for plaintiff, and on 
 the last for defendant, the defendant had judgment for general costs of the 
 trial. 1 Bar. & Aid. 253. See also a case 4 Taun. 1.35. Yet see 12 E. 
 252, where on non assumpsit, plene ad. prceter, and plene ad. pleaded, and 
 the defendant succeeded on the plea, ot^ plene ad. ; yet the plaintiff had 
 judgment for costs. 
 
 This subject has also come under the examination of our general court 
 in the case of Timberlake vs. Benson, 2 Virginia Cases, 348, in which the 
 following results of the deliberation of the court are laid dowji as the go- 
 verning principles of these cases. They have not yet undergone the su- 
 pervision of the tribunal in the last resort. 
 
 1. " When an administrator defendant pleads the single plea of 'fidhj 
 administered,^ and the issue is found for him, the plaintiff ought to have a 
 judgment for debt, and costs when assets, Sfc. and the defendant ought to 
 have a judgment against the plaintiff for the general costs of the action. 
 
 2. " When defendant administrator pleads ' non assumpsit' and 'fully 
 administered,' and the first is found for the plaintiff, and the second for the 
 defendant, the judgment ought to be for the plaintiff, for his debt and costs, 
 quando, &c. and the defendant ought to have judgment for the separate 
 costs of that issue. 
 
 3. " If the defendant pleads both pleas, and the plaintiff declines reply- 
 ing to the plea of fully administered, or having replied to it, withdraws it 
 without subjecting the defendant to any costs, and the first issue is with 
 the plaintiff, the plaintiff ought to have a judgment for his debt and costs, 
 quando, &,c. and the defendant is not entitled to a judgment for any costs. 
 
 4. " If a plaintiff having replied to the plea of 'fully administered,' af- 
 terwards withdraws his replication by consent of the court, the defendant 
 may at that time object to it, unless on the terms of the plaintiff's paying 
 the costs occasioned by that replication. If he neglects to do so, it will be 
 construed into an admission that he is not entitled to recover any, and 
 there will be no judgment at any future term for his separate costs, if the 
 first issue on the plea of non assumpsit is found for the plaintiff." 
 
 For the prevention of trifling and vexatious suits, it is enacted, 1 R. C. 
 ch. 128, § 20, that if the damages found by the jury in actions of assault
 
 326 AUDITA QUERELA. [ BOOK 3. 
 
 and battery nnd slander are under the sum of $16.66 in a superior court, 
 or the sum of $6.6i3 in a county court, the plaiiitifl' shall recover no costs. 
 And moreover, where the amount of the plaintiff"'s recovery is under $6.66, 
 no matter in what court, in actions of trespass or trespass quare clausum, 
 case, covenant, or debt on bond to secure the performance of covenants, he 
 shall recover no more costs than damages, unless the court shall certify that 
 the trespass was malicious, or in the case of trespass quare clausum, that the 
 right of freehold might have been in question, or in the actions of case, co- 
 venant, and debt, that the action was neither frivolous nor vexatious. More- 
 over in trespass, assault and battery, false imprisonment, and ejectment, if 
 one defendant be acquitted, he shall recover his costs though' the others 
 be found guilty ; unloss the court shall certify that there was reasonable 
 cause for making him a defendant, and shall order it otherwise. 
 
 " Mier judgment is entered, execution will immediately follow, unless the 
 party condemned thinks himself unjustly aggrieved by any of these pro- 
 ceedings, and then he has his remedy to reverse them by several writs in 
 the nature of appeals, which we shall consider in the succeeding chapter." 
 
 4w 
 
 CHAPTER XIX. 
 
 OF PROCEEDINGS IN THE NATURE OF APPEALS. 
 
 " Proceedings in the nature of appeals from the proceedings of the 
 courts of law are of various kinds : according to the subject-matter in 
 which they are concerned." 
 
 Of these Mr. Blackstone mentions four kinds : tlie attaint, which no 
 longer exists even in England, since the 6th of Geo. IV ; the writ of de- 
 ceit to reverse a judgment in a real action, obtained by fraud ; the audita 
 querela ; and the writ of error. The two former of these remedies are not 
 practically in existence with us, and will not, therefore, form subjects of re- 
 mark here. The student who desires to gratify a laudable curiosity as to 
 these venerable but obsolete remedies of the old common law, will find a 
 sufficient account of them in the commentaries. 
 
 The audita querela is also entirely disused in Virginia, yet as it is a reme- 
 dy that under certain circumstances might be resorted to, it may not be 
 amiss to insert here Mr. Blackstone's short account of it. 
 
 III. "An audita querela is where a defendant, against whom judgment 
 is recovered, and who is, therefore, in danger of execution, or perhaps ac- 
 tually in execution, may be relieved upon good matter of discharge, which 
 has happened since the judgment : as if the plaintiff hath given him a gen- 
 eral release ; or if the defendant hath paid the debt to the plaintifT, without 
 procuring satisfaction to be entered on the record. In these and the like 
 cases, wherein the defendant hath good matter to plead, but hath had no 
 o^||g|tunity of jdcading it, (either at the beginning of the s\i\\ , ox puis dar- 
 rein continuance, which, as was shewn in a former chapter, must always be 
 before judgment,) an audita querela lies, in the nature of a bill in equity, to 
 be relieved against the oi)prcssion of the plaintiff. It is a writ directed to 
 the court, stating that the complaint of the defendant hath been heard, au- 
 dita querela defendentis, and then setting out the matter of the complaint, 
 *. it at length enjoins the court to call the parties before them, and, having 
 lieard their allegations and proofs, to cause justice to be done between 
 them. It also lies for bail, when judgment is obtained against (hem by scire 
 facias to answer the debt of their ])rincipal, and it liappens afterwards that 
 the original judgment against their principal is reversed: for here the bail, 
 after judgment had against them, have no opportunity io plead this special
 
 CHAP. 19.] WRIT OF ERROE. 327 
 
 matter, and tlierefore they sliall have redress by audita querela; which is a 
 writ of a most remedial nature, and seems to have been invented, lest in 
 any case there should be an oppressive defect of" justice, where a party who 
 hath a good defence is too late to make it in the ordinary forms of law. But 
 the indulgence now shewn by the courts in granting a summary relief upon 
 motion, in case of such evident oppression, has almost rendered useless the 
 writ audita querela, and driven it quite out of practice." 
 
 Chief Justice Eyre indeed has said " I take it to be the modern practice 
 to interpose in a summary way, in all cases where the party would be enti- 
 tled to relief on an audita querela." 1 Bos. & Pul. 4'28. In general the 
 courts will not put the defendant to the trouble nnd expense of an audita, 
 querela, but will relieve him in a summary way on motion, 4 Burr. 2287; 
 see 1 John. 50 ; but where the ground of his relief is a release, when there 
 is some doubt about the execution, or some matter of fact which cannot be 
 clearly ascertained by affidavit, and therefore proper to be tried, the court 
 has driven the defendant to his audita querela. 1 Salk. 93, 264. 1 Ld. 
 Raym. 439. 12 Mod. 240. 2 Ld. Raym. 1295. 2Stra. 1198. See also 
 5 Taunt. 501. 2 Marsh. .37. But, indeed, the indulgence which of late 
 has been shewn by courts of law in granting summary relief upon motion 
 in most cases of evident oppression, for which the only remedy was for- 
 merly by audita querela, has occasioned this remedy now to be very' ratejy 
 resorted to, even in England. In Virginia it is entirely superseded either 
 by the remedy by motion, or by application to a court of equity by bill of 
 injunction ; a remedy much more convenient and complete, since it arrests 
 the execution upon the judgment until the matter in question is tried ; 
 whereas the audita querela does not suspend the judgment unless the party 
 sues out also a supersedeas. 
 
 The methods of redress afforded by the law of Virginia for erroneous 
 judgments of tribunals inferior to the supreme court of appeals are of three 
 kinds: the writ of error; the supersedeas ; and the appeal. 
 
 " A writ of error lies for some supposed mistake in the proceedings of a 
 court of record. The writ of error only lies upon matter of law arising 
 upon the face of the proceedings; so that no evidence is required to sub- 
 stantiate or support it : there being no method of reversing an error in the 
 determination o( facts, but by a new trial, to correct the mistakes of the 
 former verdict. 
 
 "Formerly, the suitors were much perplexed by writs of error brought 
 upon very slight and trivial grounds, as mis-spellings, and other mistakes 
 of the clerks, all of which might be amended at the common law, while all 
 the proceedings were in paper; for they were then considered as only in 
 fieri, and therefore subject to the control of the courts. But, when once 
 the record was made up, it was formerly held, that by the common law no 
 amendment could be permitted, unless within the very term in which the 
 judicial act so recorded was done : for during the term the record is in the 
 breast of the court ; but afterwards it admitted of no alteration. But Bwow 
 the courts are become more liberal ; and, where justice requires it, will al- 
 low of amendments at any time while the suit is depending, notwithstand- 
 ing the record be made up, and the term be past. For they at present con- 
 sider the proceedings as in^eri, till judgment is given ; and therefore, that 
 till then, they have power to permit amendments by the common law ; but 
 when judgment is once given and enrolled, no amendment is permitted in 
 any subsequent term. [1 H. &, M. 25.] Mistakes are also effectually 
 helped by the statute of amendment and Jeofails; so called, because when 
 a pleader perceives any slip in the form of his proceedings, and acknow- 
 ledges such error, (Jeofaile,) he is at liberty by those statutes to amend it; 
 which amendmcut is seldom actually made, but the^benefit of the acts is
 
 328 ERROR CORAM NOBIS. f BOOK 3. 
 
 nttaincd by the courts ovorlooking the exception." I have ah-eady devot- 
 ed to the subject of Jeofiiils as much nttention as is compatible with the na- 
 ture of our design. The existence of these statutory provisions sufficiently 
 evinces that for the correction of tlie errors in the proceedings or judgment 
 of the court, the law has liberally provided remedies for the party injured ; 
 insomuch that it has been found necessary rather to restrain the liberality 
 of the common law heroin than to extend its provisions. 
 
 These remedies are furnished for the correction of such errors as are 
 clerical, and of such as are regarded to be the errors of the court itself. 
 For the former, the writ of error coram nobis is the proper remedy ; for the 
 latter, the writ of error, properly so called ; to which arc added by our laws, 
 the supersedeas and appeal. The nature of these must be explained in 
 succession. 
 
 1. The writ of error cora77i nobis. This is a proceeding which lies to 
 the same court where the cause is tried : whereas the writ to correct errors 
 in ihe jud foment of that court cannot be brought before the same court, but 
 its object is to remove the cause to a higher tribunal. For it would be ab- 
 surd to appeal to the same court from an error in its own judgment. But 
 as the writ of error coram nobis does not question the judgment of the court, 
 but only alleges some defect in the execution of the process, or some cler- 
 ical misprision or mistake, or some error in the proceedings, arising from 
 a fact not appearing upon the face of them, (as where a judgment is ren- 
 dered against a party after his death,) there is no absurdity in permitting it 
 to be brought before the same court that tried the cause. Thus, if the 
 clerk enters up a judgment as confirmed against the appearance bail, where- 
 as, in truth and in fact, he had filed a recognizance of special bail, and 
 had set the office judgment aside, which, however, the clerk omitted to en- 
 ter in the record, this writ of error coram nobis, (sometimes called a writ of 
 error in fact,) lies to correct the procedure : and upon the fact appearing., 
 the court proceeds to reverse the judgment against the appearance bail up 
 to the point where the error was committed, and placing the cause in the 
 state in which it would have been, had the fact been properly entered on the 
 record, sends it back for further proceedings. So where on a bill in the 
 penalty of 146,000 pounds of tobacco, with condition to pay 73,000 pounds 
 of sound merchantable tobacco inspected at Falmouth, Fredericksburg, and 
 Port Royal, a judgment by nihil (licit, upon the defendant's waiving his 
 plea, was entered by the clerk for the tobacco generally, without specifying 
 the inspection ; this was deemed a clerical error, and proper to be correct- 
 ed by writ of error coram nobis. And the court thereupon reversed the 
 judgment, and proceeding (as is always the case) to give such judgment 
 as ought to have been given, they entered it for tobacco of those particular 
 inspecjions. 2 W. 130. In like manner where there was an office judg- 
 ment on a promissory note against two defendants, one of whom was an 
 infant at the time, (not only of making the note,) but of confirming the 
 judgment, this was proper matter for this writ ; and the court set aside the 
 proceedings as far as the declaration, and sent the cause back to be fur- 
 ther proceeded in from that point. 2 Ran. 174. 
 
 This writ, it seems, like every other writ of error, except for treason and 
 felony, was at common law grantable ex debito justitia, and still continues 
 so, as it is not within the provisions of our act. 1 R. C. ch. 69, § 55, 56, 
 &c. 64, § 11. 2 Saun. 101. It may therefore be sued out without ap- 
 plication to a judge. See 2 Ran. 174. It is, however, rarely prosecuted, 
 as the object of it might, in many cases, be obtained by mere motion, (2 
 W. 130,) even before the late act. Generally, however, if the application 
 be made after final judgment, it would seem from principle, and from the 
 case of 1 H. & M. 25, that a mere motion will not be regular unless the
 
 CHAP. 19.] WRIT OF ERROR. 329 
 
 case comes within the provisions of the law which are hereafter to be ex- 
 amined. 1 R. C. oh. 128, § 108, 109. See 2 Saun. 101, as to practice in 
 C. B. For the writ, assignment of errors, and proceedings in a writ of er- 
 ror coram nobis, see 2 Lilly's Ent. 490. Tidd's Prac. Forms, 485, 490. 
 The assignment of errors concludes with a verification. 1 Burr. 410. 
 Carth. 367. 2 Saun. 101, p. 
 
 There seems to be occasionally some difficulty in deciding whether an 
 error is to be regarded as clerical, or as in the judgment of the court, as 
 appears from the case in 2 W. 1-30, and that in 1 Ran. 26. Those only 
 are said to be clerical errors which are made by the clerk, which depend 
 only upon a comparison and calculation to be made by him, and may be 
 safely reformed by a reference to other statements contained in the pro- 
 ceedings. See 1 Ran. 25. When, however, the error is considered cleri- 
 cal, the proper remedy is either by motion or by writ of error coram nobis. 
 The remedy by motion is now very much enlarged by the 108th section of 
 ch. 128, 1 R. C. ; for although it is decided that they were not intended to 
 enlarge the subjects amendable, 1 Ran. 25, yet, as they permit amend- 
 ments after final judgment, they have very much extended the scope of the 
 motion, and diminished the necessity of the writ of error coram nobis : and 
 though it was decided in Gordon vs. Frazier, 2 W. 130, that costs should 
 not be awarded for a party who brings the writ of error where a motion 
 would lie, yet the law no longer leaves a discretion as to costs in any actidh 
 at law, but the prevailing party must recover them. Hence, a party may 
 now freely choose which remedy he pleases, if both lie. 
 
 The 108th, 109th, and 110th sections of the act above quoted contain 
 also some very salutary provisions. The studeut is referred to them par- 
 ticularly, and will observe, that when the error complained of is in the judg- 
 ment of the court, it is not within either of these sections, and therefore 
 can neither be amended upon motion, nor can the excess of the judgment 
 rendered be released. In these cases the party's remedy in Fingland for 
 the correction of the error was by writ of error. In Virginia, it is either by 
 writ of error, appeal, or supersedeas, of which it behoves us to say some- 
 thing. I shall here, however, speak of writs of error and supersedeas in 
 some measure indiscriminately, and afterwards say something of the super- 
 sedeas particularly. Appeals will also be considered in some measure dis- 
 tinctly, though much that will be said as to the other two remedies will ap- 
 ply to them. 
 
 Of writs of error. Though grantable at common law ex debito justiticB,* 
 to correct the errors of an inferior court in a civil proceeding, they are so no 
 longer, but must be allowed by the superior court whose appellate jurisdic- 
 tion is invoked, or by some judge of such court : and, indeed, any judge of 
 the general court may grant a writ of error or supersedeas, though the in- 
 ferior court is not within his circuit.! See 1 R. C. ch. 69, § 58. cff. 64, § 
 II. It never can be granted in a suit at law until final judgment in the 
 superior court, § 55, but it will lie even nfter tlie judgment has been'^execut- 
 ed, (1 W. 116,) and the money may be recovered back by assumpsit. Be- 
 fore it issues, the party praying it must enter into bond with security, in a 
 penalty to be fixed by the judge, and usually double the amount of the 
 judgment below, with condition to pay the amount of recovery, and all 
 costs and damages awarded, in case the judgment or sentence be affirmed. t 
 
 Where several appeal, bond and security given by any party will suffice; 
 
 * See 2 Saund, 101. 1 Tidd, 1051. Sed vide il)id, 1074. 
 
 tThe act of 1830, ch. 11, lias made some changes in the law relative to appeals, writs of error, &c. 
 
 2 L. U. 6. 64. 
 
 VOL. 2 — 42
 
 33t) WRIT OF ERROR. [ book 3. 
 
 and now, indeed, if executed by any person, together with another solvent 
 person as security, it will suffice, though none of the parlies execute it. 
 See 4 Mun. 104, S'23. 5 Mun. 197, which were decided before the revisal 
 of 1819, when the law was extended. And even if the obligee or obligees 
 or part of them be dead, the bond is good, and may be proceeded on as if 
 he had been alive when it was executed, and then had died. § 59. These 
 provisions apply not only to writs of error, but to the cases of appeals and 
 supersedeas. The bond, if an appeal is allowed in court, should not be giv- 
 en in the clerk's office after the rising of the court, but in court. 6 Mun. 
 397. 4 Ran. 460. In the case here cited, thirty days were given for exe- 
 cution of the bond, and this was decided to be erroneous in the case of an 
 appeal from a judgment at law. In consequence, however, of the practice 
 having been long established in the courts of chancery, it is not so in an 
 appeal from a decree in chancery. 1 Ran. 413. 4 Ran. 460. 
 
 "The party praying a writ of supersedeas, (and the same course is pur- 
 sued as to writs of error,) presents a petition to the court or judge, pointing 
 out the errors in the proceedings, and he must procure some attorney prac- 
 tising in such court to certify that, in his opinion, there is sufficient error 
 for reversing the judgment. The court or judge then grants or refuses it 
 at discretion. If a superior court be applied to and refuses, the proper re- 
 medy is to petition to the court of appeals for a supersedeas to the order 
 refusing it; since a mandamus is not the proper remedy. 3 Call, 276, 
 389. The case does not inform us whether, if the application be made to 
 the judge in vacation, a like remedy can be pursued.* It would seem to 
 be an anomaly if a proceeding in the imture of the writ of error would lie 
 to his refusal, which is no matter of record. 
 
 Having thus laid before the student certain statutory provisions as to tlie 
 institution or suing out of writs of error, I proceed next to remark upon 
 some common law principles connected with the subject. 
 
 1'. As to the persons suing out the writ. It is a general principle that 
 no person can bring a writ of error unless he is a party or privy to the re- 
 cord, or is prejudiced by the judgment, and therefore would receive advan- 
 tage by the reversal. 2 Saun. 101, e. in note. Id. 40, n. G. This princi- 
 ple seems to be admitted (as to writs of error) in its full force, by the judges 
 in the case of Wingfield vs. Crenshaw, 3 H. & M. 245. And in the same 
 case it is deemed e(|ualiy applicable to cases of supersedeas. Kow far it 
 applies to that of an appeal will be hereafter examined. The " party," 
 then, who sues out a writ of error or supersedeas, must be technically a 
 party to the cause, and not merely interested in the controversy. And in 
 those cases which are in their nature ex parte, if he is interested in the eve7it, 
 he may make himself a party in the court below, and then he has a right to 
 sue out a supersedeas or u'rit of error: per Roane, 3 H. St M, 256. See 
 also 1 H. & M. 401, 
 
 It is also essential to the writ of error, sup(>rscdeas, or appeal, that the 
 party seeking it should be aggrieved by the judgment or final order; for 
 though there be error, yet if it works no injury to him, and still more if it 
 is for his benefit, it does not lie for him to complain of it. 1 W. 7, 381, 
 389. 2 H. & M. 60, 550. Mun. 394. So, if the error was in an instruc- 
 tion given to the jury at his own instance. 1 H. & M. 450. Yet it may 
 happen that a plaintitf may find it necessary to reverse a judgment, even 
 where it appears to be rendered in his favor; — as where there is an error 
 in the judgment prejudicial to him, or it is given for a less sum than he has 
 a right to demand. For by the reversal of the error he may be enabled, 
 
 • In the Rivanna N;ui«ntion Conipnny against iVIonis, it was unanimously decided by the court of 
 sppcali thai a supereedf:).. roiild not be awarded to the refusal of n judge of the eiiperior court in ra- 
 «u(ion, to allow a »iiperfad»n» to the Judgment •fa county court.
 
 CHAP. 19.] WRIT OF ERROR. 881 
 
 upon a new trial, or by bringing another action, to get complete justice, 3 
 Burr. 177-2. 2 Saun. 101, no. 1. 
 
 There is, indeed, one instance in vvliich a person not party to the record 
 may join in a writ of error; — as where an action is brought against a mar- 
 ried woman as a feme sole, and she pleads as/e?;ie sole, and has judgment 
 against her and is taken in execution, her husband joins in the writ of er- 
 ror coram nobis. 
 
 It is not only a rule that no person not a party can sue out a writ of error, 
 but it is also a settled rule that it must be brought in the name of all the 
 parties against whom the judgment is given ; — and notwithstanding the 
 death of any of the parties, though the survivors must bring the writ, he 
 must still be named, and his death must be alleged. See the form of the 
 writ herein, 2 Saun. 101, e. And this is the rule, both that the writ of er- 
 ror may agree with the record, and to prevent vexation ; for if each party 
 might bring a writ, they might do it successively, to the great prejudice and 
 delay of the plaintifl", who, as 1 conceive, can sue out no execution against 
 any one, where the writ of error is awarded even on the application of 
 others. A writ of error, which in this respect is erroneous, maybe quash- 
 ed. Garth. 8. 1 Ld. Ray. 71. Saun. 101, f. When, therefore, one of 
 several defendants brings a writ of error in which others are unwilling to 
 join,* he must do it in the names of all, and those who refuse to appear 
 and assign errors, must be summoiicd and severed ; and the writ of error 
 must be proceeded in by the rest only : and the defendant who prosecutes 
 the writ will not be compelled to proceed until they have been summoned 
 and severed. Saun. ubi sup. Thus the writ of error corresponds with the 
 record ; and, moreover, the other parties having refused to assign errors, 
 would, I conceive, be forever after barred of the writ. See Bac. Summons, 
 H. So that both purposes are subserved by this course of proceeding. 
 
 To this general rule there is the obvious exception, that if one of the de- 
 fendants in an action of tort is acquitted, he need not be joined, because 
 he cannot say that the judgment is to his damage ; and, moreover, for that 
 reason he can never vex the plaintiff with another writ of error. The suit, 
 however, should be described in the writ according to the record, and thus 
 both objects of the law herein will be obtained. Saun. ubi sup. 
 
 2. The pctiiion for a writ of error having been allowed by the judge by 
 his endorsement thereon, it is issued accordingly by the clerk, as soon as 
 the party shall have eutered into the bond and security which may be re- 
 quired by the order. This bond and security is never required of execu- 
 tors or administrators, Vvhere the judgment rendered against thejn is de bo- 
 nis testatoris, they being presumed to have given an executor's or adminis- 
 tor's bond.t 1 H. & M. 16, -26. 2 Mun. 311. 1 Rand. 3D3. This is 
 the uniform practice. But where the judgment is in an action for a devas- 
 tavit, or upon his bond, as it is for his own personal wrong, and does not 
 involve any question touching the rights of the testator or of his estate, se- 
 curity is required of him. And in an appeal from a decree in chancery, 
 partly personal and partly for acts of the testator, he ought to give security 
 only for so much as relates to the former. 1 Ran. 393. The reason \vhj no 
 security is required of the executor in such case, is not only his having al- 
 ready given bond, but lest he should be thereby prevented from duly defend- 
 ing the estate by appealing from an erroneous decision. Ibid. 3 Ran. 1, 497. 
 
 " Where an appeal is taken in the name of several, any one may move to dismiss as to himself, oa 
 ehewin? tlial the appeal was taken against his wishes. 4 Ran.GH. 'IMiis wasa case in eqnily. teee 
 2 Leigh, lOo, wlieie its^eems, in equity, one may appeal without the oilier;'. It is, indeed, a common 
 practice, yel of very tloulnful propriety. The appeal of one deiendant without the others may very 
 jnateriallv affectllieir interesUs and throw the Ijurdeii on (heir shoulders. They should he pirrties m 
 Bome mode to defend their rights. Sonip statutory regulations as to this motion seems desirable. 
 
 tThis laaiter has recently been much discussed in the court of appeals in several cases not yet re- 
 ported.
 
 >( 
 
 332 WRIT OF ERROR. [ book 3. 
 
 From the moment that the writ issues it arrests all proceedings, (or in the 
 language of the law, it is a supersedeas to or suspension of the judgment 
 and the execution thereon.) It is so absolutely such, that after the writ 
 issues (and even before its service) the plaintiff cannot take out a casa and 
 have it returned non est inventus so as to charge the special bail. 2 Strange, 
 867, 118G. 2 Bl. Rep. 1183. 1 Wils. 16. 3 T. R. 390. Yet this prin- 
 ciple was at common law controlled by another, that an execution once be- 
 gun must be finished, and cannot be suspended or superseded. So that if, 
 before the writ of error, a fifa were levied, the sheriff was bound to pro- 
 ceed to sale ; but it was then his duty to return the money into court to 
 abide the event : for the writ is only a supersedeas so long as the writ is ex- 
 ecutable, but not executed. 2 Saun. 101, i. 
 
 By our law, however, the doctrine is carried much farther. For if the 
 execution has been levied, and the property is in the sheriff's hands unsold, 
 and a writ of error or supersedeas is allowed, the property is restored to the 
 owner.* See 1 W. 120. 2 Call, 217. 6 Mun. 181. So if a forthcoming 
 bond has been given, and the supersedeas is allowed before the condition 
 broken, the condition is saved. Id. So a supersedeas to the original judg- 
 ment is a supersedeas to proceeding on the forthcoming bond, and the re- 
 versal of the judgment on the former reverses and annuls the judgment on 
 the latter ; 4 Mun. 73, 260 ; whereas a confession of judgment on the lat- 
 ter releases all errors in the former; 1 Rand. 44. 3 Rand. 160; for the 
 forthcoming bond is but an appendage of the original judgment. 1 Cranch, 
 309. This, indeed, is generally the case with dependant judgments. 2 
 Saun. 101, o. 
 
 For the proceedings in England in reference to giving bail or security in 
 a writ of error, see 1 Saun. 101, i. &c. 
 
 3. The writ of error thus allowed and issued, though it is at once a su- 
 persedeas to the judgment and execution, even before service, (except that 
 the party may bring an action of debt on his judgment nevertheless, in or- 
 der to get bail,) yet ought it to be served ; first, to give notice to the defend- 
 ant in error, that he may appear and contest it ; secondly, because if the 
 party, or his attorney, or the sheriff, proceed after service upon them re- 
 spectively, they will bring themselves within a contempt of court; thirdly, 
 if the property be in the hands of the sheriff and sold before notice of the 
 supersedeas, the bona fide purchaser would probably be protected, and thus 
 the plaintifi" in error would lose one benefit of his writ. It must be observ- 
 ed, also, that whore there are two defendants in error, and only one ap- 
 pears, the plaintiff, by proceeding without the other, is considered as waiv- 
 ing objections to the writ of sci. fa. qua. ex, non. being sued out alone by 
 him who has appeared. 3 Bur. 1789. This writ is used in England to 
 compel the plaintiff to assign errors. Here, however, it is not used ; for 
 
 4. Though in England the plaintiff, after the return of the writ of error, 
 .proceeds to an assignment of errors (2 Saun. 101, p.) yet that practice does 
 yiot prevail with us. The usual mode in cases of supersedeas, which is the 
 
 customary remedy with us, is to assign the errors in the petition, and the 
 matter is heard upon argument at bar without the formality of ])leading, 
 unless the party relies upon some special matter, — as a release. All such 
 matter he mnsl plead to the writ of error or supersedeas, and upon an issue 
 joined on the plen, the matter is tried by a jury sworn in the court of error. 
 2 H. & IM. 568. But though it has not been accustomed here to assign 
 errors formally, yet where this is required by a scire facias <ptarc cxccution- 
 emnon being issued, the plaintiff in a writ of error might perhaps be Ijound 
 to make a formal assignment. This is in nature of a declaration, and fho 
 form may be found in Tidd's Prar. Forms, 487, and in Lillie's Entries. 
 "All order (or n superFcdcas is no siipcrscdciis of ileell. 6 Vez.jr. 432, 430. Willcs' Rep. 4G7.
 
 CHAP. 19.] WRIT OF ERROR. 333 
 
 To this assignment the plea is " in nullo est erratum,''' wliich is in nature of 
 a demurrer, and brings the matter of law directly before the court. Hence, 
 as many errors in law may be assigned as the party can shew. But on a 
 writ of error in fact, it is said only one error can be assigned. 2 Saun. 101, 
 fj. Hence, too, in a writ of error in fact, if the defendant would put in issue 
 the truth of it, he should not plead in nullo est erratum, but take issue, and 
 then the matter is tried by a jury. :2 Saun. 10], r. s. 
 
 5. In England, the first step after returning the writ of error is a motion 
 by the plaintiff to certify the record, and this is regularly the case here, be- 
 cause non constat but that the application for the writ has been made upon 
 a garbled copy. But the certiorari is, I believe, usually dispensed with, 
 unless there be a suggestion of error or diminution by either party, in which 
 case it may be awarded. This writ, however, is only proper where the 
 copy (on wliich the writ of error or supersedeas was awarded) was certified 
 by the clerk, for if it was not, the writ of error or supersedeas itself should 
 be quashed as irregular. 2 Mun. 229. The court may at any time ex of- 
 ficio award a certiorari of its own mere motion. 2 Saun. 101, s. 
 
 6. The judgment in error where given for the defendant is, that the for- 
 mer judgment be affirmed. In case of reversal in error coram nobis the 
 judgment is that the former judgment be recalled ; — revocetur. On a writ 
 of error in matter of law, it is that the former judgment be reversed. The 
 judgment given on a verdict for defendant on pleading a release of errors, 
 or the act of limitations, is that the plaintiff be barred of his writ of error. 
 2 Saun. 101, v. 
 
 If the record on an appeal, writ of error, or supersedeas be not delivered 
 to the clerk of the circuit court before or during the second term of such 
 court after the same was granted, it is dismissed, and cannot afterwards be 
 revived unless for good cause shewn. I R. C. ch. 69, § 63. In the court 
 of appeals, the record must be filed in six months in cases at law, or final 
 decrees in equity ; and in tico months in cases of interlocutory decrees in 
 equity. In case of dismissal the entry is not of an affirmance of the judg- 
 ment, but merely of the dismissal. Moreover in such case the appellee 
 cannot have the judgment affirmed, but can only have a dismissal. 1 Call, 
 241. 1 H. & M. 21. So where no appearance is entered for the appellant, 
 the appellee may move to dismiss the appeal. If, however, instead of do- 
 ing so, he opens the record and goes for an affirmance, he cannot after- 
 wards move for a dismission, when he finds the case likely to go against 
 him. 2 W. 75. 
 
 It is a general principle that a judgment being an entire thing, cannot 
 be reversed in part and affirmed for the residue. 2 Saun. 101, v. Thus a 
 joint judgment cannot be reversed as to one and affirmed as to the other. 
 4 Ran. 386. Yet by our act it is provided that if the judgment of the in- 
 ferior court be reversed in whole or in part, the circuit court shall enter such 
 judgment as ought to have been entered by the court below. 1 R. C. ch. 
 69, § 60. Nor indeed is this inconsistent with the principles of the com- 
 mon law ; for whenever there are several and distinct judgments, the rever- 
 sal of one will not affect the other; and so too where the judgment con- 
 sists of several distinct and independent parts, as lor damages and costs, 
 it may be reversed as to the costs alone, &c. 2 Saun. 101, u. So too in 
 an action for an account, the judgment quod comjmtet may be affirmed, 
 though the subsequent judgment for damages be erroneous and reversed. 
 But if the judgment quod computet be reversed, the other must be reversed 
 also, for it is dependant. And so of a judgment on a forthcoming bond 
 before mentioned. 
 
 From this section also we find that where the judgment of the court be- 
 low is reversed, the appellate court should proceed to give such judgment
 
 334 SUPERSEDEAS. [ book 3. 
 
 as the court below ought to have ^iven. If it does not it is error. 3 Mun. 
 115. 2 H. & M. 308. 2 Call, 496. 
 
 In personal actions the damages, besides costs, when the defendant ap- 
 peals or obtains a writ of error or supersedeas, are, if the judgment be af- 
 firmed, ten per cent, on the principal sum, and costs recovered in the infe- 
 rior court. In real or mixed actions the damages are $33.33, besides costs. 
 The decision of the court, where a judgment of a circuit court is revers- 
 ed by the court of appeals, is certified to the clerk of the superior court, 
 and entered in the order book, and execution may then issue Irom the cir- 
 cuit court. But where the appeal is from the county to a circuit court, and 
 the court pronounces the judgment the county court ought to have pro- 
 nounced, the execution issues from the circuit court instead of the inferior 
 tribunal, unless indeed (as sometimes happens) where the cause is sent 
 back for further proceedings. 
 
 If judgment be reversed after execution and money paid, the plaintiff iu 
 error may either recover it back by assumpsit, or sue out a scire facias 
 quare exccutionem non, the object of which is to have restitution of what has 
 been thus improperly paid. See 2 Saun. 101, y. I have never known this 
 remedy used. A writ of restitution may be awarded on motion. 
 
 Of a supersedeas. A supersedeas is a writ commanding a party to for- 
 bear doing a thing. Bac. Supersedeas. It is in England an auxiliary pro- 
 cess, and was used at common law as the companion of the writ of error. 
 But in Virginia the supersedeas is " in general a mode by which the re- 
 cord of the judgment of an inferior court is removed before a superior juris- 
 diction" for the purpose of correcting errors in the proceedings or judgment. 
 And when it is so, it corresponds and is of the same nature with a writ of 
 error, the principles governing the latter applying to the former. See 1 
 W. 163. When merely auxiliary, it can have no effect after a decree or 
 judgment is carried into execution, since it can, according to its original 
 character, " only stay the proceedings in the state in which they are, but 
 yet the suit goes on in the superior court by the other process, and if judg- 
 ment be reversed, a writ of restitution issues to restore the party to that of 
 which he has been dispossessed by the execution. Where the supersedeas 
 is the only process," i. e. when it supplies the place both of a writ of error 
 and supersedeas, " it may have one or both of those operations, according 
 as the judgment happens to be executed or not." 1 W. 116. Hence in 
 the case here cited, though the judgment had been executed, the super- 
 sedeas was held good. 
 
 A supersedeas, according to the better opinion, only lies where the error 
 is apparent on the face of the proceedings. 3 H. & M. 245. It is not, 
 therefore, competent, in any case of supersedeas, to introduce evidence de- 
 hors the record as to the matter in contest. The contrary seems at one 
 time to have been supposed, and was strongly countenanced in the case of 
 Lee vs. Turberville. 2 Wash. 162. That was the case of an application 
 for leave to build a mill. A contest arose whether the court of appeals 
 should go into an examination of witnesses upon the merits of the dispute, 
 or should be confined to errors appearing upon the face of the record. The 
 court suspended an opinion upon this point until the testimony was gone 
 through, and then reversed the judgment of the district court, and affirmed 
 that of the county court upon the evidence. Judge Roane supposes errone- 
 ously in Wingfield vs. Crenshaw, that they left the point undecided. The 
 contrary, however, expressly appears. They only suspended their opinion, 
 but at last decided on the evidence, thus in effect affirming its admissibility. 
 Since the case of Wingfield vs. Crenshaw, however, in which there has been 
 a general acquiescence, the party has been considered as confined to er- 
 rors on the face of the proceedings in all cases of supersedeas.
 
 Chap. 19.] APPEALS. 335 
 
 Of appeals. Besides the writ of error and supersedeas, the law of Vir- 
 ginia has introduced into our code another remedy for the correction ofe;'- 
 rors of inferior courts of Kiw. This is an appeal, which we shall find in 
 some respects much more comprehensive than writs of error or superse- 
 deas, though in others it is trammelled with provisions that do not extend 
 to them. 
 
 As appeals (in reference to actions at law) seem to be t'le creature of our 
 statute law, we have only to look to it, and to decisions under it, for the doc- 
 trines in relation to them. Turning, then, to the 1 R. C. ch. 69, § 5(5, wg 
 observe the provision, that " when any person or persons shall think them- 
 selves aggrieved, &,c." they may appeal, &c. Here the word person being 
 used instead of the word party, which we find in the other clauses, this pro- 
 vision has been liberally construed to embrace persons interested, who ap- 
 pear in court in ex parte cases, and contest the claims of the adverse party. 
 See 2 Mun. 24'2. It is, however, essential that the party appealing should 
 bo interested in the subject of controversy ; for though for the purpose of 
 preventing errors in cases brought before a court ex parte, an amicus curicB 
 is permitted in the court below to contest a motion or other proceeding: 2 
 Call, 284 ; yet a mere volunteer or amicus curicB is not permitted so far to 
 intrude himself into another's fend, as to appeal from a decision in which 
 be has personally no concern. Id. See also 1 H. 8c M. 404. It is also 
 necessary that the party should have been aggrieved, for he who is not in- 
 jured can have no right of appeal. 1 W. 7, 381. 2 H. &- M. 66. 
 
 If", however, a person interested does not appear and contest the matter 
 in the inferior court, he cannot, I conceive, appeal. This was decided by 
 
 Judge White in a road case of Orr vs. , within my remembrance. The 
 
 party, however, is not without remedy by action in most cases, since he 
 is not bound by a decision to which he is not a party. These questions 
 usually occur in particular classes of cases to which I shall presently advert. 
 
 "By the judgment or sentence of any county court or court of hustings 
 in any action, suit, or contest." The phraseology here is very extensive. 
 It is calculated to comprehend not merely actions at common law, in all 
 v\rhich there are parties, plaintiffs, and defendants, but all those controver- 
 sies, also, which were in England under the jurisdiction of the ordinary, &c>, 
 and which are here placed under the jurisdiction of the county and corpo- 
 ration courts. In these the proceeding is often ex parte. Thus in cases 
 respecting the probate of wills, the granting of letters testamentary and of 
 administration, the laying out or stopping up or altering of roads, any pa?- 
 ty interested has by this provision a right of appeal, if he has made himself 
 party to the proceeding. The proceedings in these cases are in their very 
 nature ex parte, or such that all persons interested are not necessarily brought 
 before the court. Thus when an executor offers to prove the will, or an 
 administrator asks for letters of administration, no person is called upon to 
 contest these measures, because prima facie it is not presumed by our law 
 that there is any one disposed to contest it. The motion is therefore made 
 ex parte as it is called, that is, without calling on any person to contest it. 
 It is the same thing, to a certain extent, as to roads and mills, for though 
 the persons whose lands will be affected by the incumbrance maybe made 
 parties, others may also be otherwise deeply interested without that interest 
 being known ; or they may indeed have an interest in common with other 
 citizens, which they are not presumed to be desirous of asserting. If, 
 however, a party chooses to contest the affair, and appears in court and 
 makes himself party to the proceedings, he may do so, and if he is inte- 
 rested and aggrieved, he may appeal ; — and this, in case of granting ad- 
 ministration, even though he is only attorney in fact for creditors. 4 Man. 
 403. And even an amicus curia or friend of the court, if he can suggest
 
 836 APPEALS. [book 3. 
 
 reasons against the proceedings, will, as has been already said, be permit- 
 ted to do so in the court below, though he cannot appeal. 
 
 In some of the cases above mentioned, there is this further peculiarity; — 
 that by analogy to the proceedings in the civil law, whence appeals are tak- 
 en, the facts are re-examined by the appellate tribunal ; the witnesses are 
 heard again — even new testimony may be produced, and the cause is in ef- 
 fect tried de novo. This right of appeal as to the facts still prevails in 
 cases of mills, roads, and letters of administration and letters testamentary 
 either in the county or superior courts, though in no other cases ; 1 Rand. 
 464 ; and even in those cases the superior courts can only hear new evi- 
 dence in reference to the questions tried in the court below ; and the re- 
 cord itself is the only proper evidence to prove what these questions were, 
 4 Mun. 403. The power of the court of appeals, however, does not now 
 extend even thus fiir ; for it is no longer competent to them to hear oral 
 evidence of any kind in any cause. 1 R. C. ch. 64, § 18. But the party 
 appealing may spread the testimony upon record, and thereupon the court 
 of appeals decides upon the fact as well as upon the law. In such cases, 
 however, the inferior tribunals having had an opportunity of hearing the 
 oral testimony, are deemed the best judges of credit; and where the wit- 
 nesses were divided in opinion, and the county and superior court had con- 
 curred in their judgment, the court of appeals seem for those reasons to 
 have affirmed it, without going into the question themselves as to the weight 
 of evidence. 2 Call, 507. 
 
 In all cases of appeals besides those above referred to, the appellate court 
 is not less confined to the errors apparent upon the face of the record, than 
 in cases of writs of error or supersedeas. There are, however, a few dis- 
 tinctions between them, to which it is proper to advert. 
 
 1. Writs of error or supersedeas can only be obtained upon petition, and 
 are allowed only where in his discretion the judge may think there is pos- 
 sible error. An appeal, though it is prayed by the party, is allowed to him 
 at his own will and pleasure.* It is not allowed because the judge thinks 
 there is error, but because the "party thinks himself aggrieved." And if 
 an appeal in such case were refused, the refusal would in itself constitute 
 error, and then serve as the foundation of a writ of error or supersedeas. 
 See what is said 3 H. &, M. 253, as to the mandamus being the proper re- 
 medy in such case. 
 
 2. Writs of error and supersedeas may be granted after the term is end- 
 ed at which the final judgment complained of is rendered. Appeals must 
 be granted before the end of that term, or it will be too late. Yet if the 
 time for appealing has been permitted to slip, a supersedeas or writ of er- 
 ror may be afterwards resorted to. 3 H. &, M. 252. 
 
 3. Writs of error or supersedeas may be granted where the judgment 
 amounts only to $33.33. An appeal can only be granted when it amounts 
 to $100 or more. 
 
 4. In writs of error or supersedeas, errors are assigned in the petition 
 presented to the judge. In an appeal there is no assignment of errors at 
 all, except in argument at bar. There can be no appeal to the court of ap- 
 peals from the judgment of a superior court on a forthcoming bond. 1 R. 
 C. ch. 64, § 12. A writ of error or supersedeas are the only remedies. An 
 
 * This is no longer the law. No appeal to the circuit courts is now deaiandal)le as of right, except 
 in cases of mills, wills, administrations, guardianship, and insane persons. tfiSO, ch. 11, § 30. No ap- 
 peal ic/iaderer to the court of appeals is demandable of right. Id. $ 31. Guardianship was not in- 
 cluded in the former laws relative to appeals. So ruled in Dupuy vs. Hardaway, in the court of ap- 
 peals, Io34. 
 
 No damages are now allowed on aflinnance beyond legal interest. 1830, ch. 11, {i 32. But where the 
 judgment carried no interest, (as in cases of tort,)inierest will be allowed as damages on affirmance. 
 This clause is not retroactive. 3 Leigh, Watson vs. rowcll. 
 L,Tliejuri8diction of the court of appeals extends to no case under $100.
 
 CHAP. 20.] EXECUTION. 337 
 
 appeal, however, lies to the superior court from ah inferior court, for that 
 is not taken away by the act. 
 
 It may not be amiss here to refer the student to what is said by Judge 
 Tucker, 3 H. & M. 253, as to the remedy by certiorari, as an original pro= 
 cess. It is, however, rarely if ever used by us, except as auxiliary process 
 for the purpose of obtaining correct copies of records in cases depending 
 before a court of error. ^ 
 
 CHAPTER XX. 
 
 OF EXECUTION. 
 
 *' If the regular judgment of the court, after the decision of the suit, be 
 not suspended, superseded, or reversed, by one or other of the methods 
 mentioned in the two preceding chapters, the next and last step is the exe- 
 cution of that judgment ; or putting the sentence of the law in force. Thia 
 is performed in different manners, according to the nature of the action 
 upon which it is founded, and of the judgment which is had or recovered." 
 
 Before we proceed, however, to the consideration of the several specie:i 
 <jf execution, furnished by the law for the purpose of enforcing the judg- 
 ment of the court according to the nature of the action, a variety of mat- 
 ters demand our attention in relation to executions generally. 
 
 1. It maybe remarked, in the first, place that no execution whatever can 
 issue in a court of law, except upon a final judgment. 
 
 In the court of chancery, by the special provisions of the act 1 R. C. ch. 
 134, § 56, process of execution may be av/arded by the court in its discre- 
 tion, or by the judge in vacation, upon any interlocutory decree which shall 
 not have been appealed from, or which shall have been affirmed on appeal. 
 Independent of our statute, indeed, no execution could overissue in chan- 
 cery, for its decrees were formerly only enforced by attachment, seques- 
 tration, Sec; whereas it is now provided, 1 R. C. ch. 134, § 1, that persons 
 recovering any debt, damages, or costs, in any court of record in the com- 
 monwealth, may, at their election, sue out writs of fieri facias, elegit, and 
 capias ad satisfaciendum, within the year. This provision comprehends 
 the courts of equity which thus have the same power as courts of law to 
 enforce their decrees, and the further privilege of directing such executions 
 as they may deem proper to issue even oh interlocutory decrees. 
 
 2. From the very language of the statute it appears that the execution 
 must issue within the year after the judgment; but by ch. 128, § 5, it is 
 farther provided, that, 
 
 " Judgments in any court of record where execution hath not issued, may 
 be revived by scire facias, ^^ and so "when execution hath issued anc no* 
 return has been made."* 
 
 These provisions correspond very much with those of the common law 
 and British statutes on the subject. By the common law, if a plaintiff ob- 
 tained judgment in any personal action, and remained quiet without taking 
 out an execution of any description within the year, he could not do so af- 
 terwards, but he was driven to his action of debt upon the judgment, if he 
 had in fact never received the amount; in which action the defendant; 
 might have an opportunity of proving that he had discharged it, if he had 
 really done so. See 2 Inst. 469. Carth. -30. The failure to issue his exe- 
 cution did not have the effect of satisfying the judgment indeed, but only 
 compelled him to assert his demand by a new action founded upon the 
 judgment itself.t He had not even the benefit of a scire facias to re- 
 
 *Sce Post. 370 in note. This clause of tiie act is not retroactive. 
 
 t Interest 7nay be ailov/ed in the shape of damages in an action of debt on a judgment, though not 
 carrying interest in terms. But payments made subsequent to the judgment shall be set off a;iuinst 
 the principal. Mercer vs. Be.-.le, 4 Leigh. 
 
 VOL. 2 — 43
 
 SBS EXECUTION. [ BOOK 3. 
 
 vive his judgment, tliough this was soon provided by the statute 13 Ed. Jr. 
 Stat, 1, ch. 45. See 2 Inst, 469. Co. Litt. 290. This statute, however, 
 (which is sHved to us, if necessary, by the act 1 R. C. ch. 40, § 5,) enabled 
 the plaintiff to revive his judgment, after it had run out of date, by a scr/e 
 facias, calling upon the defendant to shew cause why the plaintiif should 
 liot have the effect of his judgment, and be permitted to sue out execution. 
 By the judgment upon such a scire /acias, the original judgment became 
 and was revived, and of course with it any lien of the judgment upon the 
 lands or property of the debtor. 
 
 But even after the scire facias was given by the statute, the original prin- 
 ciple was preserved, that where the plaintiff had sued no execution what- 
 ever, within the year, he could not after the year obtain any, until he had 
 availed himself of his statutory remedy by scire facias. And such is still 
 Ihe law under our statutes, which provide that execution may be sued with- 
 in the year, (1 R. C. ch. 134, § 1,) but that where «o execution hath issued 
 the judo-ment may be revived within ten years, and not after. 1 R. C. ch. 
 128, § 5. 
 
 But although where there is no execution issued upon a judgment with- 
 in the year, the judgment is presumed to be satisfied, because it can scarce?- 
 ly be supposed that the party, after the expense of prosecuting his claim, 
 would fail to enforce it if it were not paid ; yet it is otherwise where execu- 
 tions have issued and are returned not satisfied, or have issued and not 
 been returned at all. In the first case the presumption of satisfaction is 
 expressl-y negatived by the return ; in the latter it is very much weakened 
 by the fact that the party has been prosecuting his claim, and has been 
 possibly foiled, either by the negligence of the officer or the dexterity of the 
 defendant. In these cases, therefore, the judgment did not run out of date 
 at couimon law, and no scire facias under the statute was necessary, though 
 our law has novv' provided that in the latter case (but not in the former, 6 
 Mun. 32,) new execution shall not continue to issue after ten years have 
 expired. 1 R. C. ch. 128, § 5. Hence if an execution of any kind hath 
 issued during the year, the judgment does jiot run out of date, whether it 
 be duly returned or not. Hence, too, the practice of issuing an execution 
 (of some kind or other) and permitting it to lie in the office. This k^eeps 
 alive the judgment. See 2 Inst. 471. Co. Litt. 200, b. Bac. Scire facias, 
 C. See 3 Ran. 493. 
 
 In conformity with the princijiles above stated, it has been decided, that 
 where the party liaving a right to sue out execution has been prevented 
 from doing so by the act of his adversary, as by his obtaining an injunction 
 to the judgment, in that case the execution may be sued out at any time 
 within the year after the dissolution of the injunction. For here there is 
 no fault in the party, and moreover no inference of payment can be drawn 
 from his delay, since the proceedings in equity sufticiently evince that no 
 payment can have been made. See Mun. 185, 187. 2 Bur. C(30. See, 
 however, Bac. Abr. scire facias, C. In like manner if the ])lainliff has 
 been delayed by writ of error, and the judgment is affirmed, he may issue 
 his execution within a year af.er tire affirmance, for this is a new judgment ; 
 and indeed though the writ of error be dismissed, so that there is no new 
 jddgment, still the party has the same right. Bac. tibi supra. So, too, if 
 there be a stay of execution for a year, the plaintiff may have execution 
 within the year after the expiration thereof, without resorting to his scire 
 facias. Idem. 
 
 3. In issuing the; execution upon the judgment the greatest care must be 
 taken that it accurately corresponds with it. The slightest variance will 
 be fntal, even though it be prejudicial to the plaintiff and beneficial to the 
 defendant ; as if on a judguicnt fur JClOl, the execution should issue only
 
 CHAP. SO.] EXECUTIONS. 839 
 
 for £100. It might be quashed for the variance on the motion either of the 
 plaintitf or defendant ; by the former because it is injurious to him, and by 
 the latter because of the variance. For the payment of the execution for 
 £iOO would not carry upon its face evidence of satisfaction of the judgment 
 for £101, and were a new execution for the proper sum to issue, the de- 
 fendant could not avail himself (as he ought to be enabled to do) of record 
 evidence that the judgment had been discharged. Hence the law always 
 requires the most exact correspondence between the judgment and the ex- 
 ecution issued upon it ; a want of which renders the execution irregular 
 and voidable. 
 
 4. When for any cause an execution is irregular, the party injured there- 
 by may, upon motion, obtain an order for quashing it ; i. e. for vacating 
 and annulling it ; in which case it becomes void ab initio, and all interme- 
 diate acts, done in pursuance of it, are also avoided. We shall have occa- 
 sion again to touch upon this subject in a subsequent passage. It may 
 therefore suffice here to observe that an execution may be quashed eithex 
 by plaintiff or defendant where it is uTegular, and according as it may be 
 injurious to the one or to the other. 
 
 5. We will next inquire from what court the execution must issue ? And 
 here, as a general rule, it is obvious that it must issue from that court in 
 which the judgment is rendered : but where a judgment has been render- 
 ed in an inferior court, and there is an appeal, writ of error, or supersedeas 
 to an appellate tribunal, the following principles prevail : 
 
 1. That where a decree or judgment of a court of chancery or circuit 
 court is either reversed or affirmed by the court of appeals, a copy of their 
 judgment, accompanied by a certificate of the costs of that court, is trans- 
 mitted, by directions of the lavi^, to the chancery or circuit court, as the 
 case may be, who are directed to enter it as their own, and to award execU' 
 lion thereon accordingly. 1 R. C. ch. 64, § 21, ad finem. Thus execution 
 never issuiBS from the court of appeals, but always from the court below, 
 where the judgment was given. 
 
 2. When a circuit court reverses the decision of a county or corporation 
 court, in whole or in part, and the cause is not sent back for further pro- 
 ceedings, the circuit court proceeds to enter such judgment as the court be- 
 low ought to have entered, and the execution issues from the office of the 
 superior court, and not from that of the county court. 
 
 3. Where the decision of the county court is affirmed by the judgment 
 of the superior court, the proceeding does not materially differ : for instead 
 of certifying the affirmance so that the execution may issue from the counr 
 ty court, it issues at once from the superior court. 
 
 6. To what county or bailiwick can the execution issue ? Eetore the 
 amendment of the laws, it was decided that if a judgment was obtained in 
 the court of the county where the defendant resided, he could not be taken 
 on a casu, directed to a county whither he may have gone at the time such 
 casa was levied, it not being proved that he had moved his property, or the 
 balk of it, out of his own county. 2 W. 72. The words of the law at that 
 time required the removal of the party ajid his effects, before he could be 
 taken on such casa. The present act authorizes the casa or fifa to issue 
 to any county or corporation in which the defendant or his goods may be 
 found, v/hen the defendant hath removed himself or his effects, or shall 
 reside out of the jurisdiction of the court. 1 R. C. ch. 134, § 12. Hence 
 it would seem no longer essential that the removal be intended as a perma- 
 nent one. 
 
 7. In whose names must the execution issue? Pursuing the prmciple 
 already announced, that the execution should accurately correspond with 
 ihe judgment on which it is founded, it is sufficiently obvious that every
 
 340 EXECUTIONS. [itooK 3. 
 
 execution ought to be issued in the name of the phiintifT or plaintiffs iji 
 the action, however many there may be, against all the defendants, wliere 
 all the parties are in being-. For if several have recovered, the payment of 
 the debt or damages should be to them all, and if the recovery is from se- 
 veral, both the plaintiff and the defendants have an interest that all should be 
 joined ; besides which the law requires, as we have seen, (and upon sound 
 reason too,) that all the proceedings should harmonize with each other, 
 and that the whole record should be consistent with itself. Now this prin- 
 ciple would be grossly violated if executions were permitted to issue for 
 pne or more of several plaintiffs against one or more of several defendants. 
 But it becomes material to consider in reference to this principle. 
 
 The effect of the death of any of the parties after the judgment.* And 
 here I will premise that no execution can ever issue for or against any per- 
 son who is not party to the original judgment^ or made so by some proceed- 
 ing subsequent to it. Bac. Scire facias, C. 4. Moreover no person can 
 be made party plaintiff by such subseqi^ent proceeding, who is not a privy 
 to the judgment, or entitled to the thing recovered, as heir, executor, or ad- 
 ministrator of him who had judgment, nor can any person be made defen- 
 dant to the execution by such subsequent proceeding, who is not chargea- 
 ble with the debt or demand. See Bac. Ex. F. G. 
 
 Again : the law is rigorous in requiring that all the proceedings should 
 harmonize with each other, and that every record should upon its face ap- 
 pear consistent with itself. When, therefore, a judgment is rendered in 
 favor of two or more, and one dies, it is obvious that the process cannot 
 go on in his name ; and if it were to proceed in the name of the other with- 
 out the death appearing, it would produce confusion and inconsistency. 
 Hence, during the pendency of a suit, if one of two plaintiffs or defendant? 
 dies, the death of the party is suggested on the record, and the cause pro- 
 ceeds afterwards in the name of the survivor. In this case, however, as 
 the cause is in progress, the suggestion is sufficient, because, if not true, it 
 may be traversed by the party surviving, and if not denied, it is considered 
 as admitted. But where there is but one plaintiff or one defendant, and he 
 dies, the mere suggestion will not do, but there must be a scire facias to 
 revive in the name of the representative of the deceaf^ed. So after ajudg- 
 uiejit, whether there is more than one party or not, the cause being out of 
 court, it was formerly held that the mere suggestion in the execution would 
 not do, but the scire facias was deemed necessary to revive the judgment 
 in the name even of the survivor ; for the suggestion may be false, and this 
 measure was adopted to enable the party interested to contest it if he pleases. 
 
 But the modern practice seems otherwise ; SeeTidd's Prac, 1028. Sel. 
 .578. Raymond, 808 ; from which it appears that a suggestion on the roll, 
 in England, will suffice. If false, llie defendant may move to quash the 
 execution on the ground of its having issued irregularly. 
 
 The sQire facias is a writ or summons which, if the plaintiff is dead, calls 
 upon the defendant in the name of the representatives of the deceased, to 
 shew cause, if any he can, why the suit should not proceed in their names. 
 Mutatis mutandis, a like course is pursued if the defendant is dead ; and 
 where both are dead, the scire facias is so formed as to fit that case also. 
 By these means the executors, or administrators, or heirs, (according to the 
 nature of the case,) arc made plaintiffs or defendants instead of the dece- 
 dent, and their names arc thus introduced into the record. In like manner, 
 
 *Tlic«rirc farins lo revive agnliifi ilio lirir, it is said, will not lieiintil vihil reliirned against (he cxe- 
 riitor. r;ailli. in?. 2 .S.iiin. 7i!, p. fj, r. liac. sci. lit. I'aolon ?)S. Hali'. Tidil alpo clips the same 
 <-a«e 10 llie same poinl. Tlin leason clearly is that as on an elf^gil against llio aiicpsior in liis lifetime, 
 liis land? ronld not he seized, provided tlierc were go'ids r-urficient lo discharge the dtl)l, (sec Fosf. 
 360,) and as the landa in the liandsof (lie heir are cliarKcaltle so far only as llie> were rliargeahle in 
 those of the ance.-^lor, « deficit of th: pfrsonnlty ought !c Ijc shewn bclore the bnds can be charged,
 
 CHAP. 20.J EXECUTIONS. 841 
 
 where after judgment it happens that a third person becomes interested in 
 the proceeding, a scire /arias becomes essential. As where a feme plain- 
 tiff or defendant marries; iii lliose cases (he execution could not properly 
 issue for or against the husband, without giving the opposite party nu op- 
 portunity to contest the fact of marriage if lie thought proper. For this 
 purpose, also, a scire facias is necessary, calling upon the adverse party 
 to shew cause, if he can, why this new party should not be introduced in- 
 to the record and made j)laintiff" or defendant, in order to enable him to 
 have the advantage of the judgment, or to be rendered subject to its pay- 
 ment. Bac. Scire facias, C. G. In short it may be laid down as a gene- 
 ral rule, that no person shall sue out any execution who was not party to the 
 judgment when it was rendered, or who has not been since made so by 
 scire facias. 2Ld. Ray. 768. 
 
 Where a judgment is rendered against two, and then one dies before ex- 
 ecution issued, if t!ie party proceeds by scire facias it issues against the 
 survivor separately, and the judgment is revived separately against him. 
 But by our law it may be alsQ revived against the representatives of 4he de- 
 ceased, though by a separate scire facias. See 6 Ran. 18-2. 
 
 But though the scire facias is necessary to revive a judgment where a 
 sole plaintifl" or defendant dies before execution issued, yet it is very dif- 
 ferent where the execution has been issued and levied, whether it be a casa 
 or a. fieri facias : for then it does not lose its force, though the plaintiff be 
 dead ; but the body of a surviving defendant who has been taken, must be 
 still kept in execution, or the goods taken must be sold and the money 
 made. In like manner, if the delendant dies after the execution is deliver- 
 ed to the sheriff and before it be served, the officer may proceed to levy it 
 upon his goods in liis executor's hands to be administered, for the goods 
 were bound by the delivery. Bac, Execution, C. 2 Ld. Ray. 850. It is 
 said, indeed, in this case from Raymond, and such is certainly the law, 
 that the execution must proceed if the decedent dies before the delivery to 
 the sheriff, but after the test of the execution. And the reason is, that the 
 goods are bound from the date of the writ, (which may be tested back as of 
 the first day of the term when the judgment was rendered,) except against 
 bona fide purchasers before the delivery of the writ to the sheriff. 
 
 8. It not unfrequently happens that the plaintiff in an action, who has 
 sued out one execution against the defendant, finds that it is not likely to 
 be productive, and desires therefore to sue out one of a different species. 
 For this the act of assembly has made provision. 1 R. C. ch. 134, § 3. It 
 declares that where an execution has issued, and the party desires to take 
 out another, he may do so at his own costs, if the first be not returned aiicl 
 executed: — for if executed, then there could be no propriety in permitting 
 •him to have another. And it is further provided, that if a casa is returned 
 jiot found afifa may issue ; and vice versa if the fifa is returned nulla bona, 
 or if part only of the debt be made, (3 B. C. 417,) a casa may issue ; and 
 where part of the debt is levied on an elegit, a new elegit may issue for the 
 residue, and where nihil is returned on an elegit, a casa or fifa may issue, 
 and vice versa. It seems under these provisions the plaintiff may take out 
 a casa and fifa at the same time, but both cannot be served. 8 Mod. 302. 
 6 Taun. 370. 3 Ser. & Rawle, 142. 3 Cranch, 96. 
 
 9. By the same section it is provided, that where one judgment is ob- 
 tained against several defendants, execution shall issue as if it were against 
 one defendant, and not otherwise. So that if I have a judgment against 
 A, B, and C, I cannot have a casa against one, an elegit against another, 
 and VL fifa against a third. I must have one execution against ail. 
 
 Having premised thus much concerning executions generally, I proceed 
 jicxt to consider the several species provided by the law according to the
 
 342 EXECUTIONS. [ BOOK 3. 
 
 nature of the action in which it is issued, and the judgment sought to be 
 enforced. 
 
 I. " If the plaintiff recovers in an action real or mixed, whereby the sei- 
 sin or possession of land is awarded to him, the writ of execution shall be 
 an habere faciaa seisinam, or writ of seisin, of a freehold : or an habere fa- 
 cias possessionem, or writ of possession, of a chattel interest. These are 
 writs directed to the sheriff of the county, commanding him to give actual 
 possession to the plaintiff of the land so recovered ; in the execution of 
 which the sheriff may take with him the posse comitatus, or power of the 
 county ; and may justify breaking open doors, if the possession be not qui- 
 etly delivered. But, if it be peaceably yielded up, the delivery of a twig, a 
 turf, or the ring of the door, in the name of seisin, is sufficient execution of 
 the writ." Upon these writs the plaintiff is to shew the sheriff the land, 
 and take possession at his peril ; for if he takes possession of the wrong 
 tract, he (the plaintiff) is a trespasser. See 1 Bur. 6*^9. Yet our courts 
 seem to have leaned very much in fiivor of such certainty in verdicts as wijl 
 enable the sheriff to know how to deliver possession. 
 
 If after verdict and judgment in ejectment, the plaintiff is delayed by in- 
 junction for more than a year, this writ may be awarded him on motion, 
 and he will not be driven to his scire facias, provided not more than a year 
 has elapsed since the dissolution of the injunction ; or (when there has 
 been an appeal) since the affirmance, by the court of appeals, of the de- 
 cree dissolving the injunction. SeeGMuu. 185. If, in the meantime, the 
 term has expired, it may be enlarged by the court on a rule to shew cause. 
 Ibid. 
 
 " In other actions, where the judgment is that something in special be 
 done or rendered by the defendant, then, in order to compel him to do so, 
 and to see the judgment executed, a special writ of execution issues to the 
 sheriff according to the nature of the case. As, upon an assise of nuisance, 
 or quod perniittat prosternere, where one part of the judgment is quod nocu- 
 menluni amoveatur, a virit goes to the sheriff to abate it at the charge of the 
 party, which likewise issues even in case of an indictment. 
 
 "in detinue, after judgment, the plaintiff shall have a distringas, to com- 
 pel the defendant to deliver the goods, by repeated distresses, or else a. scire 
 facias against any third person in whose hands they may happen to be, to 
 shew cause why they should not be delivered : and if the defendant still 
 continues obstinate, then (if the judgment hath been by default or on de- 
 murrer) the sheriff shall summon an inquest to ascertain the value of the 
 goods and the plaintiff's damages : which (being either so assessed, or by 
 the verdict in case of an issue) shall be levied on the person or goods of 
 the defendant." 
 
 The writ of distringas, Mr. Blackstone tells us, commands the sheriff to 
 distrain the goods and chattels of the defendant, "so that neither he nor 
 any person by him (i. e. his authority) may lay hands on them." It appears, 
 however, that not only the goods and chattels, but the lands and tenements 
 of the defendant are distrained, and the sheriff is directed to take the is- 
 sues thereof until the defendant produces the j)roperty "of the value of so 
 much, if it may be had, or the price aforesaid, if it is not to be had." See 
 
 5 jNIun. 109, 170. In pursuance of this writ the sheriff takes all the de- 
 fendant's lands and goods into his possession, and receives the issues and 
 profits thereof, until he gives up the property. These, however, are not ap- 
 plied to the satisfaction of the claim, for the distringas is a mere measure 
 of constraint; the party is considered in contempt, and the rents and pro- 
 fits go the commonwealth. G Com. Dig. 100, 101. Gilb. Ex. 27, &c. cited 
 
 6 Man. 1/1.
 
 CHAP. 29.J OF THE CASA. 343 
 
 In the execution of this process, I understand Ihnt th^ duty of the oni- 
 cer does not require him to tulce tiie properly itself, or to make the alter- 
 native value in the first instance. He is only to distrain liie f,roods and chat- 
 tels, lands and tenements, and take the issues and profits tJiereof. until the 
 defendant produces and delivers the property to him for the plaintiff. For 
 the dislringas, it is said, is not a valuable execution, but a mere measure 
 of constraint. If the defendant, therefore, continues obstinate, and the 
 distringas is returned executed, (that, is that the sheriff had distrained tl!« 
 goods, &c. according to the precept,) but without satisfiiclion, (that is, witli- 
 out having received the property from the defendant for the plaintiff,) the 
 plaintiff may either leave the dislringas to its fiirther compulsory operation, 
 or if he despairs of overcoming the obstinacy of the defendant, he may 
 move the court to direct the distringas to be superseded so far as relates to 
 the specific thing, and award a new distringas to be executed for the alter- 
 native value only. 1 R. C. 134, § 46. This, like the former, is not direct, 
 but operates indirectly only to compel the defendant to pay the alternative 
 value, by continuing to hold his property in a state of sequestration. But 
 as this remedy may from many causes sometimes prove ineffectual, the law 
 provides that if the plaintiff cannot get the property by his distringas, a 
 casa ovjifa may be awarded for the alternative value. These executions 
 ought to be awarded by the court upon motion, of which motion, however, 
 there need be no notice given to the defendant. 5 Mun. 1G6. 
 
 Thus it will be observed, that after all, there is even in detinue no writ 
 of execution commanding the sheriff to take the property if to be found, 
 which is surely the simplest remedy. The distringas only takes the proper- 
 perty of the defendant out of his hands until he delivers the property of the 
 plaintiff. Suppose, then, he has no properly of his own, but he has the 
 property which the plaintiff has recovered, notoriously in his possession. 
 There seems to be no remedy by which the property itself can be had, un«- 
 Jess through the aid of a court of chancery, which I understand has beea 
 considered by a distinguished jurist as a proper remedy. See 3 Rand. 176. 
 It is much to be wished that the legislature would simplify the procedure 
 by allowing an execution for the property itself, in addition to the remedies 
 now existing. 
 
 It is proper, however, that the student should be here reminded, that by 
 a recent act, the bail in detinue may before judgment be protected by an 
 order of a court of equity, restraining the removal of the property, and after 
 judgment he is empowered to Seize it wherever it may be found, and to de- 
 liver it to the plaintiff in discharge of his undertaking. Sess. Acts, 1826', 
 ch. 2-2. And the surrender of the body of the defendant does not discharge 
 the bail from the obligation to deliver the specific thing, unless the distrin- 
 gas for the specific thing is superseded by the court. 
 
 " Execution in actions where money only is recovered, as a debt or da- 
 mages, (and not any specific chattel,) are of four sorts : either against the 
 body of the defendant ; or against his goods and chattels ; or against his 
 goods and the profits of his lands ; or against his goods and the possession 
 of his lands ; and any of these various kinds of executory process may be 
 sued out also by a defendant for costs against a plaintiff, when judgment 
 has been rendered in his favor for costs. 
 
 " 1. The first of these species of execution, is by writ oi capias ad satis- 
 faciendum ; which addition distinguishes it from the former capias ad re- 
 spondendum, which lies to compel an appearance at the beginning of a suit." 
 According to Mr. Blackstone, this execution cannot be sued out against 
 any but such as were liable to be taken upon the original capias. This 
 position is laid down too broadly perhaps, though it is sustained by the case 
 which he cites from 3 Coke, 12. But be this as it may at the common
 
 344 OF THE CASA. [ book 3. 
 
 law, it is now provided by our statute, 1 R. C. cli. 128, § 68, that a party 
 privileged from being arrested upon a capias ad respondendum, may, never- 
 theless, be taken on a casa after a ///a has been returned nulla bona by the 
 proper oflicer of the county in which such party resides. 
 
 The intent of this species of execution is to imprison the body of the 
 debtor till satisfaction be made for the debt, damages, and costs, and it lies 
 generally against all persons against whom judgment is obtained, as for 
 their own debt, except that certain privileged persons, viz : the governor, 
 members of counsel, judges of the superior courts, and sheriffs, are exempt 
 from it until the return of nulla bona on a fifa against them. Thus, even 
 an infant, it seems, may be taken upon a capias ad satisfaciendum. 2 Str. 
 1217. " And, if an action be brought against an husband and wife for the 
 debt of the wile, when sole, and the plaintiff recovers judgment, the capias 
 shall issue to take both the husband and wife in execution ; but if the ac- 
 tion was originally brought against herself, v/hen sole, and pending the suit 
 she marries, the capias shall be awarded against her only, and not against 
 her husband. And if judgment be recovered against an husband and wife 
 for the contract of the wife during her coverture, the capias shall issue 
 against the husband only, which is one of the many great privileges of En- 
 glish wives." 
 
 Mr. Blackstonc goes so far indeed as to say, that if judgment be reco- 
 t^ered against husband and wife, even for her personal misbehaviour during 
 the coverture, the execution shall issue against the husband only. But this 
 opinion may be questioned, particularly in those cases where the wife, hav- 
 ing a separate property, is as to that sui juris ; for it appears that where a 
 feme commits a tort, and there is judgment against husband and wife, she 
 shall be taken in execution as well as the husband, and shall not be dis- 
 charged unless it appear that the plaintiff and her husband collude to keep 
 her in prison. See 2 Str. 1237. 1 Wils. 149. 2 Bl. Rep. 720. 5 Barn, 
 and Aid. 759. The case cited by Mr. Christian in his note to this passage, 
 from 3 Wils. 121, is not sufficiently explained by him. In that case the 
 wife was not in execution, but was surrendered in discharge of her bail, and 
 so (though after judgment) was, until she should be charged in execution, 
 considered as being in prison for want of bail upon the first process. Now 
 the distinction clearly is, that where the wife is in custody upon mesne pro- 
 cess, she may be discharged, but never upon final process, i. e. where she 
 is in execution. See the case itself, 3 Wils. 124. 
 
 Members of the general assembly have a qualified exemption from exe- 
 cution. This exemption is not confined, indeed, to the casa, but it does 
 not extend further than to protect them and their property during their at- 
 tendance on the general assembly, and one day before and after for every 
 day they must necessarily travel in going and returning from their residence 
 to the place of session. 1 R. C. ch. 51, § 31, ch. 134, § 11. And even if 
 actually in execution, a member may be delivered by his privilege, during 
 the session, though a failure to return himself a prisoner in execution, as 
 soon as his privilege ceases, will render him liable to all the penalties of an 
 escape. 
 
 It would seem too, from a case cited from Lord Coke, that a defendant 
 was discharged from a capias, because he was of so advanced an age quod 
 ■painam imprisonamenti subire non potest; a benevolent principle, which I 
 should hope would not be renounced under the mild influence of modern 
 opinions. 
 
 I have already said, that this execution only lies against those who are 
 liable to the demand as for their own debt. And hence, executors and ad- 
 ministrators are not liable to be taken upon a casa where the judgment is to 
 be levied de bonis testatoris. But where the judgment is rendered against
 
 cttAP. 20.] OF THE CASA. 345 
 
 them ill an action of debt, euggesting a devastavit, or in an action on their 
 administration bond, the casa issues, because in these cases they are ad- 
 judged to be personally responsible, by reason of tlieir having been guilty 
 of a devastavit of the personal estate of their testator, which was entrusted 
 to them for their administration. 
 
 The writ of capias ad satisfaciencum is an execution of the highest na- 
 ture, inasmuch as it deprives a man of his liberty, till he makes the satisfac- 
 tion awarded ; and therefore, when a man is once taken in execution upon 
 this writ, no other process can be sued out against his lands or goods. It 
 is however provided, by statute 1 R. C. ch. lo4, § 8, corresponding with an 
 English statute of the reign of James I., that if the defendant dies in exe- 
 cution, the plaintiff may sue out a new execution against his lands, goods, 
 and chattels, but not so as to effect bona fide sales of lands made by him 
 after judgment, for the payment of any creditors at whose suit he may have 
 been in execution, if the proceeds of sale be paid or secured to be paid to 
 such creditor, with his privity in discharge of his demand or some part 
 thereof. 
 
 This execution is directed to the sheriff, commanding him to take the 
 body of the defendant, and have him before the judges or justices, as the 
 case may be, at the day named as the return day, to sntisfy the plaintiff the 
 sum of, &c., which the plaintiff hath recovered, &c. When it is levied, the 
 defendant may at once make satisfaction and discharge himself by pay- 
 ment to the sheriff. If he does not, he must remain in custody until he 
 does ; but at whatever time he chooses to make satisfaction, he is entitled, 
 to his discharge. It must be added, however, that by the laws of Virginia, 
 this satisfaction is allowed to be made in a manner not recognized by the 
 common or statute law of England. For it is provided 1 R. C. ch. 134, § 
 28, that a debtor who is taken on a casa, may tender to the officer serving 
 it, slaves or other personal property to the amount of the execution ; whicli 
 the officer is directed to dispose of as goods taken under a fifa, and on re- 
 ceiving it he is commanded to discharge the debtor from custody. This 
 humane provision is well guarded by a clause, which authorises a new casa 
 or fifa, if the property shall upon a sale prove insufficient ; and, moreover, 
 if the property tendered was encumbered, the privilege of discharging him- 
 self, when taken on a second casa by again tendering property, is taken 
 away. These provisions are, as I have said, entire innovations upon the 
 English law. They form an exception to the general rule of that law, that 
 the debtor must remain in custody until he pays the debt. 
 
 It is obvious that a tender to the sheriff by the defendant, of property 
 which does not belong lo him, does not entitle the sheriff to discharge him. 
 Yet there are certain questions somewhat analogous, on which we have no 
 adjudication. As where the sheriff took, in discharge of the body, proper- 
 ty which was encumbered to the full value, with lull knowledge thereof. 
 Here I should conceive he would be liable for the discharge of the body, 
 though the act provides for a new execution. AVhether he would be liable 
 without such actual knowledge, from the implied notice derived from the 
 deed of incumbrance being recorded, may be more questionable. 
 
 When the defendant has tendered property which the sheriff has accept- 
 ed, the defendant is immediately to be discharged. If the sheriff, on the 
 one hand, refuse to discharge him after such tender of sufficient property, 
 he renders himself liable to an action of false imprisonment, ami the de- 
 fendant may, perhaps, discharge himself by habeas corpus. On the other 
 hand, he is not bound to discharge the parly, unless property to the value of 
 the debt and costs be tendered. As this value can only be certainly known 
 alter a sale, some latitude must of necessity be allowed to the officer, nor 
 would he be deemed liable, I conceive, (if in the event he proved to be 
 VOL. 2—U
 
 846 ESCAPES. [ BOOK 3^. 
 
 mistaken in the estimated value,) either to the plaintiff in the execution, for 
 deficiency, or to the del'endant for requiring a surrender of too much, provi- 
 ded he does not appear to have acted unfairly or oppressively. 
 
 With the property tendered in discharge of the body, the sheriff proceeds 
 as if it had been taken on a. fifa, so that it may be restored to the defendant 
 on his giving a delivery bond, and the sheriff may even appoint a day of 
 sale posterior to the return day, and may take a forthcoming bond after the 
 return day. See 3 Mun. 308. 
 
 It may be here observed, that ordinarily, though this form of proceeding 
 is preserved, a shorter course is actually taken. For as the defendant may 
 first relieve the body by tendering property, and may then relieve the pro- 
 perty tendered by giving a delivery or forthcoming bond, with security, for 
 the production of the property at the day of sale, the usual mode is to give 
 the bond without any actual surrender of property, although property is 
 mentioned in the condition as having been taken by the execution, and re- 
 stored upon giving the bond. And the parties are estopped by their seals 
 from denying that property was surrendered in discharge of the body, or that 
 it was the defendant's property. 
 
 The manner in which a casa must be levied, or what amounts to a levy, 
 I propose to consider in connexion with the doctrine of escapes, which I 
 now proceed to investigate. And here it may be remarked, that with this 
 statutory exception above mentioned, " when a defendant is once in cus- 
 tody upon this process, he is to be kept in arcia et salva ciistodia : and if he 
 be afterwards seen at large, it is an escape : and the plaintiff may have an 
 action thereupon against the sheriff for his whole debt. For though, upon- 
 arrests, and what is called 7nesne process, being such as intervenes between 
 the commencement and end of a suit, [the sheriff by permitting the defend- 
 ant to go at large, only places himself in the situation of special bail under 
 our recent act, yet upon a taking in execution if he gives such indulgence 
 he becomes liable for the debt itself;] see 2 Wilson, 295. 5 T. R. Plank 
 vs. Anderson ; for, in that case, confinement is the whole of the debtor's 
 punishment, and of the satisfaction made to the creditor. Escapes are 
 either voluntary or negligent. Voluntary are such as are by the express 
 consent of the keeper: after which he can never retake his prisoner again, 
 (though the plaintiff may retake him at any time,) 2 Leigh, Windrum vs. 
 Paiker, but the sheriff must answer for the debt. Negligent escapes are 
 where the prisoner escapes without his keeper's knowledge or consent ; 
 and then upon fresh pursuit the defendant may be re-taken, and the sheriff 
 shall be excused, if he has him again before any action brought against him- 
 self for the escape. A rescue of a prisoner in execution, either going to 
 gaol or in gaol, or a breach of prison, will not excuse the sheriff from being 
 guilty of and answering for the escape ; for he ought to have sufticicnt force 
 to keep him, since he may command the power of the county." In order, 
 however, more fully to comprehend this complicated doctrine of escapes, 
 I propose to consider the subject under two heads. 
 
 I. What constitutes an arrest. 2. What is an escape. 
 
 1. AVhat is an arrest. This inquiry, it is obvious, is material before we 
 enter upon the other, since, until there has been an arrest, there can be no 
 esca])e. An arrest consists of the apprehending or restraining one's per- 
 son by process, in execution of the command of some court or officer of 
 justice. Wood's Inst. 575. But this apprehension or restraint cannot 
 consist of bare words; for there must be an actual touching of tho person, 
 or (which is tantamount) a power of taking immediate possession of him, 
 and his submission thereto. 1 Lill. Abr. 9G. 1 Salk. 79. Thus if the of- 
 ru;(M- in ihc execution of process touches tiie defendant, it is an arrest. 1 
 Salk. 79. So where he has a writ against him, and. finding him in a room,
 
 CHAP. 20.] ESCAPES. 347 
 
 enters it and locks the door upon him, saying to him, you are my prisoner, 
 this is an arrest, for he is in his power. So if he meets him on horseback, 
 and says to him, you are my prisoner, and he turns back with the officer 
 and submits to go with him, this is an arrest, tliough lie was never touched. 
 1 Carr. & Payne, 153. But if on the officer's saying these words he fled, 
 there was no arrest unless he had actually laid hold of him. IBull. N. P« 
 62. Yet the officer need not himself be the person that arrests ; for if he 
 has followers or assistants with him, as he may have, (Bac. Sheriff", H. 4,) 
 and he is in company, the arrest is good if made by one of his followers, 
 though he be at some distance and out of sight, provided he be so near as 
 to be acting in the arrest. Cow. 64. If an officer lays hold of the priso- 
 ner's hand, as he holds it out of a window, this is an arrest, and he may 
 afterwards even break open the house to get at him and carry him away. 
 ] Vent. -306. Lastly, if A is in custody of B upon process at the suit of 
 C, and a writ or execution at the suit of D comes into his hands, A is at 
 once deemed to be arrested or in his custody at the suit of D. Dalt. 561. 
 1 Salk. 274. Buller's N. P. 66. 
 
 It is not my purpose here to enter into the consideration of what the of- 
 ficer may do in the execution of process. But it is proper under this head 
 to observe that the officer must have a writ at the time of the arrest. Bac. 
 Sheriff. I do not find whether it is necessary it should be about his person. 
 He need not shew it. And the arrest must be made within his bailiwick; 
 so that if a party be arrested out of the county whereof the sheriff is offi- 
 cer, it is a void act, and he is liable to the defendant as a trespasser, but 
 not to the plaintiff in the esecution for any escape of the delcndant. 
 
 2. What is an escape. 
 
 I think we may properly divide escapes into constructive or actual. By 
 constructive escapes I would be understood to mean those where, though the 
 party is not really at large, the officer's legal power over him has ceased by 
 his own act. As if the sheriff of Frederick, in taking his prisoner to gaol, 
 should carry him through the county of Jefferson. The instant he passes 
 the line between the counties, his prisoner is no longer legally in his cus- 
 tody. Any farther detention of him would be a trespass. For a sheriff 
 has no jurisdiction out of his own county; Dalt. 141 ; though if on an ha- 
 beas corpus, ^:c., the sheriff is commanded to bring a prisoner out of his 
 own county, and in doing so he is obliged to go through several other coun- 
 ties, to this special purpose his authority extends to them. So if the priso- 
 ner escape and fly into another county, the sheriff or his officers may make 
 fresh pursuit, and may take him in the other county. Dalt. 22, 23. Plow. 
 
 There are several other instances, in England, in which, by construction 
 of law, an escape takes place, though the party is still in confinement. 
 Thus if the keeper of the Fleet prison were to be taken in execution and 
 committed to his own prison without first securing the other prisoners 
 there, it would be an escape in them all, and he would of course be liable 
 therefor. Style, 465, Dalt. 487. Hence the king's bench refused to issue 
 a casa against hinj. Ibid. So if a woman (warden of the Fleet) marries 
 her prisoner, or if the sheriff marries a woman in execution with him, in 
 either case there is an escape in law. Plow. 17. 
 
 The following case, I conceive, may arise in Virginia. If a party is in 
 execution and is appointed sheriff, and is qualified, unless he is turned over 
 to the coroner, it is, I conceive, nn escape for which his predecessor is lia- 
 ble ; for the sheriff is ex officio master of the gaol, and the gaoler but his ser- 
 vant, and he cannot be a prisoner to himself. A case of this description 
 has actually occurred, though tiae legal questions arising out of it never were 
 brought before any court
 
 348 ESCAPES, [boox3. 
 
 If a man halh judgment against two person-?, and l)Otli are taken in exe- 
 cution, if the sheriff suffer one to escape, he shall be answerable for the 
 whole debt, though the other is in custody. So of execution against baron 
 and feme, where the feme only escapes. Bac. Escapes, B. 3. 
 
 When a sheriff hath taken a prisoner in execution, he may on his way 
 to the public gaol, confine him in any private house, and if he does so he 
 is not liable for an escape. But it is said if he carry him round about a 
 great way for the accommodation of the prisoner, it is an escape, for he is 
 bound to bring him in convenient time, and the most convenient way, (Mod. 
 116. Dalt. 5(31,) a strictness that would not be very readily indulged pro- 
 bably at this day. 
 
 Every county, it hath been said, had at common law two sorts of gaols; 
 one for matters of the crown, and the other for prisoners taken on process ; 
 and this last the sheriff " may appoint in any house or where he pleases." 
 See 5 T. R. 39. Bac. Sheriff, H. 5 Salk. 408. But he could not impri- 
 son the defendant in the defendant's own house, for that would be an es- 
 cape, as the defendant is absolute master of it. Dalt. 216. That this was 
 originally the law, must, I presume, be admitted; for public gaols, except 
 for culprits, arc creatures of the statutes, and were not, I believe, known to 
 the common law. Several statutes have been made during the late reigns 
 to prevent the abuse of carrying prisoners to spunging houses, as they are 
 called, but they are not in force here. Yet it seems to be generally under- 
 stood that the sheriff is not justified in keeping his prisoner confined else- 
 where than in the county gaol, except so far as such confinement is neces- 
 sary while he is on the way in carrying him to the common gaol. This in- 
 ference would seem to be justified, not only by the general aspect of our 
 laws, but by the special provisions allowing the party the benefit of the 
 bounds, which are to be laid off by the order of the county court. Nor is 
 there usually any difficulty as to this matter. But cases have occurred and 
 may occur of very great embarrassment. Thus we have seen that ihe she- 
 riff is the master of the county gaol, and yet that an execution can issue 
 against his body, after a fij'a returned no goods. This execution must be 
 directed to the coroner, if there be one, or to any constable if there be no 
 coroner. Sess. Acts, 1825. See 4 Ran. 256. If the coroner or consta- 
 ble take the sheriff, where shall he be imprisoned ? Surely not in the coun- 
 ty gaol, for that would bo an escape, as he is absolute master of it, and may 
 even turn the gaolor out of doors at his pleasure. See Bac. Sheriff, H. 5. 
 On a habeas corpus presenting this case, it was contended that the consta- 
 ble could not confine the sheriff any where but in his own gaol. The court 
 inclined to a different opinion, but the prisoner was discharged on other 
 grounds. In such case had a bounds-bond been tendered, the officer should, 
 I conceive, have carried his prisoner within the bounds, on receiving the 
 bond, and given him the liberty of them. Many difficulties, however, are 
 connected with this opinion, though it srenis the least liable to objection. 
 
 A member of assembly taken in execution may be delivered by privilege 
 from execution during tlic session, and this will be no escape. But if he 
 fails to return himself a prisoner in execution so soon as his privilege ceases, 
 he is liable to the penalties of an escape. 1 R. C. cli. 51, § .31. 
 
 Actual escapes are where a person legally arrested, either violently or 
 privily violates his arrest, or is suffered to go at large voluntarily, or by the 
 negligence of the officer. 
 
 It may not be amiss to mention here somewhat more particularly what 
 constitute these actual escapns. Thus if after process of execution exe- 
 cuted, and before the prisoner is committed to gaol, the gaoler permits him 
 to go about his own business, free from constraint, and so that he is not 
 within his power, this would be an escape. And so after he is once com-
 
 CHAP. 20.] ESCAPES. 349 
 
 Knitted to prison, if he goes ont of tlic limits of iho go:il ever so little, or 
 for ever so sliort a time, it is an escnpe ; Bar,. Escape, B. ; and this though 
 the keeper he with him, and even have hold of him ; for after the party is 
 once committed to gaol, the gnolor has no right to permit him to go beyond 
 it except in case of fire, or where he is directed by some conipet(?nt autho- 
 rity; for were it otherwise, by connivance a wealthy man might thus in ef- 
 fect avoid the effects of imprisonment, by paying the gaolor for attending 
 him wherever he might choose to go for business or pleasure ; — and thus, 
 as chief justice Wilmot observes, (2 VVils. 295,) every goalor would soon let 
 his prisoners go at large as much as if they were never arrested. 
 
 Nor is the term escape confined to the breaking gaol, for if the defendant 
 has given security for the prison rules, as will be hereafter explained, it is 
 an escape if he wilfully goes beyond their limits. 
 
 These escapes, as Mr. Blackstone tells us, are either voluntary or negli- 
 gent, the difference between which is sufficiently explained by him. It is 
 not, perhaps, practicable to lay down any general rule as to what shall be 
 evidence of such consent on the part of the gaoler, as will make a volun- 
 tary escape. We find it contended that his putting the prisoner into a 
 room manifestly insecure, will amount to it. 2 T. R. 130. Where the es- 
 cape is voluntary, it seems to have been sufficiently established by the En- 
 glish cases, that the gaoler has no right to retake him, (Dalt. 138. 2 Wils. 
 295. 5 T. R. 25,) and that if lie does, and commits him to prison, he is 
 liable to an action of trespass on the part of the prisoner. But it was 
 otherwise if the escape was tortious. Dalt. 113. See Bac. Escape, C. 
 Indeed, at one time it seems to have been thought he was discharged of the 
 debt, but it has long been settled that the creditor may retake him, and even 
 if he be wrongfully retaken by the sheriff who let him escape, and be turn- 
 ed over to the succeeding sheriff, he cannot demand his discharge of him, 
 or sue him for illegal detention. Bac. Escape, E. For from the moment 
 the sheriff or gaoler permits a voluntary escape, he commits a tnrt which 
 no subsequent matter can purge. Windrum vs. Parker, 2 Leigh. 1 Saun. 
 35, a. note 1. But the plaintiff may retake the party, though the gaoler 
 cannot, 2 Wils. 295. How far our act of assembly which authorizes ge- 
 nerally an escape warrant to issue on the application of the sheriff as well 
 as of other persons, without distinguishing between voluntary and negligent 
 escapes, may have altered the principle here spoken of, has not been de- 
 cided by our courts. 
 
 As to negligent escapes, they may be said to comprehend generally all 
 cases which do no not amount to voluntary escapes on the one hand, or in 
 which the officer is not justified on the other. The causes of justification, 
 therefore, may here most properly be inquired into. These are where the 
 officer has acted either under authority of some competent power, or the 
 escape has been from unavoidable accident, or thd secret act of the priso- 
 ner, without default in the gaoler. The removal of a prisoner out of gaol 
 pursuant to any writ of habeas corpus, is an instance of the first species of 
 justification. The gaol being on fire, and the prisoners thereby escaping, 
 or being actually turned out of necessity, to prevent their destruction, or 
 being set at large by the forces of a foreign enemy, afford instances of the 
 second kind. But, after an arrest on a casa, the sheriff cannot defend 
 himself by alleging that the party was rescued either before or after he was 
 committed to prison; for on his way to the prison he may raise the posse 
 comitatiis, and thus secure the prisoner from rescue ; and as to the gaol be- 
 ing broken, he may sue the rescuers. Bac. Escape, H. As to the third 
 kind of justification, if the prisoner escaped without the knowledge or con- 
 sent of the gaoler, and the gaoler made fresh pursuit, and the defendant be 
 re-taken before action brought against him, this will excuse him. Ibid.
 
 350 ESCAPES. [ BOOK 3. 
 
 What is fresh parsult must depend on the circunrstances of each case. A 
 escapes by negligence of the keeper, but without his knowledge, and ia 
 absent a day and a night without his knowing it, yet if, upon discovering 
 it, he forthwith pursued, it is held good. Dalt. 5(5:2. And it is by no means 
 necessary that it should appear that the gaoler never lost sight of the pri- 
 soner, in order to constitute fresh pursuit. Ibid. Where, however, there 
 is either a voluntary or negligent escape, and no fresh pursuit, the officer 
 is liable if it appears the prisoner might have been retaken. 
 
 And here it may be i)roper to observe, that, on account of the insecurity 
 of our gaols, our law has provided that the officer shall not be chargeable, 
 unless the jury who shall try the issue shall expressly find that such debtor 
 or prisoner escaped with the consent or through the negligence of the of- 
 ficer, OR that he might have been retaken, and that the officer neglected to 
 make immediate pursuit, i R. C. ch. KiO, § 3. And if the verdict be gene- 
 ral, instead of in the explicit form here required, it will not warrant a judg- 
 ment on it. 1 W. 4. lMun.50]. The proof of escape lies on the plain- 
 tiiT; — proof of its being tortious, and proof of fresh pursuit, lie on the she- 
 riff. 1 W. 4. 
 
 A volunianj return of the prisoner before action brought, is equal to a re- 
 taking upon fresh pursuit; 2 T. R. i*2(3 ; and this, Mr. Blackstone tells us, 
 is an excuse. It is not an excuse, however, in case of a voluntary escape. 
 Under a count for a voluntary escape, evidence of a negligent escape may 
 he given. Ibid. 
 
 We proceed next to set forth more particularly the provision of our act 
 of assembly on the subject of escapes, 1 R. C. ch. 13(5^ 
 
 By the first clause of ihe first section of this act it is provided that where 
 a person in custody either upon mesne process or execution shall escape, 
 ■upon affidavit thereof, it shall be lawful for any justice of the peace of the 
 county where he was imprisoned, to grant any one demanding the same an 
 escape v/arrant directed to all sheriffs, &.c. within the commonwealth, re- 
 ciling the cause of commitment and time of the escape, and commanding 
 them to retake him and carry him to the prison of the county or corpora- 
 tion where he shall be retaken to be kept until discharged' by due course of 
 law. The warrant when executed is to be returned to the court of the 
 county where the defendant escaped. 
 
 Here observe, 1. That this clause extends to mesne process as well as to 
 executions. 2. That though it provides that it " shall be lawful for any 
 justice to grant the warrant," yet this is to be interpreted asmandatory, ac- 
 cording to the rule of construction laid down in a former lecture. 3. The 
 warrant may be granted to a7iy one demanding the same. This broad ex- 
 pression is used to embrace the case of all persons whatever who may be 
 interested in the retaking. Thus the creditor may sue out the escape 
 warrant, for it may be necessary to secure his debt : the sheriff or gaoler 
 may, for if the defendant was in execution they would be liable for the 
 debt; and even if he was in custody upon mesne process they might be 
 rendered liable in case the debt should be lost by the escape. So, too, the 
 securities of the debtor for keeping the prison rules (if he was not in close 
 custody but had the liberty of the rules) are also interested in his being re- 
 taken, and are therefore empowered to sue out the warrant. 4. The war- 
 rant is directed generally to all sheriffs, Serjeants, bailiffs, and constables 
 within the commonwealth, each of whom may seize the fugitive if to be 
 found in the officer's own bailiwick — but he cannot seize him elsewhere, 
 and he must also at th.; time of seizure have the warrant in his possession 
 as his authority. 5. The cause of commitment must be recited, because 
 the course to be pursued by the retaking officer depends upon it, as is seen 
 in the following clause. 6. The debtor ia not to be carried back to the
 
 CHAP. 20.] PRISON RULES. 851 
 
 county whence he escaped, but he is to be commitfed to the gaol of the 
 county where he was retaken. To return however to the act itself. 
 
 By the following clause of this section, it is provided, that if the debtor 
 was in execution when he escaped, he shall be so kept in execution in the 
 gaol of the county where he was retaken, until he pays the debt, or the judg- 
 ment is reversed, or he is discharged by due course of law ; one of the 
 m^ans of effecting which is, by taking the insolvent oath. 
 
 If he escaped out of custody upon mesne process, upon the return of the 
 warrant shewing that he has been retaken, the plaintitf may file his decla- 
 ration in the court ichere the suit teas brought, and that court may proceed to 
 give him a judgment, as in case of appearance and refusal to plead, uniess 
 the defendant shall give special bail, and immediately plead to issue. Up- 
 on giving such bail the fact must be certified to the ofhcer in whose custo- 
 dy he is, who thereupon must discharge him. Thus we perceive that the 
 suit may be tried in one county, while the defendant is in close gaol in 
 another. It is to be observed, also, that there is no provision permitting the 
 defendant to plead in custody. The permission to plead' seems to be only 
 on condition of giving bail. 
 
 By the second section of this act, it is provided, that when any person in 
 execution who shall have obtained liberty of the prison rides, by giving se- 
 curity to keep within them, according to the provision of the act on that, 
 subject, shall escape and go out of the prison rules, the sheriff or other of- 
 ficer of the county or corporation where the prisoner was in custody, shall. 
 immediately apply to a justice of peace for an escape warrant, and give no- 
 tice to the creditor of the escape, and assign over the bounds-bound, which 
 the creditor is obliged to receive, and may then proceed to have the prison- 
 er retaken according to the directions of the first section. 
 
 Before we proceed to comment on the particular provisions of this clause^. 
 it is proper to advert to the statutory regulations concerning prison rules. 
 
 By 1 R. C. ch. 71, § 18, every county court is empowered and required' 
 to lay out the bounds and rules of their county and corporation prisons, 
 not exceeding ten acres, and every prisoner not committed for treason or 
 felony, giving good security to keep within the rules, shall have liberty to 
 walk therein out of the prison, and "keeping continually within the bounds, 
 shall be adjudged inlaw a true prisoner." But this privilege is to continue 
 by the act 1 R. C. ch. 134, § 30, only for one year, within which time it is 
 presumed the prisoner may so arrange his affairs, as to psy the debt, or sur- 
 render his property as an insolvent debtor. At the end of one year he must 
 return to close gaol, or he will be treated as a prisoner upon an escape. The 
 sheriff is indeed bound to recommit him, or he will be subject to a fine. The 
 recommitment discharges the securities. 
 
 In the execution of the act for laying out the rules, the justices exercise 
 the discretion vested in them, so as to suit the convenience of prisoners as 
 far as possible, comprehending, where it may be done, the court-house, 
 clerk's office, and public houses, and sometimes changing the rules so as to 
 embrace the dwelling of some unfortunate man who may be in confine- 
 ment ; a humane and laudable course, in the spirit, and indeed within the 
 letter of the act. The prison rules with us are, I imagine, not very differ- 
 ent from the prison rules in England. There are said to be certain limits 
 without the walls of the prison, within which the prisoner is allowed to- 
 live. Jac. L. Diet. Rules. 
 
 The bond which is thus given by the prisoner for keeping the prison- 
 rules, must be taken to the sheriff and his successors in office, and as the 
 defendant is still "a true prisoner" in the eye of (he law, he should be 
 transferred as such by the sheriff' to his successor. 1 Mun.76. The bond 
 should in the condition puxsue the terras of the law very strictly. 4 H. &
 
 352 ESCAPES. [book 3. 
 
 M. 277. Yet it is good as a common law bond, though taken to the plain- 
 tiff. 1 Mun. 501. 
 
 Ill an action on this bond, the plaintiff is only required to shew a depar- 
 ture trom the rules. If it is alleged that the prisoner was discharged by due 
 CDurse oi'law, the onus probandi lies on the defendants. 1 Mun. 7(5. 
 
 If the bond be void, as improperly taken, the plaintiff may sue the sheriff. 
 1 Mun. 501. And if it be ndjudged void by an inferior court in a suit 
 against the securities, the creditor may maintain his action against the sheriff 
 without having appealed to a superior tribunal. And the sheriff is bound 
 by that judgment, and cannot gainsay it, (i Mun. 501,) for he is a privy 
 though not a party. 
 
 After this succinct account of the prison rules, and of the bounds-bond, 
 we a;fain recur to the second section of the act concerning escapes. In 
 considering that clause of the section which has been already quoted, you 
 will observe, 1. That this section of the act excludes the case of escapes of 
 persons on mesne process, not only by confining the terms of the clause 
 to persons in execution, but also by the very object of its provisions ; for 2d, 
 This section relates only to escapes of prisoners having the benefit of the 
 rules ; whereas the first section relates (^and perhaps only) to escapes from 
 close prison. 3. The law in this case is imperative upon the sheriff to sue 
 out the escape warrant, which, without this command, he might not have 
 done, as he ceased to be responsible for the custody when the bond was 
 given. 4. The creditor must receive the bond, and may proceed to retake 
 the prisoner also. 
 
 By the subsequent part of the second section it is further provided, that 
 if the debtor je retaken, the securities shall be discharged ; and that the 
 sheriff shall not be answerable for the debt, in case of an escape from the 
 rules, unless the securities were insuflicient when the bond was given. 
 Moreover it is provided, that the creditor may proceed to prosecute the 
 bounds-bond on the escape of the debtor if he is not retaken, notwith- 
 standing he may have applied for an escape warrant. 
 
 Thus we may observe that the rules are as a prison to the prisoner, and 
 if he departs from them, though for ever so short a time or distance, the 
 bounds are broken. In this case of breach of the rules, the bond being 
 assigned over to the ])laintiff, and the escape warrant procured, the duties 
 of the gaoler or sherifi' herein are at an end, and the creditor is to proceed 
 to have the party taken. It is otherwise where the escape is from actual 
 custody in the gaol, or from the ofiicer on his way to gaol. 
 
 As the securities may be absolved by the recommitment, and as the law 
 authorizes the justice to grant the warrant unto any one demanding the 
 same, I presume it may issue at their instance, as well as upon the applica- 
 tion of the sherifi' or creditor. 
 
 If the prisoner escapes with the consent of the gaoler, the creditor by 
 common law might have a new execution against his body; Bac. Escape, 
 E. 3; for an unsatisfied casa is as if there had been no execution. 
 
 We now proceed to the third section of the act concerning escapes. It 
 declares that the sheriff shall not be liable for an escape, unless the jury 
 shall expressly find that it was with the consent or through (he negligence of 
 the officer ; or that the prisoner might have been retaken and that the 
 sheriff and his officers neglected to make fresh pursuit. 
 
 On this part of the third section observe, 
 
 First, That the section only applies to escapes on final ])rocess or to in- 
 voluntary escapes on mesne process. For where the sherilf suffers the de- 
 lendant to go at large on mesne process it is not an escape, nor is it so treat- 
 ed either by common law or statute. For the sheriff might always on mesne 
 process suffer the defendant to go at large, provided he had him ready at the
 
 CHAP. 20.] ^SCAPES. 353 
 
 return day of the writ according to its mandate. He might, therefore, ect 
 him at liberty for a time, and retake him at pleasure, and in doing eo was 
 no trespasser. 3 T. R. 172. If, indeed, he had him not at the return of 
 the writ, agreeably to his precept, he was (in England) liable to an action 
 on the case, and may be here responsible ih the same manner and to the 
 same extent as special bail. But no action of debt could be maintained 
 against him either here or in England for permitting the party logo at large 
 without taking bail. 5 T. R. 40. In England an action on the case in- 
 deed would lie for the breach of duty, but with us the plaintifl's remedy is 
 specific ; for the sheriff is himself treated as the special bail. It is obvious, 
 therefore, that this section does not apply to permissions to defendants tak- 
 en on mesne process to go at large. 
 
 Where, however, a defendant actually escapes on mesne process the she- 
 riff cannot be proceeded against as bail. 2 Mun. 3-3-3. Wherefore lie is 
 only liable in an action for the escape, and by this section is only responsi- 
 ble in case the jury find their verdict according to the form prescribed by 
 the act. 
 
 But though the permission to a debtor taken on rncsnc process to go at 
 large does not amount to an escape, yet where a priisoner in execution es- 
 caped, inasmuch as the " body was the satisfaction,"' according to the bar- 
 barous notion of the law, if the sheriff voluntarily suffered the prisoner to 
 go at large for ever so short a time, he became liable to the action of the 
 plaintiff; — not indeed in an action of debt, but in an action on the case, itl 
 which he recovered damages commensurate to the injury sustained, though 
 lie might at the same time proceed against the original debtor. 2 T. R. 
 129. See also 5 T. R. 110. In this action on the case, therefore, the da- 
 mages may well vary from a cent to the amount of the debt ; 7 John. Rep* 
 192 ; for if the plaintiff recovers the debt after the escape from the defen- 
 dant, the damage is unimportant ; if ho loses it altogether, (though the par- 
 ty was solvent,) and the loss appears to have been occasioned by the escape, 
 the debt might be the measure of damages. 
 
 The English statute, however, and our owti, have both provided that iti 
 the case of a wilful and negligent escape of any debtor in execution from a 
 sheriff or other officer, the creditor may have his action of debt against the 
 sheriff or other officer, for the recovery of the full amount of the execution. 
 These affirmative statutes, however, do not take away the common law re- 
 medy, so that the creditor may either sue the sheriff in ctise, and proceed 
 also against the defendant, or sue the sheriff in debt under the statute. See 
 2 T. R. 129. If he sues the sheriff in debt, it is said he must recover the 
 whole sum ; idem ; though this strong expression is (in 5T. R.40,) much 
 qualified by the judge wlio used it. It is an important question whether 
 the sherifi" is responsible in such action for the whole debt (unless part of 
 it has been received by the creditor) or can diminish the recovery by shew- 
 ing insolvency of the defendant or such like matter in mitigation. On the one 
 hand the law seems direct and positive ; see § 3. See, also, 3 B. C. 415. 
 On the other are decisions of respectable judges. Such testimony was ad- 
 mitted by Judge Brockenbrough in the case of Holy and Suckley against 
 the sheriff of Berkeley, and seems to be countenanced by a decision in 7 
 John. Rep. 192. 
 
 If such action be brought, and the debt itself recovered of the sheriff, I 
 presume the creditor cannot proceed at the same time to prosecute his de- 
 mand against the debtor, so as thus to receive a double satisfaction. Is it 
 not most reasonable to suppose that in such case, by electing the action of 
 debt against the sheriff, he waives the proceeding against the debtor, and 
 that by the payment to the creditor by the sheriff, he in his turn may com- 
 pel the debtor to refund ? It would seem not. 8 E. 171, 172. 4 Starkie, 
 VOL. 2 — 40
 
 354 ESCAPES. [• BOOK 3. 
 
 1357. 1 Bac. Abr. 275. On these subjects my research has not yet ena- 
 bled me to speak with any confidence. 
 
 Be this as it may, we may next remind the student that the sheriff's lia- 
 bihty arises from an escape either voluntary or negligent. If it was volun- 
 tary it can never be purged, and the sheriff cannot, either by retaking, or 
 by the voluntary return of the prisoner, relieve himself from the action ; for 
 when the creditor's action has well attached, this subsequent matter shall 
 not excuse him, so that he is liable whether the prisoner is ever retaken or 
 not. 
 
 But where the escape has not been voluntary, but without the knowledge 
 or assent of the sheriff, his liability, I conceive, may be thus defined. If 
 the prisoner has escaped without any negligence on las part, and he makes 
 fresh pursuit, he is not liable, whether he be retaken or not. But even if 
 the original escape was not chargeable to his negligence or default, he be- 
 comes liable as for a negligent escape where he neglects to make fresh pur- 
 suit. 
 
 On the other hand, where the original escape of the prisoner proceeded 
 from negligence, he is chargeable. 
 
 1. Though he make hesh pursuit, if the prisoner be not retaken. 
 
 2. Though he make fiesh pursuit, and the prisoner is retaken or surren- 
 ders himself, but not till alter action brought. Bac. Escape, H. 
 
 But he is not chargeable even in case of a negligent escape (unless it 
 was also wilful.) 
 
 L If he makes fresh pursuit, and the prisoner is retaken. 
 
 2. If the prisoner surrenders himself before action brought ; for a volun- 
 tary return before action brought, is equivalent to a retaking upon fresh pur- 
 suit. 2 T. R. 126. 
 
 Note. — The action for an escape must be brought against the sheriff — not 
 against the gaoler. 2 Bac. Escapes. See I Mun.5Ul. 1 Wash. 106., 1 
 W. 4. 
 
 Secondly, we must observe, on this part of the third section, that it has 
 been said by high authority, that escapes which are in England fixed upon 
 the sheriff from legal deductions, seem to be done away in this country by 
 this act, which subjects the sheriff only where the jury expressly find the 
 escape with his consent or through his negligence. Per Pendleton, J. 1 
 Wash. 6. And this the verdict must expressly find, for no intendment or 
 reference whatever will supply the want of this express finding. 1 Mun. 
 501. 
 
 Thirdly ; observe that in an action for an escape, the actual escape is 
 the gist of the action, and therefore must be proved by the plaintiff; but, it 
 is said, he is not bound to prove affirmatively that the escape was with the 
 assent or through the negligence of the oflicer, for that is to be presumed, 
 unless a tortious escape be shewn, and that fresh pursuit was made. 1 
 AVash. 4. 
 
 The latter part of the third section of the act concerning escapes, con- 
 tains a proviso, that if the sheriff or other ofiicer wilfidly and negligently 
 suffer a debtor to escape, the creditor may have an action of debt against 
 tlie sheriif for the recovery of all the money or tobacco mentioned in the 
 execution, and damages for retarding it. This has been already the sub- 
 ject of remark, and nothing further need be here added. 
 
 Having thus disposed of the subject of escaj)es, it is proper to advert ta 
 the relief which is by our law afforded to the debtor, wliere he is in insol- 
 vent circumstances, and is confined by process of execution. 1 shall con- 
 tent myself, however, with referring to the insolvent act, 1 11. C. ch. L34, § 
 31 to 44, and 2 U. C. 5b5, and with remarking that an insolvent debtor may 
 di'^chargo himself under (he |)rovisions of that act, by taking the insolvent
 
 CHAP. 20.] OF THE CAS A. 355 
 
 oath, and surrendering his property, both real and personal, to the sheriff 
 for the benefit of his creditors. See on this branch of the law, 1 Cranch, 
 132. 3 Cranch, 300. 1 Wheat. 4 17. 5 Cranch, 3G3. Ulan. 277. 1 Virg. 
 Ca. 138. 2 Virg. Ca. 494. 1 Wash. 196. 3 Call, 329. 1 H. & M. 12. 
 
 It remains for mc to consider two other interesting questions in relation 
 to the casa, before we proceed to the subject of the fieri facias. 
 
 1. How flir is a casa executed, a satisfxction of the judgment. 
 
 2. How far is it a lien upon the lands and goods under the late act of 
 assembly. 
 
 As to the first: 
 
 Where there is only one defendant against whom the plaintiff has obtained 
 his judgment and issued his execution, if that defendant be taken upon a 
 casa no other execution on the same judgment can ever afterwards be is- 
 sued in his lifetime against his goods and chattels, lands or tenements. IV 
 he dies, indeed, the creditor is remitted to his original remedies, by the spe- 
 cial provision already recited. But while the defendant lives, and his body 
 is in execution, the creditor can have no other execution. The law gives 
 him an election to take the goods; or the goods and profits of the lands ; 
 or the goods a-nd possession of the lands of his debtor, or finally his debtor's 
 body, if he prefers that remedy as a means of compelling him to make satis- 
 faction. The possession of the body is, indeed, neither in the eye of rea- 
 son, or of the law, an actual satisfaction of the debt ; and hence the casa 
 is not even after it has been executed, and while the debtor is in execution, 
 a satisfaction. It only teiuls to satisfy. It is not a valuable execution^ but 
 a mere measure of constraint. If the defendant chooses to remain in gaol 
 obstinately, without paying his debt, the plaintiff has no remedy, however 
 overflowing the resources of his adversary may be. He has made his elec- 
 tion and is confined to it. So far, therefore, as he is thus restrained from 
 proceeding against the property of the defendant, after he has had him taken 
 on an execution, so far does the casa seem to partake of the character of 
 a satisfaction. But when we reflect, that though he keeps the defendant 
 confined till the day of his death, he may on the happening of that event 
 still proceed to enforce his demand by further proceedings, I think it will 
 be sufliciently apparent, that the taking the body of the debtor by a casa is 
 not a satisfaction of the debt, but in the language of the law only tends to 
 satisfy it. 
 
 If, indeed, after having levied the execution on the body, the creditor 
 consents to release his debtor from custody, and agrees that he may go at 
 large, then the law regards the execution, the levy, and the discharge, as 
 amounting to a satisfaction of the judgment. No new execution on that 
 judgment eser canissiie.^^ It is considered as satisfied and discharged, and 
 the debt or demand is itself gone forever, unless the defendant, on being 
 discharged, promised future payment ; in which case, a new action will lie 
 indeed on this promise, and a new judgment may be obtained thereupon, 
 but the original judgment is gone forever. 4 Bur. 2482. 6T. R. 526, 420. 
 Hob. 59. 1 T. R. 557. 
 
 We must observe, however, that it is only when the plaintiff himself hath 
 assented to this discharge of the debtor that this cfiect is produced. For if 
 the debtor escape, he may be retaken ; if the sheriff consent to his escape or 
 going at large, the creditor may nevertheless retake him. 2 Wils. 295. So, 
 though the defendant discharges himself under our law, by a tender of pro- 
 perty, yet if it is insufficient, a new casa may issue, for so far as the defi- 
 ciency extends, the first was no satisfaction ; and the debtor is discharged, 
 
 *2 Leigh, 361, accordant. See, also, 3 Barn. & Aid. 297. A bond Iiy a tliiid person conditioned 
 to restore tlie debtor (who has once been discharged by the plaintiti) lo the cuslody of the oflicer, 14 
 ilJegal and void. 1 Bos. & Pul. 212. Dacorta vs. Davis, 1 Bac. Abr. C16.
 
 356 OF THE CASAr [ BOOK 3. 
 
 not by the act of the plaintiff, but of the law. The casa therefore is never 
 a complete satisfaction, unless the debt is paid — or unless sufficient property 
 be delivered up in discharge of the body — or unless the plaintiff shall him- 
 self consent to the discharge of the defendant after he has actually been in 
 custody under the casa. So far indeed is this idea carried, that even where 
 the debtor is discharged out of custody by the failure of the creditor to pay 
 or secure to the gaoler his gaol fees, according to the provisions of the law, 
 (Sess. Acts. 1823, ch. 30,) yet the law reserves to the creditor the right at 
 any time afterwards to sue out a scire facias, to have a new execution against 
 the goods and chattels, lands and tenements of his debtor ; which could 
 not be, if the levy of the casa, and the subsequent discbarge for the cause 
 aforesaid, would amount to a satisfaction. 
 
 We proceed now to consider this question as it relates to cases in which 
 there are more defendants than one. 
 
 The taking of the body of one of two joint obligors is no satisfaction of 
 the debt, and no bar to an action or a levy of the casa on the other ; for a 
 casa, though executed, is, as I have said, not a satisfaction, but only tends 
 to satisfy. 1 Wash. 71, 95. 1 Mun. 175. G T. R. 525. It would in- 
 deed be absurd if it were a bar ; since the party would thus entirely lose 
 the responsibility of one of those who were bound for his demand, when 
 in truth he had received no real satisfaction from either. But if either pays 
 the debt, or the creditor releases to either, which, as we have seen, enures 
 to both, then indeed the judgment and execution are discharged. We 
 must bear in mind also the principle above mentioned, that if the creditor 
 discharges his debtor from custody after he has been taken in execution, 
 this is equivalent to a release of the judgment forever; for having taken 
 the body as his satisfaction, and afterwards given it up, the law considers 
 him satisfied, and he can never again re-take his debtor upon the same 
 judgment, nor can he ever after recover the debt, unless upon a new pro- 
 mise or engagement to pay it, made either at the time of the discharge or 
 afterwards. If such promise be made, he may sue upon it and recover a 
 second judgment, and enforce it, indeed, but the first judgment is utterly 
 released" by the discharge. 2 Mod. 130. 1 T. R. 557. 4 Bur. 2482. 7 
 T. R. 420. 2 E. 243. 6 T. R. 520. 2 Leigh, -301. We shall, hereafter, 
 see how far this is the case where the creditor releases property taken on a 
 fifa. See 1 Call, 18. 
 
 Now as a release to one debtor enures to all, and as a discharge of a 
 debtor from execution is considered as a release and satisfaction, so such 
 discharge of one enures to the benefit of all the defendants, and is an en- 
 tire satisfaction of the judgment. But the discharge of one debtor, on 
 taking the insolvent oatli, is no discharge of the other, for such discharge 
 is not with the consent of the creditor, wliich is essential to the transaction's 
 operating as a release. 5 E. 147. 
 
 Bui though the levy of a casa upon one, is no bar of any proceeding 
 against the oilier, because it is no cfieclual satisfaction of the debt, but only 
 tends to satisfy it, yet it is so far a salisfiction, that he cannot issue any ex- 
 ecution anr-iinst the goods of any other of the defendants. For there can 
 neither be a separate execution on a joint judgment, (see T. R. 527,) nor 
 can a party have a casa against one and a fifa against another defendant, 
 (Bac. Execution, G. 1 R. C. ch. 134, § 3, ad. fin em,) though, as we shall 
 see hereafter, he may change liis execution after it lias issued, at any time 
 before it is levied. 
 
 It is proper, also, to remark, lliat though a casa levied upon one debtor 
 is no bar to any proceeding against the other, yet by tlic laws of Virginia 
 any party in execution hath a righl to tender property to the sheriff in dis- 
 cliarge of his body, and if il be .suificient to discharge the debt, interest,
 
 CHAP. 20.] OF THE CASA. 357 
 
 and costs, the officer is compelled to receive it and discharge him. If, 
 therefore, one defendant be taken on a casa, and is discharired uj)on a sur- 
 render of property to the sheriff", this is a discharge of the execution as to 
 all ; for, as we have just seen, a release of one from execution, is a discharge 
 of all ; and moreover, by this provision, the act of assembly hath in effect 
 given to the defendant tlie power of converting the ])laintiir's casa into a 
 fifa. Now if a fifa issues against A & B, and the sheriff takes property 
 enough from A to satisfy the debt, it is an effectual suspension of the execu- 
 tion against B, since the sheriff having taken enough to satisfy the execu- 
 tion can have no right to take more than enough. 1 W. 95. 5 Rep. Blum- 
 field's case. In like manner, if property sufficient to pay the demand is 
 surrendered by one in discharge of hie body, the sheriff having enough to 
 satisfy it, he ought not be permitted to take any other defendant. For if 
 the casa had been levied on all, and sufficient property was delivered up, 
 it would of course have discharged all; and by parity of reason, if it had 
 been levied on one of the defendants only, the proceeding ought not to go 
 on against the others. 
 
 These principles being well settled and understood, we may proceed one 
 step farther. The party who surrenders property in discharge of his body, 
 being set at liberty, may next demand of the sheriff to give him up his pro- 
 perty till the day of sale, upon his giving a forthcoming bond. See3Mun. 
 308. Hence, where such forthcoming bond hath been given by any of tho 
 parties, it seems to be considered (and very properly) to be, so long as it 
 remains in force and unquashcd, as a barrier to any other proceeding under 
 the judgment. See 1 W. 71, 96. 2 W. 1S9. 6 Mun. 421, 422. It is 
 not, indeed, in strictness, a satisfaction of the judgment in itself, because 
 perchance it may be quashed, i.e. annulled and vacated as irregular. But 
 until it is so, it operates a complete suspension of proceedings upon the 
 judgment or casa, as to any other parties. 1 W. 9G. 3 Rand. 490. It is 
 like the case of a levy upon goods of one of several obligors under a. fifa, 
 which, though it tends to satisfy the debt, is no satisfaction until the pro- 
 perty is converted into money, and therefore no bar to an action against 
 the other obligors, since nothing but actual satisfaction can be a bar. 2 
 Ld. Ray. 1072. 3 Rand. 490. 
 
 When, however, the bond is quashed, together with the execution, in the 
 manner hereafter shewn, the plaintiff may sue out new casas or fif as, which 
 may be proceeded in against all the defendants in like manner as if the bond 
 and execution which were quashed never had had existence. 
 
 When the defendant dies in execution, the casa is considered as having 
 been unavailable, and the creditor might, both by common law and statutory 
 provision, proceed against his estate, real and personal, in the same manner 
 as if there had been no casa levied ; 1 W. 95 ; 1 R. C. ch. 134, § 8, 9 ; 
 but the judgment must first be revived hy scire facias either against the 
 heir or executor, according as the realty or personality is the object of pur- 
 suit. When there was judgment and execution against two at common 
 law, and one died, the demand survived against the other, and there w'as 
 no longer remedy against the estate of the other ; and the creditor was 
 moreover driven to his scire facias. This scire facias was brought of 
 course only against the survivor, but recited the judgment against both, and 
 suggested the death. Bac. Executions, G. The same course is yet to be 
 pursued, although our act of assembly, 1 R. C. ch. 98, § 3, gives the credi- 
 tor a remedy against the representatives of the decedent; yet they cannot 
 be joined in a scire facias with the living man, but a separate scire facias 
 lies against them. GRan. 162. We come now to consider, 
 
 2. How far a casa operates as a lien upon the lands or goods of the de- 
 fendant.
 
 358 OF THE C ASA. [ BOOK 3. 
 
 By an act passed the 2d March, 1821, ch. 34, § 4, it is provided " that 
 every casa shall bind the property of the goods of the party against whom 
 it issues, from the time that such writ shall be levied." At the revisal of 
 1819, it was further enacted, " that every sale of lands made by a creditor 
 in execution, shall, as to the creditor at whose suit he is in execution, be 
 absolutely void, unless it be made for the payment of such creditor's debt, 
 and the proceeds of sale be paid or secured to him. And it is further pro- 
 vided, that all casas shall bind from the time of the levy." 
 
 These provisions, it will be perceived, are entire innovations upon the 
 common law, which, so far from binding the property by the levy of a casa, 
 considered it entirely and forever discharged. They have produced very 
 great difficulties, which can only be removed by legislative explanation or 
 judicial decision. I shall postpone the consideration of the lien upon the 
 land till I come to the execution of elegit. 
 
 Less difficulty has been encountered, I think, in the interpretation of the 
 clause which binds the goods from the time of the levy, than in that which 
 binds the lands. It does not appear to be conceived that in consequence 
 of this "lien," the same creditor can proceed to levy a fifa upon the per- 
 sonalty of the prisoner while it remains unsold by him, and he continues 
 in execution ; for so long as he is in execution his body is "satisfaction." 
 Nor do I suppose, (though I have heard the idea suggested,) that he can, 
 during the lifetime and confinement of the defendant, proceed against it i-n 
 equity. But if the defendant takes the insolvent oath, any goods whereof 
 he was possessed at the time of the levy, would at once become liable to 
 the creditor's demand, either by sale, if they still remained his and were 
 rendered in his schedule, or by the aid of equity if he had sold them or 
 given them to another after the levy. There are, however, other questions 
 arising under this clause, admitting of much doubt, which are yet unset- 
 tled by the courts. Thus it seems to have been contended that the lien of 
 the casa does not prevent the levy of other executions upon the property, 
 the object of the legislature having been to avoid subsequent alienations, 
 but not to interfere with or suspend other process of execution. See Mr. 
 Leigh's argument in the case of Jackson vs. Heiskell, 1 Leigh, 257. So, 
 too, it seems questionable what becomes of this lien if the defendant dies 
 in gaol, though one of the judges of the court of appeals, in the case above 
 cited, intimates his opinion, that in such case the creditor is only remitted 
 to his remedies upon the original judgment, and that they are in no degree 
 strengthened by the circumstance that the debtor had been in execution. 
 1 Leigh, 276. So, too, it may be asked, whether the creditor, while his 
 debtor is in execution, can, upon the principles of the bill quia timet, en- 
 join the defendant from wasting or consuming the goods, or any purchaser 
 from eloigning them. Farther than that I should conceive he could not go 
 in chancery, and at law it is obvious that he is without remedy, because he 
 is without definitive rights. 
 
 The recent passage of the foregoing act has prevented our being able to 
 illustrate these questions by farther decisions. While, therefore, 1 present 
 my own opinions, I am by no means confident that they will be sanctioned 
 by the tribunals of the country. To the notion, which some practitioners 
 among us entertain, that upon a conveyance by an imprisoned debtor of 
 liis personal property or a part of it, the creditor would have a right to file 
 his Ijill in chancery to assert his lien, there seem many objections. In con- 
 sidering that question we shall have to decide how far it is competent to a 
 court of equity to enforce the demand when the creditor has not at law 
 any right whatsoever to subject the goods to his execution during the 
 debtor's life and confinement; how far it could have been intended to give 
 to the creditor new and more extended rights, in case of a transfer of the
 
 CHAP. 20.] OF THE FIERI FACIAS. 359 
 
 property, than he would have had without, when there is not a word indi- 
 cating such a design ; how far these supposed riglits extend where the trans- 
 fer has been only partial, and the debtor yet retains ample funds to meet the 
 amount of the execution in case of his death or swearing out ; whether it 
 can reasonably be inferred from this short clause, that under certain cir- 
 cumstances the creditor might harass his debtor with a suit in equity while 
 he still persists in keeping him in gaol ; and lastly, whether, if by the aliena- 
 tion the creditor acquires a specific right against the property conveyed and 
 to have it sold for his debt, he is at the same moment bound to discharge 
 the defendant's body from execution, as he would be upon his delivering 
 up property in discharge of his body. All these are import;) nt considera- 
 tions, which must be carefully weighed before the opinion above alluded to 
 can be safely conceded. 
 
 " If a capias ad satisfaciendum is sued out, and a non est inventus is re- 
 turned thereon, the plaintitf may sue out a process against the bail, if any 
 were given : who, we may remember, stipulated |,in this triple alternative, 
 that the defendant should, if condemned in the suit, satisfy the plaintiff', 
 his debt and costs; or that he should surrender himself a prisoner; or, 
 that they would do it for him : as therefore the two former branches of the 
 alternative are neither of them complied with, the latter must immediatel/ 
 take place. In order to which a writ of scire facias may be sued out 
 against the bail, commanding them to shew cause why the plaintiff' should 
 not have execution against them for his debt and damages :" and on such 
 writ, if they shew no sufficient cause, or the defendant does not surrender 
 himself on the return day of the first scire facias, which is returned execut- 
 ed, or of the second returned nihil, (for afterwards the surrender will not 
 be sufficient,) the plaintiff" may have judgment against the bail, for his full 
 demand against the principal, including debt, interest, damages, and costs; 
 and may enforce that judgment by any execution which might have issued 
 against the principal, or could issue against the bail for liis own proper 
 debt. We have elsewhere noticed the proceeding by scire facias against 
 the bail, and must, therefore, content ourselves with a reference, at this 
 time, to 1 R. C. ch. 128, § 54, 55, 56, 57, and 1 Wash. .313. 2 Wash. 213. 
 4 Mun. 516, 3 Mun. '339 : to all which I ask the student's particular at- 
 tention. ^ 
 
 2. " The next species of execution is against the goods and chattels of 
 the defendant; and is called a writ of fieri facias, from the words in it 
 where the sheriff is commanded, quod fieri faciat de bonis, that he cause 
 to be made of the goods and chattels of the defendant the sum or debt re- 
 covered. This lies as well against privileged persons as others ; and against 
 executors or administrators with regard to the goods of the deceased. The 
 sheriff may not break open any outer door to execute either this or the 
 casa :■ but he must enter peaceably, and may then break open any inner 
 door belonging to the defendant, in order tu take the goods. And he may 
 sell the goods and chattels (even the estate for years, which is the chattel 
 real,) of the defendant, till he has raised enough to satisfy the judgment 
 and costs : first paying the landlord of the premises upon which the goods 
 are found the arrears of rent then due, not exceeding one year's rent in 
 the whole." Sess. Acts, 1823. 1 R. C. ch. 11.3, § 7. See 1 Wash. 232. 
 3 Barn. & Aid. 440, 645. If part only of the debt be levied on a fifa the 
 plaintiff may have a casa for the residue. 
 
 To this very abridged account of the fieri facias which Mr. Blackstone 
 has given us, I deem it essential to add a much more enlarged view of the 
 subject, to enable the student to become familiar with a portion of the com- 
 mon law, which is of every day's occurrence, and presents a variety of 
 questions and difficulties which should be solved before the student enters
 
 8G0 OF -tHE FIERI FACIAS. [ book 3. 
 
 upon the practice of his profession. In executing this task, I shall con- 
 fiider, 
 
 1. Whose property may be taken under a fieri facias. By this writ the 
 sheriff is directed " to cause the amount of the plaintiff's demand to be 
 made of the goods and chattels of the defendant in his bailiwick." He is 
 not, therefore, justified in taking the goods of any other, and even if he 
 does so by mistake, he is a trespasser. And though he should proceed to 
 sell the goods of a third person under the execution, yet the title of the 
 owner would not thereby be divested. 1 VV. 308. Neither can a fifa be 
 legally levied on slaves specifically bequeathed, where the executor has as- 
 sented to the legacy, and has assented to the legatee's taking possession. 
 5 Mun. 175. Nor can a fifa against an executor for his own debt be le- 
 vied upon the property of the testator. 4 T. R. G21. (Scdvide, 6 T. R. 
 G2G, in note, and I B. &. P. 295.) Yet if execution be issued against a de* 
 fendaiit in his lifetime, and he dies before levy, or even before delivery to 
 the sheriff, it must proceed, and he may levy it upon the testator's goods in 
 the hands of the executor. Bac. Execution, C. 4. See 4 T. R. 621. For 
 an execution is an entire thing, and cannot be superseded after it is begun. 
 1 B. & P. 571, 563, n. a. 7 T. R. 20. Nor can it be levied on property 
 conveyed to the separate use of a wife, for a debt due from the husband ; 
 though if the trust be "to permit the husband and wife, during their joint 
 lives, to enjoy the profits," they may be taken to satisfy a debt incurred af- 
 ter marriage, for supplies furnished for the support of the husband and 
 wife. 6 Mun. 117. Nor can an execution be levied on money bo7ia fide 
 lent to the sheriff and applied by him to his own use prior to his receiving 
 the fifa, nor can it be subjected to payment of the debt in equity. 2 H. & 
 M. 87. In other words, when a fifa comes into a sheriflf s hands, and he 
 owes the defendant, the execution does not attach upon the debt, nor is he 
 bound to return it levied or satisfied. See 4 B. ScP. 376. Yet where mo- 
 ney made under an execution for any person is in the sheriff's hands at 
 the time h fifa comes into his hands against the same party, he ought to pay 
 it into court, and the court may in its discretion direct it to be paid over in 
 satisfaction of the fifa, whether tliere are other goods whereon it might be 
 levied or not. See 1 Cranch, 13G. Doug. 231, and the cases cited "Taite's 
 Digest, 218, n. b. (Sed vide, 4 E. 510. 9 E. 48.) And it would seem 
 that where the sheriff was debtor to the defendant, he might, if he pleased, 
 return that " the money was made and ready to render," and thereby bind 
 his securities in case of default of payment See Norris vs. Crummey, 1 
 Rand. 323. 
 
 In connexion with this part of the subject it may also be observed, that 
 where property hath been taken under one execution, and has been return- 
 ed to the defendant upon his giving a delivery bond with securities, the lien 
 of that execution on the property continues until the bond has been for- 
 feited ; and if another execution be levied on it, so that the surety is pre- 
 vented from complying with the condition of his bond, a court of equity 
 will, at the instance of the surety, perpetually injoin the proceedings upon 
 the bond; 3 Mun. 417; and the sheriff will thus become liable to the 
 plaintiff in the first execution, for appropriating the property improperly to 
 the benefit of the second. 
 
 2. What kind of property may be taken. 
 
 The writ of fieri facias authorizes the sheriff to st^ize every thing that is 
 a chattel, whether chattel real or personal. So that if the defendant hath 
 a lease for years, he may seise and sell that, however long may be its con- 
 tinuance. 4 Rep. 74. And so he may seise slaves, cattle, corn, household 
 stuff, &,c. Slaves cannot be taken for a debt under $33.00, if other suffi- 
 cient property of the defendant be shewn. 1 R. C. eh. 134, § 21. Arms,
 
 CHAP. 20.] OF THE FIERI FACIAS. 361 
 
 ammunition, and equipments of militia are privileged. 1 R. C. eh. 134, § 
 14. And even money in the possession of the defendant may be also taken 
 by virtue of a fifa. feee 1 Cranch, 117. Steel is. Co. vs. Brown, General 
 Court, June, 18:21. 12 John. 220, 395. And though it has been said 
 (Cases Tem. Hard. 53. Bac. Execution, C.) that bank notes cannot be 
 taken in execution because they are merely choses in action, yet this doc- 
 trine may well be questioned at this day ; both because they pass as mo- 
 ney, and because they are transferrab'.e, though choses in action. In like 
 manner I should presume that bonds which are assignable in Virginia may 
 be taken in execution and sold, though it must be confessed that there is 
 no authority within my knowledge to countervail the decision above men- 
 tioned. As to levying execution on money of defendant in sheriff's hands, 
 see 1 Cranch, 136. Doug. 231, 9 E. 48, however, seems centra. 
 
 I have said, that by this writ the sheriff may take a lease for years in ex- 
 ecution, for that is but a chattel : but such things as belong to the freehold 
 cannot be seized. Gilb. on Ex. 19. Nor does this execution give him any 
 authority to break or disunite any thing from the freehold. Bac. Execution, 
 C. 4. For nothing belonging to the freehold is a chattel, and the writ only 
 commands him to take goods and chattels. Hence, I iiad conceived that 
 corn, wheat, or other crops growing or sown in the ground on freehold pre- 
 mises, could not be taken on this execution, though it uiight be otherwise 
 where they are growing on a lease for years. And to this opinion I inclined 
 notwithstanding the cases cited by Mr. Taite, page 218. For these are 
 founded, I conceive, upon a case in 1 Salk. 368, which justifies no such 
 conclusion. In Dalt. 956, the law is laid down in general terms, but no 
 authority is cited: in page 145 he states it again, but in connexion with a 
 lease for years, so that upon the whole he should not be considered as going 
 farther than I should have done. In 5 Coke, 11, cited by Mr. Taite, there 
 is not a word on the subject. The reference is probably mistaken. The 
 doctrine laid down in Salkeld is in reference to crops growing upcii leases 
 for years, and not upon a freehold estate. And the distinction is obvious; 
 for as the lease itself is but a chattel and subject to the fifa, the crop which 
 is but appurtenant to it, can only be a chattel, and must in like manner be 
 liable to be taken. It is admitted, however, that fixtures put up in the way 
 of trade may be taken on an execution against the tenant, for they are 
 considered but as chattels which the tenant has a right to remove. 1 Salk. 
 368. It seems, however, notwithstanding these suggestions, to be consid- 
 ered as settled, that o-rowing crops may be taken on a fifa. 2 Bro.Sc Bing. 
 362. 6 C. L. R. 156. 12 C. L. R. 378. 
 
 It seems to be a necessary consequence of the doctrine of trusts, — of 
 the separate jurisdictions of courts of law and equity, and of the practice 
 of courts of law which disregard the doctrines of equity in relation to trusts, 
 that an execution cannot be levied on a resulting trust or on any mere 
 equity. And so accordingly we find it decided in various cases. 1 John. 
 C. C. 56. 8 E. 467. 5 John. C. C. 335. 2 John. C. C. 283. Property 
 thus situated, it is said, can only be reached through a court of equity. But 
 we must here, I conceive, distinguish between trust estates, properly so 
 called, and mere equities. For by our statute estates of every kind holden 
 in trust are subject to like debts and charges of the cestui que trust they would 
 be if the party held the legal estate therein. 1 R. C. ch. 99, § 30. Thus 
 if a negro is conveyed by me to A, in trust for the use of B, he would I 
 conceive be as liable to be taken by execution against B's goods and chat- 
 tels, as if B had the legal title. And yet it has been adjudged, that an 
 equity of redemption in a lease for years is a mere equity which cannot be 
 taken by execution. 1 Vez. jr. 431. 3 Bro. C. C. 478. It has since beea 
 decided otherwise in New York. 1 Gaines' Cases, 47. 
 VOL. 2 — 46
 
 362 OF THE FIERI FACIAS. [ book 3. 
 
 3. In lohat manner the sheriff may take the property. He cannot break an 
 outer door of a dwelling house, but if he peaceably gains entrance, he may 
 break open chests, inner doors, &c., even without first demanding of the 
 defendant to open them, for these are only for the protection of the goods, 
 and are not held sacred as the outer door is, which is for the protection of 
 the person, the house being in law deemed his castle. See 4 Taun. 619. 
 5 Taun. 765. 14 E. 115. For a like reason even the outer doors of barns 
 or outhouses not adjoining the dwelling house, (Bac. Execution, A,) and 
 only used for preservation of goods, may be broken. Gilb. on Ex. 17. Nor 
 is the dwelling house of a stranger privileged from being entered by the 
 sheriff, though the outer door be closed, if the defendant's goods are found 
 there, and the owner of the house refuses to deliver them. Bac. Sheriff, n. 
 3. Yet the sheriff enters at his own risk, for he is a trespasser if they are 
 not there. 5 Taun. 765. 6 Taun. 246. Nor is the delendant's property 
 protected from the levy of an execution as it is in case of distress, by being 
 in his actual use ; as a horse which the defendant is riding : for the sheriff 
 may first levy on the horse, and then, I presume, may proceed to dispossess 
 him by "softly laying his hands upon him." 
 
 A sheriff ought not to sell more of defendant's property than is necessa- 
 ry to satisfy the demand, provided part can be reasonably detached and sold 
 separately. See 6 John. C. R. 414. When sufficient goods are seized, the 
 defendant is discharged by the seizure, and the creditor must look to the 
 sheriff. 1 John. 255. 1 Salk. 322. 2 Ld. Ray. 1072. 
 
 4. When the execution may be levied. Here it is obvious to remark that a 
 levy, before the issuing of the execution, cannot be made good by its sub- 
 sequent emanation. Nor is the levy, after the return day has passed, a 
 legal levy. Bac. Sheriff, n. 1. See 1 R. C. ch. 128, § 70. Taile, 68. For 
 before the emanation of the writ there was no authority, and after the re- 
 turn day the authority which existed has expired. Yet we shall see here- 
 after that nevertheless, if the fifa be once levied, the future proceeding of 
 the sheriff is not arrested by the passing of the return day ; but he may and 
 must proceed to sell and complete the execution ; for, as has been already 
 said, an execution is an entire thing, and when once begun is never sus- 
 pended, but must be completed. And thus it happens that the creditor, by 
 delivery of the execution into the sheriff's hands, at once acquires a lien on 
 the property, and if it be afterwards levied before the return day, it avoids 
 all mesne acts ; yet if it be not levied before the return day, this lien is for- 
 ever lost and gone. 
 
 No execution can be levied on Sunday. 1 R. C. ch. 78, § 16. 
 
 It is laid down in Dalton, 1 16, on the authority of 9 Coke, 66, " that the 
 sheriff may make an arrest, or execute any process, or do any other minis- 
 terial act in the night time, as well at the suit of the subject as of the king." 
 
 It seems that members of the assembly are by their privilege protected 
 from the levy of an execution, either against their bodies, goods, or lands, 
 during their attendance on the general assembly, and one day before and 
 after for every twenty miles they must necessarily travel to or from home. 
 1 R. C. ch.51, §31, ch. 134, § 11. Bat if a levy has been made before the 
 commencement of the privilege, the property is altered and the defendant 
 lias no right to have it returned to him. If it be returned, it seems to me 
 that the sheriff is liable for it. Nor does the clause above alluded to affect, 
 I conceive, a lien which attached before the privilege commenced. For 
 though the fifa cannot be levied, and even if levied the property cannot be 
 legally sold, yet the lien on the property attaches on the delivery of the 
 writ to the sheriff, as will be hereafter shown ; and the process is only sus- 
 pended without abatement or discontinuance.
 
 CHAP. 20.] OF THE FIERI FACIAS. 363 
 
 5. As to the lien of thefifa. This lien does not exist until the delivery 
 of the execution to the sheriff or other officer ; and it has been said by high 
 authority, that a levy is necessary to bar a subsequent bona fide sale. 2 
 John. 31'2. Sed quare. 4 East, 536, contra. The sheriff is bound to 
 endorse the day of delivery, and if two executions are delivered on the same 
 day, that which was first delivered has preference. At common law the 
 goods were bound from the teste of the writ, and that is still the case as to 
 the party himself, for the statute was only made to protect strangers ; 2 Vcn. 
 218 ; Com. 33 ; G Mod. 2:i5 ; and therefore, if he dies beforelevy, the she- 
 riff may proceed to levy on the goods in the executor's hands. Comb. 145- 
 1 Bac. Appendix, 52S, title Execution. Here, however, it is important to 
 touch upon several points. 
 
 1. What is the extent of this lien. 
 
 2. How it may be lost by laches or collusion, or any act releasing the 
 property ; and here of the effect of a forfeited forthcoming bond. 
 
 1. What is the extent of this lien. It seems, notwithstanding the opinion 
 of Chancellor Kent above cited, to be generally understood that the pro- 
 perty in the goods is bound by the delivery of ihefifa to the sheriff, and that 
 subsequent sales are thereby barred. See 4 E. 53G. Yet the properly is 
 not divested until the levy. See 3 Mun. 431. 4 E. 523. Hence if the 
 execution is never actually levied, the lien expires with it. But when the 
 levy takes place, all intermediate sales, transfers, gifts, or alienations of the 
 property, between the date of the delivery to the sheriff and the levy, are 
 avoided. And though the defendant has aliened after the execution came 
 to the sheriff's hands, he may take the goods whenever he can find them. 
 
 One consequence of the principle that notwithstanding the lien the pro- 
 perty is not divested till execution executed, seems to have been, that if a 
 subsequent execution comes into the sheriff's hands, and he executes or le- 
 vies that first, and proceeds to sell under it, or gives a bill of sale to the 
 plaintiff in it, (which it seems is practised in England, Eac. Sheriff, n. 5,) 
 the plaintiff in the first execution has no remedy against the plaintiff in the 
 second, but only against the officer. 1 T. R. 751. 4 E. 523. But where 
 the sheriff has made no sale, and has seized under both executions, the first 
 must have the priority, nor can the creditor in the second make the sheriff 
 liable for giving it, although the last was levied first. 1 T. R. 729. I 
 Avould suggest, however, that with us the sheriff at any time before paying 
 over the money to the plaintiff in the second execution, would probably be 
 permitted to amend his return so as to give the preference to the first. 
 
 Our sheriffs have various deputies. Suppose A's execution delivered to 
 one, and B's to another, on the same day, at different places. Much dif- 
 ficulty may exist in shewing which Vv-as first delivered. The like difficulty 
 may also occur where a casa is levied in one place, and 'dfifa delivered to 
 the sheriff in another. These difficulties, however, refer themselves to the 
 matter of evidence, not of law. 
 
 2. How may this lien be lost by collusion and fraud, by negligence, or 
 by the act of the parties ; and herein of the effect of a forfeited forthcoming 
 bond. 
 
 By collusion, the preference of which we have been speaking is lost to 
 the creditor in the first execution. 1 Wils. 44. 2 T. R. 596, case cited by 
 Buller. 1 Salk. 320. Bac. Fraud, A. 
 
 By negligence the preference may be lost, as if before the levy, the first 
 execution runs out of date, the second execution yet having some time to 
 run ; — the lien of the first is gone, and the second thus gains a preference 
 over all others. Whether the effects of this negligence will fall on the 
 plaintiff or the sheriff, depends upon circumstances. The plaintiff may, 
 it is true, if he chooses, after delivering the execution to the sheriff, remain
 
 364 OF THE FIERI FACIAS. [ book 3. 
 
 a silent and inactive spectator. 1 Call, 22, 23. He may, indeed, be con- 
 sidered totally unconcerned in the transaction, provided the defendant has 
 goods ; for if the levy is made, he will get his debt, and if through tiie ne- 
 gligence of the sheriff it is not made, the sheriff will be responsible for it 
 in case it be lost. But if the creditor does not choose to remain neuter, 
 but interferes by directing the sheriff not to proceed to levy, he may bring 
 upon himself the imputation of fraud, as in the cases above cited, the se- 
 curities for the debt' may be absolved, and the creditor will certainly lose 
 his recourse against the sheriff if he has given indulgence by his direction. 
 See 6 Ran. 305. 
 
 And here it may not be amiss to advert to another consequence of this 
 interference. If, in such case, the creditor has any person bound as secu- 
 rity for the demand, and after the levy of the execution he directs the pro- 
 perty of the principal to be given (ip, vi'ithout the consent of the surety, he 
 loses forever his recourse against him. 1 Call, 18. lMun.269. A dis- 
 tinction, indeed, is to be observed herein, between the act of the sheriff and 
 the act of the creditor. For if the sheriff levies a fifa, and of his own 
 mere motion leaves the property of the defendant in his possession, this is 
 no release of the security ; for he has a right, if he pleases, to make the 
 defendant his bailee to keep the property safely until the day of sale, or 
 until he may choose to remove it. He is responsible, indeed, in such case, 
 for its forthcoming, or if it is wasted or eloigned, but neither the lien of the 
 execution nor the right of property which became vested in the sheriff by 
 the levy is thereby lost. But when the plaintiff himself directs a return of 
 the property to the debtor, it is thus by his act and consent put out of the 
 custody of the law in which it had before been ; 6 Ran. 305. 13 Vin. 524 ; 
 there is no longer any one responsible for its not being eloigned, and as 
 the security might thus be greatly injured if he were in such case still held 
 liable, the law absolves him entirely. In short, the creditor by his act has 
 chosen to trust the defendant alone, and therefore the security is discharg- 
 ed. Had he permitted the sheriff to retain the goods under the execution, 
 the surety would have been relieved by the sale of them ; or had they been 
 left by the sheriff with the defendant, and then eloigned, the sheriff' would 
 have been bound for thn money ; but by the creditor's own act he has taken 
 the sheriff's responsibility upon himself. There is no way of relieving 
 the surety if the goods are eloigned, unless the creditor is made to bear 
 the loss, which he ought to do, as it results from his own officiousness. 
 These principles will be found maintained by the cases above cited, 1 Call, 
 18. 1 Mun. 269, and by many others which will more properly be arrayed 
 when we take an equitable view of this matter. 
 
 The lien may be lost by tlie act of the party; for in the case just men- 
 tioned the security is not only absolved, I conceive, but the property itself, 
 which had once been in the custody of the law and (if I may so speak) of 
 the execution, having been put out of that custody, is no longer in any wise 
 held or bound by thai execution. For the execution having once been le- 
 vied is functus officio. It cannot be levied again, whether it be competent 
 to issue a new one or not. Nor is the property longer vested in the sheriff, 
 since it was divested by the delivery to the defendant by the plaintiff's or- 
 der. It is, therefore, clearly liable, I apprehend, to the execution of any 
 other person, and thus the lien of the first execution is lost by the act of 
 tlie party. 
 
 Whether, in such c"se, the plaintiff can issue a new execution on the 
 original judgment, docs not seem quite so clear. On the one hand, a ///a is 
 generally no satisfaction, unless it has been made available by sale of the 
 property and actual jiayment oflhe debt. 2 Ld. Ray. 1072. 3 Rand. 490. 
 1 V/. 95. And, moreover, in the case of Bullet vs. Winston, (1 Mun. 269,)
 
 «MAr. 20. ] OF FORTHCOMING BONDS. o65 
 
 the judge? seem very scrupnlonsly to confine themselves to the opinion that 
 the security in such case is absolved, but waive the decision of the question 
 as to the other parties to the judgment. On the other hand, upon princi- 
 ple, if the security is absolved not in equity merely, but at law, it is not con- 
 ceivable how any other execution can issue; since, on this supposition, a 
 separate execution must issue against the principal only. Such a separate 
 execution cannot, as we have seen, be maintained ; and, moreover, the law 
 knows no difference between the principal and the surety. Now in the case 
 of Baird vs. Rice, (1 Call, 18,) the judges distinctly observe, that if the she- 
 riff had returned the facts upon the execution, it would have been a total 
 discharge of the security at law. Judge Carrington moreover remarks, that 
 in case such return had been made, " no new execution could have issued," 
 and Judge Roane observes, that the transaction amounted to " a new con- 
 tract ; a simple contract, indeed, instead of a judgment," — there havino- 
 been, in that case, a promise to pay the debt in consideration of the return 
 of the property. 
 
 Without pretending to decide this question, I venture to suggest, 1. That 
 where the goods are restored by order of the plaintiff upon a new promise, 
 contract, or agreement to pay the debt, as was the case in Baird vs. Rice, 
 the surety is not only absolved in equity and at law, but the judgment itself 
 is satisfied and discharged, and no execution can issue against either party. 
 The creditor is driven to an action upon the new contract. 2. That where 
 the goods are directed by the creditor to be restored to the debtor's posses- 
 sion merely as an indulgence, or upon his undertaking to have it forthcom- 
 ing at the day of sale, but without any new arrangement of the debt, the 
 judgment is not discharged, since the jifa was not available, but a new ex- 
 ecution may issue at law against all the defendants, and the remedy of the 
 security is only in equity. 
 
 It may not be improper, however, to add here, that a mere agreement by 
 the plaintiff in the first execution, that the sheriff may postpone the sale of 
 goods after a levy has been made, has been decided not to be sufficient of 
 itself to deprive him of his preference, and to give priority to a subsequently 
 levied execution. Lisle vs. Orrick, Winchester superior court. And with 
 good reason, for the plaintiff in the second execution may direct his execu- 
 tion to be levied on the same goods, and may force a sale if he pleases, 
 that he may have any surplus after satisfying the first ; but the sheriff must 
 in such case retain enough to satisfy it. Another instance is afforded by 
 the books, of a party losing his lien by his own act : as where the plaintiff 
 sues out a second execution before the property taken by the first is dis- 
 posed of, he waives the first execution and destroys the lien on the property. 
 Eckols vs. Graham, 1 Call, 49:2. 
 
 I proposed under this head to speak of the effect of a forfeited forthcom- 
 ing bond upon the lien of the execution ; but it will be necessary first to 
 give a short account of forthcoming or delivery bonds, to enable the stu- 
 dent to comprehend the remarks which follow. Such an account forms in- 
 deed, in Virginia, an essential part of an essay upon the writ of fieri facias; 
 and the subject will therefore be taken up again when we come to consid- 
 er the proceedings after a levy. 
 
 By the terms of this species of execution the officer is directed "of the 
 goods and chattels of the defendant /o cause to be made" the amount of the 
 plaintiff's demand; and the nature and meaning of the mandate is, that he 
 shall seize the goods and chattels, and sell so much of them as may be ne- 
 cessary for the purpose of raising the requisite sum. To prevent an utter 
 sacrifice of the defendant, and to secure as fair and advantageous sale of 
 his property as circumstances and the demands of justice will permit, our 
 law has provided, that ten days' notice of the time and place of all sales
 
 366 OF FORTHCOMING BONDS. [ BOOK 3. 
 
 under execution, shall be given by advertisement at the court-house door, 
 on a court day, and also at some public place near the debtor's residence. 
 Hence it is obvious, that ten days — perhaps weeks — may elapse before the 
 sale can take place. In the meantime if the sheriff or officer continued to 
 keep the property, the defendant would not only be deprived of its use, 
 but moreover would be subject to very ruinous expenses, for the mainte- 
 nance and support of such property as stocks, slaves, £cc. See 1 R. C. 
 ch. 134, § 15, 24. Moreover, he may have reasonable hopes of being able 
 before the day of sale to make the debt, if in no other way, at least by a 
 less destructive sale of his property than that which is usual when the sale 
 is conducted by the sheriff. From these and perhaps other causes, the 
 legislature has benignly provided, that if the owner will give to the sheriff 
 or officer serving the execution, bond with sufficient security to have the 
 property forthcoming at the day and place of sale, the sheriff shall there- 
 upon suffer the property taken to remain with the debtor and at his risque 
 until the time appointed for sale. And if the debtor or his securities fail 
 to deliver the property to the sheriff at the day and place of sale, or to pay 
 off the execution, the bond is directed to be returned to the office with the 
 execution, and it then has the force of a judgment : and the creditor may 
 upon ten days' notice, move for and obtain an award of execution on the 
 bond, against the principal and his securities, on which last execution the 
 defendants shall not have the privilege again of giving a forthcoming bond ; 
 to indicate which, the execution is endorsed " no security to be taken." 
 1 R. C. ch. 131, § 10. The bond thus taken is called indifferently a forth- 
 coming or delivery bond. It is so called, because the goods taken in ex- 
 ecution are, by the directions of the act, delivered to the owner on his 
 giving bond with security, conditioned to have the goods forthcoming at the 
 day of sale. 
 
 Having premised this short account of forthcoming bonds, I proceed, as 
 I proposed, to speak of the effect of a forthcoming bond in relieving the 
 property from the lien of the execution. And here the distinction is be- 
 tween the effect of the bond before and after it is forfeited. After the forth- 
 coming bond is forfeited, the goods which were taken and re-delivered on 
 its execution are entirely free and discharged from that execution forever, 
 and the forthcoming bond is a complete satisfaction of that execution, 
 though it may or may not, according to circumstances, be a satisfaction 
 of the judgment. For if the forthcoming bond be quashed the same exe- 
 cution cannot be levied again, but it should be quashed also, (1 W.259. 2 
 W. 189,) and then a new execution may issue upon the judgment as if the 
 former never had been ; for though a forthcoming bond is, while it remains 
 in force, a barrier to any other proceedings on the judgment, (3 Rand. 
 490,) yet after it is quashed it is as if it had never been. 1 R. C. ch. 131, 
 § 18. 
 
 But before the forthcoming bond is forfeited, though it is, as in the other 
 case, until it be quashed, a suspension of the judgment, yet the lien on the 
 property remains, and no other execution can, until forfeiture, be levied up- 
 on it: and if the sheriff, after taking a forthcoming bond, accept the same 
 goods from the defendant in discharge of his body from another execution, 
 and thereby prevent the security from complying with the condition of his 
 bond by delivering ilie property, a court of equity will restrain by injunction 
 the proceeding on the bond against the surety, leaving the plaintiff to his 
 remedy against the sheriff; for the surety has a right to deliver that pro- 
 perty on the day of sale, if he can peaceably obtain possession thereof. 3 
 Mun. 417. 
 
 6. What amounts to a levy. To constitute an effectual levy it is not es- 
 sential that the officer should make an actual seizure ; if he have the goods
 
 CHAP. 20.] OF FORTIICOiMING BONDS. 3G7 
 
 in his power and view, this may suffice ; as where certain slaves were in 
 the presence of the officer, on wliich he declared that he levied the execu- 
 tion on them, and thereupon took a list of them, hut did not touch them, 
 and went away without removing them from the dehtor's custody on his en- 
 gaging to produce them at the day of sale ; this was nevertheless deemed 
 a good levy. 1 Mun. 270, 278, 283. It is admitted, too, that seizure of 
 part in the name of the whole, is enough to make a levy on the whole ; 1 
 Ld. Ray. 725; and this in various instances, as in levying an execution 
 upon a store of goods, library of books, a heap of wheat, crops, &c. in a 
 barn, or in stacks. And so where property is brought within the proximity 
 of the officer, so that he may be said to have it in his power; as slaves in 
 a room, or within a short distance, or going home with the sheriff, or on 
 their way to gaol, though he never touches them. 1 Mun. 276. 
 
 If after having levied an execution, the sheriff permits the defendant to 
 get possession of, and waste or eloign the goods, he is responsible to the 
 plaintiff if there be not enough to pay his debt. And in like manner if he 
 takes the goods and permits them to be wasted or destroyed by any person 
 other than the defendant lie is responsible also to hbn. 
 
 When slaves are taken in execution and sold, their names are required 
 by law to be certified on the back of the execution, and the execution re- 
 turned to the office and recorded. This regulation is to prevent subse- 
 quent purchasers from being deceived. 1 Call, 492. But the omission 
 will not vitiate a judgment on a forthcoming bond taken on the execution. 
 3 Mun. 308. 
 
 When a party defendant enters into a forthcoming bond, the condition 
 whereof recites that certain property of the defendant is in possession of 
 the officer, taken by virtue of an execution, the parties to the bond are es- 
 topped, f conceive, from denying the levy, or that such property was taken. 
 See 2 Call, 507. 
 
 7. Of the proceedings after the levy. When the sheriff has levied the 
 execution, he ought to proceed in convenient time to the sale of the goods^ 
 for the purpose of raising the amount due. The student, by adverting to 
 the statute law, I R. C. ch. 134, § 15, 24, and to some subsequent acts, will 
 perceive that the debtor whose property is taken in execution is subjected 
 by law and of necessity to a heavy expense between the time of the levy 
 and that of the sale. In England no remedy for this has ever been devised, 
 as far as I am informed, but in Virginia one has been long afforded by our 
 laws, which it must be confessed, however, has been much abused by be- 
 ing made an instrument of delay. The remedy alluded to is the forthcom- 
 ing or delivery bond, of which I have already said something. See I R. C. 
 ch. 134, § 16. 
 
 It would lead us too far from our present subject if I were to dilate upon 
 the fi-uitful theme of forthcoming bonds. I shall, therefore, only take no- 
 tice here of some general principles respecting them, and mention a few 
 of the numerous cases that have occurred concerning them. 
 
 As the forthcoming bond is a satisfaction of the execution, and when dis- 
 charged is to be considered also a satisfaction of the judgment, it is ob- 
 viously proper that it should clearly appear upon what execution it was taken. 
 Hence all the common law rules in relation to accuracy in recital, prevail 
 in relation to them, in very great strictness; so that if in the recital of the 
 execution the names of the parties or the sum or kind of execution are 
 misrecited, it will generally be fatal. 1 W. 259. 2 W. 189. 1 Mun, 
 605. 1 Rand. 211. No judgment can be obtained on the bond,* and both 
 the bond and execution must be quashed, so as to enable the party to have 
 another execution. By this means it sometimes happens that the debt is 
 * Greater liberality seeraa to have prevailed occasionally in this matter. Se9 2 H. & M. 100.
 
 868 OF FORTHCOMING BONDS. [ BOOK 3. 
 
 lost, as the party in the meantime may have become insolvent. The she- 
 riff is in sucli case of course liable to the plaintiif, because he has taken a 
 faulty bond, and he is liable at all events to the costs of the motion on the 
 bond, and of quashing it. 
 
 The bond being intended as a security for the production of the proper« 
 ty at the day and place of sale, a day and place oi' delivery must be appoint- 
 ed of course ; 1 W. 161 ; though it is not necessary that the place should 
 be designated as the place of sale, (1 W. 254,) nor the day as the time of 
 sale. 1 W. 69. Nor is it necessary that it should expressly recite the 
 levy on the defendant's property, if that sufficiently appears by the bond. 
 2 H. &. M. 100. 2 Mun, ^66. The bond should also be taken to the cre- 
 ditor, as it is his judgment which is to be barred ; and not to the sheriff; 
 2 W. 190; for herein the act is explicit. It is also essential that in the ob- 
 ligatory part of the bond there be a penalty inserted, or no judgment can 
 be rendered on it. 6 Mun. 32. 
 
 It is observable that the property thus restored is to remain in the pos- 
 session of the debtor at his risk. And to save the penalty and relieve the 
 security in the bond, the condition must be strictly performed. The non- 
 delivery of a part of the property, however minute, amounts to a forfeiture 
 of the whole bond ; and even a court of equity will not relieve against it, 
 though the non-delivery was owing to an accident, as the absconding of 
 one of several slaves mentioned in the bond. Gilmer, 134. The conse- 
 quences of this doctrine may be very serious to securities. Thus if on an 
 execution for $1000, household property to the amount of only $100 is ta- 
 ken, and a bond be given for its forthcoming, and a single chair or teacup 
 is missing, the security becomes liable for the whole sum of $1000, and 
 credit is only given for the proceeds of sale of what remains. I have 
 never known a forthcoming bond taken in a penalty incommensurate with 
 the amount of the execution; but in the case above stated I think.it might 
 well be questioned whether the penalty ought not to be made commensu- 
 rate only to the value of the property, since otherwise the defendant may in 
 effect be deprived of the benefit of the law from inability to get security for 
 the larger sum. Sed qucure. The property must be delivered to the sheriff 
 before 4 o'clock of the day of sale, or the bond will be forfeited. 3 Ran. 554. 
 
 The penalty of the bond may be saved if the party obtains an injunction 
 or supersedeas anterior to its forfeiture ; 2 Call, 127 ; 6 Mun. 181 ; but af- 
 ter it is forfeited the injunction or supersedeas will not operate a discharge 
 of the condition. 6 Mun. 181. 
 
 I have already said that if the execution be misrecited, no judgment can 
 be obtained on the bond, and it must be quashed. But if the defendant 
 appears and contests the motion, he must, in order to avail himself in a su- 
 perior court of the variance, or of any other error, spread the execution on 
 the record by bill of exceptions, or otherwise. If he cocs not, all will be 
 presumed to have been right : — and when the defendant has appeared, the 
 court will not look into the execution and compare it with the bond. 2 
 Mun. 266. 1 Ran. 1.* Where, however, the judgment has been render- 
 ed by default, (i. e. without any appearance,) there it seems to have been 
 determined, in one case, that the court may look into the execution, though 
 there be no bill of exceptions. 1 Mun. 605, 609, in note. See, also, 4 Mun. 
 380. When the judgment on the bond states that notice was duly proved, 
 it will be taken for granted in the appellate court, unless there be a bill of 
 exception shewing the contrary : but if the judgment contains no such 
 statement, and the defendant did not appear, the judgment will be reversed 
 as erroneous. 4 Mun. 380. 
 
 •Where the court below quaslies the bond for a variance, and there is an appeal, the excculion is 
 of necessity a pnrt of the record. 2 Leigh, 5 15.
 
 CHAP. 20.] OF THE FIERI FACIAS. 869 
 
 The bond need not be actually filed in llie clerk's office previous to a 
 rnotion for judgment. 2 Mun. 52-3. 
 
 If the defendant denies the execution of the bond, he may plead non est 
 factum, concluding to the country : yet the court may cither decide the plea 
 themselves, or submit the issue to a jury. 1 Rand. I. See 1 W. 356. It 
 would seem that in most cases the issue need not be formally made up. 3 
 Rand. 554. But as the defendant must swear to this plea, I do not per- 
 ceive how a written plea can be dispensed with. 
 
 On a joint notice judgment may be taken against one of the oblio-ors. 2 
 Call, 3G8. 
 
 If a forthcoming bond be taken for too much, the excess may be releas- 
 ed, and the bond will yet support the judgment. 1 Call, 41, 47. So the 
 excess in the judgment may now be released in the appellate court. 1 R. 
 C. ch. 128, § 109. 
 
 If the original judgment be for interest at the rate of five per cent., that 
 an the forthcoming bond should be for interest at the same rate. 1 Call, 
 205. 
 
 No appeal /;-o;;i a superior court can now be allowed from a judgment on 
 a forthcoming bond. I R. C. ch. 64, § 12. The only remedy is by writ 
 of error or supersedeas, which are allowed only where error is suggested, 
 and not at the arbitrary will of the party. The appeal, however, still lies 
 from the judgment on a forthcoming bond in a county court. 
 
 8. Of the further duty of the sheriff. If ihe property be delivered at the 
 day and place of sale, in pursuance of the condition of the bond, or if it 
 yet remains in the sheriffs hands, no bond having been given, the sheriff 
 proceeds to sale at the time fixed therefor. The sale is always by auction 
 to the highest bidder for ready money, and if the property consists of slaves, 
 mules, work oxen, or horses, it is required to be made at the court-house, 
 on the first day of the OGunty court, between the hours of ten and four, un- 
 less the debtor dispenses in writing with these provioions before the sale is 
 advertised. See 1 R. C. ch. 134, § 15. Sess. Acts, Feb. 1820, ch. 19, § 2. 
 March, 1821, ch. 35. Feb. 1822, ch. 18. To prevent purchasers being 
 deceived, the names of slaves taken and sold are always to be endorsed on 
 Ihe back of the execution. 1 R. C. ch. 134, § 22. I Call, 492. Tea 
 days' notice at least of the intended time and place of sale must be given 
 previous thereto. The a<icount of sales must be returned in thirty days. 
 Acts of 1830, ch. 25. 
 
 In proceeding to sell under the execution in his hands, the officer often 
 meets with embarrassments, arising from a claim being set up by some 
 third person to the property taken in execution. The remedies afforded in 
 this case at the common law were various, as I have mentioned elsewhere. 
 
 Thus, though he has taken the property, he is not compellable to proceed 
 to sell, if he discovers his error. Or if he still doubts, the law permits him 
 to summon a jury to try the right of property, and if the verdict is that the 
 property belongs to another than the defendant, he is justified in delivering 
 it up. The contrary verdict, however, does not protect him against the suit 
 of the true owner. Yet he is not without relief, for the court of law, per- 
 haps, might interfere if he be still reasonably doubtfiil about the right ; 1 
 Bur. 37 ; or he may file his bill in chancery against the several parties con- 
 cerned in interest, and compel them to interplead and litigate the right in 
 order to ascertain to whom the property belongs. Id. Such were the 
 doctrines of the common law : but the sheriff is now placed out of all dan- 
 ger and relieved of every difficulty by the provisions of our statute law. 1 
 R. C. ch. 1-34, § 25. This act provides that if there be doubts as to the 
 right of property, the sheriff may demand a bond of indemnity of the plain- 
 itiff in the execution, and if it be not given, he is justified in re-delivering 
 VOL. 2—47
 
 370 OF THE FIERI FACIAS. [ book 3. 
 
 t)ie property to the party from whom it was taken ; and the lien is then 
 gone, though the goods may in truth have been the defendant's ; and they 
 are subject to any other execution ; for if the plaintiff will not have them 
 sold for his debt, he ought not to stand in the way of others who may be 
 willing to indemnify. If, on the other hand, the bond be given, the true 
 owner of the property is barred of his right of action against the sheriff, 
 unless the obligors in the bond become insolvent.* 
 
 The indemnifying bond required to be given, having been delivered to the 
 officer, he is bound to proceed to sell the property, unless he be restrained 
 by an injunction. And though heretofore (on the authority of 3 Mun. 99, 
 559. 5 Mun. 103, 107,) courts of chancery have been very liberal in in- 
 terferinof to prevent such sales at the instance of third persons, yet it would 
 seen? that this interference should be confined to cases of slaves taken in 
 execution, or of such other property as if sold cannot be compensated iri 
 damages; and, moreover, it should be confined to applications on the part 
 of the owner, and not of an incumbrancer. 3 Ran. 175. 
 
 Though it is the duty of the oflicer to proceed promptly to sell the goods 
 taken in execution, yet he is said not to be justifiable in selling them at a 
 very great sacrifice, even to the highest bidder. But he should return not 
 sold for want of buyers. If, however, a venditioni exponas be afterwards 
 directed to him, it is said he must proceed to sell for the best price he can 
 obtain. See 3 Camp. Ca. 523, cited Tate's Digest, 227. See also Salk. 
 323. 9 Mod. 118. 6 Mod. 299. Bac. Execution, M. 
 
 We must not conceive, however, from this, that a venditioni exponas is 
 necessary to enable the sheriff to proceed after the return day is past; for, 
 as has been already said, after the execution has been levied, the sherifT 
 may and ought to proceed to complete the duties required of him by his 
 precept. The venditioni exponas is therefore not a writ of necessity, being 
 rather to compel the sheriff, when guilty of laches, to do what he has au- 
 thority to do, than to give him any new authority, (1 Vez. 196,) and he 
 may sell though his office has expired ; 2 Cro. 73 ; for an execution being 
 an entire thing, he \vho begins it must end it. 2 John. C. R. 180. And if 
 the sheriff who has levied an execution goes out of office, though he turns 
 over to his successor the bodies of prisoners in execution, he does not trans- 
 fer goods taken by a fifa: for he must proceed to sell himself; and if he 
 fails to do so, then a writ goes to the acting sheriff, called a distringas nuper 
 vice comitem, to compel the late sheriff by distress to proceed to sell and 
 make and pay over the money. Dalt. 19. Bac. Sheriff, I. 
 
 At coTnmon law, if the sheriff died, the property taken went into the 
 hands of his executors, who were liable to the creditor's action whenever 
 the sheriff died before satisfying the debt, and after he had levied the exe- 
 cution. See Dalt. 517. Cro. Car. 539, 540. But no distringas lay in this 
 case against the executors. 1 Call, 295. With a view to simplify these 
 doctrines, our law has made certain provisions to which the student will 
 be pleased to turn. 1 R. C. ch. 134, § 51, &c. 
 
 When the officer has made the debt according to the command of the 
 precept, it was originally his duty to have the money in court, and it has 
 been held that not even a payment to the creditor will excuse the non-per- 
 formance of this duty.t The rigor of the rule, however, has beori much re? 
 laxed, but the form of the writ yet continues to direct the ofiiccr to have 
 the money in court on the return day, and there appears no excuse for 
 omitting this duty, except a payment to the creditor. The sheriff, howev- 
 
 * Constables are empowered to take indemniry'mg bonds by the ant of ISoO, cli. 3(5 
 tit ban been held liirit the Fheiiff r> jiot lin/mr/ irt receive the debt from tlie riefondaiit In dlnchDrgf 
 nf bisbodv, and a pavment to him m no dl«rh;irgfi of the debt asasainet ihe plaintiff. 14 K.4fiS. IZ 
 C. L. R. 273, 274. 3l-ev.20;i 2 Freeman, 482. 5! Show. 1:^9. Q»/rprr, if thi? be law with us.
 
 CKiLP. 20.] OP i^HE LEVARI FACIAS. 871 
 
 fer, may certainly make Buch payment out of court [to the creditor or his 
 attorney] if no circumstance occurs which legally obstructs or opposes his 
 doing so — as an injunction or execution in his hands against the goods of 
 the person for whose benefit he holds the money. In the last case he 
 ought not to pay the money to the party, but should obey the writ strictly 
 by paying it into court, to be disposed of as it shall direct. 1 Cranch, 136. 
 Doug. 231. In late cases, however, the English judges seem not very fa- 
 vorably disposed to this doctrine. See 4 E. 510. 9 E. 48. 4 B. & P. STO*. 
 From the principles developed in the case from Cranch, I deduce that 
 though the sheriff's return is in general to be taken as true (unless disprov- 
 ed) where he has strictly pursued the writ, yet where he has not (as where 
 he has paid the money lo the plaintiff",) the onus probandi lies on him to 
 establish the truth of the return " money paid to the plaintiff" or "to his at- 
 torney." 
 
 If the sheriff makes a false return he is liable to the action of the party. 
 But where there has been a mistake, the courts are liberal in allowing offi- 
 cers to amend their returns. 
 
 The clerk of the court is entitled by law to forty cents for each execution 
 issued or renewed by him. Where executions run out of date, or are re- 
 turned not found, and are renewed, this sum is included in the renewed ex- 
 ecution, being added to the costs contained in it. For the judgment being 
 for costs, includes all, whether prior or subsequent to it, and as new costs 
 accrue it opens to receive them. 3 Cranch, i)'2. 
 
 At various periods, both before and since the revolution, debtors have 
 been permitted, in case the goods taken could not be sold for three-fourths 
 of their value, to replevy them (that is to have them returned to them) up- 
 on their giving bond with security to pay the debt at the end of twelve 
 months. This bond was called a replevy bond, and had the force of a 
 judgment. These laws have all been repealed ; — it is to be hoped for ever. 
 They will be found in the edition of 1769, edition of 1794, and the sessioil 
 acts since ; and many cases occur in our books respecting them. These 
 are collected in Munford's and Hall's Indexes to the Virginia Reports, un- 
 der the head of " Replevy Bonds." It would be an unpiofitable consump- 
 tion of the short time allotted to us, to go into a further history of the doc^ 
 trines respecting them here. 
 We proceed next to consider, 
 
 3. " A third species of execution by writ of levari facias ; which affects 
 a Irian's goods and the profits of his lands, by commanding the sheriff to 
 levy the plaintiff's debt on the lands and goods of the defendant: whereby 
 the sheriff may seise all his goods, and receive the rents and profits of his 
 lands, till satisfaction be made to the plaintiff. Little use is now made of 
 this writ; the remedy by elegit, which takes possession of the lands them- 
 selves, being much more eflectual." It is chiefly used in England in cases 
 of ecclesiastics. 
 
 I have little to advance on the subject of this species of execution. It 
 seems, indeed, to have gone entirely into disuse, as Mr. Blackstone tells us, 
 the elegit having superseded it. Yet as the elegit takes but half of the 
 lands by extent, and the levari facias takes the lohole of the issues and pro- 
 fits, it might sometimes, perhaps, be a very convenient execution. 
 
 On the levari facias the sheriff was commanded " </e bonis et catallis ei 
 de exitibus et proficiis terrcc," that is " of the goods, and chattels, and is- 
 sues, and profits of the land," to make the debt of the plaintiff. Under this 
 writ he can take all the goods and chattels of the defendant, and the crops 
 which are growing on his lands, whether freehold or leasehold ; and the 
 writ moreover commands him to go on from time to time (see Carth. 441,) 
 to take the rents and profits of the !and until the plaintiff is satisfied hi»-
 
 372 OF THE ELEGIT. [ BOOK 3. 
 
 debt. What shall be accounted the issues of the land, see 2 Inst. 453. It 
 is not confined to artificial profit, for grass growing may be taken. Dalt. 
 144. So far as this execution respects the goods and chattels, it does not 
 seem to differ from the fifa, for though on an elegit the sheriff may deliver 
 the goods to the plaintiff at the estimated value, he cannot do so on a^ieri 
 facias ox levari facias. Bac. Execution, C. 4. Yet this difference is not 
 material, as the plaintiff may be a purchaser at the sale. See Comb. 45-2. 
 Carth. 419. Such is the common practice. 
 
 The levari facias, however, differs very essentially from the elegit ; for 
 on the latter the goods of the defendant and his lands are both delivered to 
 the plaintiff at the estimated value. But in the levari facias the sheriff pro- 
 ceeds himself to collect any rents due upon the lands from the tenants of 
 the debtor; and as to the growing crops, he may also proceed to sell them 
 while growing, and the purchaser will have the liberty of cutting and car- 
 rying them away. 
 
 The common law gave only this execution and the ^/a against the debt- 
 or; the casa and elegit are both creatures of the statutes. Plow. 441. 3 
 Co. 11, r2. Dalt. 144. Like other executions, this must be sued out with- 
 in a year, or a scire facias will become necessary. Dalt. 144. 
 
 If the sheriff upon the levari facias return that he hath levied part of the 
 sum, which he hath paid to the plaintiff, upon this return the plaintiff may 
 have a new levari facias to levy the residue. This is called a sicut alias 
 levari facias. 
 
 The execution as to the land shall be of whatever the party had at the- 
 day the judgment was rendered. Dalt. 145. But as to the goods they can 
 only be bound from the delivery of the execution to the sheriff, for so the 
 law provides not only as to the ffa, but " other executions." 1 R. C. ch. 
 134, § 13. It was otherwise at common law. Dalt. 145. 8 Co. 71. 
 
 The student is referred to Fitzherbert's Natura Brevium, for further in- 
 formation on this subject. 
 
 It will be observed that neither in the first section of the execution law, 
 nor in any other part of the act, is the levari facias mentioned. Being a 
 common law remedy, it is not, indeed, by this omission taken away, but it 
 affords strong evidence of the entire disuse of the writ. 
 
 4. The fourth species of execution is the writ of elegit ,• which is a judi- 
 cial writ first given by a statute of Edward I., and now expressly given also 
 by our own act 1 R. C. ch. 134, § 1. Of this Mr. Blackstone says: "by 
 the- common law a man could only have satisfaction of goods, chattels, and-- 
 the present profits of lands, by the two last mentioned writs o( fiem facias, 
 or levari facias, but not the possession of the lands themselves ; which was 
 a natural consequence of the feodal principles, which prohibited the alien- 
 ation, and of course tiie incumbering of the fief with the debts of the owner. 
 And, when the restriction of alienation began to wear away, the conse- 
 quence still continued; and no creditor could take the possession of lands, 
 but only levy the growing profits : so that, if the dcfertdant aliened his 
 lands, the plaintiff was ousted of his remedy. The statute therefore grant- 
 ed this writ, (called an elegit, because it is in the choice or election of the 
 plaintiff whether he v^'ill sue out this writ or one of the former,) by which 
 the defendant's goods and chattels are not sold, but only appraised ; and all 
 of them (except oxen and beasts of the plough) are delivered to the plain- 
 tiff, at such reasonable appraisement and price, in part of satisfaction of his 
 debt. If the goods are not sutlicient, then the moiety or one-half of his 
 freehold lands, which he had at the time of the judgment given, whether 
 held in his own name, or by any other trust for him, are also to be deliver- 
 ed to the plaintiff; to hold, till out of the rents and profits thereof the debt 
 be levied, or till the defendant's interest be expired ; as till the death of the
 
 CHAP. 20.] OF THE ELEGIT. 373 
 
 defendant, if he be tenant for life, or in tail. During this period the plain- 
 tiff is called tenant by elegit, of whom we spoke in a former part of these 
 commentaries. We there observed that till this statute, by the ancient com- 
 mon law, lands were not liable to be charged with, or seised for, debts; be- 
 cause by these means the connexion between lord and tenant might be de- 
 stroyed, fi-audulent alienations might be made, and the services be trans- 
 ferred to be performed by a stranger; provided the tenant incurred a large 
 debt, sufficient to cover the land. And therefore, even by this statute, only 
 one-half was, and now is, subject to execution ; that out of the remainder 
 sufficient might be left for the lord to distrain upon his services. This ex- 
 ecution, or seising of lands by elegit, is of so high a nature, that after it 
 the body of the defendant cannot be taken : but if execution can only be 
 had of the goods, because there are no lands, and such goods are not suf- 
 ficient to pay the debt, a capias ad satisfaciendum may then be had after 
 the elegit ; for such elegit is in this case no more in effect than a fieri fa- 
 cias. So that body and goods may be taken in execution, or land and 
 goods ; but not body and land too, upon any judgment between subject and 
 subject in the course of the common law." 
 
 In order to a more comprehensive view of this subject, and to enable the 
 stadent the better to become master of some of its intricacies, I must here 
 offer him a disquisition somewhat at length ; and in performing this duty I- 
 may be led to repeat what we have already quoted from Mr. Blackstone, in 
 order to preserve unbroken the chain of my reflections. 
 
 At common law, as Mr. Blackstone tells us, there was no remedy pro-- 
 vid'ed for the creditor against the land of the debtor, except the levari fa- 
 cias. The remedy by elegit is the creature of the statute. It declared that 
 when ']udgment should be rendered in any court, it should be at the election 
 of the plaintiff to sue out a writ against the laiids and chattels of the debtor ; 
 and that the sheriff should deliver to him by reasonable extent, all his chat* 
 tels, except oxen and beasts of the plough, and one-half of his lands, until 
 his debt should be thereof raised. See this act in the old law Latin ; Bac. 
 Execution, Elegit. It was at once decided under this statute, that the 
 lands of the debtor were bound from the date of the judgment,* and with 
 good reason, as the plaintiff, at the instant of obtaining his judgment, might- 
 make his election. And it may not be improper to remark, also, that any 
 lands acquired by h'ltn after the judgment, were always deemed liable not 
 less than those he held at the time of its rendition. Fitz. 34, 249. Dalti 
 134. Mr. Blackstone does not notice this. 
 
 We have not, indeed, re-enacted this statute in so many words, but our 
 law provides (1 R. C. ch. 134, § 1,) that any person who has recovered 
 judgment for debt, damages, or costs, may, at his election, prosecute writs 
 of fieri facias , elegit, and capias ad satisfaciendum, within the year, against 
 the debtor, and it then proceeds to prescribe the form of the elegit, and of 
 the inquisition to be taken under it. These leave some points perfectly 
 clear, which could otherwise only have been illustrated by reference to the 
 learning of the British books. Among other things it appears, that by the 
 mandate of this writ, the sheriff is commanded to deliver a moiety of all 
 the lands of the debtor in his bailiwick, whereof he, at the day of obtain- 
 ing the judgment, was seized, or at any time afterwards. Here, then, we 
 have the principle explicitly adopted, that after-purchased lands are bound 
 and liable to the extent, whatever may be the British doctrine on the sub- 
 ject. 
 
 * The whole term bring considered but ns one day, ajudgmenl always relates back to the first day 
 of the term, (4 IVIuii. 539.) so that an alienation during the term is avoided hv an elegit regularly is- 
 sued on a jud){ment oljlained during the eanie term. But this fiction will not be {Vermilted to work b 
 wrong. 3 Bai n. & Cres. 317.
 
 874 OF THE ELEGIT. [ book 3. 
 
 It may, perhaps, be matter of question, whether land in which the debtor 
 had but an use was extendible at common law ; for while we are on the 
 one hand told in the pithy language of Brooke, quoted by Dalt. 136, •' Ters 
 q. met. ud. a mon use pt estre inise in execution,'^ " land which another has 
 to my use may be put in execution," we learn from Chief Baron Gilbert's 
 treatise on uses, page o7, that an use was not extendible ; an opinion which 
 Mr. Blackstone has adopted, (vol. 2, 3'i5,) and which it must be owned is 
 most conformable with the analogies of the law. Be this as it may, the lia- 
 bility of trust estates to execution has been fully established in England by 
 the statute of Charles II., called the statute of frauds ; and by our law it is 
 expressly declared, that " estates of every kind, \\o\d.cn or possessed in trust, 
 shall be subject to like debts and charges of the cestui que trust as they 
 would have been subject to if he had the same interest in the legal estate 
 thai he has in the trust. 1 R. C. ch. 99, § 30. Hence I infer that a trust 
 estate is subject to like charge by execution as if the debtor had the legal 
 title. If so, it may be proceeded against, I presume, by writ of elegit. It 
 may, indeed, sometimes happen that embarrassments may arise in such pro- 
 ceeding which may serve as a foundation for a resort to equity; but prma 
 facie the creditor ought to proceed against the trust estate by his elegit. 
 See 1 Mad. 30'2. For when the creditor can proceed at law he ought to 
 do so, before he can resort to equity for its aid ; and that he can proceed at 
 law, has been settled since the statute of Charles ; for it has been adjudged 
 that the trust estate is subject to extent, except in the case of a trust of a 
 term for years. Hard. 495, cited I Mad. 362. We must, however, attend 
 to these distinctions. 
 
 1. By the statute of Charles II., estates of inheritance only are compre* 
 hended. It does not extend to the case of a trust of a term for years. See 
 8 East, 474, 486. By our statute, estates of every kind, holden or posses- 
 sed in trust, are embraced. Execution, therefore, may be levied here, not 
 only on the trust of an inheritance, but on the trust of a term, (which can- 
 not be in England, 8 E. 486 ;) and I should have presumed on the interest 
 of cestui que trust in personal estate conveyed in trust. Yet see 6 Ran. 
 
 2. An equity of redemption of a fee (the mortgagor still being in posses- 
 sion) may be taken in execution. 1 Caine's Ca. Ex. 47. I John. 56. 
 (Sed vide I Leigh, 279.) And this would be very clear under our law, I 
 conceive, as to an equity of redemption, either on a mortgage in fee or for 
 years, but not, it is said, on a pledge or mortgage of personalty, or other 
 mere equity. 6 Ran. 
 
 3. It would seem that, even at common law, goods pawned may be taken 
 in execution against the pawner, upon satisfaction of the pledge. Bro. Abr. 
 pledges, pi. 24, cited and admitted, 8 E. 476. Now a mortgage of perso- 
 nal property, where the creditor takes possession, and a pledge, I take to be 
 the same thing, and so, indeed, they ;.re treated in all the books. See 1 
 Vez. 278. 3 Br. C. C. 21. I P. Wms. 261. 2 Atk. 303. Indeed the 
 term mortgage is, perhaps, not very accurately applied to such securities. 
 If this doctrine, then, be true, the pledge, I should have thought, was al- 
 ways liable to execution, subject to the right of the pawnee to be paid his 
 debt out of the proceeds of sale. Sed vide 6 Rand. 
 
 4. But though an equity of redemption or a trust estate is liable to exe- 
 cution, as I conceive, yet the statute only comprehends what may be pro- 
 perly called equitable estates; those in which the cestui que use has a clear 
 and ascertained beneficial interest, and the trustee only the naked, formal, 
 legal right. Chancellor Kent confines the operation of the act to " fraudu- 
 lent and covenous" trusts. But this I should conceive to be too limited; 
 while on the other hand, it would be going too far to suppose, that every 
 mere equitable interest in lands or personalty should be subject to execu-
 
 CHAP. 20.] OF THE ELEGIT. 375 
 
 tion. Such mere equities are accordingly adjudged not to be bo liable, and 
 the mischiefs of treating them as liable, are very forcibly shewn in the case 
 of Scott vs. Scholey, 8 E. 467. The only object of the statute was such 
 an equitable estate as might be taken in possession and ])ernan(;y of pro- 
 fits. See 2 Bro. C. Ca. 212. As to the elegit, indeed, this is particularly 
 clear, since it directs the extent of those lands only of which the parly was 
 seised. 
 
 But though tiie elegit binds the lands of the debtor from the dnte of the 
 judgment, yet the goods are only bound from the delivery of the writ to the 
 sheriff by the express provisions of our law. ] R. C. ch. 134, § I'i. " No 
 writ of ffa or other writ of execution shall bind," &c. There are, however, 
 two distinctions between this writ and the fifa, which maybe here inciden- 
 tally remarked. 1. That oxen and beasts of the plough are privileged from 
 being taken by this writ, though liable under a fifa. 2. That by the very 
 language of the elegit the goods taken are to be delivered to the plaintiff at 
 a reasonable price and extent, instead of being sold as under njifa. 
 
 It is next proper to remark, that with the exception of the oxen and beasts 
 of the plough, the whole of the defendant's chattels are to be taken and de- 
 livered, at the price at which they are appraised, to the plaintiff. In the 
 denomination of chattels we may remember that leases for years are com- 
 prehended, and these accordingly are to be taken upon an elegit. But they 
 may be treated by the sheriff as realty or personalty, and be delivered over 
 at a gross value to the creditor in part of his debt, or he may extend them 
 in the same manner as a freehold, and deliver them at a certain anmml va- 
 lue. In the former case the debtor's interest is gone forever ; in the latter, 
 after the debt is paid, he shall have his estate again. Plow. 5, 241. 8 Co. 
 171. 2 Inst. 395. Dalt. 1-37. 
 
 If upon an elegit it appears to the sheriff that there are goods and chat- 
 tels sufficient to satisfy the debt, the sheriff ought not to proceed to extend 
 the lands : 2 Inst. 395. Bac. Execution, C. 2 : but in this case he does not 
 treat the goods as under a fifa, but proceeds by appraisement of a jury, as 
 will be hereafter explained. Yet see I Strange, 226, and 2 Strange, 874, 
 v/here it is said, if there are no lands, the sheriff need take no inquisition, 
 and that the elegit is then but in the nature of a common fifa. 
 
 Freehold rents may also be extended on an elegit, for the writ directs the 
 extent of all the lands and tenements ; and a freehold rent is a tenement. 
 See Bac. ubi sup. (The word tenement was not in the English statute. 
 Dalt. 135.) But a dry reversion is not extendible, for it has no immediate 
 value except by sale, and no property can be sold unde.- an elegit. Land 
 held bv a husband in right of his wife during coverture may be extended. 
 Dalt. 1.36. 
 
 But though all the goods and chattels are to be extended except oxen and 
 beasts of the plough, only one-half of the lands of the debtor can be ex- 
 tended, for such is the provision of the English statute to which our act has 
 obvious reference, and such, indeed, is the express command of the precept. 
 But if A obtains two judgments against B at the same term, he may take 
 out an elegit on each, and on each he shall have a moiety, so that thus he 
 Avill take the whole. Hard. 23. Bac. xibi sup. Gilb. Ex. 56. If, on the 
 other hand, A gets judgment at one term, and C at a subsequent term, and 
 A extends a moiety, C can only extend a moiety of the residue, or one- 
 fourth of the whole. Judge Green, however, thinks otherwise ; 1 Leigh, 
 143, 144 ; and he seems clearly to think the whole may be taken if the ju- 
 nior judgment is first executed, and afterwards the prior judgment. Id. HS. 
 
 We will proceed next to inquire what steps the plaintiff must take to pre- 
 serve this lien which the statute has given to his judgment. The statute 
 provides that the plaintiff may at his election sue out execution against the
 
 376 OF THE ELEGIT. [ book 3. 
 
 goods, botly, or lanJs. Tlie English statute also provided that he might at 
 his election sue execution against the lands and chattels. Such election is 
 therefore required to be made. And how ? Either by issuing his elegit^ or 
 hy entering upon the roll in England, or upon the record book here, that 
 he hath elected to charge the goods and half the lands, which would be 
 equal to issuing the elegit. 2 Call, 1S6. Thus the entry upon the execu- 
 tion book, or upon the record with us, might be to this eiTect : " A B vs. 
 C D. In debt, &c. This day the plaintiff came by his attorney, and elect- 
 ed to charge the goods and half the lands of the defendant to answer his 
 debt, damages, and costs." I have never known, however, the election de- 
 clared in any other mode, than by the issue of the elegit itself.* 
 
 When must this election be made, or the elegit issue, in order to preserve 
 the lien of the judgment upon the lands. 
 
 Here we must remember that, at common law, where no execution was 
 issued within the year, the judgment was out of date and no execution 
 ^vhatever could then issue. We must also remember that by our law, I R. 
 C ch. 128, § 1, this principle seems to be explicitly recognized, as it is 
 there provided that the plaintiff may sue out his execution within the year. 
 By the fifth section of the same act, however, we have already seen that 
 "judgments in any court of record where execution hath not issued, may 
 be revived by scire facias,'' and so "when execution hath issued and no 
 return has been made." This act is not retroactive and does not affect 
 judgments anterior to its date. Day vs. Peshel, 4 Mun. 104. 6 Mun. 32. 
 
 Now, from this state of things, it is obvious, that at common law, if the 
 plaintiff sued out no execution for a year, his lien on the land was gone, for 
 the judgment itself was in effect gone, and indeed never could be revived; 
 for the power to revive it did not exist at common law but was given by the 
 statute, 13 E. 1, stat. 1, ch. 45. When, indeed, the judgment was revived 
 under the statute by the scire /acias, the lien of the judgment upon the lands 
 ■of the debtor was also of course revived, because that lien was a part, and 
 Indeed a most essential part, of that judgment. 
 
 But even after the scire facias was given by the statute, the original prin- 
 ciple was preserved, that where the plaintiff had sued no execution what- 
 ever within the year, he could not after the year obtain any, until he had 
 availed himself of his statutory remedy by scire facias. And such is still 
 the law under our statutes, which provide that execution may be sued with- 
 in the year, (1 II. C. ch. 134, § 1,) but that where no execution hath issued^ 
 the judgment may be revived within ten years, and not after. 1 R. C. ch. 
 128, § 5. 
 
 Thus, then, where the judgment has been rendered for more than one 
 year, and no execution has ever issued, the lien is gone, or at least suspend- 
 ed ; and if no scire facias be issued for ten years, it is absolutely gone for- 
 ever. We have before said that where no execution issued on a judgment 
 within the year, the judgment is presumed to be satisfied, because it can 
 scarcely be supposed that the party, after the expense of prosecuting his 
 claim, would fail to enforce it if it were not paid, yet it is otherwise where 
 executions have issued and are returned not satisfied, or have issued and 
 not been returned at all. In the first case the presumption of satisfaction 
 is expressly negatived by the return ; in the latter it is very much weakened 
 by the fact that the party has been prosecuting his claim, and has been pos- 
 sibly foiled, cither by the negligence of the officer or the dexterity of the 
 defendant. In these cases, therefore, the judgment did not run out of date 
 at common law, provided it be kept alive by continuances on the roll, and 
 no scire facias under the statute was necessary, though our law has now 
 provided that in the latter case new executions shall not continue to issue 
 • See Lillie'B Enu les, 210. 2 Leigh, 129. Tidd's prac. forms, 337.
 
 CHAP. 2a.] OF THE ELEGIT. 3T7 
 
 after ten years shall have expired. 1 R. C. cli. 128, $ 5. . Hence if an execu- 
 tion of any kind hath issued during the year, the judgment does not run out 
 of date, whether it be duly returned or not. Hence, too, the practice of 
 issuing an execution (of some kind or other) and permitting it to lie in the 
 office. This keeps alive the judgment. See 2 Inst. 471. Co. Litt. 290, b. 
 Bac. Scire facias, C. 
 
 Having thus shewn that by the suing out of executions within the year, 
 the judgment is always kept alive, and that even where it runs out of dato 
 for want of an execution it may be revived, the question next presents it- 
 self, " What is the effect herein upon the plaintiff's lien on the lands ?" 
 Does that continue more than a year if other executions than an elegit are 
 sued out ? Is it revived by the scire facias so as to relate back to the ori- 
 ginal judgment ? These are momentous inquiries, deserving particular at- 
 tention. 
 
 Let us consider them, first, as relates to the debtor himself; secondly, 83 
 respects a purchaser from him. 
 
 1. As to the debtor himself. There seems no reason to doubt that upon 
 the revival of a judgment by scire facias, the lien upon the lands of the 
 debtor, so far as they are yet unaliened by him, is revived in its pristine 
 force and efficacy, even though there was no entry on the roll or elegit 
 within the year. This seems to be admitted in all the books upon the sub- 
 ject. Indeed the courts appear to have gone farther ; for where there was 
 judgment in debt and no execution sued out within the year, (so that the judg- 
 ment was out of date,) yet the plaintiff was permitted to have an award of 
 an elegit entered on the roll as of the same term the judgment was render- 
 ed, and thence to continue it as if there had been no return. Bac. Scire 
 facias, C. 1. And this seems not to have been thought a stretch of power 
 by the court of appeals, in the case of Eppes vs. Randolph. 2 Call, 186. 
 I conclude, therefore, that by the scire facias, so far as the debtor and his 
 lands are to be affected, the lien is revived in full force. 
 
 In like manner in the case of an execution (other than the elegit) issued 
 ■within the year, whereby the judgment is kept alive, the result would seem 
 to be pretty much the same. After the year has passed, the party may on 
 motion be allowed to enter the election on the roll nunc pro tunc. 2 Call, 
 186. And even if he did not, he might after the year sue out his elegit a- 
 gainst the lands of the debtor, though he could not, as we shall see, affect 
 any intermediate purchaser from him. We come then to consider, 
 
 2. The case of a purchaser from the debtor. Herein nothing is more 
 clear than that if the creditor sues out his elegit within the year, it avoids 
 all mesne conveyances, however valuable the consideration ; that is to say, 
 the conveyance by the debtor subsequent to the judgment, will yield to the 
 superior and prior lien of the judgment creditor; who may enforce his el' 
 egit, though issued subsequent to the conveyance, and turn the alienee out 
 of possession. Co. Litt. 102, a. b. 8 Co. 171. Bac. Execution, 1. And 
 where, within the year, the plaintiiTby his entry on the roll, or, I presume, 
 by issuing an elegit (though the same was not executed) elected to charge 
 the land, an elegit issued after the year would avoid all intermediate con- 
 veyances, for the purchaser had notice by the record that the creditor de- 
 signed to charge the land. See Mod. 217. Ch. Ca. 268, cited Bac. Exe- 
 cution, 1, and qucere. 
 
 But as the statute authorized the suing out this execution at the election 
 of the party, within the year, if he failed within that time to enter his elec- 
 tion on the roll, or to sue out an elegit, as soon as the year was passed any 
 person had a right to purchase of the debtor, and his purchase never could 
 be overreached by an elegit subsequently sued out, or by a subsequent entry 
 VOL. 2—48
 
 378 OF THE ELEGIT. [book 3. 
 
 on the roll.* Nor would a court in such case permit an entry nunc pro tunc 
 so as to affect an intervening purchaser ; for such an entry is but a legal 
 fiction contrived to support justice, and is never permitted to do an injury 
 to a third person. 2 Call, 18(3. It is therefore clear that whether the plain- 
 tiff's judgment has run out of date and is revived by scire facias, or is con- 
 Uin^ued' in force by other executions, but no elegit has issued or entry been 
 made on the roll within the year, a purchaser from the debtor can never be 
 made liable, and a subsequently issued elegit will not overreach his right. 
 See Gilb. Ex. 12. 
 
 An application of the principles we have been developing, will assist us 
 in solving some other questions in relation to this writ. Thus if two per- 
 afons have judgments of different terms against the same defendant, he 
 whose judgment is prior shall prevail ; where there are two judgments of the 
 same term, each extends a moiety, and thus stand on the same footing. I-f 
 there be more than two judgments of the same term, those who first sue 
 out their elegils have preference. See 3 B. C 419. Judge Tucker's note, 
 19, accordant.! And as the first judgment has preference, and the creditor 
 has time during the year to make his election, if before such election with- 
 in the year the second judgment creditor sues out an elegit, and then an 
 elegit is sued upon the first judgment,^ it will overreach the other, though 
 first executed. Sed vide, 1 Leigh, 145. But the tenant by elegit on the 
 second judgment being thus ousted by superior title, will be entitled to 
 hold over after the first is satisfied. 4 Co. G6. Dalt. 135. Qucere if in 
 such case a scire facias be not necessary. Dalt. 1-36. 
 
 Where an elegit issues on one judgment, and an inquisition is found and 
 the moiety extended, the same moiety cannot be immediately delivered to 
 the creditor on a second judgment, but yet the sheriff may extend the lancf 
 and deliver the reversion of it cu7n ac cider it ; and so where a moiety of the 
 liand is extended, the sheriff on the second elegit can, as we have said, de- 
 liver possession but of the moiety of the moiety remaining ; but he may al- 
 so extend the reversion upon the other half, qxiando acciderit. Dalt. 232. 
 
 Another important question has arisen under our late statute. It is pro- 
 vided thereby, that every sale, conveyance, and transfer of real estate made 
 by a debtor in execution, shall be void as to the creditor or creditors at 
 whose suit he is so in execution ; unless it be absolute and bona fide for the 
 payment of the debt of such creditor or creditors, and the proceeds be paid 
 or secured to be paid within a reasonable time to such creditor or creditors. 
 And it is further declared that everv casa shall bind the real estate from the 
 time of the levy. 1 R. C. ch. 134,'§ 10. 
 
 On this statute various questions present themselves. 
 
 1. It is sufficiently obvious from the principles before developed, that 3. 
 creditor by judgment, if he sues out his elegit, or enters his election on the 
 roll within the year, takes precedence of any casa levied subsequent to his 
 judgment. See 1 Leigh, 278, accord. But suppose a casa be levied, 
 and while the defendant is in execution another gets judgment and sues 
 out an elegit against his lands, what effect will the casa have upon the writ 
 of elegit ? 
 
 Here, I apprehend, that as the creditor by casa has no specific remedy 
 against the land, but only such a lien as to prevent intervening incumbran- 
 ces or alienations, he cannot gainsay the right of the plaintiff in the elegit 
 ta extend the land. 1 Leigh, 278, accord. But if after the extent the debtor 
 is discharged under the insolvent act, and surrenders his lands and goods, 
 
 •The principle? I:«i(l down in Eppes t)5. Rundolpli on this subject are very serioufly assailed in 
 Fox vs. Baylor, not yet fully reported. The court, however, was not full and was divided. 
 
 tMr. Watkins Leigh, in a profound opinion which I have seen since tliis paragraph was written, 
 tayi lie can fijid no sucli case iu (ho books. He dees not concede any preference to either.
 
 CHAP. 20.] OF THE ELEGIT. 379 
 
 liere the deed made by him to the sheriff will relate bacic to the time of the 
 levy of the casa, so as to avoid the intervening e/e^if. (1 Leigh,. 257, accord.) 
 For by the deed made at the discharge of the debtor, the creditor ceases to 
 have a mere barren lien — he becomes in effect a mortgagee, (for the sheriff 
 ■holds in trust for him,) and as the act gave him a lien from the time of the 
 levy, so this specific interest in the lands must relate back and avoid all in- 
 termediate acts, or the lien would be without effect. It resembles the lien 
 of a fifa, which cannot prevent the sale of any particular slave, unless by 
 subsequent levy on hitn the right to subject that identical slave to execution 
 is fixed and ascertained: but when that is done it avoids all mesne levies 
 •as well as conveyances. 
 
 If this construction be admitted, the consequence will be that the subse- 
 quent judgment creditor will by his elegit receive the intermediate profits 
 of the estate during the continuance of the debtor's imprisonment under the 
 casa, but that upon the defendant's taking the insolvent oath and surrender- 
 ing his property on his discharge, the creditor by casa will have the better 
 title. This opinion, however, is much contested. It is contended by those 
 who advocate the superiority of the elegit, that the law did not intend to 
 avoid intermediate executions, which are the act of the law, but only inter- 
 mediate sales, conveyances, and transfers, which are the act of the party ; 
 and that the clause declaring that a casa shall bind from the time it is levied 
 was only intended to settle precedence between various casus, and not to 
 give the casa, after it is levied, the effect of excluding other executions of a 
 different character : and a like argument is used as to the act which declares 
 that personal property shall be bound from the time of the levy of a casa. 
 On the other hand, it is contended by some that the elegit cannot issue to 
 cover the intermediate profits; that the casa-creditor may enforce his lien 
 by bill in equity, even before his debtor takes the insolvent oath, and that 
 the lien given is an operative lien which he may at once render available. 
 This latter opinion, however, seems to me entirely without foundation ; but 
 that which asserts the superiority of the elegit to the casa, is not only main- 
 tained by some of the profoundest members of the profession, but is not 
 without forcible reasons in its support. It has hitherto appeared to me, 
 however, liable to insurmountable objections. The first clause of the act 
 sufficiently protects the creditor against sales and other acts of ihe party ; 
 the latter clause, in declaring when the casa shall bind, must therefore ob- 
 viously have reference to other executions which are the acts of the law. 
 It was not intended merely to settle the precedence among them, (though it 
 has that operation also, 1 Leigh 277,) since the debtor may by his deed 
 place them all upon the same footing. The provision is analogous to the 
 binding effect of a Jifa, which, though until a levy it does not change the pro- 
 perty, yet when the levy is made, it relates to the time of delivery of the 
 writ to the sheriff, and not only avoids mesne acts of ihe party, but gives 
 to the creditor a preference over a subsequently levied execution. 1 T. R. 
 729. Were it otherwise, it would follow that after a casa levied, the debtor 
 might not only confess judgment to a subsequently brought action for a 
 subsisting debt, but might borrow of a friend, after he was in execution, to 
 the value of the land, and by confessing judgment on two bonds, and en- 
 abling him to sue out elegits^ evade the statute and defraud the creditor. I 
 still incline, therefore, to the opinion that the casa will, after the debtor 
 swears out and surrenders his property, overreach an elegit upon a judg- 
 ment obtained subsequent to the levy of the casa, and that the elegit only 
 has the effect of securing the intermediate profits. Since this was written, 
 two cases have been decided on this point. In Jackson vs. Heiskell, 1 
 Leigh, 257, the casa lien was pronounced superior ; the court being of
 
 880 OF THE ELEGIT. [book 3. 
 
 opinion that it overreached the intermediate judgment and execution. In 
 a subsequent case of Foreman vs. Loyd, 2 Leigh, this opinion was over- 
 ruled, though by a bare majority of the court. 
 
 In like manner, I was of opinion that after a casa levied, the goods of the 
 debtor are so far bound by the levy that no subsequent fifa levied on the 
 same goods can divest the right of the casa-creditor. For the act, by de- 
 claring that the goods shall be bound from the levy, obviously refers to the 
 la;miliar doctrine of the fifa binding from the delivery to the sheriff, and 
 must have intended to give a like preference to the first execution. The 
 second /i/a-creditor, I should think, might indeed still levy on the goods and 
 sell, subject to the lien of the other; for during the confinement of the 
 debtor there is an intermediate interest which the casa-creditor cannot ren- 
 der available, and to which the //a-creditor would therefore have a just 
 right. 
 
 These crude suggestions are offered, however, with much diffidence, and 
 merely with a view of turning the thoughts of the student to the subject. 
 The decision in the case of Foreman vs. Loyd, before mentioned, seems 
 however, to have established a construction of the act of assembly at vari- 
 ance with the opinion that the levy of the casa would suspend or avoid the 
 intermediate execution. 
 
 2. It is to be observed that the debtor in execution may make a valid con- 
 veyance of his real estate to the creditor or creditors at whose suit he is in 
 execution, or for their benefit. It is clear that he may place them upon an 
 equality, so that no preference seems to be intended to one of the credi- 
 tors over another. It is, indeed, not clear that he can give a preference if 
 he even wished to do so, since the language of the act strongly indicates 
 that such conveyance must be for the benefit of all the creditors at whose 
 suit he is in execution. 
 
 3. Suppose, however, the defendant dies in execution ? Then the plain- 
 tiff is remitted to his right to sue out any execution against the lands of the 
 debtor. I R. C. ch. 134, § 8. If this be done within the year after his 
 judgment, will that judgment give him a preference ? It would seem not ; 
 for though he is remitted to his remedies they are not strengthened by the 
 circumstance that the debtor had been in execution. 1 Leigh, 276. 
 
 I will venture to add here another opinion in reference to this act, though 
 it does not relate to the eleprit. 
 
 The act avoids all deeds made after the levy of the casa, except for the 
 benefit of the casa creditors. Suppose such a deed made. Can the cre- 
 ditor, while he retains his debtor's body in execution, file a bill in equity to 
 set aside the conveyance and to subject the lands to the payment of his 
 debt? I apprehend not. For he has no specific lien, and it is against the 
 Avhole system of the law that the creditor shall hold the body of the priso- 
 ner and yet proceed against his property, except in cases of mortgage, 
 where it is done by his own assent and contract. 
 
 A few things yet remain to be added on the subject of elegit. 
 
 If an elegit is not issued before the expiration of the year, — and after 
 that time, and before the emanation of the elegit, the debtor sells the lands, 
 the purchaser is protected, and the elegit will not overreach his purchase. 
 But suppose the sale is made within the year, and there is no election to 
 charge the land till after the year, will the elegit then issued overreach the 
 claim of the purchaser under the deed made withiii the year ? I apprehend 
 it will not; 
 
 1. Because, though the purchaser bought with notice of the judgment 
 and \vithin the year, and made his purchase subject to a subsisting lien, yet 
 that lien ceased at the expiration of the year.
 
 oi{AP. 90.] OF RELIEF IN EQUITY. 881 
 
 2. Were it otherwise great difficulty and absurdity would ensue, as the 
 following case will shew: 
 
 A recovers judgment against B, who within the year gives a deed of trust 
 to C, and after the year expires, he gives another deed of trust to D, and 
 A then issues his elegit. JSow the elegit confessedly gives way to D's lien, 
 because he took it after the year, and A had not then elected to charge the 
 land. If, then, the elegit is superior to C's lien given within the year, then 
 this absurdity would follow : that G's lien would be superior to D's, because 
 of its priority, and yet inferior to it because inferior to the elegit, which it- 
 self is inferior to D's. Thus it would be both inferior and superior at the 
 same time, which is impossible. I conclude, therefore, that the creditor, 
 by omitting to make his election within the year, loses his power of over- 
 reaching even such deeds or liens as are made within the year. 
 
 In executing an elegit the sheriff proceeds by summoning a jury of 
 twelve men, upon whose oaths are found what goods and lands the defen- 
 dant hath, which they estimate at a fair price or extent ; the term price re- 
 ferring itself to the value of the goods appraised, and the term extent to the 
 annual value of the lands estimated. Nor can the sheriff deliver any goods 
 in execution, or extend any land?, unless they have been first appraised and 
 valued by jurors of the inquisition. 4 Co. 74. Dalt. 134. Bac. Sheriff, 
 N. The sheriff and jury usually and properly go to the premises, which 
 they have a right to enter peaceably, but may not break open the gates or 
 doors. They can estimate only those lands which are within the officer's 
 bailiwick, (i. e. county,) for the writ extends only to them. They proceed 
 to appraise the goods and chattels, and to estimate the annual value of the 
 lands, and then to set out by metes and bounds, distinctly, a fair moiety of 
 the lands for the creditor. Carth. 453. 1 Barn. & Aid. 40. It is not ne- 
 cessary that the creditor should have a moiety of each farm or tenement. 
 It is sufficient if he has a fair moiety of the whole delivered to him. Doug. 
 473. An inquisition setting forth these matters is then found and sealed 
 both by the jurors aud sheriff, and returned with the writ. The sheriff 
 thereupon delivers to the plaintiff the goods and chattels at the appraised 
 value in discharge, so far as they will go, of the execution, and the moiety 
 of the land ascertained as aforesaid, to hold until thereout he is satisfied 
 the residue. Formerly he put the plaintiff into actual possession. 2 Eq. 
 Cases, 381. 3 T. R. 295. Of late years the sheritT only delivers legal 
 possession, and the plaintiff is left to acquire actual possession by eject- 
 ment. But see Rogers vs. Pitcher, 6 Taun. 202, per Gibbs contra. 
 
 Where part of a debt is levied upon an elegit, a new elegit may issue for 
 the residue. I R. C. ch. 134, § 3. This was also the law independent of 
 tliis act. 1 Levinz, 92. 
 
 Before concluding our remarks on the fruitful subject of executions, it 
 may not be amiss to remark, that by the modern practice relief is in many 
 instances afforded to the parties by motions to quash executions. See 
 Tidd, 1047. This may either be at'the instance of the plaintiff or defen- 
 dant, according as the one or other is the party injured. Thus if the exe- 
 cution be for too little, the plaintiff may himself move to quash it, and when 
 quashed he proceeds to take out another at his pleasure. So if an erro- 
 neous forthcoming bond be taken, on which he cannot obtain an award ot 
 execution, the plaintiff must upon motion have both bond and execution 
 quashed, if he wishes to take a new execution. 2 W. 189. The bond, 
 indeed, being good as a common law bond, it may be his interest to stand 
 by it and bring an ordinary action upon it, in order to charge the security ; 
 and this is the usual course where the defendant has become insolvent, and 
 there are doubts also of the officer's solvency. But if the defendant yet 
 continues solvent, the creditor by quashing both bond and execution, may
 
 382 OF BELIEF IN EQUITY. [ BOOK 3. 
 
 proceed by a new execution as if the former had never issued or been le- 
 vied. 
 
 On the other hand, the defendant, if aggrieved by an irregular execution, 
 may proceed by motion to have it quashed : and so, if since the judgment 
 he has paid the debt, and an execution, nevertheless, issues against him, he 
 may upon motion prove his payments and have the execution quashed. 
 For, according to the principles of the law, he might herein have been re- 
 lieved by audita querela, and this motion is a convenient substitute for that 
 antiquated writ. See I John. 50. 
 
 The following may be added as another case in which this remedy would 
 tie appropriate. 
 
 We have seen that by the modern practice, if there are several plaintiffs 
 or defendants, and one dies after judgment, his death is suggested on the 
 roll, and the execution issues without the scire facias. Sellon, 518. If, 
 however, this suggestion be untrue, it would be competent to the defendant 
 upon motion to shew the fact and have the execution quashed for irregu- 
 larity. 
 
 In all cases of motions to quash executions, a notice is given to the ad- 
 versary party, or a rule is made upon him in court to shew cause against 
 the motion, at a specified day. 
 
 Intimately connected with executions is the inquiry how far a court of 
 equity will lend its aid to a plaintiff in an action at law, where he meets 
 \vith obstacles to rendering his execution available ? I propose, therefore, 
 io advert to the doctrines on this subject under several heads. 
 
 I. In what cases will equity lend its aid to the plaintiff iu an action where 
 he meets with obstacles to his execution? 
 
 1. Although, as we have seen, our statute declares that trust estates shall 
 .be lial)le to the debts of the cestui que trust, yet it seems now to be well un- 
 ■derstood that this clause embraces those express trusts only, in which tlie 
 cestui que trust has the whole beneficial interest, and the trustee only the 
 naked, formal, legal title ; it does not reach the case of a mere equity ; 1 
 John. 55, 56 ; for a judgment-creditor cannot come at a mere equity by an 
 execution at law. He must go into chancery, or he cannot have the bene- 
 fit of it. 2 John. .31-2. 5 John. Kep. 335. 8 E. 4G7. When, therefore, 
 the creditor has taken and exhausted all the means in his power at law, he 
 will be entitled to the aid of a court of equity to discover the equitable in- 
 terest, and to make it available for his execution.* 4 John. C87. But be- 
 fore he can do so, he must first have taken out his execution and caused it 
 to be levied and returned, so as to shew a failure of his remedy at law ; 
 and when he has done this, he acquires a legal preference to the assistance 
 of equity, or a lien on the equitable interest, which cannot be affected or 
 impaired by a subsequent assignment by the debtor; and though equitable 
 assets are usually distributed pari passu, yet in this case the creditor's pre- 
 ference will be preserved to him in the distribution of the assets. Ibid. 1 
 Leigh, 14*2. 
 
 2. Where a debtor has made a conveyance of his property in fraud of his 
 creditors, such conveyance is declared by the statute to be void. It is there- 
 fore void not only in equity but at law, and even in a court of law will yield 
 to the superior claims of a creditor. If, therefore, the debtor make a fraudu- 
 lent conveyance of a slave after the delivery of an execution against his 
 goods to the sheriff, or of his lands after a judgment against him, and the 
 plaintiff sues out Wn^ fifa in the one case, or his elegit iu the other, and the 
 slave is sold or the lands extended, the persons holding under these execu- 
 
 * Oil a bill to set aside a fraudulent conveyance the creditor's judgment at law is prima facie evi- 
 <1ence, unless impeached for fraud, or by shewing that a full defence was not made, aud tt«W proof is 
 tnu:oduc«d to shew that the debt is not bona fide duo. 4 Ran. 232.
 
 CHAP. 20.] OF RELIEF IN EQUITY. 383 
 
 tions in any contest with the volunteer by deed, will be protected even at 
 law, since the deed is void and of no effect. It may, however, and often 
 does happen, that these frauds are so concealed, or the transactions so en- 
 tangled, that the sheriff does not venture to levy, or a jury sworn on an ele^ 
 git cannot be induced to extend the land because of the existence of the 
 deed, and perhaps from defect of evidence of the fraud. There seems to 
 be no doubt that in such cases where a third person may have possessed 
 himself of the debtor's property, and placed it beyond an execution at law (2 
 John. 296,) or where, from embarrassments thrown in the way of the cre- 
 ditor at law by fraudulent deeds or transfers, he stands in need of the aid 
 of a court of equity to enforce the judgment at law by a discovery and ac- 
 count, that aid will be afforded. 
 
 3. Fraudulent conveyances of choses in action appear to be considered' 
 as fully within the same principle. It seems, indeed, to have been suppos- 
 ed, that as, according to the principles of the common law, choses in ac- 
 tion were not assignable, so neither could they be taken in execution ; and 
 as the creditor could not take them in execution, no transfer of them could 
 with any propirety be said to hinder or obstruct him within the meaning of 
 the statute of frauds. Besides, however, that it may be very doubtful whether 
 with us bonds and other choses in action which are assignable by law, may 
 not be taken in execution if they can be got at, it seems to have been the 
 opinion of a distinguished chancellor, that the statute of frauds did apply 
 even to such property as cannot be reached by legal process, and that equi- 
 ty will lend its aid to get at it. 4 John. 450. See in favor of this opinion^ 
 Amb. 79, 596. 2 Atk. 600. And against it, what is said, I Vez. jr. 146. 
 2 Cox, 235. 1 Ansfe. 381. 9 Vez. 189. 10 Vez. 368. 1 Ball & Beatty^ 
 387. 
 
 4. Where a specialty binds the heirs of the obligors, and assets to the- 
 value descend, we have seen that an action of debt lies against the heir, in 
 which, if he acts fairly and pleads as he ought, a judgment will be render- 
 ed whereby the assets descended will be subjected to the debt, and deliv- 
 ered over to the creditor by a species of extent. See 3 B. C. 421, Judge 
 Tucker's note. If, however, he pleads falsely or injudiciously, or if he has 
 aliened the assets, he is personally liable. Thus it is obvious that though 
 the creditor by bond has no lien on the land in the obligor's lifetime, he has 
 in effect a lien on the land while it remains in the hands of the heir after 
 the obligor's death. Out of this lien and of the inconvenient and imperfect 
 remedy of the common law execution above referred to, seems to have 
 grown a practice in equity of entertaining the creditor there, and decreeing 
 a sale of the lands instead of an extent, in case of the default of the heir 
 in making payment. This practice appears to have been long since recog- 
 nized, (see 2 Atk. 433. 1 Eq. Ca. 149,) and seems to be in consonance 
 with the principle avowed by the court, that while at law the creditor sues 
 the person in respect of the assets; in equity he pursues the assets them- 
 selves. 1 Vez. 430. In a late case the doctrines on the subject have 
 been examined, and the principle affirmed, that creditors may file a bill 
 against heirs and devisees for the sale of the real estate descended, to make 
 good the deficiency of the personalty ; but the real estate will not be di- 
 rected to be sold until the amount of the debts and the deficiency of the 
 personal estate have been ascertained, to which end all the known creditors 
 should be parties. 4 John. 638, 645. See 2 John. 296. Those who are 
 unknown may afterwards come in, for which purpose they should have no- 
 tice (I presume through the gazettes) to come in and prove their debts be- 
 fore a master or commissioner. See 4 John. 646. It seems, moreover, to 
 have been considered that such sale will not be directed where the annual 
 rent of the land is more tlian sufficieat Ijo pay the interest on the debt : 6
 
 38 1 OF RELIEF IN EQUITY. [ BOOK ». 
 
 Mun. 43*2: though the reasons of the court not being given in this case, 
 we are left to conjecture them. Sed vide, Blow i^s. Maynard, 2 Leigh, ii9. 
 
 The principle which refuses to subject the land to sale until the personal 
 estate is exhausted, seems to correspond with the doctrine (1 Mun. 437,) 
 which refuses to marshal assets for a simple contract creditor against the 
 heir or devisees, until he has established a deficiency of the personal es- 
 tate. As indeed the creditor in both cases invokes the aid of equity, he 
 must abide its principles, which require equity to be done to all parties, 
 and therefore place the debt at once upon the personalty, which is the na- 
 tural fund, and to which the heir has a right to resort for his indemnity. 
 
 We may here also observe, that a decree for sale of real assets descend- 
 ed, will not be impeded by reason of the infancy of the heir; 4 John. 619; 
 but on the other hand it is not considered the duty of his guardian to apply 
 the rents and profits of his estate to pay the bond creditor of the ancestor; 
 4 John. 645; though this was formerly doubted. 
 
 In the case of the obligor himself, if a judgment be obtained against liini 
 and he sues out an elegit, and a moiety of the land is extended, and the 
 rents and profits will not keep down the interest, can the creditor have a 
 decree for a sale of the premises? Upon principle I should presume so ; 
 for he who has the entire beneficial interest in any estate, is justly regarded 
 as the owner; and where the rents and profits will not keep down the in- 
 terest, it is obvious that the debt must be continually increasing, and that 
 the creditor will hold perpetually, unless by some fortuitous occurrence the 
 profits should be increased. It is true the land may be undervalued by the 
 jury, but if so that would indeed be a motive for refusing a sale, and pro- 
 bably it would not be decreed if there was reasonable ground to believe that 
 by any change of the state of things the debt would be discharged out of 
 the rents and profits within a reasonable time. When there is no such pro- 
 bability it would be a prejudice both to the party and to the community to 
 compel the creditor to hold an interest which he would not have the ordinary 
 incitements to improve. Accordingly we find in the case of a judgment 
 Hfainst a father who made a fraudulent conveyance to his son, the judgment 
 creditor who had a lien on one-half of the lands, by virtue of his judgment, 
 obtained, after the father's death, a decree for the sale of the moiety, Lord 
 Hardvvicke being of opinion that the creditor was not bound to wait for pay- 
 ment out of the rents and profits, but was entitled to accelerate the pay- 
 ment by a sale. 2 Atk. 610. But a sale was directed of the moiety of the 
 land, but no more,* for his lordship was of opinion that he could not change 
 the rights of the parties.! This case, then, sufficiently establishes, I think, 
 the right of the judgment creditor, in some cases, to a sale, while the case 
 from 6 Mun. 432, seems to limit that right to the case of rents and profits 
 being inadequate to keep down the interest. Jenkins vs. Sherrard, in the 
 Winchester chancery court, decided by Carr, C. accords herewith : such has 
 been, I think, the usual course. There seems, indeed, no assignable rea- 
 son for a sale, when the heir is bound, which does not apply to the debtor 
 liimself, after his land is bound by a judgment. In the case of the heir, 
 liowever, it will be observed that the whole is sold, because the whole is 
 bound : it is otherwise in the case of the ancestor himself, a moiety of his 
 lands only being bound by the judgment in his lifetime. 
 
 Having thus ahcertained in what cases a court of equity will lend its aid 
 to a plaintiff at law who meets with embarrassments in the way of his exe- 
 cution, I proceed to shew succinctly, 
 
 * In 1 Leigli, 145. 2 Leigh, 29. 3 Leigh, 317 ; and Tenant vs. P-itton, March, 1K35, io bo hcre- 
 afier reported, tliis subject of the quantum to be sold lias been adverted to. It seems not yet well 
 settled. 
 
 t Where the fraudulent debtor lias taken the insolvent oatii, the whole ia sold of course.
 
 CHAP. 20.] OF RELIEF IN EQUITY. 385 
 
 II. What sort of relief is afibrded. This matter has been in some de- 
 gree anticipated. We may add, liowevor, that in suits broutrht to set aside 
 fraudulent conveyances vvhicii stand in the creditor's way, if the conveyan- 
 ces be of personal property, an account and sale is decreed, and the fraudu- 
 lent donee is made personally responsible for what has been wasted or 
 eloigned. For if there had been no alienation, the creditor's fifa would 
 have taken the property, and it would have been sold accordingly ; and 
 equity places the creditor in the same condition as if the fraudulent deed had 
 not been made. So if the debtor dies, the fraudulent donees stand in the 
 light of executors de son tort, and are at once liable to be proceeded against 
 as such. For the conveyance being as to creditors deemed void, the do- 
 nees are in possession of property which the law regards as the property of 
 the decedent, and are therefore looked upon in the light above mentioned. 
 This seems, indeed, a matter of necessity, for otherwise the creditor would 
 be without remedy : since he can never charge the leal executors by rea- 
 son of this property, of which they have never had possession as assets, and 
 which they cannot recover ; since the transaction stands good against their 
 testator, though void as to creditors. See 2 Rand. 398. In this case, also, it 
 must be observed that the creditor might have brought this action at law 
 against the fraudulent donees or any one of them, as executor de son tort, 
 (Edwards vs. Harben, 2 T. R.) and had he done so he would have recov- 
 ered judgment to the value of the property fraudulently in the hands of 
 the person so sued, nor could he have been required either to join the oth- 
 ers in the suit ; or to proceed against them for their proportion ; or to shew 
 that the assets in the hands of the rightful executor were exhausted. 2 
 Rand. 399, 400. But where the creditor comes into equity it seems pro- 
 per that he should make the rightful executor or administrator party, to 
 account for the assets which have come to his hands ; for if there are assets 
 in his hands to pay the demand, the conveyances will not be void ; 2 Ran. 
 39S, 399; and in such case the decree ought to be against those assets in 
 the first place, and in default thereof that the donee pay the balance, and 
 on refusal that the property itself be sold. Such seems to have been the 
 course in the analogous case of Boyd & al. vs. Steinback & al. 5 Mun. 
 305. Again, though in the last case above stated, when a suit is brought at 
 law against the fraudulent donees of a decedent, or any of them, as execu- 
 tor de son tort, the creditor cannot be required to proceed against them for 
 rateable proportions of the debt, and though in equity if an attempt to equal- 
 ize the burden would produce any unreasonable delay or detriment to the 
 creditor, the court would not make it necessary, since this very delay is one 
 of the objects of fraudulent conveyances provided against by the statute, 
 yet where the creditor actually has convened all parties, if none of them 
 are chargeable with actual fraud, and the materials for a just apportion- 
 ment are already in the record, and it can be made without material delay 
 or injury to the creditor, the apportionment will be made. But then there 
 should be a reservation to the creditor of a right to resort for satisfaction to 
 all the parties responsible to him, to the full extent of their liabilities, in 
 the event of his failing from insolvency or any other cause to procure satis- 
 faction from any of the parties of their proportions of his demand. 2 Ran. 
 400. And the same principles, I presume, should prevail where the donees 
 are sued in equity in the lifetime of the donor. 
 
 But suppose a judgment creditor sues to set aside a fraudulent deed of 
 lands which obstructs his proceeding by elegit? What is the decree that 
 will be rendernd ? It may be said that as the suit in equity is brought mere- 
 ly to get the fraudulent deed out of the way, he ought to have such decree 
 as would place him in the enjoyment of those rights, and no more, which 
 he would have had at law : i. e. the moiety <jf the property should be de- 
 roL. 2—49
 
 386 OF RELIEF IN EQUITY. [book 3. 
 
 livered to him at an extended value. In such case he would have no right, 
 indeed, to come upon more than a moiety ; yet see 1 Leigh, 145. 2 Leigh, 
 29. 2 Atk. 477, 608 ; but in Stileman vs. Ashdown, which is the case here 
 referred to in Atkins, we have an express authority that the creditor shall 
 not be compelled to wait for the slow payment of his debt by rents and pro- 
 fits, but may have a sale of the moiety. In that case it is true the fraudu- 
 lent donee was also the heir : yet 1 do not perceive that this would have 
 materially affected the question. 
 
 I am not aware of any express adjudication upon the point ; though I 
 am strongly inclined to think that the uniform course has been to decree 
 that the sale be made, unless the sum decreed be paid by the debtor or the 
 fraudulent donee. See Eppes vs. Randolph, 2 Call. Nor have I ever 
 known a previous inquiry instituted to ascertain whether the rents and pro- 
 fits would keep down the interest. The court seems rather to have looked 
 upon the fraudulent donees as trustees for the creditors, and to have sub- 
 jected the estate to sale accordingly in default of payment of the amount 
 due ; a practice to which I do not perceive any well grounded objection. 
 
 III. I proceed next to observe that no creditor can entitle himself to pro- 
 ceed in equity to set aside a fraudulent conveyance to his prejudice, nor in 
 any way to prevent or interfere with the debtor's disposition of his property, 
 (6 Ran. 188,) until he has first acquired a specific right to charge the pro- 
 perty sought to be subjected. Thus if the property consist of goods and 
 chattels, he should show that he has sued out an execution giving him a 
 legal preference or lien on the goods and chattels, and has pursued it to 
 every available extent at law, but without eflfect: 2 John. 144, 290. 4 
 John. 671, 682, 687. 2 Rand. 384. 2 Leigh, 84: Thus if he has sued 
 out a fifa which has been delivered to the sheriff, or a casa which has been 
 levied on the debtor's body, or (the debtor being dead) if he can shew that 
 there are no assets out of which he can receive payment except what are 
 in possession of the fraudulent donees, he may resort to equity. But until 
 he has taken steps to acquire a lien by execution, he has no right even to 
 restrain the alienation of his property by the debtor ; 2 John. 144. 2 Rand. 
 394, 395 ; such alienation is valid, provided it be bona fide, or for the pur- 
 pose of securing other just creditors. He has therefore no pretension to a 
 resort to equity to subject the property. But when the fifa is delivered to 
 the sheriff, or the casa levied, the goods of the donor are bound ; and if 
 the conveyance to the donee is fraudulent, it is void, and the goods are 
 therefore still considered as the goods of the donor, and liable to be taken 
 by the execution if they can be got at ; (2 Rand. 395, 396;) and if they 
 cannot, then the party being obstructed in the enforcement of his specific 
 rights, may well call in the aid of an equitable tribunal. 
 
 In like manner with respect to land ; if the creditor has obtained no 
 judgment, he has no specific claim to render the lands liable, and though 
 the debtor has conveyed them fraudulently, yet it does not follow that this 
 creditor is entitled to make his debt out of them. Before he gets his judg- 
 ment another creditor may have obtained one, and thus have a preferable 
 right, or the lands may be bona fide sold to a third person without notice. 
 He cannot, therefore, go into equity for the purpose of setting aside the 
 conveyance and subjecting the lands to the payment, for he has not, and 
 non constat that he ever will have, any right to subject them. See the au- 
 thorities above cited. 
 
 When, however, the debtor is dead, and the lands descend to the heir, 
 and the creditor's demand binds the heir, there I conceive he has a lien 
 which directly affects the lands in the hands of the heir, and he may there- 
 fore proceed in equity even before he has sue.d at law and obtained a judg- 
 ment.
 
 CHAP. 21. J OF EQUITY. 887 
 
 I shall conclude this subject of executions with a notice of that species 
 which issues against the heir upon a judgment obtained against him upon 
 the bond of his ancestor. In certain cases we have seen liie heir renders 
 himself liable to a judgment as for his own proper debt; and there the or- 
 dinary executions apply. As where he has aliened the land, or pleads a 
 false plea, &c. But where he pleads truly and confesses the assets de- 
 scended, the judgment is only that the plaintiff have execution of the lands 
 descended. On such a judgment a peculiar execution issues directing the 
 sheriff to take an inquisition ascertaining by a jury the yearly value of the 
 lands, and further directing him to deliver them at such ascertained value 
 to the plaintiff until he is paid his debt out of the profits. The whole land 
 is extended in this case, though if the judgment had been rendered in the 
 ancestor's lifetime, and revived against the heir, only half could have been 
 taken on the revived judgment by elegit. See Tucker's Black, vol. 3, 421, 
 in no. Lilly's Entries, 18i, 381. Plow. 440. 
 
 CHAPTER XXL 
 
 OF EQUITY. 
 
 'In an early stage of these lectures I found it necessary for the conve- 
 nience of the student to present him with a cursory view of the origin and 
 nature of courts of equity. I shall not, therefore, recur to that subject ; 
 but referring to what has been before remarked, I shall proceed to a short 
 disquisition upon equitable jurisprudence. In this I shall endeavor to be 
 more particular than Mr. Blackstone, though I shall, as usual, avail myself 
 of his lucid and judicious views, whenever they may be applicable to the 
 state of equitable jurisprudence which exists in the commonwealth of Vir- 
 ginia. My limits will not permit me, however, to go into the subject very 
 minutely ; so that the student will, after all, find it necessary to devote himself 
 diligently to the perusal of the valuable essays to which I am myself in 
 some degree indebted for the matter of this imperfect sketch. 
 
 In the execution of this task, I propose to consider first, some of the 
 most important grounds of equitable jurisdiction, and the principles of equi- 
 ty in relation to them : and then I shall offer to the student a succinct ac- 
 count of the mode of proceeding in our courts of chancery, or in other 
 words, of the method of prosecuting a suit in equity. 
 
 In reviewing the subject of equitable jurisdiction, I cannot prevail upon 
 myself to discard what the learned commentator has said upon the subject, 
 deficient as it must be admitted to be, and as it necessarily must have been, 
 according to the plan of his work. I shall, therefore, present what he says 
 upon the subject of what may properly be considered as the equitable juris- 
 diction of the court of chancery, as contra-distinguished from certain com- 
 mon law and statutory jurisciction which that court in England possesses. 
 In treating this matter, the author has commenced with vigorously contro- 
 verting certain errors upon the subject, instead of pursuing his more usual 
 course of regular analysis. He tells us that " the very terms of a court of 
 equity, and a court of law, as contrasted to each other, are apt to confound 
 and mislead us : as if the one judged without equity, and the other was not 
 bound by any law. Whereas every definition or illustration to be met with, 
 which now draws a line between the two jurisdictiOTs, by setting law and 
 equity in opposition to each other, will be found either totally erroneous, or 
 erroneous to a certain degree." 
 
 1. " Thus, in the first place, it is said, that it is the business of a court of
 
 388 OF EQUITY. [ BOOK 3. 
 
 equity in England to abate the rigor of the common law. But no such 
 power is contended for. Hard was the case of bond-creditors, whose debtor 
 devised away his real estate; rigorous and unjust the rule, which put the 
 devisee in a better condition than the heir; yet a court of equity had no 
 power to interpose. Hard is the common law still subsisting, that land de- 
 vised, or descending to the heir, shall not be liable to simple contract debts 
 of the ancestor or devisor, although the money was laid out in purchasing 
 the very land ; and that the father shall never immediately succeed as heir 
 to the real estate of the son: but a court of equity can give no relief; 
 though in both these instances the artificial reason of the law, arising from 
 feodal principles, has long ago entirely ceased. In all such cases of posi- 
 tive law, the courts of equity, as well as the courts of law, must say with 
 Ulpian, " hoc quidetn perquam durum est, sed ita lex scripla est.",' 
 
 2. "It is said, that a court of equity determines according to the spirit 
 of the rule, and not according to the strictness of the letter. But so, also, 
 does a court of law. Both, for instance, are equally bound, and equally 
 profess, to interpret statutes according to the true intent of the legislature. 
 In general law all cases cannot be foreseen ; or, if foreseen, cannot be ex- 
 pressed : some will arise that will fall within the meaning, though not with- 
 in the words, of the legislator; and others, which may fall within the letter, 
 may be contrary to his nieaning, though not expressly exce])ted. These ca- 
 ses thus out of the letter, are often said to be within the equity, of an act 
 of parliament ; and so cases within the letter are frequently out of the 
 equity. Here by equity we mean nothing but the sound interpretation of 
 the law ; though the words of the law itself may be too general, too spe- 
 cial, or otherwise inaccurate or defective. These, then, are the cases which, 
 as Grotius says, "lex non exacte definit, sed arhitrio bout viri permit tit ;" in 
 order to find out the true sense and meaning of the lawgiver, from every other 
 topic of construction. But there is not a single rule of interpreting laws, 
 whether equitably or strictly, that is not equally used by the judges in the 
 courts both of law and equity : the construction must in both be the same : 
 or, if they differ, it is only as one court of law may also happen to differ 
 from another. Each endeavors to fix and adopt the true sense of the law 
 in question ; neither can enlarge, diminish, or alter, that sense in a single 
 tittle. 
 
 3. "Again, it hath been said, that/z-awrZ, accident, and trust, are the pro- 
 per and peculiar objects of a court of equity. But many kinds o^ fraud 
 are equally cognizable, and equally adverted to in a court of law : and some 
 frauds are eogniz;ible only there : as fraud in obtaining a devise of lands, 
 which is always sent out of the equity courts, to be there determined. 
 Many accidents are also supplied in a court of law; as, loss of deeds, mis- 
 takes in receipts or accounts, wrong payments, deaths, which make it im- 
 possible to perform a condition literally, and a multitude of other contin- 
 gencies : and many cannot be relieved even in a court of equity; as, if by 
 accident a recovery is ill suffered, a devise ill executed, a contingent re- 
 mainder destroyed, or a power of leasing omitted in a family settlement. 
 A technical trust, indeed, created by the limitation of a second use, was 
 forced into the courts of equity in the manner formerly mentioned ; and 
 this species of trust, extended by inference and construction, has ever since 
 remained as a kind of peculium in those courts. But there are other trusts, 
 which are cognizabl^in a court of law : as deposites, and all manner of 
 bailments ; and especially that implied contract, so highly beneficial and 
 useful, of having undertaken to account for money received to another's 
 use, which is the ground of an action on the case almost as universally re- 
 medial as u l)ill in equity.
 
 CHAP. 21.] OF EQUITY. 389 
 
 4. "Once more ; it has been said that a court of equity is not bound by 
 rules or precedents, but nets from the opinion of the judge,* founded on 
 the circumstance of every particular case. Whereas the system of our 
 courts of equity is a labored connected system, governed by established 
 rules, and bound down by precedents, from which they do not depart, al- 
 though the reason of some of them may, perhaps, be liable to objection. 
 Thus, the refusing a wife her dower in a trust-estate, yet allowing tlie hus- 
 band his courtesy : the holding the penalty of a bond to be merely a secu- 
 rity for the debt and interest, yet considering it sometimes as the debt it- 
 self, so that the interest shall not exceed that penalty ; the distinguishing 
 between a mortgage at jive per cent, with a clause of a reduction to four, 
 if the interest be regularly paid, and a mortgage at four per cent, with a 
 clause of enlargement to Jive, if the payment of the interobt b"; v.cfcrred ; 
 so that the former shall be deemed a conscientious, the latter an unrighte- 
 ous bargain : all these, and other cases that might be instanced, are plainly 
 rules of positive law ; supported only by that reverence that is shewn, and 
 generally very properly shewn, to a series of former determinations ; that 
 the rule of property may be uniform and steady. Nay, sometimes a pre- 
 cedent is so strictly followed, that a particular judgment, founded upon 
 special circumstances, give rise to a general rule. 
 
 " In short, if a court of equity in England did really act, as many inge- 
 nious writers have supposed it (from theory) to do, it would rise above all 
 law, either common or statute, and be a most arbitrary legislator in every 
 particular case. No wonder they are so often mistaken. Grotius, or Puf- 
 fendorf, or any other of the great masters of jurisprudence, would have 
 been as little able to discover, by their own light, the system of a court of 
 equity in England, as the system of a court of law : especially, as the no- 
 tions before mentioned of the character, power, and practice of a court of 
 equity were formerly adopted and propagated (though not with approba- 
 tion of the thing) by our principal antiquaries and lawyers ; Spelman, Coke, 
 Lambard, and Selden, and even the great Bacon himself. But this was in 
 the infancy of our courts of equity, before their jurisdiction was settled, 
 and when the chancellors themselves, partly from their ignorance of law, 
 (baing frequently bishops or statesmen,) partly from ambition or lust of 
 power, (encouraged by the arbitrary principles of the age they lived in,) but 
 principally from the narrow and unjust decisions of the courts of law, had 
 arrogated to themselves such unlimited authority, as hath totally been dis- 
 claimed by their successors for now above a century past. The decrees of 
 a court of equity were then rather in the nature of awards, formed on the 
 sudden pro re nata, with more probity of intention than knowledge of the 
 subject; founded on no settled principles, as being never designed, and 
 therefore never used for precedents. But the systems of jurisprudence, in 
 our courts both of law and equity, are now equally artificial systems, found- 
 ed on the same principles of justice and positive law ; but varied by differ- 
 ent usages in the forms and mode of their proceedings : the one being origi- 
 nally derived (though much reformed and improved) from the feodaJ cus- 
 toms, as they prevailed in different ages in the Saxon and Norman judica- 
 tures ; the other (but with equal improvements) from the imperial and pon- 
 tifical formularies, introduced by their clerical chancellors. 
 
 " The suggestion indeed of every bill, to give jurisdiction to tlie courts of 
 equity, (copied from those early times,) is that the complainant hath no 
 
 * This is stated i)y IMr. Selden (Table Talk, (if. Equity,) with more pleasantry than truth. " For 
 laitj,\vp have a measure, and know what to trust to; equity is according to the conscience of hitn 
 that is chancellor ; and, as that is larger and narrower, so is equity. 'Tis all one, as if they should 
 make the standard for the measure a chancellor's foot. What an unccriain measure would this be ! 
 One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the K«me ihinj; 
 >viilva chancellor's conscience."
 
 .390 OF EQUITY. [ BOOK 3. 
 
 remedy at the common law. But he who should from thence conclude, 
 that no case is judged of in equity where there might have been relief at 
 law, and at the same time casts his eye on the extent and variety of the ca- 
 ses in our equity reports, must think the law a dead letter indeed. The 
 rules of property, rules of evidence, and rules of interpretation in both 
 courts are, or should be, exactly the same : both ought to adopt the best, or 
 must cease to be courts of justice. Formerly some causes, which now no 
 longer exist, might occasion a different rule to be followed in one court, 
 from what was afterwards adopted in the other, as founded in the nature 
 and reason of the thing: but the instant those causes ceased, the measure 
 of substantial justice ought to have been the same in both. Thus the penal- 
 ty of a bond, originally contrived to evade the absurdity of those monkish 
 constitutions which prohibited taking interest for money, was therefore very 
 pardonably considered as the real debt in the courts of law, when the debtor 
 neglected to perform his agreement for the return of the loan with interest: 
 for the judges could not, as the law then stood, give judgment, that the in- 
 terest should be specifically paid. But when afterwards the taking of inter- 
 est became legal, as the necessary companion of commerce, nay after the 
 statute of 37 Hen. VIII. c. 9, had declared the debt of loan itself to be 
 ' the just and true intent' for which the obligation was given, their narrow- 
 minded successors still adhered wilfully and technically to the letter of the 
 ancient precedents, and refused to consider the payment of principal, in- 
 terest, and costs, as a full satisfaction of the bond. At the same time more 
 liberal men who sate in the courts of equity, construed the instrument ac- 
 cording to its 'just and true intent,' as merely a security for the loan : in 
 which light it was certainly understood by the parties, at least after these 
 determinations ; and therefore this construction should have been universal- 
 ly received. So in mortgages, being only a landed as the other is a per- 
 sonal security for the money lent, the payment of principal, interest, and 
 costs ought at any time, before judgment executed, to have saved the for- 
 feiture in a court of law, as well as in a court of equity. 
 
 " Again ; neither a court of equity nor of law can vary men's wills or 
 agreements, or (in other words) make wills or agreements for them. Both 
 are to understand them truly, and therefore both of them uniformly. One 
 court ought not to extend, nor the other abridge, a lawful provision delibe- 
 rately settled by the parties, contrary to its just intent. A court of equity, 
 no more than a court of law, can relieve against a penalty in the nature of 
 stated damages ; as a rent of ^o an acre for ploughing up ancient meadow : 
 nor against a lapse of time, where the time is material to the contract ; as 
 in covenants for renewal of leases. Both courts will equitably construe, 
 but neither pretends to control or change, a lawful stipulation or engage- 
 ment. 
 
 " The rules of decision are in both courts equally apposite to the subjects 
 of which they take cognizance. Where the subject-matter is such as re- 
 quires to be determined secundum aequum et bonum, as generally upon ac- 
 tions on the case, the judgments of the courts of law are guided by the 
 most liberal equity. In matters of positive right, both courts must submit 
 to and follow those ancient and invariable maxims ' quai relicta sunt et tra- 
 dita.' Both follow the law of nations, and collect it from history and the 
 most approved authors of all countries, where the question is the object of 
 that law ; as in the case of the privileges of ambassadors, hostages, or ran- 
 som-bills. In mercantile transactions they follow the marine-law, and ar- 
 gue from the usages and authorities received in all maritime countries. 
 Where they exercise a concurrent jurisdiction, they both follow the law of 
 the proper forum: in matters originally of ecclesiastical cognizance, they 
 both equally adopt the canon or imperial law, according to the nature of
 
 CHAP. 21.] OF EQUITY. 391 
 
 the subject ; and, if a question came before either, which was properly the 
 object of a foreign municipal law, they woulii both receive information of 
 what is the rule of the country, and would both decide accordingly. 
 
 " Such then being the parity of law and reason which governs both spe- 
 cies of courts, wherein (it may be asked) does their essential difference 
 consist? It principally consists in the different modes of administering jus- 
 tice in each ; in the mode of proof, the mode of trial, and the mode of re- 
 lief. Upon these, and upon two other accidental grounds of jurisdiction, 
 which were formerly driven into those courts by narrow decisions of the 
 courts of law, viz. the true construction of securities for money lent, and 
 the form and effect of a trust or second use ; upon these main pillars hath 
 been gradually erected that structure of jurisprudence, which prevails in our 
 courts of equity, and is inwardly bottomed upon the same substantial foun- 
 dations as the legal system which hath hitherto been delineated in these 
 commentaries ; however different they may appear in their outward form, 
 from the different taste of their architects. 
 
 1. " And, first, as to the mode of proof. When facts, or their leading cir- 
 cumstances, rest only in the knowledge of the party, a court of equity ap- 
 plies itself to his conscience, and purges him upon oath with regard to the 
 truth of the transaction ; and, that being once discovered, the judgment is 
 the same in equity as it would have been at law. But, for want of this dis- 
 covery at law, the courts of equity have acquired a concurrent jurisdiction 
 with every other court in all matters of account. As incident to accounts, 
 they take a concurrent cognizance of the administration of personal assets, 
 consequently of debts, legacies, the distribution of the residue, and the 
 conduct of executors and administrators. As incident to accounts, they 
 also take the concurrent jurisdiction of tithes, and all questions relating 
 thereto ; of all dealings in partnership, and many other mercantile transac- 
 tions; and so of bailiffs, receivers, factors, and agents. It would be end- 
 less to point out all the several avenues in human affairs, and in this com- 
 mercial age, which lead to or end in accounts. 
 
 " From the same fruitful source, the compulsive discovery upon oath, the 
 courts of equity have acquired a jurisdiction over almost all matters of 
 fraud ; all matters in the private knowledge of the party, which though 
 concealed, are binding in conscience ; and all judgments at law, obtained 
 through such fraud or concealment. And this, not by impeaching or re- 
 versing the judgment itself, but by prohibiting the plaintiff from taking any 
 advantage of the judgment, obtained by suppressing the truth ; and which, 
 had the same facts appeared on the trial as now are discovered, he would 
 never have attained at all.* 
 
 2. " As to the mode of trial. This is by interrogatories administered to 
 the witnesses, upon which their depositions are taken in writing, wherever 
 they happen to reside. If, therefore, the cause arises in a foreign country, 
 and the witnesses reside upon the spot ; if, in causes arising in England, 
 the witnesses are abroad, or shortly to leave the kingdom ; or if witnesses 
 residing at home are aged or infirm ; any of these cases lay a ground for 
 a court of equity to grant a commission to examine them, and (in conse- 
 quence) to exercise the same jurisdiction, which might have been exercised 
 at law, if the witnesses could probably attend. 
 
 *One material difinrpiice between a court of equity and a court of law as to the mode of proof, is 
 thus described by lord ciiancelior Eldon : " A defendant in a court of equity has llie protection aris- 
 ing from his own conscience in a degree in vviiich the law does not affect to give him proleciion. If 
 he positively, piainl} , and preciselj' denies the assertion, and one witness only proves it as positively, 
 clearly, and precisely, as it is denied', and there is no circumstance altaciiing credit to the assertion, 
 overbalancing the credit due to the denial, as a posiiive denial, a couit of equiiy will not act upon 
 the testimony of that witness. Not so at law. 'J'here the defendant is not heard. One witnefs 
 proves the case; and, however strongly the defendant may be iuciiueJ to deny it upon oath, tlieie 
 must be a recovery against him." 6 Ves. Jun. 184.
 
 892 OF EQUITY. [book 3. 
 
 3. " With respect to the mode of relief. The want of a more specific 
 remedy, than can be obtained in the courts of law, gives a concurrent juris- 
 diction to a court of equity in a great variety of cases. To instance in exe- 
 cutory agreements, A court of equity will compel them to be carried in- 
 to strict execution, unless where it is improper or impossible, instead of 
 giving damages for their non-performance. And hence a fiction is esta- 
 blished, that what ought to be done shall be considered as being actually 
 done, and shall relate back to the time when it ought to have been done 
 originally : and this fiction is so closely pursued through all its consequen- 
 ces, that it necessarily branches out into many rules of jurisprudence, which 
 form a certain regular system. So of waste, and other similar injuries, a 
 court of equity takes a concurrent cognizance, in order to prevent them by 
 injunction. Over questions that may be tried at law, in a great multiplicity 
 of actions, a court of equity assumes a jurisdiction, to prevent the expense 
 and vexation of endless litigations and suits. In various kinds of frauds it 
 assumes a concurrent jurisdiction, not only for the sake of a discovery, but 
 of a more extensive and specific relief: as by setting aside fraudulent deeds, 
 decreeing re-conveyances, or directing an absolute conveyance merely to 
 stand as a security. And thus, lastly, for the sake of a more beneficial 
 and complete relief by decreeing a sale of lands, a court of equity holds 
 plea of all debts, incumbrances, and charges, that may affect it or issue 
 thereout. 
 
 4. " The true construction of securities for money lent is another foun- 
 tain of jurisdiction in courts of equity. When they held the penalty of a 
 bond to be the form, and that in substance it was only a pledge to secure 
 the repayment of the sum bona fide advanced, with a proper compensation 
 for the use, they laid the foundation of a regular series of determinations, 
 which have settled the doctrine of personal pledges or securities, and are 
 equally applicable to mortgages of real properly. The mortgagor continues 
 owner of the land, the mortgagee of the money lent upon it ; but this 
 ownership is mutually transferred, and the mortgagor is barred from redemp* 
 tion, if, when called upon by the mortgagee, he does not redeem wiihin a 
 time limited by the court ; or he may, when out of possession, be barred 
 by length of time, by analogy to the statute of limitations. 
 
 5. "The form of a trust, or second use, gives the courts of equity an ex- 
 clusive jurisdiction as to the subject-matter of all settlements and devises in 
 that form, and of all the long terms created in the present complicated 
 mode of conveyancing. This is a very ample source of jurisdiction ; but 
 the trust is governed by very nearly the same rules, as would govern the 
 estate in a court of law, if no trustee was interposed : and by a regular po- 
 sitive system established in the courts of equity, the doctrine of trusts is 
 now reduced to as great a certainty as that of legal estates in the courts of 
 common law. 
 
 "These are the principal (for I omit the minuter) grounds of the juris- 
 diction at present exercised in our courts of equity : which differ, we see, 
 very considerably from the notions entertained by strangers, and even by 
 those courts themselves before they arrived at maturity ; as appears from 
 the principles laid down, and the jealousies entertained of their abuse, by 
 our early juridical writers cited in a former page ; and which have been im- 
 plicitly received and handed down by subsequent compilers, without at- 
 tending to those gradual accessions and derelictions, by which in the course 
 of a century this mighty river hath imperceptibly shifted its channel. Lam- 
 bard in particular, in the reign of Queen Elizabeth, lays it down, that 
 'equity should not be appealed unto, but only in rare and extraordinary 
 matters: and that a good chancellor will not arrogate authority in every 
 complaint that shall be brought before him upon whatsoever suggestion :
 
 CHAP. 21.] OF EQUITY. 398 
 
 and thereby both overthrow the authority of tlic courts of common law, and 
 bring upon men such a confusion and un«ertaitity, as hardly any man should 
 know how or how long to hold his own assured to him.' And certainly, if 
 a court of equity were still at sea, and floated upon the occasional opinion 
 which the judge who happened to preside might entertain of conscience in 
 every particular case, the inconvenience that would arise from this uncer- 
 tainty would be a worse evil than any hardship that could follow from rules 
 toe strict and inflexible. Its powers would have become too arbitrary to 
 have been endured in a country like this, which boasts of being governed 
 in all respects by law and not by will. But since the time when Lambard 
 wrote, a set of great and eminent lawyers, who have su<icessiveiy held the 
 great seaJ, have by degrees erected the system of relief administered by a 
 court of equity into a regular science, which cannot be attained without 
 study and experience, any more than the science of law : but from which, 
 when understood, it may be known what remedy a suitor is entitled to ex- 
 pect, and by what mode of suit, as readily and with as much precision in 
 a court of equity as in a court of law. 
 
 " It were much to be wished, for the sake of certairrty, peace, and justice", 
 that each court would, as far as possible, follow the other, in the best and 
 jnost effectual rule for attaining those desirable ends. It is a maxim that 
 equity follows the law; and in former days the law had not scrupled to fol- 
 low even that equity, which was laid down by the clerical chancellors. 
 Every one who rs conversant rn our ancient books, knows that many valu- 
 able improvements in the state of our tenures (especially in leaseholds and 
 copyholds) and the forms of administering justice, have arisen from this 
 single reason, that the same thing was constantly effected by means of a 
 subpcRna in the chancery. And sure there cannot be a greater solecism, 
 than that in two sovereign independent courts established in the same coun- 
 try, exercising concurrent jurisdiction, and over the same subject-matter, 
 there should exist in a single instance two different rules of property, clash- 
 ing with or contradicting each other." 
 
 So much for Mr. Blackstone's account of the jurisdiction of a court of 
 equity. I shall now proceed to offer such views of the subject as have oc- 
 curred to me, subjoining, however, in a note hereafter, a summary of Mr. 
 Chitty's, which the student may find useful. I have excluded from it what- 
 ever is obviously inapplicable to us. 
 
 Before I proceed to the classification of the different subjects of equita-' 
 ble jurisdiction, of which it will be necessary to treat somewhat particularly, 
 it may be proper to remark, that the principles of the civil law have been 
 liberally introduced into the chancery system by those who have built it up. 
 The early chancellors having been ecclesiastics educated in all the learning 
 of the Roman empire, naturally felt a partiality for the civil code in which 
 they were bred, and hence were very ready at all times to introduce its max- 
 ims and its principles into the system of judicature they were erecting. 
 Hence we often find it advantageous to resort to the civil law, which was 
 not only frequently engrafted upon the common law, but pervaded very ex- 
 tensively the whole subject of equitable jurisdiction. 
 
 It will also be proper to refer in this place to two or three general prin- 
 ciples or maxims of a court of equity, which belong not exclusively to any 
 one branch of its jurisdiction, but equally pervade the whole. We shall 
 thus be t^e better prepared to understand much that we shall meet with in 
 this bealiil^f\it,t1i6ti^|fi Artificial system. 
 
 I. The ftfst nfiaxim th'at I shall mention as prevailing in a court of equi- 
 ty, is, that' *^' e^iuityfollows the law/' or as it is expressed in the law Latin, 
 " EquiM seqkiitir I'^gem." 
 
 ■^^^"•"■•-^' VOL. 2— 50
 
 394 OF EQUITY. [ BOOK 3. 
 
 That this rule is not universal in its application is obvious from the very 
 existence of the distinct tribunals of law and equity. It may therefore not 
 be amiss to mention some of the instances in which this deference is paid 
 by courts of equity to the course of decisions of the law courts, in doing 
 which we shall have occasion to perceive not a few of the cases in which 
 it follows rules of its own in direct conflict with the rules of law. 
 
 1. In the construction of statutes, as I have elsewhere had occasion to 
 observe, courts of equity follow the law : for it would be grossly inconve- 
 nient and absurd if the acts of the legislature were to be considered as 
 meaning one thing in one court, and a different thing in another court. It 
 is true that courts of equity have refused to permit the statute of limitations 
 to affect a continuing express trust, and that they decree specific perform- 
 ance of parol contracts for the sale of lands where there has been part ex- 
 ecution, though the statute of frauds has expressly declared all such con- 
 tracts to be void. In like manner they compelled the borrower of money, 
 who sought relief in equity, to pay the usurer his principal, as the price of 
 their interference, even when the law avoided the contract altogether : and 
 they consider actual notice of the registry of a deed as eq.uivalent to record- 
 incr, because by such notice the object of the record is attained. But these, 
 and perhaps a few other cases, must either be looked upon us exceptions 
 to a well established general rule, or as not falling within its principles. 
 Certain it is, that the courts of equity in various instances follow the law in 
 reference even to these statutes. For if the usurer is plaintiiT, seeking to 
 enforce his usurious mortgage by bill of foreclosure, his mortgage is con- 
 sidered void, and he is driven from the forum with the penalty of paying the 
 costs. And so as to the statute of limitations; v.henever the jurisdiction 
 of the two courts over the subject of controversy is concurrent, the statute 
 of limitations is recognized not less as a bar in equity than at law ; as 
 where a bill is filed in equity for an account. So, even where the jurisdic- 
 tions are not concurrent, as in cases of trusts, if the trust is determined, the 
 statute is admitted to begin to run from the moment it is at an end ; and is a 
 complete bar, by analog-y to the operation of the act in a court of law. 
 Thus, too, it is, that the limitation to foreclosures and redemptions has been 
 established at twenty years, by analogy to the bar in an ejectment. As, 
 however, we shall have occasion to enter upon this subject elsewhere, we 
 will not enlargie upon it farther in this place. 
 
 2. In the construction of wills or limitations v^hich carry the legal estate, 
 the rule of construction is always the same in courts of law and equity : for, 
 AS in all matters which concern the legal title, the courts of law, from the 
 organization of the two tribunals, are predominant, so a court of equity, 
 when it accidentally acts upon the same matter, must follow the law, or 
 there would bo two conflicting constructions to the same will or limitation, 
 which would be both inconvenient and absurd. See 1 Fon. 395. But 
 thoufrh courts of equity, in the construction of wills and such limitations as 
 carry the legal estate, follow the law, yet in decreeing the execution of 
 marriage articles, and in the construction of executory trusts, they regard 
 the end and consideration of the settlement and intent of the trusts beyond 
 the legal operation of the words in which they are expressed. Ibid. For 
 of these matters, courts of law having no cognizance, there is no danger of 
 any contlicting decisions between the courts, but equity having exclusive 
 jurisdiction, is at liberty to apply its own principles in the construction ; 
 principles which res|)ectthe intention and design ot',^hf!,p£^fjipsij^^je.r than 
 the particular formula they have used in declaring iijjj |^je/3.i,Ma(|,,^pO, &c. 
 
 3. Notwithstanding the essential distinctions betwepq ait^gflj aqd,fiquita- 
 blc estate, it is a general principle that they are govcrnQdv.b^.,W]Cv?3Plfi rules. 
 Thus, as the cestui que trust is considered in equity as the real Owner of the
 
 CKAP. 21.] OF EQUITY. 395 
 
 estate, he may dispose of it without tlie intervention or assent of the trus- 
 tee, unless that is expressly made requisite by the deed itself: and his in- 
 terest in it will descend to the same persons, and is devisable in the same 
 manner, and is liable to extent and curtesy, and exeeution, and is govern- 
 ed generally by the same rules which would govern it if it were the legal 
 estate. 1 Mad. 362. 3 Vez. 127. The case of dower is in England a 
 well-known exception, though even that, as we have seen, no longer pre- 
 vails among us ; so that if we cannot agree with Sir Joseph JekyI, that 
 trusts are to be universally governed by the same law, and are always with- 
 in the same reason as legal estates, we may at least affirm that the excep- 
 tions to the rule are very kw and anomalous. 
 
 4. So strongly does the general rule we are treating of prevail, that when- 
 ever the trust estate and the legal estate become united in the same person, 
 the former is considered as merged, and the rule of law which governs the 
 latter absolutely prevails. Of this a conspicuous instance is afforded in the 
 case from Doug. 741, cited by Mr. Christian, 2 B. C. pa. 337, which deci- 
 sion is followed by Kent, Ch., 1 John. 417. See, however, 6 John. C. Ca- 
 ses, 395, and 3 Vez. 127, what is said as to their being still considered se- 
 parate in contemplation of equity, when justice or the interests of the party 
 requires it. 
 
 5. Another instance of equity following the law is afforded in the admi- 
 nistration 0? legal assets, which are distributed among the creditors of a de- 
 cedeat according to the dignity of the debts, as settled at law ; whereas if 
 the assets are strictly equitable, so that they cannot fall within the scope of 
 the powers of a court of law, equity administers them by an equal distribu- 
 tion among the creditors, upon its own favorite principle that equality is 
 equity. 
 
 II. The second maxim I shall here mention is, that where equity is equal 
 the law shall prevail. This is one of those principles growing as well out 
 of the constitution of the courts, as founded in good sense and sound jus- 
 tice. As the system of equity was chiefly built up to remedy the defects 
 of law, and among other things to prevent a party from taking a legal ad- 
 vantage when justice was on the side of his adversary, a court of conscience 
 might well interfere in behalf of him who had superior equity. But if 
 both parties are in this respect on the same footing, there could be no rea- 
 son for interference, and it would be unjust and absurd to take away the le- 
 gal right from him who had it, without some superior motive, which could 
 only be found in superior equity. A court of chancery never acts, indeed, 
 without a motive. There must be always something more meritorious on 
 one side, or iniquitous on the other, to call it into action. From this prin- 
 ciple arises the general doctrines that a volunteer is rarely entertained in a 
 court of equity; that a surety cannot be relieved against a creditor, nor a 
 creditor be assisted in carrying the security's liability farther than it extendi 
 at law. Hence, too, has sprung that doctrine — of such questionable pro- 
 priety — which permits a third encumbrancer who lends his money without 
 notice of the second encumbrance, to buy in the first encumbrance and 
 squeeze out the second, by thus becoming the owner of the legal title. 
 These doctrines are more particularly examined in their proper places. 
 
 III. He that will have equity done to him must do equity. This is a 
 very favorite maxim of courts of chancery — having its foundations laid in 
 the first principles of natural justice, and I aing recognized as a cardinal 
 point of our duty to our neighbor, by the high authority of revelation. Its 
 converse is, that he that hath committed iniquity shall not have equity. By 
 the latter, the unjust suitor is absolutely excluded from the doors of the 
 court, which shuts its ears to the complaints of the man who has himself 
 stained his hands with fraud and injustice. Hence the other strong and
 
 396 OF EQUITY. [book 3. 
 
 figurative method of expressing this principle of equity, lliat he who comes 
 into the court must come with clean hands. Thus if a lessee seeks to be 
 relieved against the forfeiture of his lease for non-payment of rent, and it 
 appears that the lease was obtained by fraud, or that he has essentially vio- 
 lated its terms, his hands are unclean, and he is turned away without re- 
 dress. If a debtor make a fraudulent conveyance of fais property upon a 
 secret trust that the grantee shall hold it for his use, equity will not assist 
 him even against his knavish associate, for he hath done iniquity. And 
 though in some cases it hath been said that where the parties are not in 
 pari delicto, but one has been made the tool of the other, or from his situ- 
 ation was the slave of his will, a court of equity will relieve him ; yet these 
 must be considered as anomalous cases, not impugning the general princi- 
 ple, but supposed to be placed beyond its influence, by the particular cir- 
 cumstance that the party has not enjoyed that freedom of will, without which 
 he cannot be looked upon as a moral agent. See 1 H. & M. 33. See, as 
 to the general doctrine, 1 Fonb. 128, 218, &c. There is, indeed, one ad- 
 mitted and well established exception to the principle we are considering. 
 It is this ; that where two parties are engaged in doing that which the pol^ 
 icy of the law forbids, a court of equity will sometimes interfere to set aside 
 their contracts, even at the suit of a particeps criminis ; for it is the duty 
 and the province of every court of justice to lend its aid to the maintenance 
 of the laws, and the prevention of their infraction : and one of the most 
 effcctiial methods which can be adopted is, to afford its aid in avoiding the 
 illegal contract. But this is done from no tenderness to the plaintiff wha 
 asks it. The relief is not considered as administered to him, but it is given 
 to the public through him. See 1 Rand. 76, and the cases cited in the ar- 
 gument of the case there reported. 
 
 But a court of chancery not only refuses its aid to him who does iniqui* 
 (y, but when a party asks equity it compels him to do equity to the person 
 from whom he asks it; though the maxim does not apply to the equity of 
 any third person against the plaintiff. 4 Ran. 282. The familiar instance 
 of the application of this maxim, put by Mr. Francis, page I, is indeed in- 
 correct in point of law, though it may serve for illustration. It is the case 
 of one sum of money lent by A to B on a mortgage, and a distinct sum on 
 bond. If B seeks to redeem the mortgage, it is said he shall not be per- 
 mitted to do so unless he will also pay the bond. Jt is obvious, however, 
 that this would in effect be to create a lien on the land for the amount of 
 the bond, when none such was ever contracted for, and it is therefore deci- 
 ded that such is not the law. 2 Vez. jr. 376. 2 Fon. 277. 3 Bro. C. C. 
 162. 3 Atk. 360. Tlie case of the heir of the mortgagor is not liable to 
 the same objection, and serves equally to illustrate the principle here stated. 
 For if the mortgagor dies, his heir would not be permitted to redeem with- 
 out paying the bond, since in his hands the land is bound as assets by de- 
 scent, though it was in no wise bound in the mortgagor's hands. But even 
 in the case of the heir, the decision is founded less upon the maxim we are 
 treating of, than upon the principle of preventing multiplicity of suits. It 
 is said to be solely matter of arrangement: for, as the creditor might sue 
 the heir and get payment out of the land, circuity of action is prevented by 
 con)pelliug the heir to pay the amount as a condition of redemption ; and 
 this is the reason assigned by Lord Thurlow, 3 Bro. C. C. 162. See 2 Fon. 
 277. A more apposite case, therefore, is that of two mortgages on the 
 same land, one of which is radically defective; yet the debtor will not be 
 permitted to redeem one without the other. 1 Vern. 29, 245. 2 Yern. 
 207. 2 Fon. 277. 
 
 There are many other leading maxims of a court of equity which we 
 •hall have occasion to mention, but they will fall in so readily with the other
 
 CHAP. 21.] OF EQUITY. 397 
 
 divisions of our subject, thai it will be unnecessary to proceed to a particu- 
 lar notice of them here. 
 
 An accurate classification of the subjects of equitable jurisdiction is a 
 matter of acknowledged ditficulty. " It is not a very easy task," says Lord 
 Redesdale, " to describe the jurisdiction of our courts of equity. Those 
 who have attempted it have generally failed ;" and he even makes an apol- 
 ogy for the attempt which is to be found in his admirable treatise on the 
 pleadings in -a court of equity. Mitford's Plead. 5. There is accordingly 
 some diversity among those who have turned their attention to the subject. 
 Such, indeed, has been the difference between them, that I feel myself at 
 liberty, without hazarding the charge of presumption, to pursue the sugges- 
 tions of my own mind in the classification which I shall offer to the stu- 
 dent. My object shall be to steer a middle course between being too ge- 
 neral and too minute : if we are too general, the subdivisions of each dis- 
 tinct head will often prove arbitrary and forced ; if too minute, every ad- 
 vantage of classification will be lost; and in falling into either extreme we 
 shall find the subject confused and obscured, instead of being illustrated 
 and made easy. 
 
 Pursuing this design, I shall proceed to arrange the snbjects of equitable 
 jurisdiction under the following heads: 1. Accident: 2 Mistake : 3 Re- 
 lief against penalties and forfeitures: 4. Accounts: 5. Fraud: G. Disco- 
 very : 7. Trusts, or second uses, as they are sometimes called : 8. Specific 
 performance: 9. Injunctions: 10. Avoiding illegal contracts : II. Contri- 
 butions : 12. Substitution : 1-3. Want of remedy at law ; 14. Subjects of 
 jurisdiction conferred by statiite : 15. Jurisdiction arising from the abolition 
 of ecclesiastical courts. Oftliese several grounds of jurisdiction, I shall pro- 
 ceed to take a rapid survey. We shall find that it is not always easy to de- 
 fine very accurately the precise boundaries of jurisdiction between the two 
 courts. -The jealousies which existed between them in the early times of 
 the court of chancery, gave rise to perpetual contentions and struggles — the 
 chancellor firmly asserting and successfully acquiring powers which were 
 obstinately contested by the courts of law, and which have at length been 
 established beyond further controversy, by the continued practice of centu- 
 ries. In these contests there were doubtless faults on both sides. The 
 common lawyers objected with reason that the decisions of courts of equity 
 were too much directed by the arbitrary discretion of the judge, and we find 
 the vigorous mind of Mr. Selden comparing the exercise of such a discre^ 
 tiori to the adoption of the chancellor's foot as a standard of measure. 
 The uncertainty which such an unlimited discretion was calculated to cre- 
 ate, was an evil of the greatest magnitude, since it is of the utmost impor- 
 tance that the laws of property and of contracts should be clearly and indis- 
 putably ascertained ; else no man could know how safely to enter into the 
 one, or to settle and convey the other. We find these objections also very 
 strongly presented in a very ancient production which the industry of Mr. 
 Hargrave has saved from the reliques of antiquity, and which he has placed 
 among his law tracts. " It is not reasonable," says the quaint but learned 
 sergeant, who takes up Ihe gauntlet in defence of the common law ; " it is 
 not reasonable that for a particular mannes cause which hath hurte himself 
 by his own negligence and by his own folly, that the common law of the 
 realme should be made void or be set at noughte by the suit of any particu- 
 lar person made in the chaunceric or any other place. But if reformation 
 be had in the said chauncerie by a subpoena, the good common law must be 
 made as voyde and set at noughte. And it seemeth to me that this suit by 
 subpoena is against the common well of the realme. For the common well 
 of every realme is to have a good law, so that the subjects of the realme 
 may be justified by the same ; and the more uncertain that the law is in any
 
 S98 or EQUITY. [ BOOK 3. 
 
 realme, the loss and the worse it is for the common well of the realme." 
 Hargrave's Law Tracts, pages 234, 235. 
 
 But these complaints can no longer be made with any show of justice. 
 The uncertainty of the law is indeed become an adage ; but not more justly 
 applicable to courts of eqinty than to courts of law ; since the former pro- 
 ceed by established rules, and hold themselves bound by precedents not less 
 than courts of law. So far, indeed, from grasping at more extensive juris- 
 diction, they have of late been more remarked for great solicitude to avoid 
 an extension of their powers. The strict rules of the common law, indeed, 
 which the common lawyers considered perfect ; to which they formerly ad- 
 hered from perversity, and which it is no longer necessary to change, be- 
 cause their evils have been remedied by the interference of equity, still ren- 
 ders this interference necessary. For the rules of the common law are too 
 strict and rigid to adapt themselves to the various wants of men, to the ne- 
 cessities of justice, and to the important alterations which are continually 
 occurring in the changeful character of human affairs. With courts of law 
 every thing must be upon the square. But if we take a survey of human 
 life, we shall find that this rectangular scheme tvill never fit in with all the 
 irregularities of human transactions. It will leave many a nook and cor- 
 ner uncovered. But the present system of equity remedies these defects, 
 and without the exercise of arbitrary discretion, it embraces within its 
 limits all that portion of the field of jurisprudence which is not already oc- 
 cupied by the rival jurisdiction. That it may sometimes interlock is no 
 matter of surprise, nor should it be of regret. In the nature of the thing, 
 the boundary can never be accurately defined. It is much better that they 
 should lap than leave a vacancy : — it is much better that there should be 
 two courts which will administer to the necessities of the suitor, than that 
 by too great coyness and scrupulousness in courts of equity, he should 
 become the victim of injustice. Pursuing these principles, a beautiful sys- 
 tem has been erected between the two courts: harmonizing in its parts, and 
 efficient in its ends. There is much, indeed, that may require correction 
 and amendment, but it may safely be affirmed, that the cavillers against it are 
 chiefly to be found among those whose ignorance of the system renders 
 them incapable of perceiving its recommendations, and inadequate to de- 
 cide upon its merits. The question, indeed, which presents itself to the 
 statesman of the present day, is not so much whether a system of more sim- 
 plicity and equal efficiency might not be adopted, but whether it would be 
 wise to throw away an old dress which sits well upon us and serves all our 
 purposes, for a new one which might possibly not fit us so well, but fret us 
 until in its turn it should be sacrificed to our caprices and love of change, 
 
 OF THE JURISDICTION OF EQUITY IN CASES, 
 
 I. "OF ACCIDENT." 
 
 The jurisdiction of a court of equity in cases of accident, I have said, 
 was probably exerted at a very early period of its history. It is a funda- 
 mental maxim with that tribunal, " That it relieves against accidents." 
 (Francis' Maxims, 29,) and from the earliest times its records furnish evi- 
 dence of an adherence to it. A familiar instance is aflforded by the case of 
 a lost bond. We have already seen that until towards the close of the last 
 century no suit at law could be maintained for the recovery of the amount 
 of a lost bond, because courts of law considered a profert of the bond as in- 
 dispensable. This doctrine has, it is true, been lately exploded ; 3 T. R. 
 151 ; but long before that was effected, courts of chancery had been in the 
 habit of relieving against the accidental loss or destruction of a bond ; and
 
 GHAP. 21.] OF EQUITY. 399 
 
 their jurisdiction having onco attnchcd, they have refused to permit them- 
 selves to be ousted of it by the increasing liberality of courts of law. 3 Bro. 
 218. 9 Vez. 464. 7 Vez. 19, 249. 4 Rand. 541. This principle, upon 
 which they have proceeded since the decision in Term llcports, has been 
 recognized by our courts in the case of suits upon assigned bonds, as has 
 been shewn in the notes to a former volume. See 6 Mun. 23. 5 Mun. 163» 
 There are, indeed, many reasons why this particular jurisdiction should not 
 be abandoned. The strictness of proof of the lost bond required at law, 
 the difficulty of obuining it, and the resort to the conscience of the obligor 
 which the chancery court affords, all furnish motives against closing its 
 doors against such cases. In the case of promissory notes and bills of ex- 
 change, indeed, no profert being required by the rules of law, courts of 
 equity could on that ground have no jurisdiction over them ; and accord- 
 ingly we find that its interference has been even recently refused. See lf> 
 Vez. 430. Yet the superior facilities afforded by the nature of chancery 
 proceedings, and the right to a discovery upon oath, are surely sufficient 
 reasons for the exercise of its powers. In cases, too, of bills of exchange, 
 whose negotiable character protects them in the hands of the holder from 
 any latent equity of the drawer and endorsers, there is an advantage in the 
 equitable proceeding which has not yet at least been secured by any anal- 
 agous regulation at law. In equity the creditor who sues to recover the 
 amount of the lost bill, is compelled to give sufficient indemnity against it, 
 before he can recover.* 1 Vez. jr. 345. 9 Vez. 4G6. So it is, also, in 
 England, with respect to promissory notes, which there (but not here) are 
 like bills of exchange, unassailable by latent equities. It is true, that by 
 the Virginia statute a provision is made that the owner of a lost bill may, 
 upon giving the drawer indemnity, demand from him a new bill, and sue 
 him at law if he be refused ; but upon the principles already mentioned, 
 this would not oust the court of chancery of its already acquired jurisdic- 
 tion. In the case of the Bank of Virginia vs. Ward, (6 Mun. 166,) we ac- 
 cordingly see a court of equity entertaining jurisdiction for the recovery of 
 a lost bank note, which stands upon the footing of a bill of exchange. 
 
 It was at one time seriously questioned whether jurisdiction in the case 
 of a lost bond should be exercised against a surety ; and, accordingly, in 
 the early cases, the courts refused to interfere. This arose from the maxim 
 already adverted to, that a court of equity never will bind a surety farther 
 than he is bound at law. This, indeed, is a principle of unquestioned 
 truth and equal justice, for nothing would be more iniquitous than to bind 
 one man for another, farther than he agreed expressly to be bound. But 
 the later cases leave no longer a doubt that equity will set up a lost bond, 
 even against a surety, although they recognize the principle that they will 
 not carry his liability farther than it is carried at law. 2 W. 136, 140. 1 
 Call, 418. 2H. &M. 128. 9 Vez. 464. 1 Ch. Ca. 77. " For the surety 
 is not discharged by the loss of the bond, but the court only relieves against 
 the accident by setting up the evidence of the debt." 1 W. 140. See 
 Francis' Maxims, 72. 1 Fon. 37. 
 
 I have already mentioned the case of a suit to recover the amount of a 
 lost bank note. 6 Mun. 166.t 4 Ran. 186. In that case the suitor had 
 remitted half of the note by mail, retaining the other half. Some delusions 
 and differences of opinion had prevailed, as to cases of this character ; the 
 banks supposing that they were only bound to pay one half of the amount 
 of the note, if only the half was presented, retaining tlie residue to meet 
 
 • See 2 Camp. 211. 6 Esp. Rep. 152. Chitty ou Bills, 152. Hesajs relief isonly given when llic 
 bill isiiegotialjle. 
 
 tThis was a case in equity. The liolJer of one half could not, il is saiil, recover at law, lor there 
 in.leinuity cannot be provided. 3 Cainp. 324. Chitly on Bills, 153. Yet ace 16 Vez. 4'JO ; bul in lliat 
 case the liote was nut negotiable.
 
 400 OF EQUITY. [ nooK 3. 
 
 the other half when it slionld make its appearance. On the other hand, 
 it has been decided in Pennsylvania and South Carolina, that they were 
 bound to pay the whole amount without indemnity : but the case of the 
 JBank against Ward, above cited, has settled the principle to be, that the 
 holder of the half note must prove himself entitled to the property in the 
 note : that he is then entitled to recover the full amount but upon the terms 
 of giving indemnity. This is in perfect harmony with equitable principles. 
 
 The relief afforded in cases of lost securities for money, is equally ex- 
 tended to those of other lost instruments ; as where a rent charge is reserv- 
 ed by deed, and the deed is lost, a court of equity will interfere. 2 Atk. 
 61. In like manner suppressed deeds are set up in equity, but as they re- 
 fer themselves more properly to the head of fraud, they will not be dilated 
 on here. 
 
 When a bill is filed in equity to set up a lost bond or other instrument, 
 the general rule is, that it must be accompanied with an affidavit of the loss ; 
 1 Mad. 21. 1 Vern, 247, 310; for this was not only necessary to lay the 
 foundation of the jurisdiction, but is properly required to justify the intro- 
 duction of the secondary evidence of parol proof of its contents. A dis- 
 tinction, however, has been made between those cases where a discovery 
 only is sought, and those where relief, as well as a discovery, is the object 
 of the bill. To the former no affidavit is necessary : for as the complainant 
 is obliged by the general rule to pay the costs of a bill of discovery, it can 
 scarcely be supposed he would bring a bill of discovery only, if the instru- 
 ment were not really lost: the affidavit is therefore dispensed with ; but 
 where relief is prayed, the affidavit is indispensable, and without it the bill 
 would be subject to demurrer. See 1 Mad. 23. 
 
 Besides the case of lost bonds, there are, however, innumerable accidents 
 against which equity relieves. Without pretending to go into detail on 
 this fruitful subject, I shall mention a few instances by way of illustration. 
 Such is that of the lease of a colliery, where the mine became not worth 
 working, and the tenant was bound to pay so much per wey, he was reliev- 
 ed against the future rent and the covenant to work the mine, upon paying 
 for all the coals that could be got. 2 Br. C. C. 311. On like principles 
 depend many cases of apportionment. As where a master died soon after 
 he received his apprentice fee, (1 Mad. 39. Sed vide 1 Fon. 363,) or a 
 slave soon after he was hired, (2 H. & M. 5,) those accidenti were made 
 the grounds of equitable apportionment. We must not forget, however, 
 that where the property is destroyed even by the act of God, the tenant 
 must pay the rent according to his covenants, and that if he has expressly 
 covenanted to repair, he is bound by that covenant, although the subject of. 
 the lease (as a mill) has been swept away by a flood. See Book 2. 
 
 To the head of accidents authors refer the relief which is given in cases 
 of quit rents, where from length of time the remedy at law is lost or is be- 
 come very difficult. This relief is afforded upon the foundation only of 
 payment of the rent for a long time, whence a bill for such relief is said to 
 be founded upon the solet. I Mad. 25. See 1 Fon. 144. Indeed, that 
 the rent has been for a long time customarily paid, would seem to be es- 
 sential in such cases to the right of the party ; for where there has been 
 KO such payment of rent, a length of time sufficiently great is held in such 
 cases to raise the presumption that it has been extinguished. 4 John. 494. 
 
 In connexion with this subject of rents may be mentioned that of confu- 
 sion of boundaries, so that the landlord knows not on that account how to 
 distrain. 1 Vez. 172. So, too, if the corner trees and reputed boundaries 
 of lands between two tenants of the same landlord were lost, this remedy 
 would lie, I presume, to ascertain them. See I Mad. 26.
 
 CHAi>. 2i.] OF EQUITY. 401 
 
 To this branch of equitable jurisdiction are referred those various cases 
 where a vested estate is defeated by some accident which the party could 
 not prevent. Such cases, indeed, are equally referrible to the head of re- 
 lief against penalties and forfeitures, but may also be as U'ell considered 
 here. It is proper, then, to remark, that a marked distinction exists be- 
 tween vested estates which are defeated by an accident, and cases of con- 
 ditional limitation where no estate has ever yet vested. " Precedent con- 
 ditions must be literally performed, and a court of equity never will vest an 
 estate where by reason of a condition precedent it will not vest at law." 
 But it is otherwise with conditions subsequent which are to divest an estate, 
 for when the court can in any case compensate the party in damages for 
 the '-non precise performance " of the condition, there it is just and equi- 
 table to relieve, " and particularly if the failure was the result of accident;" 
 as if a man's estate be upon condition to pay money at a certain day, and 
 he fails in payment ; yet equity will relieve against the forfeiture upon pay- 
 ment of the money. 1 Vern. 63. But even in cases of conditions sub- 
 sequent, " where the party cannot be compensated in damages, it would be 
 against conscience to relieve ; as where a daughter married without such 
 consent as the condition required, the non-performance of that condition 
 could not be compensated, and relief could not be given." Ibid. 2 John. 
 C. C. 526. Equity, however, will in no ease aid to divest an estate for 
 breach of a condition subsequent. 4 John. 415. 
 
 In like manner, when the forfeiture may be considered as a limitation of 
 the estate, or as determining it, equity will not relieve ; as where in England 
 a tenant for life creates a greater estate than his own which works a forfeit- 
 ure, though it in effect does no injury to the remainderman. 1 Mad. 37. 2 
 John. 526. So, too, when a lease is made to hold so long as the tenant 
 shall not commit waste. 
 
 Moreover, though equity will " in many cases relieve to prevent the divest- 
 ing of an estate, it cannot relieve to give an estate that never vested, un- 
 less the remainderman has prevented the performance of the condition." 
 "Where, therefore, there is a conditional limitation over on a certain event, in 
 such case (unless the condition be for payment of a certain sum of money, 
 or be such as that the court can put the party in the same situation as if the 
 condition had been performed^ and it is not contained in a voluntary settle^ 
 ment,)the breach of the condition cannot be relieved. As in case of a de- 
 vise to A with remainder over, if A fails to execute a certain release; this 
 is a conditional limitation, and the failure not relievable. 1 Mad. 35. 14 
 Vez. 341. 
 
 We shall have occasion more particularly to treat of this matter when we' 
 come to the head of penalties and forfeitures. '' 
 
 To this head we find referred by some authors, the doctrines of presump- 
 tions from length of time, either in favor of an uninterrupted possession, or 
 against a stale demand. For these presumptions are all founded upon the 
 supposed possible loss of evidence by the destruction of papers or the death 
 of witnesses. They are recognized, indeed, in courts of law as well as in 
 courts of equity ; for in both, even a grant will be presumed after a great 
 length of time, accompanied by uninterrupted possession or enjoyment of 
 a right or easement ; and so under like circumstances may livery of seisin, 
 or a surrender, be presumed in either court in support of an ancient pos- 
 session. See 1 Mad. 25. Phil. Ev. 123, &c. 2 H. & M. 370. Cowper, 
 102. 3 T. R. 151, 158. So an agreement for a lease will be presumed after 
 long possession and payment of rent. 4 John. C. C. 1. 12 Vez. 25.2, 269. 
 2 Vern. 516. I Eden's Rep. 296. 
 
 Our own books afford some striking instances of relief afforded against 
 accidents. Thus where an executor confessed judgment under the belief 
 VOL. 2 — 51
 
 402 MISTAKES^ [book 3: 
 
 that the assets were adequate to the discharge of the debts, but by an unex- 
 pected depreciation they proved otlierwise, whereby he became at law per- 
 sonally liable, equity relieved. 1 Ran. 438. The like decision would have 
 been made had the assets been destroyed by inevitable accident, as by 
 fire. 2 Free. 1, cited 1 Mad. 40. So if the assets were recovered by a pa- 
 ramount title, of which he was not before informed. 1 Rand. 421. So 
 where the executor had recovered a mortgage debt, and paid it out to the 
 creditors. Afterwards, on proof that the mortgage had been previously 
 paid, he was compelled to refund to the mortgagor, and had liberty to sue 
 the creditors to make them refund. 1 Wms. 354. 
 
 In like manner, though he who has failed to caveat could not go into 
 equity for the same cause until the late act of assembly, yet if he was pre- 
 vented by fraud or accident from filing his caveat, equity would relieve him. 
 See 4 Mun. 155. 1 Rand. 114. 1 Mun. 193. So ignorance of the claim 
 of his opponent is deemed sufficient ground of jurisdiction ; 4 Mun. 176; 
 and it is there said that the party is not to be called upon to prove this ig- 
 norance, (for it is in the nature of a negative,) but that his suggestion of it 
 v.'ill suffice until it be disproved. Sed vide, Id. 179, and 5 John. 553, and 
 6 John. 683. 
 
 But while the general principle is to relieve against accidents, there are 
 many cases were such relief is refused, if there has been any laches. As 
 where in a lease for lives the tenant has by his lease a right of renewal for 
 other lives, if he applies for the renewal before the first life expires ; his fail- 
 ure to do so, unless it arises from fraud or accident, (1 Mad. 34,) will not 
 be relieved against. I Fonb. 425. 1 Vez. jr. 470. 3 Br. C. C. 529. 
 3 Vez. 295. The prevalence of this principle will be hereafter seen when, 
 we treat of applications for new trial on the ground of accident or surprise. 
 
 In a case where during the suspension of specie circulation, payment of 
 rent was tendered in bank notes and refused through pique, yet it was de- 
 cided that this state of the currency was not such an accident as could bo 
 relieved against, for to relieve in such case would be to assume legislative 
 authority. 1 Mad. 30. 
 
 To this head of accident might properly be referred the numerous appli- 
 cations to courts of equity for relief by injunction, where by accident or 
 surprise a judgment at law has been obtained against the party ; but the im- 
 portance of this topic, and its intimate connexion with others, renders it 
 more advisable to treat of the whole under the distinct head of injunctions. 
 We now, therefore, pass on to the jurisdiction of equity in cases of mistake. 
 
 II. OF "MISTAKES." 
 
 Mistakes may be considered in reference either to matters of law or mat- 
 ters of fact. 
 
 1. Mistakes in matters of law, it is generally said, furnish no ground oi' 
 relief, (1 Mad. 60. 1 Fonb. 108. 2 John. 60. 6 John. 170,) since every 
 man is presumed to be conusant of the law, and since, indeed, an avowal 
 of ignorance is so easy to be made, and so difficult to be disproved. Thus 
 where an obligee released to one of two obligors, not knowing that the re- 
 lease would enure to the discharge of the other, equity refiised to interfere. 
 1 Mad. 60. 1 Fonb. 108. See, also, 2 Vern. 243. 1 Br. C. C. 92. 2 
 Leiffh, 29. It is upon a like principle that it has been decided that where 
 parties compromise their difl'erences under a mistaken impression of the 
 law, derived from generally received opinions, which are subsequently over- 
 ruled, and the law pronounced otherwise by a superior tribunal, the com- 
 promise will nevcrtholoss not be disturbed. 2 John. 60. Still less where 
 ,. parties eompromise their ^uit.<, will either be permitted afterwards to set
 
 CHAP. 21.] MISTAKES. 403 
 
 aside the compromise on the ground that the right of the case was un- 
 doubtedly on his side, for if this could be done, no valid compromise could 
 be entered into, as one or other party must be right, and one or other would 
 therefore, on this principle, always have a rio-ht to vacate it. 1 Vez. 444. 
 2 Ran. 442. 1 P. Wms. 727. 
 
 But notwithstanding the law is laid down thus generally, we see occa- 
 sional apparent deviations from the rule. Thus relief has been afforded 
 where a general delusion has prevailed on the subject of a point of law. G 
 Mun. 557. So the doctrine that a release to one shall enure to both, has 
 been questioned as strictly applying in a court of equity, which it is said 
 will not extend the operation of the release beyond the clear intention of 
 the parties and the justice of the case, but will construe it to relate to the 
 particular matter intended to be released. Kirkby vs. Taylor, 6 John. C. 
 R. 242. 
 
 We shall see, too, when we examine the subject of applications for new 
 trial on the ground of mistake, that the courts have not always harshly re- 
 fused relief; but in these cases it will be observed that the mistake is mere- 
 ly in the remedy, and not in the contract : and although it would open a 
 door to frauds if parties were permitted so readily to impugn their contracts 
 on the ground of a mistake in the law, yet there seems to be less objection 
 to giving relief to a party whose own ignorance or that of his counsel has 
 led to an error in the mode of prosecuting his rights, or in defending them 
 against another. See 4 Mun. C8. 
 
 2. Mistake as to matters of /acris a very ordinary ground of equitable 
 jurisdiction. Thus, 
 
 Mistakes in instruments of conveyance are often the subject of relief; for 
 equity will aid defective conveyances where they are made on good or va- 
 luable consideration, and will supply the want of livery or of a surrender. 
 
 1 Mad. 41, 42, 43. So it will relieve against defects in the execution of a 
 power; Ibid, 44 ; and if there be a plain mistake in a contract in writing, 
 and it is clearly proved to have been written contrary to the intention of the 
 parties, the mistake will be rectified. The proof, indeed, may be by parol ; 
 
 2 John. C. Ca. 585. 1 Wash. 14 ; but it must be clear and satisfactory. 
 2 John. C, C. 274, 585, G.32. Or, as others have said, it must be strong, 
 .irrefragible evidence. 1 Br. 341, -344. 3 Br. 454. See also 2 Call, 5. 2 
 Mun. 187. 6 Mun. 4-39. So, too, a mistake in one writing may be cor- 
 rected by another. 3 H. & M. 144. But where deeds have been execut- 
 ed to establish the peace of families, or there has been a purchaser for valu- 
 able consideration in confidence of the arrangement, no relief will be given 
 though the party may have acted under a mistaken apprehension of his 
 rights. 1 Mad. G2. 
 
 On like principles, marriage settlements of real or personal estate will 
 be reformed if the settlement be not according to the articles upon which 
 it is founded ; or even though it follow the words of the articles, yet if the 
 obvious general intention of the parties will be defeated thereby, equity will 
 rectify it so as to further that intention. 1 Mad. 50. The general princi- 
 ple upon which this interposition takes place, and even the articles them- 
 selves are rectified by directing a strict settlement, is that they are only 
 heads or short notes of the agreement, intended to be drawn out at length 
 according to the usual course of such settlements, and that a provision for 
 the issue of the marriage is usually the great and immediate object in view ; 
 which object would be defeated by leaving the power of disposition in the 
 parents. In all such cases the issue are looked upon in the favorable light 
 of purchasers. 3 H. & M. 399. 1 Sch. &.Lefroy, 87. 1 Wash. 47. 
 
 On this subject, however, a distinction is to be observed between those 
 cases where the settlement is not executed until after the marriage, the ar-
 
 404 MISTAKES. [ BOOK 3 
 
 tides havinfT been made before, — and those in which ihe settlement as well 
 as the articles are executed before marriage. For in the latter case it will 
 be presumed (unless the settlement is expressly declared to be made in 
 pursuance of the articles) that the parties had changed their intention, 
 which they may do before, but cannot after marriage. 1 Mad. 52. 1 Ran. 
 
 Among the instances of remedy against mistakes in deeds and convey- 
 ances, may be jjlaced those cases in which applications have been made by 
 the vendors and vendees of land to have an equitable allowance for excess 
 or deficiency in the estimated quantity of a tract of land conveyed. Thus 
 if A sells a tract to B, which is described or supposed to contain one hun- 
 dred acres, and it turns out that there is either an excess or deficiency of 
 fifty acres, the vendor in the first case, and the purchaser in the last, would 
 seem entitled to some allowance for the difference. In Virginia, where 
 early surveys have been very inaccurate, this question has frequently occur- 
 ed. It seems to have been at one time supposed that the use of the terms 
 " more or less" — as "one hundred acres of land, be the same more or 
 less," would exclude either party from relief for excess or deficiency. But 
 the first case on the subject negatived this fallacy, and decided that although 
 those words in case of a sale in gross, cover any deficiency, however great, 
 (see 2 Rand. 61,) yet they do not preclude an inquiry into the real nature 
 of the contract ; that in all cases of contracts for the sale of lands by a spe- 
 cific number of acres, the parties are entitled respectively to compensation 
 for deficiency or excess in that quantity beyond what may be reasonably im- 
 puted to small errors from variation of instruments, or otherwise. But that 
 where the contract is to sell a tract for so much as it may contain, whether 
 it be a greater or smaller number of acres than that at which it is estimat- 
 ed, the purchaser takes the risk of gain or loss by deficiency or excess 
 in the number of acres contemplated ; and neither can resort to the other 
 for compensation on the ground of either event. 1 Call, 301. 4 Mun. 
 332. To express the rule shortly, -^vvhere the purchase is in gross, no 
 compensation is allowed for deficiency or excess ; where it is by the acre, 
 such compensation may be allowed. In the first case the parties both in- 
 cur the risk ; — it is a contract of hazard which is not unlawful, and by 
 which they must abide, or there would be no hazard. In the latter case 
 they eschew the hazard, and if there be a mistake in quantity it ought to 
 be rectified. See 2 Randolph, 51, 67, where all the cases on this subject 
 are reviewed. See also Gilmer, 159. 
 
 It is true that circumstances may sometimes vary the application of the 
 rule established by these cases, but the rule itself is now incontrovertible. 
 If, for instance, a sale be made even in gross, and the deficiency occurs by 
 reason of an error in the boundaries, the buyer is entitled to relief because 
 he docs not get the specific thing he contracted for. See Hull vs. Cun- 
 ningliam, cited and commented on 2 Rand. 52. If the vendor knowingly 
 makes a false representation of the quantity, or his own title papers call for 
 only one hutidrcd acres, and he sells the tract as containing by estiniation 
 one hundred and fifty, more or less, this is a fraud ; and whether the con- 
 tract be construed to be in gross or not. the deficiency must be accounted 
 for. 2 H. & M. 161, 173. 2 Mun. 179, 290. On the other hand, if the 
 purchai'cr doe? agroo to pay by the acre, yet if he agree to take it by the 
 patent or surrey already wade, ns fixing the number of acres, he thereby 
 makes it a contract of risk, ;ind must abide any deficiency. 6 Mun. 188. 
 Before quitting this .sui>j(;ct it may be proper to observe, that the measure 
 of compcnpaiioii pr;r nrrc for excess or deficiency iu these cases, is the con- 
 met price of ihf> land. 2 H. ^ M. 164. 1 Mun. 493, 63. 5 Mun. 342. 
 .See as to cviciion*, 3 Call. :]?JJ. 5 Mun. 415. 1 H. & M. 202. 2 Rand. 13^-J.
 
 CHAP. 21.] MISTAKES. 405 
 
 Mistakes in (he contract itself are oftentimes grounds of relief in equity ; 
 see 13 Vez. 427; and wlu-re the nature of the case requires, the contracts 
 will be set aside. As where the vendee is ignorant of his rigiits ; 1 P.Wnis. 
 239. 2 Br. C. C. 150 ; or where a distributee sohJ h(^r t^hare of an estate, 
 under a great misapprehension of its value ; 1 Vez. 4U0 ; or where A bought 
 his own land of B by mistake ; 1 Vez. 126; or a niorlgagor by mi.stako 
 paid off the mortgage a second time; 1 P. Wms. 351 ; or where a party 
 paid money by mistake, though neither fraud nor discovery were alleged as 
 ground of jurisdiction : in all these cases relief was given. The rescission 
 must be in toto; there can be no partial rescission. 3 Leigh, 113. It is 
 laid down, indeed, that where both parties are mistaken, and ihe fact in its 
 nature doubtful and equally unknown to both, equity will not relieve. As 
 where there was a sale of land lor £20, which proved to be worth £200, yet 
 as neither party knew its value, equity would not relieve. 1 Mad. 03. Yet 
 this decision rests rather upo« its being matter of opinion and judgment, and 
 a fair subject of specula-tion and risk, than upon the circumstance that both 
 parties were ignorant : for the circumstance of both parties having been mis- 
 taken seems in other cases to have been an essential ground of relief. 3 
 Vez. 427. Thus, where there was a misunderstandiiig between the parties, 
 a specific performance ought not to be decreed. 5 Mun. 185, 187. And 
 where both parties were mistaken as to the situation and other circumstnnces 
 materially affecting the value of land, (6 Mun. 283. 1 Vez. jr. 210,^ or there 
 was a mistake in relation to the existence of an important fact, of which 
 both parties were ignorant, (6 Mun. 2SG. 2 Rand. ()(},) relief was afford- 
 ed. 3 Leigh, 113. Nothing, therefore, is more clear than that mistake is a 
 ground of relief: " but it must be a plain mistake, and one which affects, 
 in an important degree, the subject-matter of the contract." G Mun. 297. 
 See also New. 432. 2 Pow. on Con. 196. Pothieron Oblig. 14. 1 Call, 
 316, 317. Where, indeed, there is a hidden but certain advantage, which 
 is known to the buyer but not to the seller, and there is any obligation on 
 him to make the discovery, (as if he were agent or trustee,) this might be 
 sufficient to avoid the contract; for it would not amount only to mistake on 
 one side, but to fraud on the other. But if there was no such obligation it 
 would seem to be otherwise. " I do not agree," says Lord Thurlow, " with 
 those who say, that where an advantage has been taken in a contract which 
 a man of delicacy would not have taken, it must be set aside. Suppose that 
 A knows there is a mine on the estate of B, of which B in ignorant, and 
 buys the estate. Would the court set the contract aside?" He answers 
 in the negative, because the buyer was not obliged to make the discovery. 
 To set aside the transaction there must be such obligation. "The court 
 will not correct a contract merely because a man of nice honor would not 
 have entered into it. It must fall witliin some definition of fraud. The rule 
 must be drawn so as not to affect the general transactions of mankind." 2 
 Br. C. C. 420. But where a person acquires the knowledge of this hidden 
 advantage as trustee, agent, or servant of another, and conceals the know- 
 ledge so gained from that other, he may have the hands of a court of justice 
 laid upon him as for a fraud. Ibid. 424. In 1 Call, 328, Judge Pendleton 
 puts the case, from Tully's Offices, of a vessel going into Rhodes in time of 
 scarcity, laden with grain, and knowing there were others pressing sail for 
 the same port. He asks whether the captain was bound to disclose this 
 fact, or was authorized to conceal it and to avail himself of the enhanced 
 price the concealment would secure to him. He decides like Lord Thur- 
 low, that whatever might be the dictates of a scrupulous honor, there was 
 HO legal obligation to make the discovery, nor were the contracts tainted 
 with fraud which were made under this suppression of a fact well known to
 
 406 ■RIISTAKES. I iiooK 3. 
 
 one of the contracting parties. This subject, hov/ever, more particularly 
 refers itself to the head of fraud. 
 
 It will be proper now to add here a few cases of mistake which do not 
 fall under the foregoing heads. Such as mistakes in delivering up a deed; 
 9 Vez. 275 ; mistaken acknowledgments of boundary ; 1 Hand. 403. 3 
 Hand. 14 ; and the omission to have a deed recorded within the time re- 
 quired by law. In the first of these cases relief would be given against the 
 mistake : in the second the mistaken acknowledgment would not be per- 
 n)itted to prejudice : and in the third a decree for a new deed that might be 
 duly recorded, would be made. This indeed would not now be necessary, 
 provided the deed was so attested as to admit of being proved and record- 
 ed ; for (as the law now stands) whenever recorded its ethcacy commences. 
 
 Mistakes in wills are frequently relieved against in equity. 
 
 " As where there was a mistake in a statement in the will, and the mis- 
 take was clear, and the intention plain, the court rectified the mistake ac- 
 cording to the intention. Bat in all these cases, the mistake must appear 
 on the face of the will, otherv/ise no relief will be given. Evidence as to 
 Blatter dehors the will to show the mistake is not sufficient. The mistake 
 ■inust be a clear, demonstrable mistake ; and wherever there is a clear mis- 
 take, or a clear omission, recourse is to be had to the general scope of the 
 ■will, and the general intention is to be collected from it ; but the first thing 
 .to be proved is, that there is a mistake. 
 
 " Where a testator by his will gives legacies to A and B, describing thera 
 as grandchildren of C, and their residence in America, and by a codicil he 
 revoked these legacies, giving as a reason that the legatees were dead; but 
 that not being true, it was held that the will was not revoked, and that they 
 were entitled to the legacies, upon proof of identity. 
 
 "So, where the residue of three per cent, annuities was given to • the 
 itwo daughters of A,' and A had three daughters: they all, on the ground 
 of mistake, were decreed to take equal shares. 
 
 " And where a specific sum was given as a residue and miscaZcuZaief?, the 
 .real residue was allowed to pass. 
 
 " A mistake in the name of a legatee, may be corrected in favor of the 
 legatee by articles of description, sutliciently pointing out the person in- 
 tended to take, and this, though both the chrisiian and surname be mista- 
 ken. So, in the case of a legacy, parol evidence is admissible to explain 
 a nick-name, or where there are two persons of the same name, but not to 
 fill up a blank in a will. In cases where evidence is admitted and operates, 
 it must be conclusive to have efiect: if it affords only a high degree of pro- 
 bability it is insufficient. 
 
 " Where a will is cancelled by mistake, or on a presumption that a latter 
 will is good, which proves void, this will not let in the heir, but is relieva- 
 ble in equity." 1 Mad. GG, 67, 68. 
 
 Mistakes of arbitrators are also subjects of equitable cognizance, but 
 have been sufliciently spoken of under the head of arbitrament and award. 
 
 Notwithstanding the ready assistance afforded by equity in relieving 
 against mistakes, and though it aid defective executions of powers, and sup- 
 plies the want of livery and other ceremonies, yet it never can remedy the 
 omission of any formality in conveyances which are required by act of par- 
 liament in England, or of the assembly here. Hence I have ahvays been 
 of opinion that if the privy examination of a feme covert is essentially de- 
 fective, it is not in the power of a court of equity to remedy the defect; 
 and such I understand to have been the decision of the court of appeals in 
 the case of Hardy vs. Preston, which is not reported, but in which I was 
 of counsel. See 13 Vez. 5^6. See, also, 3 Br. 571.
 
 CHAP. 21.] PENALTIES AND FORFEITURES. 407 
 
 III. OF "PENALTIES AND FORFEITURES." 
 
 The relief against penalties and lorfeitures is a favorite branch of equita- 
 ble jurisdiction, and was probably among the earliest exercises of it. The 
 simplest instance is afforded in the case of a bond in a penalty; c. g. in 
 the penalty, of one hundred pounds, conditioned for the payment of fifty 
 pounds at a certain day. By the common law, if default be made in the 
 payment even for a single day, the creditor would have a right to demand 
 and receive the full penalty of one hundred pounds. But courts of equity 
 considering the real object of the penalty to be the securing the payment of 
 what was justly due, and regarding it as liard and unjust that the penalty 
 should be exacted, interfere by injunction, relieve against the penalty, and 
 compel the creditor to accept his principal and interest in full of his bond. 
 So with a mortgage ; after the day of payment is past, the estate of the 
 mortgagee was absolute : but equity looking on the mortgage in its true 
 light, only as a security for money, and reprobating the injustice of a poor 
 debtor forfeiting a valuable estate forever, because he had failed to pay his 
 debt at the stipulated moment, relieved against this forfeiture by the crea- 
 tion of what is called an Equity of Redemption; according to the prin- 
 ciples of which, the creditor is compelled to surrender the land and re- 
 lease his title to it, upon receiving his principal and interest and costs. 
 This doctrine gradually extended itself to other cases ; such as that of a- 
 tenant who forfeited his lease for non-payment of his rent, (1 Mad. 31,) 
 and the great variety of cases where penalties are inserted in bonds or con- 
 tracts merely to secure the enjoyment of a collateral object. In all these 
 cases equity pursues its favorite maxim, "that it regards the substance and 
 not the form of things," and considers the enjoyment of the object as the 
 principal intent of the deed, and the penalty only as accessorial, and de- 
 signed to secure the damage really incurred. In these cases, therefore, if 
 the penalty is sued for at law, an injunction will be granted, and an issue 
 quantum damnificatus directed. 1 Br. C. C. 418. 2 Br. C. C. 341. 
 
 Covenants also are by courts of law required to be strictly and literally 
 performed : but in equity a substantial performance according to the real 
 intent of the parties, so far as circumstances admit, will suffice : and if by 
 unavoidable accident, fraud, surprise, or real ignorance, the party has been 
 prevented from a literal execution, relief will be given upon compensation 
 being made. 1 Mad. 29. This principle generally prevails as to payment 
 of money ; for the failure to pay is always capable of being compensated 
 by a decree for principal and interest, nor is it allowed to the creditor ta 
 object that if the money had been punctually paid, he would have made a 
 great advantage by it ; for in all such cases the interest of the money is the 
 measure of compensation ; and "not the profit," says Judge Pendleton, 
 " which might be made by speculation in a basket of earthenware, or other- 
 wise." 2 Call, 431, 4-33.* It is true that the time of payment may be of 
 the essence of the contract, and lohen it is the party cannot avail himself of 
 equitable circumstances unless he shews that there has been no wilful ne- 
 glect or misconduct on his part. 3 Br. G92, cited 1 Mad. 30. But unless 
 the time of payment be of the essence of the contract, the failure to pay 
 will not debar the party of relief; though, as we shall see under the head 
 of specific performance, unreasonable delay may exclude him from the right 
 to enforce his contract thus broken in a material point. I shall here only 
 refer to the following authorities : 1 Mad. 326. 13 Vez, 226, 228. 4 Vez. 
 497, 686. 5 Vez. 736. 7 Vez. 202. 12 Vez. 326. 19 Vez. 220. 4 
 John. 559. 1 Fonb. 424, &c. 
 
 • Sed vide 13 Vez. 434. In cases of public couipniiiep, and often belwecii iiuIiviJuaLs b^iv s sir \\ . 
 Gr;i!jt, imeieet is not adequate com[iensatioi».
 
 408 PENALTIES AND FORFEITURES. [ book 3. 
 
 It is said that if money be lent at 4 per cent., but if not punctually paid 
 then to pay 5 per cent., this is a penalty, and equity will relieve. But if 
 interest is reserved at 5 per cent., and the creditor agrees to accept 4 per 
 cent, if the money be duly paid, this is no penahy, and the court will not 
 relieve if the party loses the advantage by failing to pay punctually. 1 Mad. 
 28. In like manner, when a bond provided for payment of money at a fu- 
 ture day, with interest from the date if not punctually paid, the back inte- 
 rest was considered as a penalty and relieved against. 6 Mun. 71. Gil. 
 172. So where a future day of payment is fixed for the principal but the 
 interest is payable annually, astipulation that on failure to pay the interest, 
 the principal shall be considered due, is in the nature of a penalty and the 
 subject of relief 5 Mun. 495. It would seem, too, that where a debt was 
 payable at a future time, that is the time at which the interest shall run, un- 
 less the contrary be expressly provided. 1 H. Sc M. 211. The ground of 
 relief in all these cases is the forfeiture or penalty : — the compelling the 
 debtor in case of default to pay more or sooner than he owed. For where, 
 on the other hand, the creditor gives up a part of his rights, either as to 
 quantum or time of payment, upon condition of punctuality, the debtor 
 cannot have relief in default of punctuality. See 10 Vez. 372. 
 
 But though equity relieves against forfeitures, " that relief is only dis- 
 pensed in those cases in which ths court can do it with safety to the other 
 party, for it seems if it cannot put him into as good a condition as if the 
 agreement had been performed, it will not relieve." It therefore only re- 
 lieves where the thing to be done admits of being done afterwards, of a 
 compensation can be made for it ; and unless a full compensation can be 
 made, it will not interfere. 2 John. 526. 12 Vez. 29J. Thus if by the 
 terms of a lease, it is to be forfeited in case the tenant aliens or assigns 
 without license, equity will not relieve him if he does alien or assign con- 
 trary to this condition : for it is impossible to fix any measure of damages; 
 and, indeed, the very provision is introduced to prevent a tenant being forc- 
 ed upon the landlord against his will, or in other words, to secure to him 
 the right to choose his own tenant. I Mad. 30. A sale, however, of the 
 lease, as a chattel, for payment of debts under execution-, would be no for- 
 feiture. See 2 T. R. 133, 425. 1 Ch. Ca. 170. 1 Mad. 31. 
 
 Indeed, though equity does relieve against a breach of covenant, it i3 
 confessedly a very delicate subject of jurisdiction, and has been termed a 
 dangerous one. It has, however, been repeatedly ejiercised in behalf of 
 tenants who have forfeited their leases by non-payment of rent; see 1 Mad. 
 31, quoting numerous authorities; and has even been exerted against a 
 forfeiture and right of re-entry upon a tenant, for not laying out, according 
 to covenar^t, a specific sum in repairs in a given time. 12 Vez. 282. But 
 Lord Eldon seems not to have concurred in the propriety of such relief, 
 except in cases of accident and surprise. I6Vez.406. 18 Vez. 62. And, 
 indeed, it is clear that if the tenant's misconduct has been gross and ruin- 
 ous, or wilful and voluntary, he will be remediless. 16 Vez. 404. 18 Vez. 
 62. 3 H. &. M. 436. So, where he has failed to comply with covenants foF 
 improvements, such as building, clearing, planting orchards, and the like, 
 he will not be countenanced by a court of equity, except where complete 
 compensation can be m-^de and is made. It may be proper, too, to remark, 
 that these doctrines apply with great force to leases for lives. In leases 
 for years, if the covenants have not been performed, and the term yet to 
 come is very long, (e. g. ninety-nine years,) there is less reason for strict- 
 ness with the tenant: for his performance is less important to his landlord 
 than to himsQlf, and ample time is afibrded for making amends for the de- 
 ficiency. But in leases for lives it is the landlord's interest thai his farm 
 should always brj in the stipulated slate of improvement, since the lease
 
 CHAP. 2L ] ACCOUNTS. 409 
 
 may possibly terminate very suddenly; and if the improvements are not 
 made, he encounters difficulty and sustains loss in getting another tenant. 
 This is adverted to very justly by Judge Roano, in the case from 3 H. & M. 
 430. In such a case, too, it is impossible that the tenant who lias not 
 planted an orchard (for instance) which requires much time to bring it to 
 maturity, can make compensation by specific performance, nor can the 
 failure be fairly estimated in damages. Still more where the wrong done 
 is wilful and destructive of the inheritance, as where the tenant wastes and 
 destroys the timber or houses, or uses them for a purpose against which he 
 expressly covenanted ; 18 Vcz. 188 ; for in all these cases his own conduct 
 is so marked by " iniquity that he will be denied the aid of equity." 
 
 The exercise of this jurisdiction is also refused where a person covenant- 
 ed to do or not to do a particular act, agrees to pay a certain sum by way 
 of liquidated, ascertained, or agreed damages. 1 Mad. 33. 2 Alk. 194. 
 6 Br. P. C. 417, 470. 6 Vez. 818. For the sum so fixed upon is not re- 
 garded as a penalty, but as an estimate made by the parties themselves of 
 the injury that one will receive if the covenant be broken by the other. 
 See 2 Evans' Pothier, 86, &c. a suggestion as to the proper form of a con- 
 tract where the sum fixed is intended as and for stipulated damages. 
 
 Lastly, it has been said that equity never interferes to relieve against le- 
 gislative penalties ; as where in an incorporation it is provided that a party 
 shall forfeit his share or shares, if he fails to pay up his quotas after notice. 
 See 1 Mad. 38. For this principle he cites a case without the name of the 
 reporter. The case cited is reported in 13 Vez. 4'2S, and the court refused 
 to interfere upon the ground that in such transactions it is essential that the 
 company should have the power of imposing and enforcing the strictest 
 regulations, and that the greatest pains should be taken by the members of 
 the company to inform themselves of its concerns- otherwise all such com- 
 panies would be ruined by suits without number with their own members. 
 
 The subject of distinction between cases of conditions precedent and 
 conditions subsequent, has been already cursorily treated under the head of 
 accident. 
 
 IV. OF "ACCOUNTS." 
 
 The jurisdiction of equity in matters of account is among the most com-i 
 prehensive of those which it has assumed. Yet we are not to presume thafi 
 in every case of account a court of chancery has jurisdiction : for though 
 I run up an account at a store, my merchant cannot as a matter of course 
 sue me before that tribunal : to entitle him to proceed there, he must shew 
 some other ground of interference, such as fraud- — the necessity of discov- 
 ery — complication in the accounts, or such like. 9 Vez. 473. " It is not, 
 indeed," says Lord Erskine, " an objection to a bill for an account that in- 
 debitatus assumpsit will lie," for in many cases the jurisdiction of the courts 
 is herein concurrent. Nor is it true that an account may be decreed in 
 every case where an action of indtbitaius assumpsit lies; "but where the 
 subject cannot be so well investigated in that action, the court of chancery 
 exercises a sound discretion in decreeing an account. If it appears it could 
 not be tried without great difficulty, and the verdict could not, from the na- 
 ture of the case, be equally satisfactory with the proceedings under a de- 
 cree, an account will be decreed." Pursuing this decision, the principle of 
 interference may be assumed to be " either that courts of law cannot give a 
 remedy, or cannot give so complete a remedy as equity." 2 Rand. 452. 
 And this is doubtless the case even where there are not mutual demands, 
 notwithstanding the terms in which Lord Eldon and others have spoken of 
 this jurisdiction. "There must," says Lord Eldon, "be mutual demands 
 forming the ground of the bill. The case of dower and a steward are ex- 
 VOL. 2—52
 
 410 ACCOUNTS. [ BOOK 3. 
 
 ceptions. If the subject is matter of set off at law, and capable of proof, 
 a bill will not lie. There is hardly a case of set off in which a bill might 
 not be sustained if this may." 6 Vez. 1.36. "If," says chief baron Eyre, 
 " the subject of the bill be only one matter, it will not give jurisdiction ; but 
 where there has been a series of transactions on one side, and payments on 
 the other, I am not satisfied that it is not matter of account;" and chancel- 
 lor Kent remarks in echoing these authorities, that " to sustain a bill for an 
 account there must be mutual demands, and not merely payments by way of 
 set off. A single matter cannot be made the subject of an account. There 
 must be a series of transactions on one side and payments on the other." 
 2 John. 1G9. These cases are again collated and approved, 2 Ran. 451. 
 I have been thus particular in stating them to prevent misapprehension by 
 laying the decisions explicitly before you. They establish as a general rule, 
 1. That there must be mutual demands, and that a demand on one side, 
 and mere payments on the other, will not constitute mutual demands. 
 But, 2. Although there are not mutual demands, yet if there is fraud, or 
 no remedy at law, or only an incomplete remedy, equity will interfere, 
 though in such cases it exercises a sound discretion, and will not take ju- 
 risdiction upon light or frivolous pretexts. See 1 Wash. 145. I Sch. & 
 Lefroy, 309. 
 
 Notwithstanding these general principles, however, there are a variety of 
 cases, in which the jurisdiction is settled by their very nature, and does not 
 depend on the mutuality of the demands. Such as the complicated deal- 
 ings of a landlord and tenant ; 1 Sch. & Lef 309; the account of rents 
 and profits in cases of dower; G Vez. 136; (whence flows even the juris- 
 diction to assign the dower itself;) the accounts of a steward, " the nature 
 of whose dealing is that money is paid in confidence without vouchers, em- 
 bracing a great variety of accounts with tenants, and in which nine times 
 in ten it is impossible that justice can be done at law to the steward." 6 
 Vez. 136. And such, I conceive, is also the doctrine with respect to fac- 
 tors, executors, trustees, and the like, for the nature of these transactions 
 is either characterized by trust and confidence, or they are so generally com- 
 plicated and diflicult, and depend so much upon discovery, that the juris- 
 diction, I apprehend, is entertained whether the accounts eventually do or 
 do not fall within the description above mentioned. In like manner in the 
 case of partnership, equity has exclusive jurisdiction, for courts of law con- 
 sidering partners as but one person, will not' interfere between them. 3 
 Bos. & Pull. 289. Watson on Part. 77. So, too, in the case of the ac- 
 counts of profits of water works, iron works, and such like, equity lends a 
 ready ear, for though the parties' interest in them may be a legal estate, no 
 one proprietor receives the profits, but the officers of the company do so; 
 and where an estate is under such management it would be absurd to send' 
 the case to law. 3 Atk. 33S. So, too, a bill for an account of the proceeds- 
 of mines is readily entertained, (IP. Wms. 406,) for in the nature of the- 
 affair it must depend on discovery ; and in cases of elegit, as we have seen, 
 the debtor may go into equity uniler circumstances to adjust the account 
 of actual profits, which a court of law will not do. See book 2. 3 Atk. 
 517. 2 Atk. 362. 
 
 With respect to an account of rents and profits of estates which is order- 
 ed in equity, the rule appears to be that when a man brings his bill in equity 
 in respect of a trust against a person not affected with the trust, or upon a 
 mere equitable title, and recovers the estate, equity, by analogy to the op- 
 eration of the statute of limitations at law, will in general allow no more 
 than five years' mesne profits ; but in all cases of recoveries against trus- 
 tees or persons affected with a trust, and in" cases of bills against persons 
 who have entered on an infant's estate, (who are always considered as en-
 
 CHAP. 21.] ACCOUNTS. 411 
 
 tering as baliffs or guardians of the infant, 1 Mad. 74,) the account is not 
 confined to the time of five years by analogy to the statute. Under spe- 
 cial circumstances, too, the plaintiff is only allowed an account of rents 
 and profits from the time of filing the bill. As where the defendant had 
 no notice of the plaintiff's title : or the plaintiff has been guilty of laches 
 in not asserting his title sooner ; or has lain by and permitted the defendant 
 to proceed to take the profits as liis own. 1 Wash. 336. 1 Rand. 6. 
 
 Connected with this subject of rents and profits, is that of a claim for 
 permanent improvements. For if A recovers against B a tract of land, and 
 demands (hat B shall pay the rents and profits while he held it, B on his 
 part may set up a claim to an allowance for any permanent improvements 
 he has made upon the land. How far such claim is allowable it is proper 
 here to state. 
 
 At common law, he who intruded upon the land of another, and built and 
 improved it of his own mere motion, could recover nothing from the red 
 owner for the benefit thus conferred, for it was his own folly or wrong to 
 spend his own money in improving another man's land. On the other 
 hand, it is true at common law the real owner did not, in a writ of right, 
 recover damages, or the value of the rents and profits while the tenant held 
 the possession. But after damages were allowed by statute, so as to cover 
 the rents and profits, the tenant was allowed to recoup against them the va- 
 lue of the improvements put upon the estate by himself; for the difference 
 between the rents and profits on the one hand, and the benefits received 
 by improvements on the other, obviously constituted the real damages sus- 
 tained. But if the value of the improvements exceeded the rents and pro- 
 fits, he had no remedy for the excess, for it was his own folly to expend in 
 that way more than the value of the rents and profits. 2 Rand. 13, 141. 
 Sug. 525. The old case of Hite vs. Fairfax was decided on this ground. 
 And such seems at this day to be the general principle of the subject. To 
 this general principle, however, there are exceptions : for the same reason 
 which induces a court of equity to refuse to allow to a complainant the 
 rents and profits beyond the time of filing his bill, will induce it to allow 
 permanent improvements made by the defendant. " For a party in posses- 
 sion may claim such compensation if the owner is guilty of fraud in per- 
 mitting such improvements with full knowledge of his claim, and without 
 giving notice of it to the possessor, or is guilty of gross laches in asserting 
 his claim after he is apprised of it." 2 Rand. 14. 1 W. 336. 12 Vez. 
 85. 7 Vez. 231. And this claim, it seems, may be asserted not only where 
 the possessor is a defendant in equity, but it may be the foundation of a 
 bill for relief afier he has been ousted by ejectment. See 1 Rand. 58. 
 Sug. 526. Yet if, on the other hand, the possessor has acted fraudulently, 
 or wilfully proceeds to make improvements afier full notice of liis adversa- 
 ■ry's claim, and with a consciousness of the defect of his own, he debars 
 'himself of any relief in equity, and must set down under a loss occasioned 
 by his own folly. 1 Rand. 58. 2 Rand. 13. 2 John. 602. If the rule 
 were otherwise, then any man might take possession of anotlier's estate 
 and improve to any extent, and thus acquire real security for the value of 
 the improvements ; and it would certainly, as Lord Clare remarked, fully 
 justify a proposition once stated at the bar of the court of chancery in Ire- 
 land, " that it was a common equity to improve the right owner out of the 
 possession of his estate." Sug. 526. This seems to have been considered 
 the practical operation of what are commonly called the occupying claim- 
 ant laws of Kentucky, which were accordingly pronounced invalid by the 
 supreme court of the United States, and have formed the subject of much 
 interesting and animated discussions between the commonwealth of Vir- 
 ginia and the state of Kentucky.
 
 412 ACCOUNTS. [liooK 3. 
 
 But though, as wo iiave seen, a court of equity gives relief in matters of 
 account, vet very serious obstacles are opposed to ihat relief, where the ac- 
 counts iiave been once seltled and adjusted, or where they have been of 
 Ion'' standing. This brings us to the subjects of stated accounts and the 
 statute of limitations. 
 
 We have elsewhere touched upon the character of stated accounts, and 
 upon the question what are considered as such. But it is material to add 
 here, that where fraud appears in a stated account, the whole will be open- 
 ed, though of a groat many years' standing ; 2 Atk. 119; and even an ac- 
 count sculed by arbitrators is not conclusive if there is a plain error to be 
 pointed out. 3 Atk. ooO. Yet such is the weight attributed, and justly 
 attributed, to settled accounts, that the court always retjuires a specification 
 of the errors alleged. For it were useless, nay more than useless, to settle 
 an account, if, at remote periods, courts were too readily inclined to rip up 
 settlements altogether, and call upon the party to establish anew what he 
 has already once settled to the satisfaction of his adversary. Many, per- 
 haps most men, upon settling accounts, destroy, or at least become careless 
 of their vouchers, so that a future settlement would be much more difficult 
 than the first. Hence, although on a bill for an account, where there has 
 nexer been a settlement, both parties come before the court with equal dif- 
 ficulties, yet where the bill is to correct an account which has once been 
 adjusted, the complainant is placed under two disadvantages. 1. He must 
 by his bill state certain specific errors in the settled account ; since the de- 
 fendant can never fairly defend himself, if, under a general charge not spe- 
 cifying any error, the plaintiff may come at the hearing with proof of er- 
 rors of which the defendant was not particularly warned. 9 Vez. 266. 2 
 .Tohn. 217. 1 Mad. 82. And this requisition is the more proper, since 
 upon a general charge of error throughout the account, the parties would 
 be exposed to the ruinous expense of maintaining the whole, when in the 
 event it might turn out that the plaintiff' really controverted only a single 
 item. Moreover, upon principle there should be error enough shewn on 
 the face of the bill to entitle the party to relief; 1 Mad. 82; and unless he 
 can specify it, there can be no reason to presume he can prove it, and, 
 therefore, his bill should be dismissed ; for the only equity of a bill which 
 should unravel a settled account, is that there has been some mistake or 
 error in the settlement. If there has been, the party must know what it is : 
 and if he knows what it is, his adversary should be informed of it that he 
 may be prepared to contest it. He who complains must therefore surcharge 
 or falsify : i. e. he must shew himself entitled to additional credit, or that 
 the charges against him are, in amount or otherwise, false and erroneous.* 
 
 The second disadvantage that he encounters is, that he must prove what 
 he has stated. The onus proLcindi always rests on the jiarty who surcharges 
 or falsifies ; for having once admitted the justness of the account by the 
 fiettlcmcnt, the court takes it as established until disproved. If the plaintiff 
 can sliew an omission for which he should have credit, that is a surcharge : 
 if he can siiow a wrong chnrge against him, that is a fiilsification ; but that 
 must b(! by proof on iiis side. 1 Mad. 63. 7 .lohn. 69. 2 John. 217. 
 
 Whore, h<»wevcr, a bill is filed for an account generally, and the defen- 
 dant pleads, as ho may, in bar of the demand, a settled account, of which, 
 however, no proof was offered, liberty was, iipon a reference to a master, 
 given to the r oiiiplairiant to surcharge and falsify before him, if a settled 
 account should apjioar. 11 ^'e■/. 579. 
 
 As to the statute of limitations,! it may bo remarked, that in equity it is 
 
 • Fn a hill lo siirclnren niid rilpify nn rxopiiior'? ncooiint«, ilie accoiiiiis RJioiiUl not lie referred, iin- 
 W»«s ilicrf 1)8 evidcnrj! lo giirrli;irce «r (alpifj , or unlcEB tointtliiiig impi oper nppears upon llieir face. 
 4 Miin.:)r.9. .Sr-flal(W):jLei£li, J18,407. 
 
 t See I'oft, 410, in noiei.
 
 CHAP. 21.] ACCOUNTS. 413 
 
 considered as much a bar, as in a court of law, to a demand, for the reco- 
 very of whicli tfie jurisdictions of the two courts are concurrent. For it 
 would be absurd that for tlie same subject there should be different and con- 
 flicting rules in the two tribunals. But as it respects mere equitable de- 
 mands, length of time cannot be set up as an absolute bar; for in relation 
 to them, length of time operates as a bar, not ex jure, but as a fact shew- 
 ing acquiescence, and furnisliing evidence that the claim has been adjusted. 
 In this view it always is urged with great force at the hearing : for it is a 
 rule founded on principles of public policy, that parties shall not, by ne- 
 glecting to bring forward their demands, put others to inconvenience, or 
 involve them in insuperable difliculties. Every presumption, therefore, that 
 can fairly be made, will be made against a stale demand. 1 Mad. 79. 1 
 Mun. 150. 4 John. 21 (i, 287, '294. G John. -369. See 4 Rand. 454. 1 
 Leigh, 457. The very forbearance to make a demand is evidence of satis- 
 faction. Equity always refuses its aid to stale demands, where the party 
 has slept upon his right, and his adversary may have lost his evidence. No- 
 thing can call forth that court into activity, but conscience, good faith, and 
 reasonabl-e diligence. Where these are wanting, it is passive. Laches and 
 neglect it always discourages, and it has always since the establishment of 
 its jurisdiction had its limitation to suits. Amb. 645. 3 Br. C. C. t>39, in 
 note. To decree, says Lord Hardwicke, an account against an executor 
 after the plaintitf's testator had been dead twenty-seven years, and the de- 
 fendant's ten years, and no demand in seventeen years, would be one of 
 the worst precedents for disturbing the peace of families. 3 Atk. 107. 
 AVhere, therefore, a party has lain by for a great length of time, and suffer- 
 ed an estate to be distributed, he cannot insist on an account. 4 Br. C. C. 
 257. 1 Mad. 80. John. 369. See also the provisions as to executors; 
 act of February 16, 1825. 
 
 But though equity thus recognizes the statute of limitations in its appli- 
 cation to cases of a legal character, and gives great weight to length of time 
 even in those which are merely equitable, yet it is one of the maxims of the 
 court that it does not run against a trust or a fraud. See 1 Mad. 75. Willes, 
 404, 405. 4 Mun. 222. 3 John. 190, 390. 10 Vez. 453. But this doc- 
 trine is to be received with some important modifications and explanations. 
 
 1st. As to the statute running against a trust. 
 
 Here, in the first place, we must observe that the trusts which are regard- 
 ed as unaffected by the statute, are those which are the creatures of a court 
 of equity, of which the common law takes no notice, and over which courts 
 of equity have an original, exclusive, and peculiar jurisdiction. 7 John. 111. 
 20 John. R. 375. The rule does not extend to those numerous trusts re- 
 cognized by the courts of common law as well as equity, and with respect 
 to which there would be two rules, if they were in equity held not to be af- 
 fected by the statute. Such are the rights and duties growing out of the 
 various species of bailment: as hiring, borrowing, pledging, &.c., all which 
 are considered as cases of express trust, as well at law as in equity. Such 
 too is every case of money delivered to be paid over to another; so that if 
 in the rule in question the term trust was to be understood in its comprehen- 
 sive sense, the rule of equity, instead of following the law, would well nigh 
 annihilate the statute. Whereas, wherever there is a legal and equitable 
 remedy in respect to the same subject-matter, the latter is under the con- 
 trol of the same statute bar with the former. See Willes, 404, 405. 6 
 John. 289. 7 John. 118, 121. 2 Sch. & Lef 607. 2 Atk. 610. 5 Vez. 
 749, 750. 17 Vezey, 87. 
 
 In the second place we must remark, that the rule which excepts trusts 
 from the operation of the statute of limitations, does not embrace all con- 
 structive trusts, but only direct and express trusts between cestui' s que trusts
 
 414 ACCOUNTS. [dook3. 
 
 •and their triisiees. Thus if lands are conveyed to A in trust to pay over 
 the rents and profits to B and his heirs, this is a direct trust. But if A sells 
 the trust subject to C, here C is constructively a trustee if he had notice of 
 the trust, but he is nevertheless not debarred from the protection of the 
 statute. ' For, though he is constructively a trustee for the purposes of the 
 remedy, yet he holdl adversely to the rights of cestui que trust, and not un- 
 der him as the express trustee did. He therefore may set up an adverse 
 possession for twenty years against the cestui que trust ; but the express 
 trustee never could, for he is under the cestui que trust — -his possession is 
 not adverse, but it is the possession of the cestui que trust himself: and out 
 of such a possession the bar of the statute never could grow. 3 John. C. 
 C. 190. 7 John. 123. 17 Vez. 87. 10 Wheat. Elmendorf vs. Taylor. 
 4 Ran. 497. 
 
 In the third place we must observe, that even in the case of express trusts 
 the statute is a bar unless the trust is a continuing and acknowledged trust. 
 So long indeed as the trust is a subsisting one, and admitted by the acts or 
 declarations of the parties, no doubt the statute does not affect it; but 
 when such transactions take place between cestui que trust and trustee, as 
 .in the case of tenants in common would amount to an ouster, as if he de- 
 ;nies his right, and the possession becomes adverse, it seems to be the bet- 
 ter opinion that the statute will apply. 7 John. 124. 1 Ball & Beatty, 156. 
 
 It is either under this or the second exception to the application of the 
 -rule, that the case of a party comes v/ho has entered upon an infant's es- 
 'tate and received the rents and profits. He is considered indeed as a trus- 
 tee, but unless the infant sues within five years after coming of age, he will 
 he debarred by the statute. Prec. in Ch. 518. 7 John. 113. In this last 
 case this whole subject is ably investigated, and the English cases stated 
 -and examined. 
 
 I will observe, in Vne fourth place, that the rule in question applies only 
 as between the cestui que trust and his trustee, the latter being excluded by 
 ;it from the protection of the statute. But it has no application as between 
 'Cestui que trust and his trustee on the one hand, and third persons holding 
 adverse to them both on the other ; or in the words of the books, it holds 
 not unless the fiduciary character of the possession subsist between the 
 plaintiff and defendant. And the reason is obvious, whatever may be the 
 foundation of the rule in equity. Is it that the conscience of the party is 
 affected? If so, it cannot apply to a third person whose conscience has 
 never been bound by the trust. Is it that there can be no adverse posses- 
 sion, as the possession of the one is the possession of the other? If so, it 
 cannot apply to a third person holding adverse to both. In any view, there- 
 fore, the rule must be inapplicable as between the trustee and third persons 
 not parties to the trust, and not claiming under either cestui que trust or his 
 trustee. Such third person therefore cannot, as plaintiff, set up the fiduci- 
 ary character of the defendant in relation to others, as a bar to the opera- 
 tion of the act. 4 H. & M. 139. 
 
 Fifthly, it is proper here to advert to a question of interest which has 
 been the subject of much discussion. It is as to the effect of a devise 
 (creating a trust for the payment of debts) in reviving and keeping alive de- 
 mands which would otherwise fall v\ithin the bar of the statute. 
 
 I shall not liere enter again on the question elsewhere touched on, (Book 
 2, Executors,) as to what amounts to a charge of the realty for the payment 
 of debts; contenting myself with referring to 2 John. C. C. 614, where the 
 subject is examined ; but I shall confine myself rather to the effect of such 
 a devise, where the intent is ascertained. 
 
 And here the student must be informed that the notion of debts being re- 
 vived and kept alive by such a devise, arises from two considerations ; first,
 
 CHAP. 21.] ACCOUiNTS. 415 
 
 the supposed acknowledgment or promise to pay, which such a will con- 
 tains, and which is supposed to give new life to the demand; second, the 
 creation of a trust against which the statute cannot run, and which there- 
 fore was supposed to keep alive indefinitely what was thus re-animated. 
 As to the first of these matters, after no little vacillation in the decision of 
 the courts, they seem at length to have settled down upon these principles : 
 that a new promise to pay takes a debt out of the statute : and that an ac- 
 knowleds^ment that a debt is still subsisting and unpaid, will also be sufficient' 
 evidence for a jury or a court to presume a new pro raise, provided such pre- 
 sumption is not repelled by the terms in which the acknowledgment is 
 qualified. It is the nev/ promise, and not the mere acknowledgment, that 
 revives the debt and takes it out of the statute. See notes on assumpsit, 
 Book 3. See, also, 6 John. 290. As to the second matter above stated, it 
 may be observed, that as the creation of a trust is the basis of the principle, 
 it has no application except where there is a charge upon the realty ; for as 
 the personalty is the legal fund for payment of debts, no testator can create 
 in it any trust for such a purpose. Where, therefore, the charge does not 
 aff'ect the realty, the bar of the statute is in no wise affected. 3 H. 8c M. 
 106. 6Mun. 450. 
 
 Admitting, however, that the real estate is charged, the questions which 
 present themselves are as to the effect upon debts which were already bar- 
 red at the time of the testator's death, and as to its effect on those which 
 were not so barred. There is no question that a devise of lands in trust 
 for payment of debts was formerly supposed to include debts upon whicfe 
 the statute of limitations had closed. See 2 Vern. 141. 2 P. Wms. 373. 
 Prec. in Ch. -385. 3 P. Wms. 89. Cow. 548, cited 6 John. 293, where 
 this subject is fully discussed, and which I have, therefore, freely made use 
 of. But this doctrine has often been questioned, (3 Atk. 107. Amb. 231,) 
 and has of late years been by no means considered as established. The- 
 student in his researches will perceive that after having been the sub- 
 ject of remark on former occasions, (see 2 H. &. M. 124. 3 H. & M. 89,) 
 and after the former adjudications had been strongly countenanced by the 
 court of appeals, and decisively approved by one of the judges, the ques- 
 tion has been, nevertheless, waived in a subsequent case. 6 Mun. 450. 
 In other courts, however, the old doctrines have not been so well received. 
 Lord Redesdale drew a distinction between those debts which were barred 
 at the time of the testator's death and those which were not. The former 
 he considered as not being revived, but the latter he regarded as protected^ 
 By the trust from the future operations of the statute. 1 Sch. & Lef. 107. 
 Lord Eldon, indeed, in a subsequent case (15Vez. 479,) did not undertake 
 to overrule the old authorities ; but his doubts are more than balanced by 
 the reprobation of Lord Hardwicke, Lord Kcnyon, and Lord Alvanley, and' 
 " last but not least," by that of the distinguished Sir S. Romily. After- 
 wards, in the case of Burke vs. Jones, however, (2 Vez. & Beame, 275,) 
 the cases were all accurately reviewed by the vice chancellor, who pro- 
 nounced a decree against the doctrine of the old cases which considered a 
 debt barred before the testator's death, as revived by the trust. In this de- 
 cision the distinguished chancellor Kent concurs, and I presume it will 
 probably be regarded as the law of the subject. See 6 John. 293. 
 
 It will be observed, however, that it is no where denied that a will may 
 be so worded as to revive a debt already barred. The acknowledgement 
 of a particular subsisting debt, and a direction by will to pay it, would re- 
 vive the debt though barred by the statute, whether there be a trust or not. 
 But it was surely going very far to say, that because a testator honestly pro- 
 vided for the payment of his just debts, such provision should be construed 
 into an acknowledgment that a stale claim was really unpaidi which from
 
 416 ACCOUNTS. [BOOK 3. 
 
 its antiquity the law would presume to have been discharged, and this even 
 thou'di it be neither mentioned or remotely alluded to in the devise itself. 
 
 From what has been said it will be obvious that though the trust for pay- 
 ment of debts does not revive those which were barred at the testator's 
 death, unless they are distinctly pointed out or recognized, it has the effect 
 of preventing a debt not barred at the time of his death, from being barred 
 by the running of the statute subsequent to that event, 6 John. 294. 1 
 Sch. & Lef. 1U7. 
 
 •2. We purposed, secondly, to consider the principle that the statute of 
 limitations will not run against a fraud. It is an admitted doctrine of equi- 
 ty, and was strongly expressed by Lord Erskine, when he observed that no 
 length of time can prevent the unkennelling of frauc. Hence, where a 
 fraud appears even in a stated account, the whole will be opened, though 
 of a great many years' standing. 2 Atk. 111). But the general proposi- 
 tion admits of considerable qualification : for where the fraud has been 
 long since committed, the bill ought to allege that it was discovered within 
 five years : and a plea of the statute is good if the defendant alleges in his 
 plea, and can shew that the fraud, if any, was not discovered within that 
 time. 3 P. Wms. 143. 1 Br. P. C. 455. 3 P. Wms. 143. 2 Sch. & Lef. 
 007. Milford's Plead. 212.* But length of time always forms a strong 
 objection where it can be used to shew acquiescence, or a consciousness 
 tliat the party is without right : 14 Vez. 467 : and though the complainant 
 in equity may dismiss one bill and bring another, to which the former is no 
 bar, yet such a course of conduct forms a strong objection to relief. See 1 
 P. Wms. 723. 14 Vez. 231, in which last case the master of the rolls 
 seemed to doubt whether the former suit might not even be pleaded in bar. 
 
 Having thus disposed of the question as to the effect of trusts and frauds 
 on the operation of the statute, 1 proceed to remark, that even in cases of 
 mere equitable demand, equity adopts the statute of limitations generally 
 in strict analogy to the law. 7 John. C. C. 90, 113. Thus, by analogy to 
 the limitation in ejectment, (3 John. 129, or as Judge Pendleton tells us 
 in 1 Wash. 18, by analogy to the doctrine of- presumption of payment of a 
 bond after twenty years,) the same period has been adopted as the limita- 
 tion in redemptions and foreclosures. So by analogy to the action of tres- 
 pass for mesne profits, where the demand is even equitable, the account of 
 rents is never carried beyond five years. 10 Vez. 466, 469. 6 Vez. 199. 
 5 Vez. 749, 750. 1 Atk. 493. 7 John. 117, 118, 121. 3 Bro. 639, note. 
 1 Sch. & Lef. 413. 2 Sch. & Lef. 607. See also 2 Vez. jr. ll.t 
 
 " This ap])lication of the statute by analogy," says chancellor Kent, 
 " cannot well be made to cases of those peculiar trusts which are the crea- 
 tures of equity, for there is no ground for comparison," (i. e. nothing at law 
 with which to compare them.) 7 John. 120. I rather think they are analo- 
 gous to those cases at law where one party being in possession under the 
 other, can never set up the statute against him, since to make the statute a 
 bar, the possession must be adverse. He goes on to say "that where the 
 
 'Soatliiw, Breen?. Ilolberk.Doui,'. G5t. See also 9 C. L. U. 47. 6 C. L. R. 25. 5 Mason, 143. 
 20 John. 33, 273. 5 Weiidel, 30. 3 Mass. 201. 1 Pickeriug, 435. 4 Yeates, 109. Starkie, part 4, 
 '<iii,yM. 4 Brown's I'iir. Crt. 163. 
 
 Tlic case ol Callia rs. Waddy, 2 Muii. wliidi seems in conflict witli tlie doctrines of these ca.=es. 
 appears not to iiavo Wen well considered or reported. It coiilain.^, tor instance, a double leplicatioii 
 to the tame plea, of wliiih no notice seems to have been taken. It must yield, 1 think, to the weight 
 of the opposing opinions. 
 
 tThe recent decinons in the court of appeals are ir.ore than ever opposed to ravelling old transac- 
 tions. See liurwell's Kx. I's. Andertion, 3 Leigh. Since wliicli, the lollowing cases, not yet report- 
 ed, have been detiflod np<jn the principles sot forth in the text. Carr vs. Chapman ; Tindal vs. Hyl- 
 ton; Mclntirc vs. IMclnlirc, and Colverl vs. Rlillstead. 
 
 It may be proper to remark, however, tiiat the doctrine of presnn)ption from length of lime is dis- 
 tinct fromlliat whicii ih ran-ed from the acuiiiescence of p^irtics. I'or acquiescmce fjr much less than 
 iwentv; ears may bar a demand. See 2 Mcrivale, 3U2. And 30 abandonment of right may be pre- 
 Eumcd fiotii circ'unisiaiiccs. 1 Mun, 301.
 
 CKAP. 21. J ACCOUNTS. 417 
 
 eame subject-matter of the demand in equity can also be made the subject 
 of an action at law, the rule of analogy applies in all its force." Thus if 
 A turns my trustee out of possession, I may sue A in equity, or my trustee 
 may sue at law, since he has the legal title. But if I fail to sue in equity 
 for twenty years, the statute will bar the assertion of my equitable claim as 
 much as it would bar my trustee in the assertion of the legal title on my 
 behalf. Hence we find lord Redcsdale remarking that wherever the legis- 
 lature has limited a period for law proceedings, equity will in analogous 
 cases consider equitable rights as barred by the same limitation. Every right 
 of action in equity that accrues to the party, whatever it may be, must be act- 
 ed upon at the utmost within twenty years. But if not pursued within 
 that period, the statute may be pleaded ; and so in every case of equitable 
 title (not being the case of a concealed fraud, or of a trustee whose pos- 
 session is consistent with the title of the claimant) it must be pursued with- 
 in twenty years. These principles are recognized and approved by our 
 most enlightened courts. See 7 John. 122. See also 6 Wheat. 481, 497» 
 2 Merivale, 173, 357. 10 Wheat. 175, Elmendorf vs: Tayjor. 4 Ran. 
 493. 2 Jacobs & Walker, cited 10 Wheat. 174. There th*e doctrine is 
 stated in the following explicit terms : " Adverse possession of an equity of 
 redemption by one, is a bar to another person claiming the same equity of 
 redemption, and operates as a disseizin." "The non-claim of an equita- 
 ble owner for twenty years, (supposing it the case of one who must with- 
 in that period have made his claim in a court of law, had it been the legal 
 estate,) under no disability, and where there has been no fraud, will consti- 
 tute a bar to equitable relief by analogy to the statute of limitation, if dur-- 
 ing all that time there has been unequivocal adverse possession." 
 
 1 shall conclude this branch of our subject, already extended beyond my 
 expectations, with one or two other rules. 
 
 It has been laid down as a rule not to be departed from, except under 
 special circumstances, that stewards, agents, managers, &c. are bound to 
 keep regular accounts of their transactions on behalf of their employer:* 
 n-ot only accourrts of payments but accounts of receipts ; and if such person 
 has neglected to do so he will not be permitted to make a demand for work 
 and labor in that character, in reference to which he has kept no account. 
 8 Vez. 369, 371, 375. 15 Vez. 432. And moreover, in such case, the court 
 will proceed to settle it by any lights that are afforded, leaning strongly 
 against the man who having thrown every thing into confusion by bis ne- 
 glect is entitled to no favor in the eyes of a court of equity. Such cases 
 come obviously within the principle prevailing both at law and in equity; 
 omnia pnesumunter contra spoliatorem. 
 
 If an agent or bailiff confounds his principal's property with his own, he 
 is chargeable with the whole, except what he can prove to be his own. 15- 
 Vez. 4.32. 
 
 When a bill is filed for an account, if on the settlement there appears a 
 balance due to the defendant, a decree will be rendered in his favor against 
 the plaintiff; for in such cases both parties are considered actors. IMun. 
 150, 447. 
 
 " If a bill be filed to impeach a settled account, specific errors must be' 
 shown ; but where the accounts are not sought to be set aside for fraud, 
 but letting them stand, it is sought to surcharge and falsify them, it is a fixed 
 rule that some error must be charged, and this though the account contain- 
 ed the usual words, ' errors excepted :' for it is impossible for the defendant 
 to defend himself, if, under a general charge, not specifying any error, the 
 plaintiff may come at the hearing with the proof of those errors, of which 
 
 "Hence equity lias jurisdiction of all such accounts, for the employer is presumed to have no othe^ 
 knowledge of the transactions tirarrthe accounts, which the agent ought to keep, will afford. 
 
 VOL. 2 — 53
 
 418: FKAUDSi [ BOOK 3^^ 
 
 the defendant has heard notliing. There must be error enough upon the 
 bill to show there is reason tor it ; the plaintiff proves some of those errors 
 and ffcts a degree." 2 John. 217. 1 Mad. 8-2. See 3 Leigh, 348, 407. 
 
 " Where a bill was filed for an account, and a settled account is suggest- 
 ed by the answer, but not proved, liberty was given in the decree to sur- 
 charo-e and falsify, if the master should find any settled account. When 
 parties are thus at liberty to surcharge and falsify , they are not confined to 
 mere errors of fact, but may take advantage oi errors in law.'' 1 Mad. 83. 
 
 "Where liberty is given to surcharge and falsify, the onus probandi is al- 
 ways on the party having that liberty ; for the court takes it as a slated ac- 
 count, and establishes it; but if any of the parties can show an omission, 
 for which credit ought to be, that is a surcharge ; or if any thing is inserted 
 that is a wrong charge, he is at liberty to show it, and that is a falsification ; 
 but that must be on proof on his side ; and that makes a great difference 
 between the general cases of an open account, and where only leave is 
 given to surcharge and falsify ; for such must me made out. 1 Mad. 83. 
 
 " A stated account, to be good and pleadable as such, need not be signed 
 by the party ; 'for it is not the signing, but the person to whom the account 
 is sent, keeping it by him any length of time without making any objection, 
 whichbinds him, and prevents his entering into an open account afterwards. 
 It is said that among merchants it is looked upon as an allowance of an 
 account current, if the merchant who receives it does not object against it 
 in a second or a third post. 
 
 " And with respect to foreign merchants, if one merchant sends an ac- 
 count current to another in a different country, on which a balance is 
 made due to himself, and the other keeps it by him two years without 
 objection, the rule in equity and of merchants is, that it is considered as 
 a stated' account." 1 Mad. 81. 
 
 V. OF "FRAUDS." 
 
 The jurisdiction of courts of equity in cases of fraud, is that which it 
 exercises with the greatest alacrity. Unfortunately, too, it is one of the 
 most comprehensive, since the only boundaries it knows are those which 
 limit also human knavery and human ingenuity. 
 
 Fraud has been defined to be any kind of artifice by which another is de- 
 ceived. Pothier, cited 1 Mad. 205. All surprise, trick, cunning, dissem- 
 bling, and other unfair way by which another is cheated, is fraud. Collu- 
 sion in a court of equity is fraud. 3 Atk. 757. In short, " fraud is infinite. 
 Judges could not, if they would, lay down as a general proposition what 
 constitutes fraud, or establish any invariable rule which should define it; 
 And even if they could distinctly mark out how far they would go in re- 
 lieving against it, or define strictly the species of evidence of it, the juris- 
 diction would be cramped, and perpetually eluded by new schemes which 
 the fertility of man's invention would contrive." Hardwicke's letter to 
 Lord Kuiines, I Life of Kaimes, 237. 3 Atk. 278, cited 1 Mad. 201. 
 
 Frauds ;ire all of them cognizable in some court or other. If they amount 
 to criminal offences punishable by law, equity has no jurisdiction to en- 
 force the [)unishment. It interferes in cases of fraud in a civil and not a 
 criminal j)oint of view. Punitive justice belongs only to the courts of 
 common law. 1 Black. Com. Intro. §3. On this ground the application 
 of the attorney general of New- York, to restrain an unchartered bank from 
 going on with llieir business, was refused, as being in the nature of a quo 
 ivarranlo, which is a criminal proceeding. 2 John. 371. The rule, how- 
 ever, is subject to tliis modification ; that if the criminal proceeding be also 
 of the nature of a civil remedy, (as the writ of forcible entry and detainer,)
 
 ■CHAP 
 
 21.] FRAUDS. 419 
 
 ^nd the rights of the parties have, before the institution of such criminal 
 proceeding, been submitted to the jurisdiction of a court of equity, that 
 court will interpose and stop the proceedings upon the indictment; 2 Atk. 
 30-2. 1 Fonb. 5 ; so far only, I presume, however, as to restrain the resti- 
 tution of possession. 
 
 The jurisdiction of courts of equity extends to every case of fraud which 
 is cognizable in the courts of common law, with the exception of the sin- 
 gle case of fraud in obtaining a will. This in England, by the practice of 
 the court, and with us, by the express provisions of the law, is constantly 
 referred to a court of law in the shape of an issue devisavit velnon. 1 Fonb. 
 12. But it is not equally true that courts of law have in all cases of fraud 
 a jurisdiction concurrent with that of courts of equity, notwithstanding the 
 broad expressions used by Mr. Blackstone, (Book 2, 431,) and by Lord 
 Mansfield, (1 Bur. 396,) and by Lord Loughborough (2 Vez. jr. 295.) 
 The principle that fraud and covin vacate every contract even at law, is to 
 be taken in subordination to another principle, namely, that at law the par- 
 ty is estopped from averring such a matter against a specialty. Thus, though 
 a bond be obtained by fraudulent misrepresentations, or for a fraudulent 
 •consideration, or be founded on any imposition which preceded its execu- 
 tion, the obligor is estopped at law from alleging this against his deed, ana 
 the fraud therefore is cognizable only in equity. But where the fraud re- 
 lates to the execution of the instrument, as if it be misread, or his signa- 
 ture be obtained to a paper which he did not intend to sign, there is no 
 doubt that it may be vacated even in a court of law. 6 Mun. 366. And 
 the decisions of Lord JMansfield himself clearly shew that his broad expres- 
 sion is to be thus restricted, and that the fraud which the party is permitted 
 to give in evidence at law to avoid his bond, must be such as relates to the 
 execution of the instrument. Cow. 47. See 13 John. Rep. 4-30. ISV^z^ 
 483, and 2 Rand. 426, in which last the apparent conflict with these doc- 
 trines, of the case of Wormley's executars vs. Moffit, (6 Mun. 120,) is sa- 
 tisfactorily explained. See, also, 6 Ran. 169. 
 
 It is however generally true, that frauds are cognizable at law as well as 
 in equity, unless the party is estopped by his deed from alleging it. Hence 
 a note not under seal may be contested at law on the ground of fraud either 
 in the consideration or in the transactions which led to its execution. And 
 fraud in all contracts not under seal may be redressed where the party sues 
 for damages, or it may j>e a ground of defence in such cases where the 
 contract is attempted to be enforced. 
 
 In treating this head of equity I shall not pretend to an enumeration of 
 the various frauds which are cognizable in chancery. But it may be use- 
 fful to devote our attention somewhat particularly to a few important heads. 
 
 I. Frauds in relation to wills. 
 
 1. Questions of fraud in reference to the execution and validity of a will 
 under which an estate, whether real or personal, legal or equitable, is claim- 
 ed, are properly and only triable at law upon an issue devisavit vel non. 1 
 R. C. ch. 104, § 13. In England if the will relates to realty it. is referred 
 to the courts of law; — if to personalty it is referred to the spiritual court. 
 But with us, where a will has been proved before a court of probate, any 
 person who is interested and desirous to contest it, commences the pro- 
 ceeding by filing his bill in equity, and when the answer comes in, an issue 
 is then directed to be tried by a jury before a court of law, and this whether 
 the will be of realty or personalty, or both. 1 R. C, ch. 104, § I.3. 
 
 2. But though fraud in the execution of a will is peculiarly cognizable 
 in the manner just pointed out, yet fraud in procuring a will by misrepre- 
 sentation or trick, seems always to have been considered as fully within the 
 province of equity, though the wiU be considered as good at law. As if A
 
 420 FRAUDS. [BOOKS. 
 
 afrrcGS to pay B iElOOO provided he will devise hia landa to him ; and he 
 pays the £1000 in forged bank bills, the testator's heir, it is said, may avoid 
 the will. 1 P. Wms. 288. 2 Vern. 700. So where a son prevailed on 
 his mother (whom his father had made his executrix, whereby under the 
 English law she became entitled to all his estate after payment of debts 
 ancf legacies,) to get the father to make a new will and make him executor, 
 promising to hold in trust for his mother, the trust was decreed ; the court 
 in this way countervailing the fraud by controlling the legal operation of 
 the will. And so if by fraud and misrepresentation a testator disinherits 
 his heir : as where the person interested folsely represents his child to be 
 dead, or traduces him with a view of alienating the testator's affections 
 from him, the fraudulent will may in effect be frustrated by considering the 
 devisee as a trustee for the heir. 
 
 3. The converse of the principle here stated is equally true ; for if a will 
 be suppressed or destroyed, it is the province of a court of chancery to re- 
 lieve. 1 Mad. 258. And this end is attained (where the contents of the 
 will are established) by decreeing a conveyance to be made by the heir, who 
 suppresses the will, to the party claiming under it. Amb. 249. 1 P. Wms. 
 731. Upon the same principle fraud in preventing a legacy or devise be- 
 comes the subject of equitable relief; as where the heir promised the own- 
 er that if the estate was permitted xO descend he would make provision for 
 his mother, wife, or other person, the court compelled the heir to discover 
 whethe'r he had made the promise, and decreed accordingly. 9 Vez. 519. 
 2 Free. 34. 11 Vez.G38. And in these cases the wrongdoer is treated as 
 a trustee even in England, although all declarations of trusts are required 
 by statute there to be in writing : but that statute does not apply to such 
 trusts as are raised by courts of equity in order to countervail a fraud. See 
 9 Vez. 519. 
 
 In cases of this description, it is necessary that the claimant under the 
 will should satisfactorily establish the fact that the instrument once had ex- 
 istence. The next step in his progress is the proof of the destruction or 
 suppression of the will by some person other than the testator : — and this 
 fact ought, I conceive, to be clearly proved, not only because fraud is in no 
 case to be presumed, and in all ought to be clearly established before it is 
 taken for true, but because the setting up wills being in general a substitu- 
 tion of oral for written evidence, is in conflict with the spirit of the statute, 
 which requires all wills (except certain nuncupative wills) to be in writing. 
 See 2 P. Wms. 748. 1 Vern. 408. Another reason, indeed, conspires 
 strongly with these to shew the propriety of demanding the clearest evi- 
 dence of the suppression or destruction by some person other than the 
 testator. It is, that a will being revocable in its nature, nothing is more 
 common, and therefore, in any given case, nothing is more probable than 
 that the testator himself may have destroyed it. It is, to say the least, more 
 probable that he should have changed his mind and destroyed his will with 
 a view to make another, than that a third person should have committed 
 the infamous act of suppressing it with Iraudulcnt designs. 
 
 But when the instrument is once proved to have been fraudulently sup- 
 pressed or destroyed, we find the courts of equity very rigorous towards 
 those who with interested views have been guilty of the suppression. The 
 jjrinciple with tliut court, as well as with the courts of law, is, that "omnia 
 prttsumnnlur contra spoliatorem." Thus in one case the interested person 
 who confessed he had burnt an instrument, was committed until he con- 
 sented to admit it as stated by his adversary; 2 Vern. OGl, a case of mar- 
 riage articles. In another case (of a suppressed will) where no exact evi- 
 dence was produced of the conlcnts, the person claiming as devisee was 
 decreed to hold and enjoy until the defendant produced the will, or until 
 
 s
 
 €HAP. «!.] FRAUDS. 421 
 
 further order. 1 P. Wms. 733, 748. See also 1 Vern. 207, 308. 1 Br, 
 P. C. 250. 
 
 It must be obvious, however, that there is much delicacy in the exercise 
 of this branch of jurisdiction, in reference to the ascertainment of the con- 
 tents of the suppressed will. In every such case the proof of the contents 
 must depend upon oral testimony ; and thus, while the statute of wills 
 makes writing and (in the case of lands) signing and attestation also essen- 
 tial, a will may thus be in effect set up by the parol testimony of witnesses 
 alone : thus opening the door to all the frauds and perjuries the statute was 
 intended to remedy. On the other hand, the rigorous proceedings which 
 have just been mentioned as having been adopted against the suppressor of 
 a will, substitute an arbitrary rule for the entire want of evidence. We 
 have no case in our books on the subject, nor am I aware of any others 
 than those already cited, except a decision in 3 Atkyns, 360, that in such 
 cases the contents of the whole will need not be proved, but only so much 
 as relates to the demand. 
 
 4. Fraudulent devises to the prejudice of creditors also come under this 
 head of jurisdiction. But as they have been spoken of elsewhere, I shall 
 say nothing of them here. 
 
 II. Frauds in relation to deeds. 
 
 1. In relation to the execution of deeds : as where one instrument is 
 surreptitiously introduced in the place of another, so that the party signs 
 and seals one different from that which he supposes he is executing: or 
 where to an illiterate man the deed is falsely read, or its contents misrepre- 
 sented. In these and such like cases the party defrauded may be relieved 
 either in equity or at law ; for those facts are good evidence under the plea 
 of non est factum. 6 Mun. 366. Cow. 47. 
 
 2. The suppression or concealment of deeds stands upon the same 
 grounds and is governed by the same principles which have been laid down 
 in relation to wills, and need not be here repeated. I may remark, howev- 
 er, that so odious is such a fraud, that contrary to its usual notions, a court 
 of equity will even aid a volunteer in the recovery of the amount of a bond 
 from an obligor who has surreptitiously procured and destroyed it. 1 Atk. 
 ■287. 2 Eq. Ab. 247. 
 
 3. Frauds occasioned by preventing the execution of deeds, are also the 
 subjects of equitable relief. As where a recovery was prevented by a per- 
 son, that the estate might devolve on another : 14 Vez. 289, 290 : though it 
 has been doubted in England whether, on the sale of a ship, the want of 
 an endorsment required by the register acts, though occasioned by fraud; 
 could be remedied. 11 Vez. 621. 13 Vez. 588. 
 
 III. Frauds as to contracts generally. This head will embrace, from its 
 comprehensiveness, many matters which would fall equally well under the 
 head of deeds. 
 
 1. At the very foundation of the doctrines on this subject is the well 
 known principle that a suggeslio falsi or suppressio veri amounts to fraud, 
 and will avoid a contract, or be a ground of relief in equity. ; 1 Mad. 208. 
 
 The suggcstio falsi or suppressio veri may be on the part of him with 
 whom I contract, or of some third person, who knows when he suggests 
 the falsehood that I am contracting in reference to the matter to which it 
 relates. In the first case it is a constant rule of equity that a release, or 
 deed, or contract, obtained upon such false suggestion, shall be avoided. 1 
 Fonb, 113. And this is equally true, whether the false representation was 
 made with a knowledge that it was false, or without a knowledge that it 
 was true. A party may bind himself by a representation as much as by an 
 express covenant. If knowingly he represents what is not true, there can 
 be no doubt he should be boujid. If without knowing whether his repre-
 
 422 FRAUDS. [ BOOK 3. 
 
 sentation is true or not, he takes upon himself to make it to another, and 
 upon the faith of it that other acts, he is not less bound, although he may have 
 been only mistaken, and is therefore comparatively innocent. 1 Br. C. C. 
 546. 6 Vez. 174, 183. 10 Vez. 475. 1 Vez. & B. 355. 9 Vez. 21. 
 But equity goes yet further ; and although the person who suggests the 
 falsehood be no party to the contract, yet if another has suffered by his mis- 
 representation, he must make amends. For it is a well established princi- 
 ple that where a man who has a title and knows of it, stands by* and either 
 encourages or does not forbid my purchase, he and all claiming under him 
 shall be bound by the fraudulent concealment of his right, and shall be post- 
 poned in equity to me :t neither are infancy or coverture an excuse in such 
 case. 1 Fonb. 151, 1524 But in such cases these things are to be observ- 
 ed. 1. That whether the suppression is by the contracting party or a third 
 person, the other party must have a right to a full and correct representa- 
 tion of the fact, or the rule will not apply. Thus in the case already stated 
 of the purchase by A from B of land, in which he knows there is a valuable 
 mine, which fact he does not disclose to B, and thereby purchases it at an 
 under price, yet this (however in conflict with nice principles of honor) does 
 iiot amount to such a fraud as courts can take cognizance of, since the 
 rules of law are framed to suit the great mass of society, and not men of 
 scrupulous delicacy only. 2 B. R. 420. Yet if A had been B's agent or 
 trustee for the sale of the land, and had through such agency acquired this 
 knowledge, he would have been bound to disclose it, and the concealment 
 •would then have been a fraud. See the case of Buck, &e. vs. Copland, 2 
 Call, 218. 2 Bro. 420. 2. It is to be observed that in the case of the third 
 person who by his silence loses his rights, it is essential that he should 
 know of his rights at the time ; for the principle on which he is made a 
 loser, is his fraudulent concealment: and this implies a knowledge on his 
 part of the fact concealed. 3. It is equally essential that he should be 
 conusant of the treaty in which the fraud was practised, (1 Fonb. 152,) or 
 in other words, that he was aware that the parties were contracting about a 
 matter which concerned his interest. This will be fully illustrated by an 
 instance taken from that class of cases which most frequently fall under the 
 influence of the principle under discussion. As where A, before he would 
 lend his money to B on mortgage, sent to C to inquire if he had any in- 
 cumbrance on the estate, who denied that he had, although in reality he 
 had one. C, though a prior mortgagee, was postponed to A. 2 Vern. 
 554. 2 Vern. 370. 1 Fonb. 152. 2 John. C. R. 609. 4 John. 70. See, 
 also, cases cited 1 Mad. 209, 256, and others to the effect of this principle, 
 G John. C. R. 166. 5 John. C. R. 184, and 7 John. C. R.|l How far the 
 case of a movlgagec standing by without disclosing his title, would be af- 
 fected by our recording acts, to which every purchaser may refer, I shall 
 not here stop to inquire. Chancellor Kent seems to think if his own mort- 
 gage was recorded, that that would be sufficient notice unless there was in- 
 tentional fraud, false representation, assurance of good title, denial of any 
 lien, &.C. 4 John. 70. 
 
 5. Fraud may also consist in obtaining a contract by oppression, or by 
 an undue use of the power or influence that one has over another. Of this 
 
 *See 2 Leigh, 401, and Book 2. 
 
 t A mortgajjee may from liis conduct be considered as abandoning his mortgage. A Ulunf. 351. So, 
 also, a contract may be set aside on the ground that it was abandoned. 1 H. &. M. 4:29. 
 
 {See Koberls on frauds, 52i2. Sug. 430. 1 Brown Cli. Ca. 3J3. 2 Eq. Ca. Abr. 453. 
 
 II But it lias l)een renfaiked that the rights of a party are not lost by conceahnent or raisrepresenfa- 
 tioii, unless it be colhisive or fraudulent, or liie negligence be so gross as to amount to piool of fraud. 
 1 Rand. 407. And it has inoreovcr l)een strongly i)l)served, that in relation to purchases ot real pro- 
 perty, no prudent man relies on the represenlalion of others, but lie looke to the title deeds and judg- 
 es lor himsell. 3 T. 11. 64. In kucU case, indeed, if lie be deceived he has nothing to blame but his 
 g\vu folly.
 
 GiiAP. 21.] FKAUDS. 423 
 
 the strongest instance is that of duress, which, as we have seen, avoids a 
 contract or deed at law as well as in equity ; though equity requires much 
 less evidence to establish duress than a court of law. Sec the head of Du- 
 ress in Book 2. But even where there has been no duress, strictly so call- 
 ed, the oppressive conduct of one of the parties may induce a court to re- 
 scind (he contract at the suit of the other. Cases of this description are 
 generally to be found among persons standing in some peculiar relation to 
 each other, from which arises some undue power of the one over the other. 
 Such are the cases of parent and child, guardian and ward, attorney and 
 client, &c. These are therefore viewed with much jealousy by courts of 
 equity. As in the case of a contract between father and child, if there is 
 any appearance of an abuse of the parental authority, the contract will be 
 rescinded. And such contracts, although they are by no means void merely 
 because of the relation between the parties, are looked upon with nice scru- 
 tiny, if not with jealousy; though if the complaint should be exhibited af- 
 ter a considerable length of time, or after the father's death, it would be less 
 favorably attended to, and would be without redress if the transaction has 
 resiflted in the marriage of the child and a settlement, by which persons un- 
 born acquire a right. 5 Vez. 877. It must be observed, moreover, that an 
 act done out of the natural dislike every child has, or ought to have, of dis- 
 pleasing a father or mother, does not amount to that sort of fear which will 
 vitiate a contract ; see 1 Mad. 245 ; and that acts of generosity done by a 
 wealthy son towards his parent, such as giving him a bond to pay him an 
 annuity for life, if done freely and without coercion, are good. 1 P. Wms. 
 G07. For a court of equity, while it reprobates fraud and the want of con- 
 sideration, is not insensible to the respect which is due to the most noble 
 feelings of our nature. 
 
 The case of guardian and ward stands upon grounds very similar to that 
 of parent and child : but enough has been said on this subject in the notes 
 to the 1st Book. See the case of a servant who had acquired undue influ- 
 ence over his young master, .3 P. Wms. 129. 
 
 There is another class of persons whose contracts with those in their 
 power merit and always receive the most severe scrutiny of the court, and 
 are looked upon with the greatest jealousy. I speak of sheriffs, constables, 
 jailors, and such like officers of the law ; whose modes of life create (with- 
 a few honorable exceptions) much insensibility to the wretchedness of those 
 within their power ; whose fortunes are often made by speculation, shaving, 
 and keen bargains; who have the means (within the legal limits of their 
 authority) of increasing or diminishing the difficulties, embarrassments, and 
 even privations and sufferings of their prisoner, according as he is more or 
 less complying with their desires, and who therefore may in reality be 
 tightening the cord about his neck with one hand, while they are soothing 
 him by blandishments with the other. It is easy for persons so situated to 
 affect a pain they do not feel at the cruel necessity which duty and their 
 own safety imposes of pursuing the strict course of the law, and to seem to 
 the world disposed to be indulgent and lenient, when they are in reality 
 practising the vilest arts to secure some illegitimate gain. Their contracts 
 with their prisoners therefore always merit the strictest scrutiny, although if 
 they pass this severe ordeal, they are considered as valid, unless they come 
 within the prohibitory statute. 1 R. C. ch. 78, § 20. 
 
 There is yet another class of persons who may be mentioned under this 
 head. I speak of the clergy, whose cupidity in former times is matter of 
 history, and who exercised their influence over the superstitious and bigot- 
 ted, not merely for the aggrandizement of the church, but to pamper their 
 own luxury and vice. To the honor of the present age be it spoken, the 
 rapacity of the clergy is no longer any thing but history : yet the refining
 
 424 TRAUDS. i BOOK 3. 
 
 influence of religion is not always sufficiently powerful to eradicate the 
 basest and most corroding of passions : and accordingly a very late case is 
 afforded, of the perpetration of a gross and detestable fraud under the 
 eloak of religion, *and by means of an undue influence acquired over the 
 mind of a weak and pious lady, by her false and crafty minister. Hugue- 
 nin vs. Basely, 14 Vez. 285. In that case a clergyman by undue influence 
 and abused confidenfce in him as an agent, obtained a voluntary settlement 
 upon his own family of an estate, subject to a comparatively small life an- 
 nuity. Sir Samuel Romily in the argument cites the just remark of Cicero, 
 " Totius aulum injustUicB nulla capitalior est quam eorum qui cum maxime 
 fallunt id agunt ut viri boni videantur ;" which, in reference to the case in 
 question, we may shortly paraphrase thus: " no frauds are more detestable 
 than those which are perpetrated under the cloak of religion." " What," 
 said that able advocate, " is the authority of a guardian, or even that of a 
 parent, compared with the power of religious impressions, under the ascen- 
 dancy of a spiritual adviser ; with such an engine to work upon the pas- 
 sions, to inspire (as the object maybe best promoted) despair or confidence ; 
 to alarm the conscience by the horrors of eternal misery, or support the 
 drooping spirits by unfolding the prospect of happiness which is never to 
 end." The chancellor set aside the settlement, considering the circum- 
 stances under which it was executed as sufliciently evincing a fraud on the 
 one part, and a want of freedom of will on the other. 
 
 3. Another species of fraud is that which consists in taking the advan- 
 tage of the incapacity of another, whether proceeding from natural imbe- 
 cility of mind, or from extreme old age, or drunkenness. 
 
 First, Natural imbecility. It need scarcely be remarked that contracts- 
 with idiots and lunatics are voidable, unless, indeed, where made with a lu-^ 
 natic in an unquestionably lucid interval. Nor will a contract made with a 
 man who is sane, be affected by his subsequent lunacy. Sug. 153. But 
 there is a state of mind short of absolute incapacity, which often forms in 
 equity one motive for rescinding a contract. Weakness of mind, indeed, 
 does not alone appear to be a sufficient ground to invalidate a bargain. 
 According to Sir Joseph Jekyl, if a weak man gives a bond, and there be 
 no fraud or breach of trust in obtaining it, equity will not set it aside only 
 for the weakness of the obligor if he be coinpos mentis, for the court will not 
 measure the size of people's understandings, there being no such thing as 
 an equitable incapacity where there is a legal capacity. 3 P. Wms. 131. 
 Notwithstanding, however, the strong support this opinion derives from 
 those of lord Hardvvicke, (2 Atk. 231, 251,) lord Thurlow considered a de- 
 gree of weakness short of legal incapacity, as a material ingredient in de- 
 termining whether there was fraud. And it would seem that this is the cor- 
 rect principle ; that though weakness of mind short of legal incapacity will 
 not alone avail, yet, united with other circumstances, it may very strongly 
 support a charge of fraud in obtaining a contract : — 'though it may not va- 
 cate it per se, it is evidence which must have its influence on every well re- 
 gulated mind in determining on the fairness of the transaction. See 1 
 Mad. 224, citing 3 Wood. App. 18. 14 Vez. 290. See also Newland & 
 Powell on Contracts, 30, 31, 32. It is justly said, indeed, on the one hand, 
 that courts of equity would have enough to do if they were to examine into 
 the wisdom and prudence of men in disposing of their estates ; and there- 
 fore, let a man be wise or unwise, if he be legally compos he is a disposer 
 of his property, and his will stands instead of a reason: 1 Fonb. 59. 3 
 Mun. 130 : but yet it is admitted, on the other hand, that weakness of mind 
 furnishes strong ground of suspicion that persons in such state are acted 
 upon by improper influence. 1 Fonb. GO. I Mun. 557. 2 Vez. sen. 627. 
 13 Vez. 136. 3 Leigh, 567.
 
 CHAP. 21.] FRAUDS. 425 
 
 Secondly. In like manner, excessive old age with great weaknees of 
 mind may be a ground for setting aside a conveyance, provided the circum- 
 stances of the case in other respects justify the imputation of frand. But 
 without such proof it would not of itself invalidate a transaction. 1 Mun. 
 518. 
 
 Thirdly. With respect to drunkenness, the law generally considers it 
 as no excuse for offences committed, nor any reason for setting aside a 
 contract executed in a state of intoxication. But equity will give relief in 
 such cases, where the drunkenness was caused by the fraud or the contri- 
 vance of the other party, or where the drunken man was so excessively in- 
 toxicated as to be utterly deprived of the use of his understanding. 1 
 Fonb. 61, 62. See 1 H. & M. 70, 71. 6 Mun. 15. As a general rule, 
 the being in a state of intoxication will not, therefore, invalidate a contract 
 when there has been no undue advantage, unless the party is utterly inca- 
 pacitated by it. 6 Mun. 15. 1 Vez. 19. But if there be circumstances 
 indicating fraud, it would seem that even a less degree of intoxication 
 would be taken into the estimate in weighing the evidence offered to esta- 
 bhsh imposition. See 1 Mad. 239. Nor must it be omitted that even 
 though a contract be in its origin assailable for the cause here spoken of, 
 yet a subsequent confirmation, when the disability is removed, will make it 
 good : 6 Mun. 15: a doctrine, indeed, not confined to cases of this de- 
 scription, but embracing most other cases of contracts which are not radi- 
 cally vicious. See J Fonb. 131. 3 P. Wms. 290. 3 Mun. 129. 
 
 4. Contracts are sometimes assailed on the ground of the want of inade- 
 quacy of consideration.* Where the inadequacy is so gross, strong, and 
 manifest, that its inequality shocks the moral sense, a court of equity may 
 not only refuse to carry it into execution, but may lend its aid to set it aside. 
 But though the contract is greatly unequal, yet if its inequality be not such 
 as to carry with it decisive evidence of fraud, equity (though it might re- 
 fuse to enforce it) will not take upon itself to rescind it ; unless other cir- 
 cumstances should conspire to fix the stamp of fraud upon the transaction : 
 as where the vendor sells at a grossly inadequate price, not being conusant 
 of his right ; 2 Bro. 150 ; or the vendee takes advantage of his distress. 2 
 Leigh, 149. In all these cases, too, the adequacy of the consideration is 
 considered with reference to the time of the contract, and not to any sub- 
 sequent event, or to the rise or fall in the value of the property after its 
 completion. Sug. 189, &c. 
 
 It seems that the judges have not altogether coincided as to what consti- 
 tutes gross inadequacy, nor does it appear to be very susceptible of being 
 reduced to any determinate rule. The question whether inadequacy shall 
 be permitted to invalidate a contract, depends, indeed, so often upon other 
 circumstances which are combined with it, or are calculated to control its 
 influence, that it may not be amiss to consider it in conjunction with some 
 of them. 
 
 First, then, it may be remarked that a great difference exists between 
 contracts executed and executory.! If a contract has been carried into ex- 
 ecution, and the application is to a court of equity to rescind it, that court 
 will not lend a ready ear to the complaint of inadequacy of the considera- 
 tion. To set aside a conveyance requires, it is said, an inequality so strong, 
 gross, and manifest, that it must be impossible to state it to a man of com- 
 mon sense without producing an exclamation at its inequality : for in such 
 
 * A bond or mortgage is prima facie evidence of debt, but if the circumstances are suspicious, the 
 party must prove the consideration. Piddoch vs. Brown, 3 P. Wms. 289. 
 
 t See 3 Ran. 507. Doug. 467, Lumley ds. Bonrdieu. 2 Evans' Poth. 394. Mr.-Justice Buller ob- 
 serves, " there is a sound distinction between contracts executed and executory, and if an action be 
 brought with a view to rescind, you noust do it while the contract continues executory, and then it 
 can only be done on the terms of restoring the other party to hia original situation." There can be 
 no partial rescission of a contract. It must be in toto or not at all. 5 Leigh, 113. 
 
 VOL. 2 — 54
 
 426 FRAUDS. [ BOOK ?. 
 
 cases the court proceeds on the notion of fraud : and it is obvious thafc 
 where no other circumstances conspire to establish it, the inequality must be 
 very gross, or the party selling cannot be said to be in the power of the 
 buyer. But there is a great difference between establishing and rescinding 
 an afrreement. 2 John. '23. 10 Vez. 292. For if the contract be execu- 
 tory,°(i. e. yet remains to be executed,) and the seller refuses, on account 
 of the hardness of the bargain, to carry it into execution, if the price be 
 very unreasonable a court of equity will not force him to do so, on the ap- 
 plication of his adversary ; both because the decreeing a specific execution 
 of contracts is matter of discretion in the court, and because in a hard case 
 unless the party who seeks to perform has in all things fulfilled the contract 
 to the letter on his part, which rarely happens, he has no right to expect a 
 ricTorous enforcement of it in his favor. Thus we see that where there is 
 inadequacy merely, without other ingredients in the case, equity is not dis- 
 posed to assist either party, and he who can place himself on the defen- 
 sive will in that court have the advantage. 
 
 It is next of consequence to observe that there ate certain sales which 
 from their very nature are on. the one hand more liable to be attended with 
 iinmense sacrifices than others, while on the other, motives of public policy 
 imperiously demand that they should be cautiously interfered with. Such- 
 are judicial sales, under executions, or decrees of courts of chancery. 
 Property thus exposed is always liable to be sold at grossly inadequate pri- 
 ces, yet if such sales were too eagerly set aside, all confidence would soon 
 be lost in them — the number of bidders would be decreased, and the evil 
 would be magnified by injudicious zeal to prevent or to remedy it. Hence, 
 ailhoufrh in extreme cases the court would doubtless interfere, yet it does 
 so always with great reluctance. Hence, also, I presume, tlie indisposi- 
 tion to set aside sales at auction generally, which has been strongly mani- 
 fested by the present Lord Chancellor of Great Britiain, notwithstanding a 
 decision of Lord Rosslyn, who refused to compel the completion of a sale 
 by auction, because of the inadequacy of price. 7 Vez. 30, 35. Other 
 reasons for the aversion to interfere with sales at auction are mentioned by 
 Sir Samuel Romily in argument ; 10 Vez. 298. 
 
 On the other hand, there are other sales which courts of equity, from 
 principles of public policy, readily set aside upon any evidence of inequal- 
 ity in the contract. Such are sales of reversionary interests and expectan- 
 cies by young heirs, (and even by some others, 2 Vern. 121, 3 P. Wms. 
 290,) which are discountenanced, not only because they open a door for 
 fraud, but because they are pernicious in removing one of the strongest sup- 
 l)ort3 of parental authority by enabling the chilil to acquire independence 
 of his father. 3 P. Wms. 290. 1 Mad. 97. Such cases always rest on 
 their own circumstances, a? the courts decline establishing definite rules 
 lest they be evaded. The fact of the heir bning unprovide<l for; the un- 
 certainty of the interest; the possible risk of the purchaser by the death of 
 the vctiilor before he comes into possession, and the acqniesence of the 
 seller, however long, if his situation be unchanged in relation to the interest 
 disposed of, will prevail but little in the j)urchaser's favor. Sug. 194, 195. 
 A bona fide sale of a reversionary interest, whether the vendor be heir or not, 
 is valid, however, if fraud is neitiier proved or to be presumed from inade- 
 quacy of consideration, or oilier circuinstances. Ibid. And in general 
 where tiiere arc not other motives fur setting aside sales of reversions, mere 
 inadequacy will not sullice, since such contracts being in their nature con- 
 tracts of hazard, no criterion is alfordcd whereby the court can accurately 
 determine their value. See 2 Leigh, 1 19. 
 
 Having made these |)rcliininary remarks wc may now add that we have 
 no certain rule by which the inadequacy of a consideration can be asccr-
 
 m. 
 
 CHAP. 21.] FRAUDS. ' 427 
 
 tained, though the civil law held no consideration inadequate which exceed- 
 ed half the real value of the estate ; and there are not wanting' opinions 
 favorable to the adoption of that as a criterion. Sug. 107. By one judge, 
 i£ll:iO for an estate worth £2000, has been held too small a consideration 
 to support a bill for specific performance, and tiiis even in an auction case. 
 7 Vez. 30. By another £G000, and £1 1,000 more on the death of an old 
 man of sixty-five, was thought exorbiant for an estate worth only £10,000, 
 and he both refused to enforce the contract at the instance of one party, or 
 to rescind it at the instance of the other, there being no evidence of fraud, 
 &c. Sug. 190. All that can be affirmed herein is, as before stated, that 
 in a mere naked case of inadequacy it must be very gross to induce a court 
 to set aside the contract. See 2 John. C. C. 1. 
 
 But though this is the case where inadequacy is the sole equity set up, 
 yet it is otherwise where there are other circumstances in the case. Then, 
 indeed, inadequacy, though not very gross, may be an important ingredient. 
 As where there has been an industrious concealment for the purpose of ob- 
 taining an estate at a grossly inadequate price; Sug. 191; or where the 
 party is not conusant of his rights, and his adversary is; Sug. 193; or 
 where advantage is taken of the distress of the vendor; Id. ; or he is under 
 the influence of the buyer, or in his power; or he is greatly intoxicated, 
 even though it be not by the contrivance of the purchaser; or he is a man 
 of notorious imbecility naturally or from extreme old age, and there are any 
 concurring circumstances of trick or artifice : in all these cases the inade- 
 quacy of the consideration is justly considered as an imjjortant fact in the 
 establishment of a fraud. See 1 Mad. 212. 1 Mun. 527, 557. 
 
 If a bargain is fair and the consideration adequate at the time of the con- 
 tract, and it becomes by subsequent events very advantageous to the pur- 
 chaser, the vendor cannot complain. As if a woman sells her dower inter- 
 est, worth £1000, for an annuity of £100 per annum, and dies the first year, 
 still the court will compel the execution of the contract, for it was in its 
 •character a cpntract of hazard. See 3 Br. C. C. 605. 9 Vez. 246. So a 
 compromise of a suit can never be set aside upon the ground that the party 
 seeking to annul it had the clear right, or that the consideration of com- 
 promise was inadequate, provided the parties are fairly apprised of their 
 rights. 1 Mad. 215. 1 Br. C. C. 22. 1 Vez. 444. 2 Rand. 442.. 444, 
 1 P. Wms. 727. 
 
 Where a coHveyance is set aside for inadequacy, the conveyance stands 
 as a security for the purchase money and interest, (1 Mad. 99,) and the 
 purchaser is allowed for permanent improvements, (Sug. 196,) and will be 
 charged with rents. 
 
 5. Underhand agreements are also relieved against in equity. As if a 
 debtor compromises with his creditors, and one being obstinate he gives to 
 him secretly collateral security for his composition, this security is fraudu- 
 lent and invalid. 1 Mad. 220. See 4 Barn. & Cres. 506. So where he 
 ostensibly accepts a composition, and takes part of his debt in discharge of 
 the whole, in order to enable the debtor to deceive others, but proceeds to 
 take security for the unpaid re^^idue of his demand, this is fraudulent and 
 void. Ibid. For though a debtor may fairly prefer one creditor to another, 
 and such preference will be recognized by courts of law and equity, (Twine's 
 case, 3 Co. 80. 3 Atk. 192, -351. 7 Vez. 30-3,) yet this should be done 
 openly and above board, and not as a decoy to induce other creditors to 
 take a part of their debts in lieu of the whole. 
 
 Under this head of underhand agreements are also usually classed mar- 
 riage brokage bonds, bonds for procuring offices under the government, and 
 the'' like, f Mad. 227, 228. But they come more properly under the 10th 
 division which we have made of tiie subject.
 
 428 FRAUDS. [ BOOK 3. 
 
 6. Among the various species of frauds which are more particularly de- 
 serving notice, is the purchasing with notice of an unrecorded deed. For 
 althouo^h the statute for the registering of deeds provides that a registered 
 or recorded deed shall have preference of an unrecorded though prior deed, 
 yet it has been held in equity that though the prior deed be not recorded, 
 yet it is a fraud in the subsequent purchaser with notice of the prior deed, 
 to attempt to acquire what by means of that notice he knows rightfully be- 
 longs to another : that actual notice is equivalent to the notice which the 
 statute intended to give him, and should bind him as much, since it is en- 
 tirely unimportant hoiv he gets the notice, so he is aware of the fact when 
 he deals for another's property. See 1 Fonb. 23. 2Fonb. 155. New. 511. 
 7 Cranch. 366. Sug. 516, and the numerous cases there cited.* 
 
 This species of fraud is equally committed whether one purchases, — or 
 takes a mortgage on property with notice of a prior incumbrance not regis- 
 tered, on the same property. In both cases the prior incumbrance has a 
 preference ; for the recording acts were made to prevent subsequent pur- 
 chasers from being prejudiced by ignorantly buying incumbered property : 
 which cannot be, where, so far from being ignorant, they have actual notice 
 of the incumbrance. Sug. 511. See 2 Mun. 129. The statute, indeed, 
 vests the legal title in the subsequent purchaser : but although the legal title 
 of the prior incumbrancer be divested, his equitable right over the proper- 
 ty remains. 2 Rand. 100. But it is said that the proof of notice must 
 be clear and undoubted, and that mere suspicion of notice will not suffice. 
 Sug. 512. This, indeed, is obvious, since the ground of relief is fraud, 
 which must always be proved, and cannot be presumed. 6 Mun. 42. A. 
 distinction, however, seems indeed to have formerly prevailed between ac- 
 tual and constructive notice ; holding the purchaser bound by the former 
 but not by the latter. The distinction, however, as applicable to this sub- 
 ject, seems only calculated to confound ; for the question always is, whe- 
 ther the party really had a knowledge of the existence of the prior incum- 
 brance. This knowledge may either be proved by direct evidence, or by 
 proof of other facts from which such knowledge may justly be inferred: 
 and when thus proved, even by circumstantial evidence, it is as confidently 
 taken to exist as if proved by direct evidence. 2 Rand. 101. Now a no- 
 tice proved by circumstantial evidence instead of direct evidence, is the 
 same thing as constructive notice ; so that constructive notice in this (as it 
 undoubtedly is in all other cases) is sufficient, provided the facts from which 
 the notice is deduced are sufficient to justify the conclusion that the party 
 really knew of the prior deed ; for when that is the case the constructive 
 notice amounts to the same thing as actual notice, because it establishes 
 satisfactorily to the mind the existence of such actual notice. 
 
 In connexion with this doctrine is the question whether a lis pendens, or 
 suit depending in reference to the right in question, is of itself sufficient 
 notice of the prior incumbrance. To understand this we must first suc- 
 cinctly show what this lis pendens is. A simple instance will best explain 
 its meaning. 
 
 When an individual has instituted a proceeding in a court of justice for 
 the recovery of a piece of property, such as a horse, or a negro, or a tract 
 of land, or for the purpose of subjecting it to the payment of a debt, the 
 necessities of justice require that no alienation of the property by his ad- 
 versary should be permitted while the suit is depending (lile pendente;) 
 
 * So in case of a second mortgagee who has notice of the first mortgage which is not recorded. 2 
 Leigi),426. 
 
 VVliethera piirciiaser or incumbrancer is to l)e considered as affected with notice hv tlie record of 
 a deed, seems not to be settled with us. See 3 Leigli, Doswell »w. Buchannan. In England, a bar- 
 gain and sale passes no title till enrolment, and thus the subsequent purchaser havipg acquired the 
 Ugnl title, cannot be aflected with fraud except by express notice. See Post, 440.
 
 CHAP. 21.] FRAUDS. 429 
 
 since were this allowed, the defendant might continually elude his pursuit, 
 and frustrate his efforts by a transfer of his right to another. It is therefore 
 established as a fundamental rule of all courts, that whoever, pendente lite, 
 purchases the corpus or subject of contest, takes subject to the event of the 
 suit. Thus we have seen that if I bring detinue against A for a slave, and 
 pendente lite he sells to B, I am not obliged to bring a new suit against B, 
 but may proceed in my action against A, and if I succeed in it, B can ne- 
 ver after be permitted to deny my right : for being a pendente lite purchaser, 
 the law considers him as standing in A's shoes, and bound to abide his 
 fate. In this sense, then, the lis pendens is notice to all the world. " The 
 rule is founded on the necessity of such a rule to give effect to the pro- 
 ceedings of justice." The necessity, indeed, is so obvious, that whether the 
 purchaser had, or by inquiry might have had notice of the suit, or not, its 
 existence and applicability is equally proper: 2 Vez. & Beame, 200. 2 
 Ball & Beat. 167. 2 John. 441, 155, 158. 1 John. 566 ; and in point of 
 fact it applies to cases in which it is physically impossible he should know 
 of the suit. 2 Rand. 102. Yet to avoid a great mischief the rule is uni- 
 versal, though particular injury may sometimes result; and every purchaser 
 pendente lite holds the property, subject to the execution upon the judgment 
 in that suit, in the same manner the defendant would have held it if no 
 alienation had been made. Id. Sug. 537. 2 John. 155, 158. 4 John. 39. 
 
 At law, the lis pendens exists from the first moment of the day on which 
 the writ issues. In chancery it never exists until subpoena served and bill 
 filed : but when the bill is filed it then relates back to the service of the 
 subpoena, and binds from that time : but in both courts, if the plaintiff dis- 
 continues, or is nonsuited, or dismisses his bill, the effect of the lis pendens 
 is gone. And in equity it is requisite that the suit should be in a full course 
 of prosecution. 2 Fonb. 157. Sug. 536. For the doctrine rests in theory 
 upon the supposition that every man is conusant of what is going on in a 
 court of justice ; and it is carried so far that the notice of the lis pendens 
 ceases the instant there is a decree ; that is to say, no person is affected by 
 the doctrine whose purchase is subsequent to a final decree, nor is a decree 
 notice of itself to a purchaser. Sug. 538. 
 
 Having said thus much of the lis pendens, it only remains to add here, 
 that it has lately been decided that a lis pendens is not of itself such notice 
 of a prior unregistered mortgage as will postpone the subsequent mortgage. 
 Newman vs. Chapman. 2 Rand. 104, 107. 19 Vez. 439. The reasons 
 urged in support of the decision are strong. The act of assembly has ex- 
 pressly declared the first mortgage void as to the second, because it is un- 
 recorded. The legal title is then in the second mortgagee. Having the 
 law in his favor he must prevail, unless he has less equity by reason of fraud 
 on his part. This fraud, if it exists, consists in taking the second mortgage 
 with notice of the first : and this notice meant by the law is actual notice. 
 But if the second mortgagee swears he never had heard of the suit, it would 
 be unfair to presume tlie contrary unless it be proved. A suit may well be 
 depending, and yet a party deeply interested may never have actually heard 
 of it. It is, indeed, a presumption of law for purposes of justice, that eve- 
 ry man knows what is going on in a court of justice. But this is a mere 
 fiction : and a fiction of law never works injustice. 
 
 Yet notwithstanding the strong reasoning of the court in support of this 
 decision in the case of Newman vs. Chapman, it does appear to me strange, 
 that a mortgagor may, while a suit is depending upon a mortgage, elude the 
 demand of the mortgagee and the justice of the court, by alienating the 
 corpus or subject of the contest, or by taking up money on the mortgaged 
 premises to their full value. So entire a subversion of one of the funda-
 
 430 FRAUDS. [ BOOK 3. 
 
 mental principles of jurisprudence can scarcely have been contemplated by 
 the legislature, in its enaction of the register acts. 
 
 7. Fraud in obtaining a judgment, (1 Vez. 289,) or decree, (3 Br. C. C. 
 74,) or the probate of a will, (1 Vez. 290,) or letters of administration, are 
 all subjects of relief in equity: 1 Mad. 2-37 : but they will be touched up- 
 on when we come to speak of injunctions. 
 
 8. Another species of fraud which it is proper to notice, are frauds upon 
 auctions : where, with a viev; to enhance the price of articles, puffers or 
 fictitious bidders are employed, that excitement may be produced by appa- 
 rent competition, and real bidders stimulated by the contest. After much 
 ■difference of opinion as to the legality of employing private bidders, (see 
 Cow. 395. 3 Vez. 628. 6 T. R. 642. 12 Vez. 477,) we are told that it 
 is clearly settled that a bidder may be privately appointed by the. owner to 
 prevent the estate from being sold at an undervalue ; and it has been deci- 
 ded that if there are real bidders at a sale, it must be supported although 
 the bid before the last be fictitious. Moreover if notice is given that there 
 are private bidders, the private bidding will in no case afTect the sale. Sug. 
 19. 1 Mad. 257. 
 
 Coranected with this subject is the fraud of two persons agreeing not to 
 bid against each other, in order to buy the articles cheap and share them : 
 which agreement has been decided in New-York to be against public poli- 
 <cy, and void. 6 John. Rep. 194. 
 
 It may not be amiss here to notice an opinion entertained by some, that 
 .a sale at auction under an execution or decree, is not good unless there be 
 snore than one bidder : that there must be, in short, bid above bid, to con- 
 stitute such a bidding as will come within the terms " shall sell to the high- 
 est bidder." I am not aware of any decision upon this point.* I am, how- 
 ever, inclined to think the objection not valid. On such occasions the arti- 
 cle sold is offered by public advertiseiment to the whole country, and the 
 ■only bidder may therefore be well regarded as the highest bidder, and with- 
 in the meaning of the terms. The circumstance of there being but one 
 bidder, combined with others, such as bad weather, circumscribed adver- 
 tisements, &c. might indeed furnish sufficient grounds for setting aside a 
 sale, but would not, I conceive, suffice per se. 
 
 Besides the frauds already mentioned, the following are also worthy of 
 particular remark, viz. : 
 
 9. Frauds on the rights of marriage. 
 
 10. Frauds on creditors. 
 
 11. Frauds on powers; the failure to execute them, illusory appoint- 
 ments, &c. 
 
 12. Fraudulent indulgence by a creditor to his debtor to the prejudice of 
 the surety. 
 
 But as the three first subjects have been treated of in a former part of 
 these lectures, and the last will fall under another head, nothing will be 
 said of them here. 
 
 I shall therefore here conclude the bead of fraud, with the following rules 
 or principles : 
 
 1. Infancy and coverture furnish no excuse for fraud, and are no protec- 
 tion from relief sought against it. 1 Fonb. 71, 152. 1 Wash. 299. Sug. 
 522. Yet where a fraud is committed by the husband, the wife in partici- 
 pating in it seems to be considered as sub potestale viri, and her rights are 
 therefore not to be impaired by reason of it. Gilm. 209. 
 
 2. Interests obtained through the fraud of another person cannot be 
 maintained. " Although the party benefitted was no party to the imposi- 
 tion, nor had any undue influence over the party deceived, yet he takes the 
 
 * See what is said argii : 4 Rand. 201, and by Judge Carr, Id. 206.
 
 CRAP, 
 
 21.] DISCOVERY. 431 
 
 subject of the contract tainted and infected with the undue influence snd 
 imposition of the person procuring the deed. Let the hand which receives 
 be ever so chaste, if it comes through a polluted channel, the obligation of 
 restitution will follow." Wilm. 64, cited 14 Vez. 289. 2 Vez. 627. This 
 doctrine is fully sustained by the decision of the supreme court of the Uni- 
 ted States in the case of Marbury against the Bank. Wheaton's Reports. 
 
 VI. OF "DISCOVERY."* 
 
 The jurisdiction of equity in cases where a discovery is essential to the 
 purposes of justice, and the plaintiff has a right to demand it, may be af- 
 firmed to be universal. 1 Call, 382. It was probably very early exercised 
 by-a tribunal the head of which in early times was an ecclesiastic, the mem- 
 ber of a church that professed an unlimited control over the conscience. 
 
 Every bill requiring an answer is more or less a bill of discovery. 1 Mad. 
 160. And it is the privilege as well as the duty of the defendant in gene- 
 ral to answer. 
 
 Bills either pray a discovery merely, without praying relief, or they pray 
 both discovery and relief. The first, however, possessing a more distinc- 
 tive character than the latter, will be the principal subject of remark here, 
 
 I. As to mere bills of discovery. These are in their nature only ancil- 
 lary to the proceedings of other courts, or of the court of equity in some 
 other cause ; and it will be proper to consider in the first place for whom such 
 a bill lies. Here it is obvious that where there is a personal disability m 
 the plaintiff to sue, he cannot have a discovery. As where an infant, feme 
 covert, or lunatic sue without a guardian or committee. Coop. Eq. 192. 
 So if he has no title to the character in which he sues, and in which cha- 
 racter only he would have a right to the discovery ; as if he sues as execu- 
 tor of a decedent, demanding a discovery of his estate, when in truth he is 
 no executor. So if he has no interest in the subject, or it be of such a 
 nature that no action will lie for it in any court whatever, his bill will not 
 be entertained : for this ancillary jurisdiction is exercised for purposes of 
 justice, not of vexation ; it results from a desire to assist him who is wrong- 
 ed, and from no wish to feed the malignity of the liligous, or to pander to- 
 tbe bad passions of the suitor. It must therefore cither appear that an ac- 
 tion is brought, or that the necessary effect of the case stated by the bill is 
 the right to bring an action. Coop. 194. 1 ]Mad. 162. 
 
 II. Against whom does a bill of discovery lie ? It does not lie against a 
 defendant who is in no wise answerable to the plaintiff in reference to the 
 subject of discovery. It does not lie against a married woman for a disco- 
 very to charge her husband; nor against a solicitor to compel him to disco- 
 ver secrets entrusted to him by his clients ; for these he can neither be com- 
 pelled nor permitted to disclose. Coop. 196. 4 Mun. 27-3. Nor does it 
 Jie against a mere witness, (1 Vez. 426. 2 Vez, 493. 2 Br. C. C. 242,) 
 except in the case of a corporation, where, inasmuch as the corporation an- 
 swers under its corporate seal, there is no effectual discovery except through 
 some officer of the corporation, who is made a party for the purpose of ar- 
 riving at the facts. 1 Mad. 171. 2 Mad. 147. Mitf. 8. 15 Vez. 164. 
 
 III. Of what and for what does a bill of discovery lie.'' And here we 
 shall in some instances proceed rather by shewing of and for what it does 
 not lie, since, unless there be a reason to the contrary, a discovery is, in gen- 
 eral, matter of right. First, then, a bill of discovery will not lie where from 
 
 * Tlie power to enforce a discovery upon filing interrogatories is civen to courts of law. J830, ch. 
 11, § 63, 69. The right of tiie inlorrogator to waive the discover}- when obtained, or lo contradict it 
 l)V evidence aliund'-, and the weight to which the answers to interrogatories are entitled, liave re- 
 cently lieen the siibjeet of much earnest consideration in ilie case of McFarland vs. Hunter at Lew- 
 ibbuig bulllie case is yet under aJviseuicut.
 
 432 DISCOVERY. [book 3. 
 
 its face it appears to be immaterial ; that is to say, the discovery relates to 
 a matter for which there can be no remedy, or is impertinent or unimpor- 
 tant to the ends of justice. It must be remarked, however, that where a 
 bill is merely for a discovery, its materiality will not be very nicely scruti- 
 nized ; for, as in all bills for a discovery merely, the complainant must pay 
 costs, it can scarcely be presumed that he would prosecute a suit for vexa- 
 tion, the burden of which would fall on himself and not on his adversary : 
 and it is fair to conclude he deems the discovery important to his case — a 
 matter of which it is chiefly for him to judge. 1 Br. C. C. 69. 4 John. 
 412. Secondly, it is said that to give a court of equity jurisdiction it is not 
 sufficient to charge that certain facts are known to the defendant and ought 
 to be disclosed by him, but it should be averred that the plaintiff is unable 
 to prove the facts by other testimony. 2 Mun. 290. 7 Cranch, 69. A*c- 
 cordingly a bill to discover the name of a negro child whose mother's name 
 was known to the plaintiff, was dismissed. 4 H. & M. 478. Nor will this 
 bill lie to discover the tenant of the freehold in order to bring an action ; or 
 the name of a party, or whether he exists, in order to make him a party, for 
 these may be known without. 1 Mad. 171. Yet it is said a bill of dis- 
 covery lies in aid of proceedings in ch^nzGxy to deliver the party from the 
 necessity of obtaining evidence ; I Mad. 161 ; and the dictum of lord Hard- 
 wicke sustains the position. 2 Vez. 398. We must consider it, however, I 
 presume, as applying strictly to cases of mere bills of discovery, and not to 
 bills praying both a discovery and relief. Thirdly, a bill lies in behalf of a 
 creditor against the personal or real representative of a decedent for the 
 discovery of assets out of which his debt may be discharged. 1 Wash. 
 168. 6 Mun. 29. 2 H. & M. 8. 2 Cr. 407. 6 Vez. 792. 1 Mad. 169, 
 170. Fourthly, a bill for a discovery does not lie to compel a purchaser 
 for a valuable consideration, and without notice of the plaintifTs title, to 
 make a discovery which may affect his own title ; and this is said to be an 
 infallible rule : 1 Mad. 170. 2 Vez. jr. 154: for such a purchaser having 
 equal equity with any other person, and therefore an equal claim to the 
 protection of the court, he ought not, upon the principle of that court, to 
 be compelled to weaken or impeach his title. 2 Fonb. 486. 3 Br. C. C. 
 264. 4 Vez. 66. 13 Vez. 251. Nor does it lie for an heir at law, for the 
 inspection of deeds in the devisee's hands. Coop. 58. Nor does it lie 
 against a jointress to discover writings, unless the party agrees to confirm 
 the jointure. 1 Vent. 198. 1 Vez. jr. 76. 2 Vez. 450. In like manner, 
 it is said, no bill lies to compel one whose land lies contiguous to mine, to 
 discover the boundaries in his deeds, (2 Fonb. 488,) for that would be to 
 force a man to injure and weaken his own possession. Yet as it is the du- 
 ty of the tenant to keep the boundaries, the court will assist a landlord by 
 compelling the tenant to discover them. 6 Vez. 293. 
 
 Lord Hardwicke lays it down that any person in possession, as tenant or 
 otherwise, may file a bill for the discovery of the title of one bringing an 
 ejectment against him, to have it set out and seen whether the title be not 
 in another, even though he himself is a wrongdoer against every body ; 1 
 Vez. 249; an exercise of jurisdiction which I do not understand how to 
 reconcile with equitable notions. If, indeed, his possession were rightful, 
 it would be otherwise : for it seems but reasonable that every man should 
 have the benefit of a discovery in support of his right, provided his conduct 
 has been fair. The refusal to allow a discovery in many cases, because the 
 defendant stands upon his legal right, savours indeed too much of techni- 
 cality for a tribunal which regards only the substance of things; and the 
 objection that a man ought not to be compelled to furnish evidence to im- 
 peach his own title, comes with an ill grace from a court, many of whose
 
 CHAP. 21.] DISCOVERY. 433 
 
 decrees against defendants rest mainly upon what they have confessed to 
 their own prejudice. 
 
 To the rule we have been just stating there seem to be a few exceptions. 
 Such are those of a devisee demanding from the heir a discovery of the 
 deeds, and of a doweress who claims a discovery of defendant's title. Wil- 
 liams vs. Lamb, 3 Br. C. C. 264. Coop. 59. 1 Mad. 171. The reason 
 given in the latter case, that the rule does not apply because the widow 
 comes in upon a legal right, would seem to admit the discovery in all other 
 cases where the claim was legal and not equitable. But the true reason 
 seems to be that the doweress admits the title in her adversary, and so far 
 from seeking to impeach it, she is not less interested than he in maintain- 
 ing that he has the title. Moreover the court of equity having taken cog- 
 nizance of dower cases (although depending upon legal rights) it would 
 seem to follow, of course, that they must inquire into the title. 
 
 A bill of discovery also lies against a lessee, but not against an assignee 
 (he being a purchaser) to compel him to discover whether his lease has ex- 
 pired or not. 1 Mad. 166. 2 Fonb. 487. 
 
 Fifthly ; we have already spoken of the jurisdiction in the case of lost 
 deeds, or deeds in possession of another, in which cases the courts of equi- 
 ty not only compel a discovery, but give relief. It may be, however, that 
 the party may wish a discovery of deeds without relief ; and where he has 
 title to them his right to a discovery is unquestionable ; as in the case above 
 of a devisee who having title to the estate, may compel the heir to disclose 
 the title and the deeds which are the muniments of that title. See 1 Mad. 
 160, 162, 165. Hence it is, that although where the titles of the plaintiff 
 and defendant are in conflict, the plaintiff has no right in general to look 
 into the defendant's title, yet it is otherwise where the same deed is part of 
 the defendant's title as well as the plaintiff's. 13 Vez. 252. 
 
 Sixthly ; a bill of discovery will not lie, it is said, to enable a party to ob- 
 tain a confession from his adversary so as to maintain an action of tort ; 
 and this most probably because chancery has no jurisdiction of torts more 
 than of crimes, and never lends its aid to enforce what is in the nature of 
 a punishment. 1 Fonb. 4. That this is the true reason, would seem ob- 
 vious from the bill of discovery being entertained to enable a party to sus- 
 tain an action for damages in any matter of the nature of contract, as in 
 the case of a lighter overset by negligence, for which the lighter-man was 
 answerable as a common carrier, and for which he might have been sued 
 either in assumpsit as upon a contract, or in a case as for a tort. See 1 Mad. 
 167. 2 Fonb. 482. 
 
 Lastly ; where a discovery may possibly subject the defendant to a penalty 
 or forfeiture, or render him liable to a criminal prosecution, or compel him 
 to disclose his own turpitude, the following principle prevails. If the pe- 
 nalty or forfeiture which the defendant v^ill be in danger of incurring by the 
 discovery accrues to the plaintiff, and it is in his power to waive it and en- 
 tirely to exonerate the defendant, he is entitled to the discovery he asks 
 upon offering to waive the penalty, which he should do by his bill. But 
 unless he waives it he shall not have the discovery. In like manner, if the 
 penalty goes to himself and another, and he procures an entire waiver of 
 it, he may have the discovery ; but unless all those who claim any part of 
 the penalty or forfeiture concur in waiving it, the discovery will not be en- 
 forced. 1 Mad. 173. 4 John. 432. Mitf. 157, 160. 
 
 IV. We come to consider the manner ; how or what is necessary in filing 
 a bill of discovery. And here it must be remarked first, that where a party 
 brings his bill in equity to set up a lost bond, deed, or other instrument, 
 praying a discovery and seeking relief, it is necessary that he should attach 
 to his bill an affidavit of the loss or other circumstance upon which the ju- 
 voL. 2 — 55
 
 434 DISCOVERT. [book ^ 
 
 risdiction rests, such as the destruction or purloining of the instrument, &c. 
 3 Leio^h, 58. But where he comes into court for a discovery merely, there 
 such affidavit is not required to be appended to the bill, for as he must pay 
 the costs of the mere bill of discovery according to the established rule of 
 the court, it is a fair presumption that he would not have brought his bill if 
 he had not really sustained the loss. 4 John. 294. 1 Mad. 162. 1 John. 
 R. 479, Laight vs. Morgan. 
 
 As to the frame of bills of discovery, it seems that where the plaintiff is 
 entitled only to a discovery, he should bo careful not to pray relief, since 
 that will subject his bill to demurrer: though it is not, on the other hand, 
 true, that if the bill prays relief as well as discovery, and the discovery ia 
 auxrliary to the relief, a demurrer to the discovery alone will defeat the whole 
 bill. 1 Mad. 175. 
 
 As to parties in bills of discovery merely, none other is necessary than he 
 from whom the discovery is sought ; but if relief is prayed it is otherwise. 
 1 H. & M. 330. 
 
 V. As to the time when a mere bill of discovery should be brought as 
 auxiliary to the proceedings in another suit, it has been decided that it does 
 not lie after a verdict. 1 Veru. 176. 6 Ran. 129. Indeed it is obvious 
 that to give the discovery after a verdict, without giving relief by directing 
 a new trial or injoining the judgment at law, would be entirely futile. Yet 
 we shall find under another head that there was formerly with us no^^more 
 common head of equity than that of giving a discovery even after verdict, 
 and granting relief by directing a new trial or injoining a }iiidgraent which 
 has been unfairly obtained. 
 
 VI. In some respects this bill is anomalous; for the defendant cannot 
 move to dismiss it for want of prosecution : perhaps because he has noth- 
 ing to do but to answer, which he may do without any prosecutio7i of his bill 
 by the plaintiff, and perhaps also because, as the plaintilT pays the costs in 
 any event, it is to his own prejudice exclusively not to ])rosecute. More- 
 over the cause always ends with the answer, unless the plaintiff chooses to 
 except to it as insufficient ; for an answer is the only object of the bill ; and 
 if the plaintiff does not think proper to except, 00 further proceeding can 
 be necessary. Such a bill is therefore never brought to a hearing, but after 
 answer, if the plaintiff is satisfied, he moves that the cause be "struck 
 out of the paper," that is, (with us,) be struck from the docket :. for a bill 
 of discovery is never dismissed, the very terms of dismissal, according to 
 strict technicality, setting forth " that the court sees no cause to relieve," a 
 mode of expression inai)propriate to a bill which asks no relief. See 3 Br. 
 C. C. 375. 1 Mad. 178. 
 
 It is obvieus, too, that if the defendant dies before he has answered, the 
 suit abates and can never be revived, since its object can no longer be at- 
 tained. It also abates without the. power of revival, even after answer, by 
 the marriage of a female phiintiii', so that in such case the defendant cannot 
 recover his costs: a detenuinntion which secn).'> unreasonable, and was re- 
 luctantly followed by Lord Eldou. Perhaps with us it may be otherwise, 
 under our statutes of abatement. 
 
 VII. As to costs. The general rule is, as already intimated, that on a 
 rnere bill of discovery the plaintiff must pay all costs; for as the suit is exclu- 
 sively for his benofil — as it settles no controversy, and the defendant does 
 not therefore acquire even that advantage from it, it is but reasonable the 
 plaintiff" should pay all. To this rule, however, there are exceptions: as 
 where a bill prays a discovery, and commissions also to examine testimony, 
 if the defendant does not content himself with a cross examination, but ex- 
 amines witnesses in chief, each party pays his own costs, for in this case 
 both make advantage from the case by taking their testimony. Moreover,
 
 csiAP. 21. J TRUSTS. 435 
 
 where before filing his bill the plaintiff demands a discovery which he has a 
 right to, and which the defendant refuses to make, but drives him to the 
 costs of a bill, the plaintiff is not bound to pay defendant's costs. 1 Vez. 
 423. 
 
 We come next to say a few words as to bills which ask for relief as well 
 as discovery. The necessity for a discovery is always of itself sufficient 
 ground of equitable jurisdiction in any case : and although the subject- 
 matter of contest be not appropriate for its jurisdiction, the court will pro- 
 ceed to decide it ; for it is a maxim with equity that when it once has ju- 
 risdiction of a case for any cause, it will make an end of it, instead of turn- 
 ing the parties round to a court of law to run a new race of litigation ; and 
 this although if such discovery had not been necessary, relief might have 
 been had at law. 1 Mun. 63, 98. But here we must observe that the want 
 of discovery must not be mere matter of pretext to translate the jurisdic- 
 tion from the proper tribunal to the court of equity: for if it appears on the 
 face of the bill that the discovery was asked in reference to matters of 
 which the party might just as easily derive information from other sources; 
 1 Mad. 171 ; and that it is not necessary ; 1 Call, 382; or if, in order to give 
 jurisdiction, the bill makes a mere colorable suggestion that a discovery ia 
 wanting, the defendant may in the two first cases demur to the bill, and 
 in the last he may by plea deny the fact suggested, and unless it be proved 
 the jurisdiction will not be sustained. 1 Call, 372. Nay, if the on/y ground 
 of jurisdiction be the want of discovery, and the defendant denies the alle- 
 gations, the plaintiff cannot, by proof derived from other sources, establish 
 his case. For though by proof he should show a just demand against the 
 defendant, the proof would exactly in the same degree demonstrate that 
 he did not want a discovery, and that therefore that ground of jurisdiction 
 fails. See 2 3Iun. 290. 7 Cranch, 09, 89. 6 Ran. 125, 519. In such 
 ease, to use a strong but quaint expression, (6 Mun. 545,) " if he proves 
 his case he proves himself out of court;" in other words, his own proof 
 shews he has no business in a court of equity. 
 
 VII. OF "TRUSTS." 
 
 The nature of uses and trusts having been already explained to the stu- 
 dent pretty much at large, I shall not here again dilate upon that subject; 
 but referring him to the distinctions which have been pointed out between 
 trusts and legal estates, I shall proceed to state some of the general doc- 
 trines of equity in relation to the former. 
 
 In recognizing the existence of a new species of interest unknown to the 
 early ages of the common law, there was no design to abrogate the princi- 
 ples, or to change the laws which govern real property, except in the par- 
 ticular instances that gave rise to the introduction first of uses and after- 
 wards of trusts. Thus although the interest of the cestui que trust was held 
 distinct from the legal estate, it was never contemplated that the laws of 
 descent which prevailed as to the one should be altered as to the other ; and 
 indeed the courts of chancery adopting it as a maxim that "equity follows 
 the law," established in relation to trusts, a rule that they siiould be govern- 
 ed by the same law, and be considered within the same reason as legal es- 
 tates. 2 P- Wms. 645. 1 Fonb. 395. It must be admitted, indeed, that 
 there are many exceptions to this rule, but it is nevertheless to be taken as 
 the general principle, controlled by such modifications as the court itself, in 
 the lapse of more than a century, has thought proper to introduce. 
 
 Another rule equally deferential to the courts of law, is that the trust shall 
 follow the legal estate, and be merged in it whenever they unite in the same 
 person in the same right. Thus if A devise lands to B, his wife, in trust
 
 436 TRUSTS. [ BOOK 3. 
 
 for C, their son ; during the life of B tlie trust subsists distinct from the le- 
 gal estate. But if B dies and the legal estate descends on C, the equita- 
 ble estate is at once merged in the legal, and is gone forever; and the in- 
 terest of C is no longer subject to those peculiar doctrines which are applied to 
 trust estates as contra-distinguished from legal titles. A very strong in- 
 stance of this has been more than once referred to. As if in the case just 
 put, C the son dies before B, and under twenty-one years of age. Here 
 his equitable estate will descend to his paternal relations, from whom he 
 derived it, and neither B nor any of her blood shall have it. But if B dies 
 first, so that the legal estate descends from heron C, and becomes united 
 with the equitable title, and then C dies under age, the paternal relations 
 will be excluded, and the maternal kindred will take the estate ; the legal 
 title having been derived from the mother, although the beneficial interest 
 came from the father. 1 John. 417. Though I have more than once inti- 
 mated a doubt as to the correctness of this decision, that doubt has not ari- 
 sen from any question as to the truth of the general principle, but of the pro- 
 priety of its application to the construction of that clause of the act of de- 
 scents which relates to infants ; and which obviously intended that the es- 
 tate should go to that branch from which the real or beneficial interest had 
 been derived. The general principle is well established, and is applied, and 
 perhaps very properly applied, to questions of descents in England. Doug. 
 771. 1 Br. 364. 3 Vez. 1-26, 339. 2 Vez. jr. 2G1. It has, nevertheless, 
 been somewhat modified ; since we are told that notwithstanding the union 
 of the two estates, yet when for the purposes of justice, or to answer some 
 beneficial purpose, it is necessary that the equitable estate should be still 
 considered as subsisting, it will be so considered. 6 John. C. R. 417. 5 
 John.C. R.35. 3 John. 56. 3 Vez. 127. 2 Vez. jr. 261. 18 Vez. 384. 
 As where A and B have mortgages on C's land, and C afterwards devises 
 to A. Notwithstanding the union of the legal and equitable title in A, his 
 mortgage will be considered as still subsisting, so as to retain to him any 
 advantage his lien may have over that of B : 6 John. 393, 424. 18 Vez. 
 384 : since it would be unreasonable that by the devise he should perhaps 
 be made a loser of his debt. In like manner it is decided that where the 
 owner of a mortgaged article pays off" the mortgage, and takes an assign- 
 ment of it, he may, if he chooses, keep alive the charge notwithstanding its 
 union with the fee, provided the purpose .is innocent, and his doing so will 
 be injurious to no one. 18 Vez. 384. 6 John. 395. 
 
 It has been already frequently observed that the cestui que trust is consi- 
 dered the real owner of the estate. The equitable estate which is vested 
 in him, it is said, " is the mere creature of the court of equity, and subsists 
 in idea only as to any legal consequences that might result from the posses- 
 sion of it, but totally distinct from the legal estate." 3 Vez. 126. They 
 are held perfectly distinct and separate. " The equitable estate is to be 
 enjoyed in the same conditions, entitled to the same benefits of ownership, 
 disposable, devisable, and barrable, exactly as if it was an estate executed 
 in the party : and the person entitled to it may, without the intervention of 
 the trustees, or the possibility of their preventing him from exercising his 
 ownership," [except where the instrument creating the trust requires their 
 concurrence,) " act as if no trustees existed, and the court will give validity 
 to such acts." 3 Vez. 127. 1 Mad. 381. Moreover, as we have else- 
 where seen, the equitable estate is now subject to dower, curtesy, and the 
 debts of cestui que trust. 
 
 On the other hand, the power of the trustee over the legal estate vested 
 in him, exists only for the benefit of the cestui que triist. No act or negli- 
 gence of the former can, prejudice or narrow the title of the latter. 3 Vez. 
 127, 341. 2 Fonb. 170. 16 Vez. jr. 26. I H. & M. 49. His deed, it is
 
 CHAP. 21.] TRUSTS. 437 
 
 true, will pass the legal liilc. G Mun. 358, 367. But it will not avail against 
 the cestui que trust in equity, except, indeed, in the single case of an aliena- 
 tion to a purchaser without notice, the trustee being in possession : an event 
 that can scarcely ever occur, since in tracing the title the purchaser would 
 in almost every conceivable instance be led to a discovery of the trust. 
 1 Mad. 363. 2 Fonb. 170. See also 4 John. C. C. 138. Should such a 
 case occur, the remedy of the cestui que trust \vou\d be against the trustee, 
 who would be bound to make good the trust. 2 Fonb. 170, 173. 
 
 As the acts of the trustee cannot bind or injure the cestui que trust, it fol- 
 lows a fortiori that the trust-subject is not liable in his hands for his own 
 debts or charges; nor in case of his death without heirs would the com- 
 monwealth hold by escheat disencumbered of the trust: a subject already 
 sufficiently adverted to elsewhere. See 1 Mad. 363. 
 
 Trusts being the mere creatures of equity, it is obvious that it has juris- 
 diction of every case which involves that peculiar species of trust and con- 
 fidence of which the common law takes no notice, which are sometimes 
 known under the name of second uses, and which owe their existence to 
 courts of chancery. See 1 Leigh, Ambler vs. Warwick. 4 Mun. 130. 
 Coop, xxvii. 1 Fonb. Book 1, ch. 1, § 3, note/. A bill therefore will lie 
 for the cestui que trust against the trustee, to compel an account or perfor- 
 mance of the trust ; or if he refuses to institute suits against others which 
 are required by the situation of the trust- subject, the cestui qui trust may 
 sue both him and them in equity. So the trustee may at any time apply to 
 a court of equity by bill (in which the cestui que trust must be a party de- 
 fendant) praying its instructions as to the trust, where such seem necessa- 
 ry ; or asking its authority to make investments of funds for the benefit of 
 those interested. Sec. 1 Wash. 246. So peculiar, indeed, is the power of 
 the court of equity in relation to this species of trust, that though there be 
 no other ground of jurisdiction, the existence of a trust will be a motive for 
 relief; and therefore, in the case of a trust, relief has been sometimes given 
 in equity, though the party might have made his defence at law, and ne- 
 glected to do so. 3 Mun. 130. See also 1 Mad. 354. 
 
 Having premised thus much, I proceed in the first place to inquire 
 What constitutes a trust ? And here we are to observe that the terms 
 " trust and confidence " are not here to be understood in their ordinary or 
 popular sense ; nor do they embrace a variety of cases daily occurring in 
 the courts, where one man is entrusted by another in the management of 
 his concerns, the possession of his property, or the collection or disburse- 
 ment of his funds. Thus an attorney is trusted, but he is no trustee ; agents 
 and partners are confided in, but they are not technically trustees : bailees 
 hold the property of the owner for Lis benefit, but they are no trustees, 
 according to the sense in which the word is used in equity. In favor of 
 all these the statute of limitations is a good plea, though, as we shall 
 see, it is no good plea in bar of a continuing trust, properly so called. 
 Trusts are, in short, what uses formerly were, and when applied to real es- 
 tate they mean a confidence reposed in the trustee, to whom the legal es- 
 tate in the land is conveyed, that he will permit another person called the 
 cestui que trust, to take the profits and enjoy the estate according to the 
 terms of the declaration of trust. The same definition is equally applica- 
 ble (mutatis mutandis) to trusts of personal estate ; for the invention of 
 trusts was found so convenient for family settlements, and the arrangement 
 of estates, to effect the just and legitimate purposes of the donor, that they 
 have been long since as customary in relation to personal property as to 
 real ; so that bank stock, stock in the funds, slaves, money, or other chat- 
 tels, may as well be settled and conveyed in trust as real estate.
 
 438 TRUSTS. [book 3. 
 
 Trusts, as thus explained, are either express or implied. Express trusts 
 are such as are created by the express terms or provisions of the deed, 
 will, or other instrument creating them. As if lands are devised to A in 
 (irust for the benefit of B. Here A is indeed the holder of the legal title, 
 but the entire equitable or beneficial interest is in B. He alone has a right 
 to the profits of the estate, and he may dispose of it at his pleasure, if there 
 he no control upon his po\rer of disposition declared by the trust itself. 
 Implied trusts are such as arise not from the express provisions of the deed 
 or instrument, but merely from the construction of the law. Such are re- 
 sulting trusts. As where A buys an estate with B's money, and at his re- 
 quest, and takes the title in his own name. Here a trust is implied on be- 
 half of B: or where A conveys to B in fee in trust for A^s heirs, without 
 declaring the trust of the estate during his own life, here a trust results for 
 his life to himself: for the life interest being undisposed of, and no benefit 
 being intended to B, the law implies the trust to result to A. Other instan- 
 ces of implied trusts will hereafter be given. For the present these will 
 suffice, and we shall now proceed to consider express and implied trusts in 
 succession. 
 
 1. Express trusts.* Altho-ugh these are created by the express provi- 
 sions of the deed or instrument from whence they arise, there are no pecu- 
 liar words necessary to constitute them. We are told by a great authority 
 that "to constitute a valid trust, three circumstances must concur. 1. 
 Sufficient words to create it. 2. A definite subject. 3. A certain and as- 
 certained object." 9Vez. 323. To these it may be added, 4. That there 
 must be a trustee t distinct from the cestui que trust, so that the legal title 
 may be in one person, while the equitable interest is in another. See 1 
 Vez. jr. 271. In considering these requisites we shall unavoidably be com- 
 pelled to view them somewhat in connexion with each other. 
 
 There must, it is said, be sufficient words to create a trust. And here it 
 seems to me that although no particular forms of expression are essential, 
 yet it is necessary that the words should imply the conveyance of an estate 
 or interest to the trustee, and not a mere authority. The interest, indeed, 
 vested in the trustee, is not a beneficial, but a mere legal interest or title ; 
 yet without such interest the instrument creates no trust. See 1 Vez. jr. 
 271. For without such interest there is nothing to raise a trust. And it 
 is of the last importance to distinguish between a trust and a mere authori- 
 ty ; for, as we have already seen, the statute of limitations is no protection 
 to the trustee, though it is a shield to the mere agent; and, moreover, the 
 failure to execute the requirements of the instrument is attended with very 
 different consequences in the two cases. For naked powers are construed 
 strictly ; but powers coupled with an interest are construed liberally. 2 
 Vez. 79. Where, therefore, there is a mere power of appointment accom- 
 panied by a discretion, and such power is not executed, equity cannot in- 
 terfere ; but where the power is coupled with a trust, to the execution of 
 which the party looks with confidence, the failure or negligence of the 
 trustee will not be permitted, in equity, to disappoint those objects : for it 
 is a principle that a trust shall never fail for want of a trustee to execute 
 the trust, but the court will consider itself trustee, and appoint a person to 
 
 * Wbea an eetate is devised to trustees for particular purposes, the legal estate is vested in them a« 
 long as tlie purposes of tlie trust require and no longer. VVhen they are satisfied, it will vest in the 
 persons beneficially entitled. 1 iiarn. 61. Aid. :i36. The court thus seems to consider the use execu-. 
 ted as soon a.-" the purposes of the trust are fulfilled. Indeed, the trust having been the mere crea- 
 ture of the courts, and an evasion of the statute, for the purpose of effectuating the objects of the 
 parties, it is natural that, when those objects have been completely fulfilled, the courts should con- 
 eider the trust as no longer subsisting. 
 
 t Where a trust ia clearly intended, but no trustee naTTxtf, courts of equity consider the heireiv 
 trustee in relation to the re:il estate, and the personal representative as to the personal estate, aud 
 will compel the executioa of the uust accordingly. 1 firo. C. C. 12. 1 Mad. 365.
 
 eiiAP. 21.] TRUSTS. 439 
 
 execute it: 5 Vez. 507: and it is equally well-established that no act or 
 omission of the trustee shall ever affect or impair the interest of the cestui 
 que trust. The distinction, indeed, between a trust and a power, is admit- 
 ted to be very nice. 5 Vez. 505. Yet where there appears to^be only a 
 power of appointment, and not a trust, and the power is not executed, the 
 consequence always is, thr.t equity cannot interfere ; but otherwise if there 
 be a trust coupled with that power, or there is an imperative duty, and not a 
 mere power. 5 Vez. 501, 506, 8 Vez. 570. Thus in the case of Bullrs. 
 Vardy, 1 Vez. 270, the testator gave his wife no interest in the general pro- 
 duce of his estate, but " empowered " her to give away £1000 by will, £100 
 to A and B each, and the rest as she pleased. She died without making any 
 disposition. A sued for the £100, but her bill was dismissed, as this was 
 a power only, and not a trust ; for no interest being given to the wife, she 
 could not be a trustee — and without a trustee there could not be a trust, and 
 so there was nothing to raise a trust. So in the case of the Duke of Marl- 
 borough vs. Lord Godolphin, (2 Vez. 61,) the testator devised to his wife 
 £30,000, and by a codicil declared it to be to her for life, and afterwards 
 to such of his children as he should appoint. Lord Hardwicke held this 
 to be a mere power and not a trust ; for here, though the wife had a suffi- 
 cient interest out of which to raise a trust, yet he deemed the bequest not 
 to be to the children absolutely, but considered them as dependent, not on 
 his bounty only, but on her's also. See 5 Vez. jr. 506. But in the case of 
 Brown vs. Higgs, where the testator gave his estate to J. B. to receive the 
 rents and to pay £100 to R. B., to take £100 to his own use, and "em- 
 ploy the remainder for the use of such children of S. B. as the said J. B. 
 shall think most deserving, this was held a trust ; the master of the rolls re- 
 lying both on the whole interest having been given, (5 Vez. 506,) and on 
 the objects of the trust being definitely ascertained. Id. 507. In this case 
 the master of the rolls seems not to have been satisfied with Lord Hard- 
 wicke's opinion in the case of the Duke of Marlborough vs. Godolphin, 
 seeming to consider the will in that case also as constituting a trust, and 
 not a mere naked power. The decision in Brown vs. Hisrgs was affirmed. 
 See 4 Vez. 70S. 5 Vez. 495. 8 Vez. 561. 16 Vez. 26. ] Atk. 469. 
 
 From the cases just cited it appears difficult, and perhaps indeed it is im- 
 possible, accurately to define what constitutes a trust and what a naked 
 power. See 8 Vez. 561. We must be therefore content with having sta- 
 ted what are the essentials to constitute a trust, leaving each case to be ap- 
 plied to the standard thus established, in order to the discovery of its true 
 character. It is not, however, unimportant to remark, that where the ob- 
 jects of bounty are distinctly ascertained, and a bounty is definitely declared 
 to them, depending on the discretion of the appointee only as to the por- 
 tions of each ; but a fixed and determinate intention appears, that the ap- 
 pointment shall be made absolutely to some one or more, with only a pow- 
 er to give a preference, a court of equity would doubtless lean to that con- 
 struction which would effectuate the intent by considering the provision a 
 trust, and not a naked power. But whenever the character of the instru- 
 ment is fixed, the consequence is invariable; if it be a naked power with a 
 discretion to execute it or not, and there is no appointment, the power fails 
 and equity cannot relieve; if it be a trust, although there be no appoint- 
 ment, and the trustee dies, the trust shall not fail, if the object of the bounty 
 is fixed and determinate. 5 Vez. 504. We must not omit to observe, 
 however, that though equity will not supply the non-execution of a naked 
 power, it will often aid its defective execution : of which hereafter. 
 
 The reason of this distinction between trusts and naked powers in refei^ 
 ence to appointments, though somewhat technical, is not entirely without 
 foundation in principles of justice, and good sense, and a respect for the
 
 440 TRUSTS. [ BOOK 3. 
 
 intention of the festator or giver. In the case of a naked power, where 
 the testator permits his estate to descend to his heir or personal representa- 
 tive, and vests only an authority in another person to appoint, the authority 
 is obviously a matter of mere personal covfidence submitted to be exercised 
 or not, at the discretion of the person empowered. Being <i. personal con- 
 fidence, it cannot, in the nature of the thing, .^^urvive to any other, or be 
 transmitted to representatives, and indeed the failure to appoint seems but 
 an exertion of that discretion with which the party was invested. Had the 
 testator absolutely intended a bounty to a particular person, he might as well 
 have given it at once. Not having done so, he intended to leave a dis- 
 cretion to give or not, at pleasure, and if the party authorized declines or 
 fails to give, he but exercises the discretion vested in him. Moreover in 
 the case of a mere power, it not only cannot survive or be transmitted of 
 itself, but there is nothing to which it can attach that does survive or is 
 transmitted. But in the case of a trust, the lecral estate or interest being 
 transferred to a trustee, it passes, or is transmitted of necessity, to his re- 
 presentatives. His conscience during his life, and theirs after his death, 
 are affected by the trust, and as no beneficial interest is intended them, they 
 are hound in conscience to execute the trust, if there are specific and de- 
 terminate objects of bounty. If they do not, they would enjoy the estate 
 contrary to the testator's will; for the heir at law could not compel them 
 to convey to him, since the beneficial interest, is determinately fixed in 
 others. Where, indeed, there are no specific objects of bounty, and a dis- 
 cretion is vested in the party to whom the interest is conveyed, to appoint 
 or not, at his discretion, and not merely to give a preference, there, if no 
 appointment be made, the heir or personal representative of the testator 
 will become entitled ; as the trust in such case results to them ; for the par- 
 ty takes as trustee, if not for persons designated by the will, for those, at 
 least, who take under the disposition of the law. 10 Vez. 537. More- 
 over, in the case of a trust, where there are determinate objects of bounty, 
 with a mere power to give a preference to one or more of such objects 
 over others, (as where the testator directs absolutely that the estate shall go 
 to some of his children, with a power in the trustee to select such child,) 
 it is obvious that although the power of selection is a personal confidence, 
 yet there is no discretion left in the trustee justifying his failure or refusal 
 to appoint to any. The duty to appoint to some is imperative: and if he 
 omits to fulfil the trust reposed, a court of equity will compel its execution. 
 If, indec;!, he dies, so that the selection can no longer be made by him m 
 whom alone the personal confidence was reposed, equity — in consonance 
 with its principles in relation to naked powers — considers the power of se- 
 lection as gone — as incapable of being exercised by any other, and as be- 
 yond its own powers. And the power of selection or preference being 
 gone, but the trust remaining, the court directs the execution of it in be- 
 half of all the specified objects of bounty, without discrimination. See 1 
 Vern. (57. 5 Vez. 362. Gilmer, 27, 33. 
 
 It may be asked, however, why is the testator's intention permitted to he 
 defeated in the case of a mere naked power, when the object of the testa- 
 tor's bounty is definitely fixed and ascertained ? It may be answered, 
 that if the object is thus determinate, it is not a mere power ; but the devise 
 may operate as an immediate devise to the ascertained object, whether 
 there be or be not an appointment. Thus a devise to A for life, with di- 
 rections that at his death he shall dispose of it to B, operates as an imme- 
 diate devise to B of the remainder. And whether A does any act or not, 
 it shall go to B. I Vez. jr. 271. But where the object is not determinate, 
 and there is a discretion to appoint or not to appoint, there the power fails 
 for want of appointment. And even where the devise cannot so operate
 
 CHAP. 21.] TRtrSTS. "^41 
 
 as an immediate devise, yet if Ihe object is determinate, and the requisition 
 to appoint imperative, a court of equity considers it as partaking of the 
 qualities of a trust — as a duty, and not as a mere authority ; and if the per- 
 son authorized does not execute it, it will discharge the duty in his stead 
 " to a certain extent." So that there is a species of power between amcre 
 power and a trust. 8 Vez. 569. 
 
 In pursuing the inquiry as to what constitutes a trust, the student may 
 here be referred to what is said in Book 2, as to recommendatory or preca- 
 tory bequests. See also 10 Vez. 535. We shall also have a further illus- 
 tration of this matter as we proceed to consider the several species of ex- 
 press trusts. Of some of these wc have already treated so much at large, 
 that it will be necessary to add but little respecting them in this cursory 
 view of the principles of equity. Such, for instance, are marriage settle- 
 ments, which are in effect conveyances to trustees for the purposes agreed 
 upon by the parties to the marriage contract, whether for protection of the 
 estate of the/e?/ie from the debts or control of the husband, or for securing 
 to her a competent livelihood in the event of his death, out of his estate,; 
 which we have already had occasion to treat somewhat particularly in the 
 first book of the commentaries. 
 
 The object of most marriage settlements is to make a provision for the 
 children of the marriage, and hence where articles are entered into before 
 marriage, the children who may be afterwards born are considered as pur- 
 chasers whose rights are not to be divested by the subsequent acts of the 
 married parties, whether done before or after their birth. The articles are 
 considered, however, only as the heads or minutes of an agreement enter- 
 ed into between the parties upon a valuable consideration, (that of mar- 
 riage,) and if they are not carried into executiQii before marriage by the 
 execution of a settlement, they will be regarded in equity as merely execu- 
 tory, and subject to be moulded according to the intention of the parties 
 when they were entered into. If, indeed, a settlement be made before the 
 marriage in execution of the articles, but varying therefrom, or if it be dif- 
 ferent from what a court would have directed to be made upon the articles, 
 they yield to the settlement unless it appears that there was some mistake, 
 or that the parties designed to conform to the articles, though the settle- 
 ment as drafted by the scrivener failed to do so. For, in such cases, the 
 settlement being executed when the parties (being yet single) had a right 
 to change their minds, such change will be presumed unless the contrary 
 clearly appears. But a marriage settlement executed after marriage, in 
 pursuance of marriage articles, is always controlled by the articles, fox this 
 obvious reason, that after marriage the terms of the contract cannot be al- 
 tered. 1 Fonb. 190. 2 Rand. 3i>G. 3 H. & M. 421. See 2 Call, 5. 
 Fearne, 90 to 107. And where marriage articles have not been carried into 
 effect by settlement before marriage, the court, considering them as mere 
 heads or minutes of agreement, will mould them, as we have just said, to 
 effectuate the object of the settlement. Thus, where in England A by mar- 
 riage articles agreed to settle lands on himself for life, remainder to the 
 heirs male of his body by the intended wife, a strict settlement was decreed ; 
 that is to say, the remainder was ordered to be limited by the settlement to 
 the first and every other son of the marriage, so that the male children of 
 the marriage would take by purchase. For if the settlement had followed 
 the words of the articles, then the remainder to the heirs male would have en- 
 larged the estate of the father to an estate tail male, which he might have 
 barred the next day, and thus have defeated the very object of the articles, 
 which was to secure the property to the children. See 3 H. & M. 407, 
 and the cases there cited. See also 1 Mad. 50, &c. 
 VOL. 2—56
 
 442 TRUSTS. [ BOOK 3. ' 
 
 In the case of Tabb f5; Archer, (3 H. &- M. 399,) the marriage articles 
 havin'T made provision for "the issue" of the wife, a strict settlement was 
 ordered to be made by conveyance " to trustees, for tlie use of the children 
 of the wife living at her death, and the descendants of such as should die 
 before her, as parceners in parcenary." This seems inconsistent with the 
 principle of the decision which considers the issue as taking hy purchase, 
 whereas parceners can only take by descent. It is also inconsistent with 
 the British decisions, which in such cases consider the issue as tenants in 
 common. 1 Sch. &. Lef. 84. The law of descents was necessarily refer- 
 red to, indeed, to ascertain who were to take under the description of is- 
 sue, and that they were to take per stirpes and not per capita, but they 
 could not take as parceners, because they took as purchasers. 
 
 Among the various species of express trust, it behoves us to advert par- 
 ticularly to trusts for payment of debts. These are sometimes by way of 
 mortgage, of which we have spoken somewhat at large already. Some- 
 times they are by way of conveyance to a trustee with power to sell and 
 pay debts set forth in the deed, and sometimes such conveyances in trust 
 are accompanied by a composition with creditors, whereby, on receiving 
 security for part of their debts, they agree to release the residue. These 
 are always supported in equity, unless they are founded in fraud or misre- 
 presention. When that is the case, they sometimes come under the head, 
 of underhand agreements, which have been already treated of. Sometimes- 
 they are void from their obvious design to cover the grantor's property, or 
 leave the ownership or control of it in him. Such is a trust for payment of 
 such debts as the debtor might appoint, with ;)OM,'er of revocation ; this is a 
 void trust. 2 John. 565. On this ground, too, a trust for payment of 
 debts with power reserved to mortgage the property conveyed, is fraudulent 
 and void, for the grantor is thus enabled to defeat the whole provision. 2 
 <Vern. 519. 2 John. 580. But a trust reserving part of the interest to the 
 debtor does not destroy the provision in respect to the residue, though if 
 the part unreserved prove deficient, equity might in a jiroper case subject 
 the reserved part also. 2 John. 580, citing 5 T. R. 420. With respect, 
 too, to deeds of composition, it has been very properly decided that a trust 
 of part of the debtor's property on condition that the creditors should com- 
 pound and accept a part of their debts, and give a release for the residue, 
 is oppressive upon the creditors, and fraudulent and pernicious in its ten- 
 dency; though such conveyances of the whole of his property by a debtor, 
 on such terms is considered'^ as we have just said,. as admissible and valid'.- 
 5 John C. R. 332. 
 
 If all the creditors do not come in and accept the benefit of a trust for 
 payment of debts, those who do come in may exhibit their bill against those 
 who stand out and compel them either to come in or renounce the benefit 
 of the trust. We have already seen that a trust for the benefit of a third 
 person may be accepted at a subsequent period, and that the acceptance 
 then relates back to the date of the deed. Antr, Book 2. It is said, how- 
 ever, to be otherwise where the deed is made directly to the creditors, for 
 then it is not a binding deed till acceptance. 4 John. 522. See also Id. 
 238. But in the case of the trust the legal estate passes at the time of ex- 
 ecuting the deed, and vests in the trustees, who will be compelled inequity 
 to execute it. Id. And this I presume whenever the assent of the cestui 
 que trust is given. That assent, however, may, I apprehend, be "hastened 
 by request :" in other words, although there is no fixed time in which it is to 
 be given, yet any party interested may when he pleases demand of the 
 cestui que trust eitUcr to assent to or renounce it. 
 
 As to the right of an insolvent debtor to tnake an assignment for the ben- 
 efit of his creditors before the property is boundby any lien, it docs not ad-
 
 CHAP. 21.] TRUSTS. 443 
 
 mit of question, provided it be bona fide ; see 4 Jcihn. 529 ; and we have 
 seen that he may even prefer one creditor to another, provided he acts bona 
 fide. Ante, Book 2. This indeed is not permitted in the case of a bank- 
 rupt in England, since such preference is in direct hostility with the very 
 principle of the bankrupt system, which has in view a fair distribution a- 
 mong all the creditors, j)ro rata, or according to the magnitude of their 
 debts. ] Mad. 430. But independent of the statutes of bankruptcy, the 
 right to give a preference seems clearly to have been recognized by the law, 
 though its policy herein has been questioned by high authority. See 2 John. 
 C. R. 577. See also 2 John. 283. 3 John. 435, 446. 4 John. 682. 15 
 John. Rep. 571. 
 
 In all cases of trusts, where the interest is obtained through the fraud of 
 a third person, though the person benefitted had no knowledge of it, yet we 
 have seen that he takes tainted and infected with the fraud of the person 
 through whom he claims. " Though the hand that receives the gift be ever 
 so chaste, yet if it comes through a polluted channel the transaction is tain- 
 ted and infected by it, and rendered void." This principle is not more true 
 in reference to other trusts than to trusts for securing debts : and, therefore, 
 if there is fraud on the part of the trustee, the cestui que trust, though ig- 
 norant of it, will lose the benefit of the lien. See Bank vs. Marbury, 
 Wheaton. 
 
 It is also a general, though not an universal rule, that a deed cannot even 
 in equity be good in part and void in part, and that if void because fraudu- 
 lent as to any part of it, it is void in the whole. There is no question that 
 if a deed be fraudulent in fact, jt is absolutely void in toto, and it is not per- 
 mitted to stand as a security for whrvt is really due, or for any purpose of 
 reimbursement or indemnity. For deeds made of purpose to defraud cre- 
 ditors or purchasers, are by the law itself declared void ; they are therefore 
 void at law as well as in equity, and it is not in tlie nature of a deed to be 
 'Ut law good as to part and void as to the residue ; and being fraudulent in 
 fact, the guilty party can hope nothing from the pure hands" of a court of 
 conscience. But where the deed is only constructively fraudulent it is 
 otherwise. 1 John. C. R. 482, citing 4 John. Rep. 536, 593. In a case, 
 •indeed, where no statute had declared the deed to be void, it was held, up- 
 on the principles of the common law, that if the transaction was of sucih a 
 nature that the good consideration could be separated from the bad, the 
 court should do so. Per Carr, 3 Rand. 12. (In this case, however, it must 
 be observed, the party claiming under the deed was not the plaintiff, but 
 the defendant in equity.) And in a subsequent case it was decided that a 
 mortgage in part for a gaming consideration, and in part for money bona 
 fide lent, should in equity stand as a security for the latter, though at law 
 a bond on such combined consideration would be void. 3 Rand. 220. Iq 
 this case, too, the creditor was defendant in equity, and the plaintiff who 
 asked equity was compelled to do it by paying the bona fide debt. But if A, 
 for the purpose of defrauding the creditors of B, takes an assignment of 
 his property, or a deed of trust or mortgage to secure twice as much as is 
 really due, the security is void at law and in equity for the whole. 
 
 It seems scarcely necessary to say, that if a deed of trust be to secure 
 creditors, some of whom are fraudulent, or usurious, or have gambling de- 
 mands, while others are legal and bona fide, the deed will be valid as to the 
 latter, though not as to the former. This would seem to follow of course 
 from the power asserted of separating the good consideration from the bad, 
 where that is practicable, even where both considerations respect the same 
 person. For if the gambling creditor by mortgage may hold the mortgage 
 as security for money bona fide lent, which is also secured by the same in- 
 strument, tainted as he is by the illegal transaction, it would seem to follow,
 
 444 TRUSTS. . [ BOOK 3. 
 
 a fortiori, that a bona fide creditor would retain his lien for a bona fide debt, 
 thouo-h the security might be considered void as to the fraudulent lien of 
 another party. Were it otherwise, a deed of trust to secure one hundred 
 creditors would be rendered void as to the whole by any viciousness in the 
 consideration as to the debts of any one : a consequence that would be 
 pregnant with mischiefs. 
 
 It has been decided that a mortgage (and so I presume of a deed of 
 trust) given to indemnify an endorser of a note in bank, will continue as a 
 valid and subsisting security as long as such note shall be run or kept alive in 
 bank, in whole or in part, by renewals. 4 John. 73, 74. In this case, too, 
 it is observable that the note was at one time reduced by payments below 
 the amount for which the mortgage was ultimately held good. There was, 
 however, enough on the face of the mortgage to shew to subsequent incum- 
 brancers for what the mortgage was given, and refer them to the proper 
 source for information as to the amount. 
 
 It is said that where there is a trust for payment of debts, it extends only 
 to debts existing at the time of its execution. 1 Mad. 432. This, how- 
 ever, depends obviously on the terms of the instrument ; yet doubtless in 
 such cases the debts already due would be first entitled to payment, as 
 otherwise the power to create new debts binding on the fund, would in ef- 
 fect amount to a power of revocation. Where, however, A lends B $1000, 
 and gives a mortgage or deed of trust therefor, and in contemplation of 
 further loans provides that it shall stand as a security for such other sums 
 as the creditor might advance, it has been made a question whether, upon 
 the principle of our recording acts, the deed would be valid as to such 
 future loans ; but it has been decided that an assignment for future as 
 well as present responsibilities, or advances, if honestly made, is not, for 
 that cause, invalid. 2 John. 308. 3 Cranch, 73. 7 Cranch, 34. As 
 against subsequent mortgagees, this doctrine is not so objectionable, be- 
 cause they have by the deed constructive notice, and they may attain the 
 necessary information by inquiry ; but as against existing creditors, I think 
 it may well admit of question, since it operates as a trust for the debtor's 
 benefit, and enables him to defraud his creditors by taking up subsequent 
 loans to the value of the whole property. With all deference, too, I would 
 suggest that even as to subsequent incumbrancers and purchasers, the de- 
 cisions above mentioned are in conflict with the act, which intended that the 
 subsequent incumbrancer or purchaser should by reference to the registry, 
 without looking farther, be enabled to discover the extent of the prior in- 
 cumbrances. I think this is, indeed, a fair inference from chancellor Kent's 
 own opinion. 2 John. 170. Hence, in such cases it would be most pru- 
 dent to have the subsequent advances acknowledged by endorsement on 
 the deed, or otherwise, and such acknowledgement recorded ; and from 
 the date of such acknowledgement the validity of the charge would be un- 
 questionable. 
 
 Express trusts are sometimes created by will, either for payment of debts 
 or for the benefit of some object of the testator's bounty. Of devises for 
 payment of debts, and of recommendatory or precatory bequests, we have 
 spoken elsewhere. Ante, Book 2. With respect to trusts created by will, 
 it may generally be reniarlced, that in questions of this kind, as on all others, 
 the great end is to effect the testator's objects, if they are legitimate and 
 intelligible : so that if no trustee be ai)pointed, and real estate be the sub- 
 ject of the provision, the heir at law is regarded as trustee : — if personal 
 estate be the subject, the executor will be so considered." 1 Bro. C. C. 12. 
 1 Mad. 36-5. So, too, under a will a married woman may acquire a sepa- 
 rate property without the int«rvention of trustees, and if the legal estate in 
 such case devolves on the husband, he will be considered trustee for his
 
 CHAP. 21.] TRUSTS. 445 
 
 wife. 1 Mad. 37G. Nor are any technical words necessary to constitute 
 a separate trust for her benefit. 
 
 Implied trusts are exceedingly various, and it would be inconsistent with 
 our plan to do more than offer instances of them. Such are resulting trusts, 
 which are themselves of several descriptions. As if I convey my lands to 
 B in trust for my heirs after my death, the life-interest being undisposed of 
 results to me, and B is trustee for my use during my life. 8o if A purcha- 
 ses land in my name, at my request, and with my money, but takes the 
 deed in his own name, here is a resulting trust, and he holds for my benefit. 
 2 Mad. 97. 10 Vez. 360. For the law implies a trust from the transac- 
 tion : but the payment of the money must be clearly established ; '•Z Mad. 
 97 ; or an actual loan of it for the purpose, at the time of the purchase ; 
 5 John. 1. 2 John. 409; for an advance of money by me to A, at a sub' 
 sequent period, would not suffice. It might be the foundation of a new 
 agreement, if reduced to writing within the statute, but it cannot raise a 
 trust by relation. 2 John. 409. See 5 John. 1. 2 Rand. 187. And such 
 resulting trust may be proved or rebutted by parol, even in England and 
 New York, where all declarations of trusts are required by statute to be in 
 writing, for resulting trusts are held not to be within the statute. Id. If 
 no part of the purchase money be paid by me, there is no resulting trust, 
 and parol evidence would not be admitted to prove that the purchase was 
 made for my benefit; 4 E. 577, in note. 7 Cranch, 176 ; but if part be 
 paid, the land will be charged pro tanto. The Virginia statute does not 
 require declarations of trusts to be in writing. 
 
 The foregoing principles apply with peculiar force to the case of trustees 
 purchasing estates with trust money. In these cases the estate always 
 enures to the cestui que trust. See Sug. 454. 
 
 To this head of resulting trusts may be referred also the cases of pur- 
 chases by trustees, of outstanding claims against the trust estate : and in 
 like manner the cases of such purchases by persons between whom and 
 others there is such a privity that the law implies every act done by one for 
 the advantage of the estate, to enure to the benefit of all. Thus if a trus- 
 tee, or a joint-tenant, or tenant in common, or parcener, or vendee, or rriort- 
 gagee, purchases in an encumbrance, or extinguishes a claim against the 
 estate, the cestui que trust, co-tenant, vendor, &c., will have the advantage 
 of the purchase, and cannot be charged more than the actual sum paid to 
 effect the beneficial object. 2 John. 33, 34. 4 John. 532. 2 Rand. 408. 
 1 Br. C. C. 198. 18 Vez. 274. 1 Mun. 330. 2 P. Wms. 511. 2 Vern. 
 84. 3 Eq. Ca. 741. 1 Bos. & Pul. 376. We shall have occasion to speak 
 hereafter of the trustee's purchasing the trust subject at a sale made by him- 
 self under the authority of the trust. 
 
 Resulting trusts not only arise where another purchases in his own name 
 with my money, but where I purchase in the name of another with my own 
 funds : there that other will be a trustee for me. Yet this doctrine applies 
 most usually to the case of a stranger; for if I purchase and take the deed 
 in the name of my wife, my child, or grandchild, it might be considered an 
 advancement, and not a trust. 2 Mad. 98. Yet this always depends up- 
 on intention ; and the inference that it is intended as an advancement may 
 be rebutted by parol evidence, though it does not give way to slight cir- 
 cumstances. 2 John. 539. See 15 Vez. 43. 
 
 Where two persons purchase and pay in equal proportions, this in Eng- 
 land constitutes a joint-tenancy to which is incident ihe jus accrescendi : 
 but where it appears from the deed itself that the portions of money paid 
 by each are not equal, they are tenants in common. In England, in cases 
 of purchases by partners for the purposes of trade, the survivor is consider- 
 ed in equity as trustee for tlie representatives of the deceased ; but they
 
 446 TRUSTS. [book 3. 
 
 are laid un<ler the condition of paying whatever balance is dfie to the firm 
 from their ancestor, for as they ^sk equity they must do it. In Virginia the 
 jus accrescendi being abolished, the heirs take the legal title in the land, and 
 are not subject to such condition, though it may be otherwise if the pro- 
 perty be purchased with partnership funds ; 2 Rand. 186 ; for then the 
 greater part of the fund paid having belonged to the creditor-partner, he 
 may, on principles, have a lien for the excess on the land, or an interest in 
 the land itself proportioned to such excess. Id. 
 
 Besides these resulting trusts there are various other implied trusts known 
 to the law. Thus executors and administrators are trustees for payment 
 of debts and legacies : the mortgagee is trustee for the mortgagor, he hav- 
 ing an equity of redemption ; the holder of the legal title to an estate to 
 which another hath a good equitable right, is a trustee for him ; the pur- 
 chaser of a trust estate with notice of the trust, stands in the shoes of the 
 original trustee, upon a trust implied by the law ; and the vendee of real 
 estate (where no security has been given for the purchase money) is a trus- 
 tee for the vendor to the amount of what is unpaid. 
 
 On these two last topics it becomes us to expatiate a little. 
 
 1. The purchaser of a trust estate with notice of the trust, stands in the 
 shoes of the original trustee, upon a trust implied by the principles of equity 
 which justly looks upon such a purchase as a fraud upon the cestui que 
 trust, and counteracts its effects by considering the purchaser as substituted 
 -to all the obligations of the original trustee. Such purchasers are therefore 
 :always considered trustees, (l(i Vez. 249. 1 Sch. & Lef. 262,) and if the 
 •rights of the cestui que trust are asserted in due season, they are always 
 rigorously enforced. On the otiher hand, however, a purchaser without no- 
 itice who has acquired a legal title, and paid ^his money without notice of 
 the trust, is protected in equity leven against t?he cestui que trust; for by ob- 
 itaining the legal title he had the law in his favor, and having purchased and 
 ipaid his money without notice, he has equal equity with the cestui que trust 
 Jhimself. Here then it becomes obviously necessary to inquire, 1. "What 
 amounts to notice of the trust. 2. How far the purchase must be comple- 
 fted 'before notice ; so that the purchaser will not be affected with the trust* 
 S. How far, if he has notice, is he bound to see the application of the pur- 
 chase money paid by hin>self." 
 
 First. What amounts to notice. I have already said that this doctrine 
 rests upon the ground of such purchase from a trustee with notice of the 
 trust being a. fraud ; for it is a conspiring to cheat a third person out of his 
 rights. Hence it is always necessary, in order to fix this fraud, that the 
 proof of notice should be clear and satisfactory. See 6 Mun.44. But no- 
 tice of the facts from which the law draws the tinference of fraud, is sufli- 
 cient to charge the purchaser, whether he was conusant of a fraudulent de- 
 sign in the trustee or not. Castleman, &c. vs. Wormley, Fed. Court. 
 This notice, too, may be sufficient though it be not direct ; for whatever is 
 sufficient to put the purchaser upon an inquiry is sufficient notice ; that is, 
 where a man hath sufficient information to lead him to a fact, he shall be 
 deemed conusant of that fact. As where the trust is recited in a deed .uai- 
 der which he claims. Sug. 542. Sed vide, 2 John. 190. Notice, too, is 
 either actual or constructive, but there is no difference between them in 
 their consequences. 2 Rand. 101. Actual notice must be given by a 
 person interested in the property, and in the course of a treaty for a pur- 
 <ihase. Vague reports from persons not interested will not affect the pur- 
 chaser's conscience, nor will he be bound by notice in a previous transac- 
 tion which he may have forgotten. See Sug. 532, and the cases cited ar- 
 guendo 2 Mun. 135. Yet in such cases prudent counsel will never advise 
 a purchase without further inquiry. Constructive notice is no more than
 
 CHAP. 21.]; TRUSTS. 447 
 
 evidence of notice satisfactory of its existence, or furnishing such violent 
 presumption that the court will not allow it to be controverted. Sug. 533. 
 A fact thus proved is taken to exist for all purposes as if it were proved by 
 direct evidence. 2 Rand. 101. Yet what amounts to constructive notice, 
 it is said, is difficult to be defined. Some rules are, however, laid down, 
 which may be usefully attended to. 1. Notice to the purchaser's counsel, 
 attorney, or agent, is notice to him, provided it be in the same transaction ; 
 for otherwise he may have forgotten it. And in like manner if I purchase 
 an estate or procure an encumbrance in the name or for the benefit of a- 
 HOther, (though I am not his agent when I do so,) yet if he afterwards as- 
 sents to the conveyance he is affected by any notice I may have had. 14 
 Vez. 273. Marbury vs. Bank, Wheaton. Nor can a man elude the effect 
 of notice by procuring the conveyance to be made to a third person. Sug. 
 534. 
 
 2. Private acts of assembly are not of themselves notice to purchasers. 
 Sugden, 535. 
 
 3. The recording of a deed seems to have been considered by an able 
 writer as notice to all subsequent purchasers of the legal estate, and this 
 althougb the recorded deed was of an equitable title only. He admits, in- 
 deed, that the mere recording of such deed does not affect with notice a 
 subsequent purchaser or encumbrancer, who had at the time of such pur- 
 chase the legal title. Sug. 508, 510, 539. Lord Kedesdale, however, re- 
 jects these distinctions, and seems to consider the recording as not amount- 
 ing to notice. See 1 Sch. & Lef. 103, &c. 157. 1 Sch. & Lef. 64. In 
 these opinions Chancellor Kent seems to concur. It may not be improper^, 
 therefore, to shew explicitly what appears to be the state of our law on this- 
 subject. See ante, 428, in note^^ 
 
 If the prior deed be a conveyance of the legal title, and be duly regis- 
 tered or recorded, it has of course preference over all subsequent deeds,, 
 whether the purchaser had notice or not. 
 
 If the prior deed be a conveyance of the equitable title only, yet if it be 
 duly recorded, it is notice to all subse([uent purchasers by the express pro- 
 visions of our statute. 1 R. C. ch. 99, § 13. This act did not pass, how- 
 ever, till 1819. 
 
 If the prior deed be not duly registered, yet if the subsequent purchaser 
 had notice of its existence, whether such notice be actual or constructive, 
 it will suffice to affect the conscience of the buyer, provided the fact of 
 knowledge of the deed be satisfactorily established. 
 
 4. What is sufficient to put the party upon an inquiry is good notice, 
 and therefore in all cases where a purchaser cannot make out a title but by 
 a deed which leads him to the real fact, whether by description of the par- 
 ties, recital, or otherwise, he willjje deemed conusant thereof; for it was 
 crassa negligentia that he did not seek for and examine such deed : and for 
 the same reason, if a purchaser has notice of a deed, he is bound by all its 
 contents, except in those cases where he has no right to look into the deed, 
 and the party holding it refuses to permit him ; in which case, however, such 
 party may lose his rights by the refusal and concealment. So if a man 
 purchases under limitations in a deed which make it necessary in that trans- 
 action to look into the deed, and it contains recitals of judgments and en- 
 cumbrances on the land, he is bound by them, for he must be presumed 
 to have seen the whole, and to have taken notice of every thing in it affect- 
 ing his purchase. Sug. 544, 545. So, too, where in the title papers under 
 which he claims there is a recital of the existence of an encumbrance, he 
 is bound to take notice of it. Alleusworth vs. Murray, per Carr, chancel- 
 lor, Winchester chancecy court.
 
 448 TRUSTS. [ BOOK 3. 
 
 It must, however, be admitted, that the rules on this subject of notice 
 are by no means well defined and determinate, for notwithstanding what has 
 been said, it has been determined that circumstances amounting to mere 
 suspicion of fraud will not be deemed notice thereof to the purchaser. Sug. 
 546. Now what amounts to suspicion only, and what to evidence of fraud, 
 is a matter so obviously of opinion, as to leave us without any distinct 
 principle for our guide in relation to this matter. 
 
 5. Lis pendens is said to be of itself notice to a purchaser, unless it be 
 collusive, in which case it will not bind him. Sug. 535. In considering 
 this matter in its connections here, we shall unavoidably be driven to some 
 repetition of what has been already advanced under the head of frauds. 
 
 A purchaser 2)ende7ite lite is he who purchases (during the pendency of a 
 suit between parties litigant) the property which is the subject of the litiga- 
 tion, or is designed to be affected thereby. Such purchaser stands in the 
 shoes of his vendor, and is bound by any decree or judgment that is render- 
 ed in the cause. Thus if A brings detinue against B, and pending the suit 
 C purchases, the judgment against B is conclusive upon the rights of the 
 parties, and C never can contest it. So, too, in equity, if during the pen- 
 dency of a suit for a title to a tract of land, the defendant sells it to another, 
 that other will be bound by the decree against his vendor, and he will nofe 
 be permitted to examine into the justice of the decree, but will be bound by 
 prior proceedings; nor will the purchase affect the plaintiffs rights in any 
 manner, except so far as it may be necessary to go against the purchaser 
 if he has acquired the legal title. Sug. 537. The necessity of the princi- 
 ple which thus binds the pendente lite purchaser is obvious. It is founded 
 on the necessity of giving effect to the proceedings of courts. Without it 
 the administration of justice might in all cases be defeated by successive 
 alienations of the property in litigation, where the recovery of the specific 
 property is the object of the suit. The necessity indeed is so obvious, that 
 there was no occasion to resort to the presumption that the purchaser had 
 notice. Whether he has it actually or not, the application of the principle 
 would be necessary, or justice would be defeated. Hence we see that the 
 law affects him with notice even where there is a physical impossibility that 
 he should have had it: — as where he purchases on the day on which the 
 writ or subpcena issues, though he be a thousand miles distant from the of- 
 fice. See 2 Rand. 102. 
 
 What, then, amounts to a lis pendens 1 At common law the issuing of 
 the writ is considered as the commencement of the lis pendens, and a pur- 
 chaser on or after that day holds the property subject to the execution upon 
 the judgment in that suit, as the defendant would have held it had no alien- 
 ation been made. 2 Rand. 102. In equity the rule is somewhat more re- 
 laxed. No lis pendens exists until the service of the subpcena and bill filed: 
 but as soon as the bill is filed, the effect of the lis pendens relates back to 
 the service of the subpcena, although the bill may not have been filed till 
 long after ; so that he who purchases after the service of the subpcena and 
 before the bill filed, will, after the filing of the bill, he deemed a lite pen- 
 dente purchaser, and as such bound by the proceedings in the suit, though 
 the subpoena gives him no information on the subject. 2 Rand. 102. Sug- 
 den, 536. 
 
 The effect of the lis pendens, as above explained, may obviously be of- 
 ten harsh in its operation upon bona fide purchasers, and it becomes there- 
 fore important to ascertain how far the operation of the principle extends. 
 It may be considered, I presume, as embracing every case where the right 
 owner of a real estate or of personal property is suing for its recovery. In 
 such cases if the defendant aliens pending the suit, the judgment will over- 
 reach the alienation. And so in equity if any man purchase from the de-
 
 CHAP. 21.] TRUSTS. 44^ 
 
 fendant pendente lite and while the suit is in full prosecution, the decree 
 rendered in that cause will bind him. The litigating parties are exempted 
 from the necessity of taking notice of a title so acquired. As to them it is 
 as if no such title existed, otherwise suits would be interminable, or it would 
 be in the pleasure of one party to put an end to the suit against himself 
 when he pleased, by transferring the subject of litigation to another, and 
 thus turning the plaintiff round to a new pursuit of a new defendant, who 
 in his turn may play the same game. See 11 Vez. 194. 13 Vez. 120. 
 Amb. 676. . 2Atk. 174. 3 Atk. 392. 4 John. 577, &c. I am aware, 
 indeed, of only one case in which a purchaser ^^enJen^e lite is nof consider- 
 ed as affected by the lis pendens, unless he has actual notice. It is the case 
 of a subsequent purchaser for valuable consideration, without actual 7iotice 
 of an unrecorded mortgage, to foreclose which a suit is depending. Such 
 subsequent purchaser is considered as protected by the act of assembly, 
 which declares the prior unrecorded deed void except as to subsequent pur- 
 chasers with notice. Now it is said that the lis pendens derives not its ef- 
 fect from its having the force of corstructive notice, but from a principle 
 of policy as before explained : that various considerations prove this, and 
 that be this as it may, the statute has overruled this principle of law in the 
 case of a lite pendente purchaser after an unrecorded mortgage. 2 Rand. 
 103, 104. 19 Vez. 439. 
 
 6. But though a lis pendens has been said to operate as notice to the pur- 
 chaser, yet the decrees of a court of equity are not of themselves notice, 
 except interlocutory decrees, which do not determine the suit ; for though 
 all persons, it is said, are presumed to be conusant of the proceedings iri 
 the courts of justice, yet such knowledge is not to be presumed as to mat- 
 ters no longer depending, but settled and determined. Sug. 538. 
 
 7. The better opinion seems to be, that being witness to the execution 
 of a deed will not of itself be notice : for the notion which formerly pre- 
 vailed, that it amounted to notice, was founded upon the presumption that 
 the witness must have been privy to the contents of the deed. But this is 
 not in practice usually the case : nor has the witness a right to demand to 
 know the object of the instrument which he attests. It would therefore be 
 harsh, indeed, to affect him with constructive notice from such a circum- 
 stance. See Sug. 547. 
 
 8. The question as to the character of the notice which is sufficient to 
 affect a subsequent purchaser with knowledge of a prior unrecorded deed, 
 seems to have given rise to some difference of opinion : some seeming to 
 suppose that actual notice is necessary, and that what is called constructive 
 jlotice will not suffice. Sug. 509, 510. That the notice should in such' 
 case be clear and undoubted, seems an obvious consequence from the con- 
 sideration that the postponement of the second purchaser, who under the 
 operation of the act has the legal title, is in such cases founded upon the 
 notion of fraud ; and fraud must always be established by clear and satis- 
 factory evidence. But it has been remarked by a distinguished judge, that 
 he " cannot feel the force of the observation frequently thrown out in mo- 
 dern cases, that a notice to afiect a subsequent purchaser, after an unregis- 
 tered deed, must be actual and such as to affect his conscience, and not 
 constructive : for a notice proved by circumstances to exist, affects the con- 
 science of the party as much as if proved by direct evidence." " I see no 
 reason why a difference should be made between the case of a purchaser 
 after an unrecorded deed, and the purchaser of a legal title subject to any 
 other equity, as to the proof of the notice which ought to be held to bind 
 them, and in all such cases the purchaser is confessedly bound by construc- 
 tive as well as by actual notic'e ; see 1 Wash. 41 ; and that because Ms* 
 
 VOL. 2—57
 
 450 TllUSTS. [books; 
 
 conscience is affected and he is guilty of fraud." 2 Rand. 101. And by 
 a no less distinguished judge, the subsequent purchaser was held to be af- 
 fected by the recital in one of the deeds, necessary in the deduction of his 
 title, of the existence of a prior unregistered deed, without direct evidence 
 of his having perused itj or of his knowing its contents. Per Carr, Aliens- 
 worth vs. Murray, Winchester Chancery Court. 
 
 It may be proper to add here, that possession is always considered as no- 
 tice of any equity the person in possession may have to the estate. Sug. 
 543. 2Mun. 129. 13 Vez. 121. 2 Vez. jr. 439. 
 
 Second. Having thus examined what constitutes notice, I purposed 
 next to inquire how far the purchase must be completed before notice, so 
 that the subsequent purchaser will not be affected with the trust or an in- 
 cumbrance. Here the rule distinctly is, that the purchase must be complete 
 before notice, or the purchaser will be affected by it. If, therefore, either 
 the purchase money be unpaid, or the purchaser has not completed his title 
 by having a conveyance before he receives notice, the notice will affect him ; 
 for if he receive that notice before both of those acts are perfected, he ought 
 to stop until the equity is inquired into, or he will be bound by it. 1 Wash. 
 41. 3 H. & M.316. 1 Munford, 38. Sugden, 530, 556. 
 
 It is not difficult to perceive that where a subsequent purchaser receives 
 notice before he has paid his purchase money, and of course can sustain no 
 loss except that of a good bargain, a court of equity ought to consider a 
 subsequent payment by him fraudulent; and should make him the sufferer 
 fbr proceeding to complete his contract and his payments for property which 
 he knows to belong in justice to another. But it is at first not so easy to 
 • see why if A, the subsequent purchaser, has paid his purchase money be- 
 fore he has the least notice of B's prior equitable claim, he should not be 
 permitted to go on to secure himself by obtaining the legal title from their 
 common vendor. Yet this is in strict consonance with justice, and in 
 strict analogy with equitable principles. To understand it we must advert' 
 to a principle which prevails in equity not less than at law. " Qui prior 
 est teinpoje potior est jure." Where two equities are equal, the prior equi- 
 ty shall prevail. Ln the case supposed, then, B having made the first pur- 
 chase, and having the prior equity, must prevail over A in a mere contest 
 of equities : and if the vendor refused to make title to either, and a suit 
 were brought in equity for a title, the court would obviously decree the con- 
 veyance to be made to B. Such, then, being the case, as soon as A has 
 received notice of the prior equity of B, he becomes at once apprised of the 
 fact that B has the best right to the land. It is then obviously a fraud in 
 him to proceed to get a title to that property which he knows belongs to 
 another, though the formality of a conveyance has not been complied with. 
 If, however, the subsequent purchaser. had obtained his title, without actual 
 notice, and also paid part of his purchase money without notice, I should 
 presume that as to so much as he has sopaid he would be protected, and 
 the estate, if decreed to the prior purchaser, would be charged with such 
 amount. Sed qnare. 
 
 In connexion with this subject of notice it must be remarked, that where 
 there is a succession of derivative purchasers, however numerous, if any 
 one has been a bona fide purchaser toi^Aoui ?io/ice, all o/ifer Aim arc protected 
 thereby, although they may themselves have had express notice. For if no 
 person who had notice could safely purchase from the purchaser without 
 notice, the protection rendered him by a court of equity would be circum- 
 scribed and imperfect: since the field of competition, if he desired to sell, 
 would thus be limited to those only who had no notice of the latent equity, 
 and he would be rendered unable to sell at all, or at least for a fair and full 
 compensation. Sug. 531. Hence, not only is a purchaser u;i/Ao«< notice 
 
 «5
 
 CHAP. 21.] TRUSTS. 451 
 
 from a purchaser with notice protected, but in like manner a purchaser with 
 notice from a purchaser without. See 4 Mun. 313. 6 Man. 42. 
 
 But though the estate in the hands of a purchaser without notice from a 
 purchaser with notice is protected, yet the latter having been once liable by 
 reason of his fraud in purchasing property which he knew belonged to 
 another, and having sold it, becomes thereby personally liable, 1 conceive, to 
 the party injured, although while he retained the estate he was not person- 
 ally responsible. 2 Vern. Ferrars vs. Cherry. 
 
 Thirdly. We proposed to inquire how far the purchaser from a trustee, 
 or other person standing in his situation, is bound to see to the application 
 of the purchase money, if he has no notice of the trust. 
 
 As to personalty, it would seem that the purchaser from an executor is 
 not bound to see to the application of the purchase money, whether the 
 trusts declared concerning it are limited and defined or not. Sug. 367. 
 For the personalty goes to the executor for the payment of debts, and he 
 is the legally constituted judge of the manner in which it is to be applied ; 
 and it would lay an embargo upon executors' sales if every purchaser from 
 an executor was held bound to see that the money paid by him was not 
 misapplied. But as to trusts in real estate, the general rule is otherwise, 
 where the trusts declared of the purchase money are limited and defined, 
 and not general and unlimited. Sug. 267.* Thus if I purchase of a trus- 
 tee an estate charged with the payment of a specific sum to A, I know that 
 A is to get so much of the money, and equity considers me bound to see 
 that he is paid ; and if I pay to the trustee and he fails to pay over to A, I 
 am held responsible. There seems at first view to be something unreason- 
 able in this, since, as a confidence is reposed in the trustee, a payment to 
 him would seem to be within the limits of that confidence. But in answer 
 to this it may be said, that the law being otherwise settled, every purchaser 
 knows that the payment to the trustee is not within the limits of the con- 
 fidence reposed, unless the deed itself otherwise provides ; and hence where 
 a trust is raised by deed or will for sale of an estate, and it is designed 
 to exempt the purchaser from the necessity of seeing that the purchase 
 money is properly applied, it is always proper to insert a clause that the re- 
 ceipts of the trustees shall be sufficient discharges for the purchase money. 
 Sug. 366. There are, it is true, many cases in which such a clause would 
 be unnecessary, because, from the nature of the case or of the trust, the 
 obligation would not be imposed upon the purchaser to see to the applica- 
 tion of the purchase money. Thus, although in the case of a trust crea- 
 ted by will for the payment of scheduled debts, or of legacies which are 
 specified and defined, the purchaser is bound to see that the money is ap- 
 plied accordingly, since here he knows to whom the money is to go; yet 
 ■where the trust is for payment of debts generally, he is not so bound, al- 
 though he has iiotice of the debts : for he cannot be expected to see to the 
 execution of a trust so unlimited and undefined : and moreover he would 
 in such case have to judge as to the justness and amount of each debt in 
 this case, a difficulty which does not exist where the debts are specified and 
 ascertained. And it is the same thing where the trust is for payment of 
 -debts generally, and the residue is bequeathed in legacies ; because, to hold 
 that he must see the legacies paid, must involve him first in the account of 
 the debts, which, being general, he is not bound to look to. Sug. 368.t 
 And though before his purchase the debts have been ascertained, yet it is 
 not his business, (if the trust is for payment of debts generally,) but the bu- 
 siness of the court, to see the money applied. Where lands are devised in 
 
 *.SeeCo. Litt.249. But. note. Also. 6 Vez.G54. 
 
 t But from the time the debts are paid or ascertained, if the purchaser has notice of it, lie will be 
 bound to see to payment of legacies. See Preston en Abstracts, 2'^.
 
 452 TRUSTS- [book a. 
 
 .trust to be sold for the benefit of infants or persons unborn, and the time 
 required for the sale arrives before they are capable of receiving their lega- 
 cies, the purchaser is not bound to see to the application of the purchase 
 money. But where there is but a charge on an estate for an infant payable 
 at his full age, and the heir sells before that time arrives, the estate will be 
 liable in the hands of the purchaser, if the money be wasted or misapplied, 
 or even vested in funds which afterwards prove deficient; 3 Br. C. C. 19; 
 unless, I presume, the investment were made by direction of the court. In 
 the case of lands charged with annuities, the lands always continue liable in 
 the hands of the purchaser from the very nature of the charge. Sug. 372.* 
 
 It is said that though the trusts are defined, yet- where the money is noi 
 merely to be paid over to third persons, but is to be applied by the trustee 
 upon trusts which require time and discretion, as where it is to be laid out 
 in the purchase of estates, the purchaser is not bound to see to its applica- 
 tion. See 16 Vez. 151, cited Sug. 370. And where the trust requires an 
 investment of the money in the funds, if the purchaser sees the investment 
 made, he is bound for no subsequent misapplication. Sug. 370. 
 
 A difference of opinion seems to prevail among the profession as to the 
 liability of the purchaser to see to the application of the money " lohere there 
 is a hand appointed to receive it." This subject is discussed by Mr. Sug- 
 den, and the cases touching on it are reviewed in his work. Sug. 372. It 
 would seem that Lord Kenyon and the late master of the rolls concurred 
 in the impression that trustees having the power to sell, they must have the 
 power incident to the character, viz. that of giving a discharge.! This, in- 
 deed, would seem to be the common sense view of the subject, nor would 
 it have entered into the conception of an ordinary man, I am persuaded, 
 that the powers of a trustee — so much confided in — would be less strong 
 than those of an attorney in fact — or an ordinary agent. Yet the opinions 
 of the English tribunals on this subject appear to have been recognized 
 with us, and acted upon accordingly ; and cases have occurred within my 
 owji knowledge where the purchaser has been held liable to the misappli- 
 tion of the purchase money by the trustee, though the powers vested in 
 him by the trust were of the most extensive character. Orr vs. Graff, Win- 
 chester Chancery Court, per Browne Judge, and Castleman, &c. vs. Worme- 
 Jey, in the Federal Court. 
 
 It seems to be the better opinion, that where there is a trust to raise so 
 much money as will supply the deficiency of the personal estate in pay- 
 ment of debts, the purchaser is not bound to ascertain the deficiency ; but 
 where there is a mere pou'er it is otherwise. For in the case of a mere 
 power, the power does not arise unless the deficiency exists, and conse- 
 quently cannot be duly executed. Sug. 378. The difference seems to 
 grow out of the distinction between a mere power, and a power coupled 
 with an interest, or an express trust, to which we have more than once had 
 occasion to advert. 
 
 Where a purchaser is bound to see to the application of the purcJiase 
 money, and the trust is for payment of debts and legacies, he must see the 
 money actually paid to the creditors or legatees ; and each purchaser should 
 have a receipt iioin each legatee or creditor, or a bill may be filed for pay- 
 ing the money into court, wliich is the surest way ; — or, if the legatees or 
 creditors arc i'cw in number, they may be joined in the conveyances, as par- 
 ties, in testimony of their being satisfied ; or they may unite in an assign- 
 jncnt of all their interests to one person, who may give receipts or join iii 
 
 *3 PiTston on Abstracts, 2C5, 357. 350. 
 
 tin ClowninK vk- Cox, at Fredcrickshnror, I was of opinion that tlie trustee in n deed of IniPt lo 
 f;pciire tlie pnvment of a debt, was the ngeiit of ilie creditor to receive liio proceeds of sale, :.nd that 
 the ptircliaser was not bound to sec to llic application of the puiciiase nione^'.
 
 oiiAP. 21.] TRUSTS. 45S 
 
 the conveyances. Where there is more than one trusted, and it is provid- 
 ed that their receipt shall be a discharge, all must join who accept the trust, 
 and this though one has released the estate to the others ; for though his 
 release may pass the estate, he cannot delegate the personal confidence re- 
 posed in him ; for the rule is delegatus non potest delegare. But where one 
 refuses to accept the trust, it is the same thing as if he had never been ap- 
 pointed. 1 Vent. 128. 3 East's Rep. 410. Sug. 381. 
 • The rules respecting the liability of a purchaser to see to the application 
 of the purchase money, appear to be the same whether the estate be devis- 
 ed for payment of debts, or there is a mere charge: for a charge in effect 
 creates a trust, the heir being impliedly the trustee. Sug. 37], 372. 
 
 In concluding this subject of the protection of a subsequent purchaser 
 without notice, who has obtained the legal title, it is proper to remark that 
 whether notice be or be not charged in the bill, the purchaser, to protect 
 himself, must deny it. 3 P. Wms..243. 2 John. 155. Sug. 556. The 
 proper mode of defence for the purchaser is a plea and answer ; though the 
 answer in this case should only be to the fact of notice, or of other matter 
 in support of the plea. For the defence really is, that the party being pur- 
 chaser of the legal title without notice, is not bound to answer, and it is a 
 defence which ought to be made, it seems, by plea and not by answer; and 
 if he answers to any thing to which he may plead, he overrules his plea. 
 By the plea he puts himself upon his legal title: — by answering to the ge- 
 neral allegations of the bill, he submits to go into the equitable matter, and 
 thus it is overruled. It is therefore best to rest the defence on the plea, 
 only supporting it by a denial of notice in the answer, which is necessary, 
 perhaps, that the plaintiff may have an opportunity to except. 
 
 The plea should succinctly state the deeds of purchase, setting forth 
 dates, parties, and contracts briefly, and the time of their execution, which 
 last is all important: it must distinctly aver that the consideration money 
 was bona fide and truly paid, which must appear otherwise than by the re- 
 cital in the deed ;— and the consideration itself, it appears, should be stat- 
 ed : it must positively — not evasively — deny notice of the plaintiff's title or 
 claim previously to the execution of the deed, and payment of the purchase 
 money ; for till then the transaction is not complete ; and if circumstances 
 to show notice or fraud are charged, he should deny them specially and 
 distinctly. This plea must be on oath, and accompanied by an answer also 
 denying notice and all charges of fraud. Sug. chap. 18. 
 
 2. With respect to the implied lien of the vendor on the property sold 
 for the payment of the purchase money, the doctrine, after having been very 
 much discussed, seems at length to have settled down upon some acknowl- 
 edged principles.* 1. It is a doctrine that does not apply to personal pro- 
 perty, unless the vendor retains the title ; 3 Mun. 99; though a lien may 
 be raised even upon personal property sold, at the pleasure of the contract- 
 ing parties, if their intention explicitly appears: but "not so as to tie up 
 the use of the property, nor to bind the party to have it forthcoming, or 
 even to have forthcoming a like amount of the same kind of property, but 
 only to bind him to make good what may be wasted by fraud, misconduct, 
 or wilful default, and to surrender the residue in satisfaction of the debt."' 
 5 Mun. 507. This, indeed, cannot properly be called a lien. 2. If the ti- 
 
 y 
 
 * Tliere are strong reasons of policy against llie extension of tliis doctrine. The wisclom of its in- 
 IrotUiction into our courts from llie civil law may well be questioned. When a piirty contemplates a 
 lien, it would be more fair as well as more safe, that he should take an express lien and place it upon 
 t!ic record. The recognition of an implied lien for purchase money, and the extension of the lien to 
 the property in the hands of subsequent purchasers, is pregnant with mischief. It brings ruin upoii 
 the innocent, and tempts the unprincipled to shun it by perjury in themselves and subornation of 
 others. Upon the whole, I incline to think thedoctrine is not a favorite of our courts, and will not be 
 extended beyond the limits already too firmly established to be changed without the exercibe of le- 
 jgislative power.
 
 454 TRUSTS. [books. 
 
 tie be not made, the vendor has a lien on the property sold for the payment 
 of the purchase money, though he has taken security, and the property has 
 been sold by the vendee to another; 1 Rand 53 ; unless (I presume) there 
 is an express engagement to absolve the land, in which event a purchaser 
 from the vendee would be protected.* 3. Where, however, the vendor ^as 
 made a conveyance and also taken security , the lands are discharged even in 
 the vendee's hands. 5 Mun. 297.* 4. Where the vendor has made the 
 conveyance but taken no security, the property is liable in the hands of the 
 vendee, or of a purchaser from him with notice that the purchase money 
 was unpaid, but is discharged in the hands of a purchaser ivithout notice. 
 2 Wash. 141. 5. A bond of the vendee or vendor, without a surety, is 
 not such a security as will deprive the vendor of his lien. 2 Rand. 429. 
 6. If two persons purchase jointly, and one pays more than "the other, he 
 has a lien for the excess except against purchasers without notice. 2 Rand. 
 428. 4 Ran. 272. 7. A mortgage by the vendee made with his vendor's 
 assent, to secure the purchase money due by his vendor to a prior vendor, 
 is a waiver of the general lien for the excess due to the last vendor from 
 the vendee. Gilra. 329. 8. It would seem, however, that if the vendor 
 takes a mortgage which he is by accident prevented from having recorded, 
 so that it is invalid, the original lien is not destroyed. See Childerso. Smith, 
 Gilm. 196. 9. The lien as against third persons is only in rein, not in perso- 
 nam. 6 John. C. R. 402. See6Mun.439. Sed Qucere, — if a purchaser i6"i//i 
 notice from the vendee, sells to a Y>ur chaser without notice, is not the former 
 then personally responsible ? See 2 Vern. Ferrars rs. Cherry. 10. Not- 
 withstanding the position that the lien is confined to the vendor and vendee, 
 and will not extend to a third person, yet the surety in a bond for the pur- 
 chase money may be substituted to, and have the advantage of, the ven- 
 . dor's lien. 2 Rand. 429. See 6 John. 404. The case of Pollexfen vs. 
 Moore, (3Atk. 272,) in which Lord Hardwicke is said to have expressed 
 the opinion that the lien only exists as between vendor and vendee, and 
 does not extend to third persons, is obscure and supposed to be badly re- 
 ported. It is now said that " he meant only to deny that the purchased es- 
 tate and the personal estate can be marshalled ; in other words, that the 
 equitable rule which says that he who has two securities shall so use them 
 that he who has but one may not be defeated, does not extend lo the equi- 
 table lien ; and even this doctrine is shaken in Macreth vs. Simmons. 15 
 Vez. 329." 2 Rand. 430.t 
 
 For the doctrines as to the vendor's lien, see the case of Macreth vs. 
 Simmons at large, and 2 Rand. 429, and the cases there cited. See also 
 Sugden's Vendors on this subject. 
 
 Under the head of trusts we may properly consider the doctrine 
 Of money directed to be converted into land, or land into money. It is an 
 established principle that money directed to be employed in the purchase 
 of land, and land directed to be sold and turned into money, are to be con- 
 sidered as that species of property into which they are directed to be con- 
 verted ; 1 Rand. 320 ; in like manner as after a purchase of land, and be- 
 fore the conveyance is made, the vendor's interest in the property is con- 
 sidered as personal, and the vendee's as real. All this is on the principle 
 that equity considers as done what ought to have been done, and will per- 
 mit no act or omission of the person it considers a trustee, to injure the 
 cestui que trust, or impair his rights. Thus if by will lands are directed to 
 be sold and converted into money, and the proceeds paid to A, here a con- 
 version of realty into personalty having been directed by the will, a court of 
 
 * A raortgRge supersedes the lien. 2 Leigh, 353, 
 
 t The vendor'* lien does not give him any claim to the profits. 2 Leigh, 353.
 
 CHAP. 21.] TRUSTS. 455 
 
 equity, upon the principle above mentioned, considers the conversion as 
 having actually taken place, and regards the land, even before an actual sale, 
 in the light of money : so that if A dies it will go to his executor as money, 
 and be subject to debts, instead of going to his heir as real estate. In like 
 manner, money directed to be laid out in land is, even before it is so laid 
 out, considered as land with all the qualities of real estate ; and if the de- 
 visee in that case dies, his widow would be entitled to dower in ihemoney, 
 and it would go to his heir as land itself would have gone, instead of going 
 to the executor as money usually does. See 1 Mad. 289, 317. 2 Mad.- 
 JOS. And this grows directly out of the principle that a trustee shall neith- 
 er by his act or omission affect or alter the rights of parties. For if the du- 
 ty had been performed, the conversion would have been actually made ; and 
 if the death of A, before the trustee had performed the duty required of 
 him, had the effect of leaving the bequest with the character of realtyj. 
 though it was intended to have been made personal, the interest would go 
 to the heir at law (e. g. the eldest son) to the exclusion of his brothers and 
 sisters : whereas, if it had been converted into money as directed, it would 
 have been distributed among them all. And so mutatis mutandis of money- 
 directed to be laid out in land. The general principle therefore is, that 
 money directed to be laid out in land shall be considered as land (i. e. part 
 of the real estate of the devisee ;) and land directed to be converted into 
 money shall be considered as money, i.e. part of the personal estate of the 
 devisee. I say "of the devisee" to guard against an error which I have 
 heard committed ; the error of supposing that a direction by the will of A 
 to sell his lands and pay the money to B, makes the lands part of A's per- 
 sonal estate, and so subject to debts. Such 1 conceive is not the law ; 
 (see 1 Vez. & B. 174, 1 Hov. Sup. 121 ;) though if there be a positive di- 
 rection to sell, and no direction as to the application of the proceeds of 
 sale, the funds might be subject to distribution, (2 Mad. Ill,) or pass to a 
 residuary legatee under the will. 7 Vez. 299. But though a court of equi- 
 ty will consider land as money, or money as land, under the circumstances 
 above mentioned, yet if the conversion of land into money has been direc- 
 ted by \yill or deed for a particular purpose, as to pay debts or to raise por- 
 tions, if the purpose fails, or is accomplished without a conversion, the in- 
 tention fails ; and a court of equity considers it'as if no conversion had been 
 directed. It is important, therefore, to ascertain whether the testator or 
 grantor intends to give to real estate the quality oi personal to all intents, 
 (or vice versa the quality of realty to personal estate,) or only so far as re- 
 spects certain particular purposes. In the former case, the character being 
 imperatively fixed by the will, — the change of the nature of the property 
 being definitively required, it is considered as efi'ected by the very requisi- 
 tion. But in the latter case so much of the estate as is not disposed of re- 
 sults, in case of realty, to the heir. 2 Mad. 109, 110. 
 
 We may now advance one step farther. Where the character of person- 
 alty is not imperatively fixed upon real estate, but the conversion of it is 
 only for particular purposes, the heir to whom the trust results as to the 
 residue may come in and satisfy those purposes, and thus prevent a sale of 
 the realty. 2 Vern. 425. 
 
 In like manner, if by my will I direct my real estate to be sold, and the 
 proceeds of sale to be paid to A, here A has the whole beneficial interest; 
 and is regarded as the real owner of the estate ; and therefore, however im- 
 peratively the character of personalty is fixed upon the estate by the will, 
 yet A will be permitted in a court of equity to elect to take the property 
 without conversion. For as no one has any interest in gainsaying this, and 
 as in case of sale to-day he might re-purchase with the proceeds to-morrow, 
 and as in so doing he might possibly sustain a loss, equity at once accedeas-
 
 456 TRUSTS. [ BOOK 3. 
 
 to his election to make the real estate his own, without converting it accord- 
 ing to the will or deed. See 5 Mun. 127. 
 
 Now this right of election, it is obvious, has been introduced for his ben- 
 efit. It will not, therefore, be cast upon any one to his prejudice, and thus 
 an alien has not in such case a riglit of election. See 5 Mun. 127, 156. 
 Cow. 464. 3 Wheat. 563. Nor can a husband elect to make his wife's 
 property real or personal at his pleasure. 4 Ran. 397. See Pratt rs. Talia- 
 ferro, 3 Leigh. Nor can an infant in general elect : 2 Br. C. C. 57. 5 
 Mun. 127; though where a sale has been made manifestly to the advantage 
 of an infant, a court of equity, it seems, may elect for him, and confirm the 
 sale. 1 Fonb.88, n. f. 3 John. C. C. 190, cited 2 Rand. 407. So, too, if 
 the fund is to be distributed among various persons : if they are all sui juris 
 they may unite in electing that the property directed to be converted shall 
 retain its original character : but if any are incapable so to elect, or some 
 refuse, then the character impressed by the will or instrument remains un- 
 changed. 1 Br. C. Cases, Ackroyd vs. Smithson.* 
 
 Money thus directed to be laid out in land may, in consonance with these 
 principles, descend as land from generation to generation. 2 Br. C. C. 57. 
 But any individual in whom the right to it at any time becomes vested, may, 
 if he chooses, by any act of his, give it a different character. Thus if I 
 by my will direct ,£1000 to be laid out by my executor A, in land for 
 the use of B, the character of realty is definitely impressed upon the pro- 
 perty thus given, and it will continue to descend as such to the heirs of B, 
 until it is actually laid out in land, or until some person to whom the right 
 shall come, shall elect to take it as money. This election, where the fund 
 is in the hands of a third person, may be manifested by very slight acts, as 
 by a declaration or writing to that eff'ect, (8 Vez. 235,) or by a will be- 
 queathing it as money. But where the fund comes to the hand or the pocket 
 of the person interested in it himself, and he dies, the property Will be taken 
 to be of that character which it had at his death, unless a contrary inten- 
 tion be expressed. Thus where money was directed by will to be laid out 
 by a trustee in land, and the interest in the property became vested in the 
 trustee himself, who, being thus in possession of the fund, died without con- 
 verting the money into land, and without manifesting any intention to hold 
 it as land, it was, in a dispute between his real and personal representatives, 
 looked upon as money. 1 Br. C. C. 223. This indeed seems reasonable, 
 since his failure to convert it when the absolute power Avas in himself, was 
 an evidence of intention to hold it as money, which, uncontradicted, ought' 
 to have been conclusive. 
 
 For the doctrines on this subject the student will consult 1 Mad. 189, 
 317. 2 Mad. 108. 1 Fonb. 413, &c. ; and the leading cases on the sub- 
 ject, Whelpdale vs. Partridge 5 Vez. 388. 8 Vez. 227. Thornton vs. 
 Hawley, 10 Vez. 129. Bedulph vs. Bedulph, 12 Vez. 161. Walker vs. 
 Bennc, 2 Vez. jr. 170. Kirkman vs. Mills, 13 Vez. 338. Ackroyd vs. 
 Smithson, 1 Br, C. C. 503. Pultney vs. Darlington, 1 Br. C. C. Cases, 223. 
 Fletcher vs. Ashburner, 1 Br. C. C. 449. 1 Meriv. 296. 1 Vez. & Beame, 
 174. 1 Hov. Sup. 121, where the cases are collected. The learned argu- 
 ment of Mr. Hargrave in Pultney vs. Darlington, and of Mr. Scott, now 
 Lord Eldon, in Ackroyd vs. Smithson, are deemed particularly worthy of 
 attention. See also 5 Mun. 117. 3 Wheat. 563. 1 Ran. 313. 12 Vez. 
 161. 13 Vez. 338. 
 
 * It was Lord Roslyu's opinion, 2 Vez. 170, that as between the real and personal representative 
 of llie legatee or devisee, the property uma he considered as of that character which it aclualty had 
 at her death. But this gross error lias been long since corrected by some o( the cases cited in the 
 •exi. These regard the characicr impressed l)y the will as continuing, unless there lias been an 
 election by some act, however slight, to take the property in its original character. 5 Vez.. 388. 13 
 Vez. 333. 1 Merivale, Ashby vs. Palmer.
 
 CHAP. 21.] TRUSTS. 457 
 
 I have more than once observed that he who has tiie whole beneficial in- 
 terest in an estate, is considered as the owner. On like principles where 
 the charge of creditors upon real estate amounts to the full value of it, or 
 the rents and profits will not keep down the interest, it is not unusual in 
 equity to direct a sale of the estate for the purpose of discharging the in- 
 cumbrances. Of this, however, we have perhaps treated sufficiently at 
 large heretofore, under the head of executions. See also 1 Mac. 403, 481) 
 485. 1 Fonb. 440. 
 
 I shall now proceed to offer a few remarks on the subject of 
 
 The duties and powers of trustees. The cestui que trust being, in the eye 
 of a court of equity, the real owner of the estate, the trustee cannot keep 
 him out or obstruct his enjoyment of the profits of the trust-subject on 
 the terms and in the manner prescribed by the trust. And in general the 
 cestui que fras/ is entitled to the actual possession, control, and management 
 of the estate, unless indeed it is otherwise provided. Hence, as possession 
 is notice to all the world of any equitable interest which the person in pos- 
 session may have in an estate, it can rarely happen that the trustee can by 
 alienation aflnect the interest of cesfwi que trust, since the purchaser with such 
 notice would take subject to his title. If, however, the trustee be in actual 
 possession, a purchaser or mortgagee from him would be protected if they 
 had no notice of the trust. See 2 Fonb. 170. It is indeed a general rula 
 that no act of the trustee shall be permitted to prejudice the cestui que trust. 
 1 H, & M. 49. 2 Fonb. 170. 4 John. 138. Therefore, in case of a fraud- 
 ulent sale by the former, the latter may either aflirm the sale and demand 
 the securities for payment to be delivered over to him, even though they 
 have been assigned to a purchaser with notice ; or he may disregard the 
 sale and take the land. 4 John. 138. 2 John. 441. Where, however, 
 the trustee being in possession, has aliened to a purchaser without notice, 
 though the right of the cestui que trust is gone in the property itself, the 
 trustee is bound to make it good. 2 Fonb. 171, 173. 2 Mad. 113. It is 
 considered, however, on the footing of a simple contract demand, unless 
 the trustee has acknowledged the debt under seal. 1 Aik. 119. Forres- 
 ter, 109. , 
 
 But though no act or omission of the trustee will be permitted to work 
 an injury to the cestui que trust,' or to affect his interest, and though, there- 
 fore, in general, a trustee has no right to alter the nature of the trust pro- 
 perty, as by changing land into money or money into land, yet a distinction 
 is taken between those cases where the cestui que trust is sui juris, and those 
 where he is not. In the former, such change of the estate without the as- 
 sent of the cestui que trust, is considered as clearly invalid. In the latter 
 (as in the case of infants) it is very frequently necessary that such power 
 should be exercised by the trustee, and the true criterion is whether the in- 
 terest of the cestui que <rMS< requires the conversion. See 2 Fonb. 171. It 
 is a power, however, which should be very cautiously exerted, and never 
 unless the advantage is clear and decisive. Nor should I think it prudent 
 in any case with us, to act herein in reference to an infant's estate, without 
 direction of the court which has jurisdiction over him ; since our act gives 
 to such court very large powers, in directing the management of his estate. 
 
 A like caution may, I think, be recommended in relation to another rule 
 that we find laid down in the books; "that what a trustee is compellable 
 to do by suit, he may do without suit;" 2 Fonb. 175; for in proceeding 
 upon this principle he undertakes to decide what the court would decree ; 
 and if he mistakes he may thus subject himself to loss. In all such cases 
 it is better that he should ask the instruction and direction of the court, 
 which a trustee is always entitled to demand. See 1 Wash. 246. 
 VOL. 2 — 58
 
 458 TRUSTS. [book 3 
 
 It is a general rule that the trustee must comply with the terras of the 
 deed by which the trust is created : but the legal title being vested in him, 
 if he makes a sale and conveyance, that legal title passes and is valid in a 
 court of law, though it is in violation of the directions of the trust. Thus 
 where a trustee is authorized to sell upon notice, &,c., yet if he sells with- 
 out and executes a deed, the legal title passes. 6 Mun. 358, 367. But 
 the title may be set aside in equity. 4 Mun. 421. 4 Cranch, 403. Yet 
 we find it decided (5 John. 447,) even in a court of equity, that in such 
 case a sale without notice would be valid, and the cestui que trust must look 
 to the trustee. I cannot think this a correct doctrine. 
 
 Nor can the trustee injure the cestui que trust by refusing to accept the 
 trust : for in that case a court of equity will interpose, and either appoint 
 new trustees or take upon itself the execution of the trust. 2 Fonb. 173. 
 And after a trustee has once accepted the trust, he cannot afterwards dis- 
 charge himself without consent, or the direction of a court of competent 
 jurisdiction. 4 John. 138. If he misbehaves, indeed, he may be removed, 
 and so if from circumstances it is obvious he can no longer properly dis- 
 charge the duty: as where a female trustee marries a foreigner whose re- 
 moval to another country is feared. 4 Vex. 59*2. If the trustee dies, the 
 court will appoint a new trustee. For it is a principle of the court, which 
 has more than once been mentioned, that a trust shall never be permitted 
 to fail for want of a trustee. 
 
 As a trustee is not permitted in any manner to injure the cestui que trust 
 ' — as every act done by him from which an advantage arises enures to the 
 benefit of the estate, and cannot result to his own profit, and as he stands 
 altonrether in a fiduciary relation to the trust-subject, it would seem to fol- 
 low that a purchase of it by him would not be deemed consistent with his 
 character and duties. Accordingly we find that such is the general doc- 
 trine of the court. The question presents itself either in reference to pur- 
 chases by the trustee from the cestui que trust of his beneficial interest, or 
 in reference to purchases (by trustees and others standing in a fiduciary 
 character) of trust property sold by themselves under the authority conferred 
 upon them. The two cases must be considered somewhat distinctly. 
 
 First. As to the case of a purchase by a trustee from his cestui que trust 
 of the trust-subject. If the cestui que trust 'he not sui juris, as if he be an 
 infant, there seems to be no mode in which the trustee can become the pur- 
 chaser of the trust-subject, so as to be protected against any future rescis- 
 sion of the purchase, except by filing a bill in equity, and shewing that he 
 is willing to give more than any one else would give ; in which case his 
 purchase would be permitted. See 5 Vez. jr. 678. 13 Vez. 601. But 
 where the cestui que trust is sul juris, that is, a person of full age, unmar- 
 ried, and not incapable of managing his affairs, it is said that a purchase 
 from him by his trustee is not of course void. See Sug. 431. Such trans- 
 actions are indeed viewed with the greatest jealousy. The situation of 
 the trustee in relation to the estate affords him opportunities for the most 
 accurate knowledge, not only of its obvious or apparent value, but of its 
 intrinsic or hidden advantages ; and, as the confidential relation between 
 himself and the cestui que trust leads the latter to place imp'-'^it reliance on 
 the fulness and fairness of his information and disclosures on these topics, 
 an opportunity would be afforded for fraud, if such contracts were too 
 readily countenanced. So long as the trustee is acting for the cestui que 
 trust, or is treating with third persons for his benefit, so long may he be ex- 
 pected to be vigilant and tenacious of his interests. But as soon as he 
 assumes the character of a purchaser, his interest becomes in conflict with 
 that of the cestui que trust, and promjits to concealment rather than to full 
 and fair disclosures. Hence it is on all hands agreed that such transactions
 
 CHAP. 21.] TRUSTS. 459 
 
 are suspicious : that they will only be supported where, in the treaty, the 
 cestui que trust appears clearly to have discharged the trustee from the trust, 
 and to have considered him as an indifferent person : and even then there 
 must appear to be a distinct and clear contract after full disclosures, without 
 fraud or advantage taken of information acquired in the fiduciary character, 
 and fraudulently withheld. See Sug. 431. 1 Mad. 91, 92, 93. There 
 are indeed not wanting able jurists who incline to denounce every such 
 transaction, because of the difficulty of detecting secret frauds which may 
 be practised by trustees ; and who therefore think that " however innocent 
 the purchase, it is poisonous in its consequences.'" 2 John. 260, 264. Yet 
 it would seem to be the better opinion that where, at the time of the pur- 
 chase, the trustee had shaken off entirely the confidential character, and 
 every thing is perfectly fair, the transaction may be sustained. Sug. 431. 
 2 John. 259. 
 
 It must be remarked, however, that wherever the purchase by the trustee 
 is made in the name of another person, ihe sale will be set aside even though 
 the cestui que trust be sui juris, since that very circumstance carries fraud 
 on its face. Sugden, 431. 
 
 Second. Purchases by trustees and others standing in a fiduciary cha- 
 racter, of property sold by themselves under the authority conferred upon 
 them, are yet more decisively reprobated than contracts between the trustee 
 and cestui que trust. For it may be laid down as a general proposition, 
 that trustees, [executors,] agents, commissioners for sales, [sheriffs,]* and 
 auctioneers, are incapable of purchasing at sales made by themselves or 
 under their authority or direction. To permit persons standing in the situ- 
 ation of sellers to be at the same time buyers, is to invest them at the same 
 moment with inconsistent, contradictory, and conflicting characters. Emp- 
 tor emit quam minimo potest, venditor vendit quam maxima potest. No man 
 can be presumed to be disinterested when so situated : and judging from 
 the frailties of our nature, there is every reason to fear that, in the conflict 
 between interest and duty, the interest of the cestui que trust will generally 
 yield to that of the trustee. And although this may often not prove to be 
 the case where men of honor are concerned, yet we must remember that 
 laws are made rather with a view to the known vices of our nature, than to 
 suit the character of the virtuous portiojis of society. Hence in such cases 
 it may, I think, be safely affirmed, that the question of the validity of the 
 purchase depends on general principles, and not on the particular circum- 
 stances of the individual case. It rests upon this, that the purchase is not 
 to be permitted in any case, however honest be the circumstances, the ge- 
 neral interests of justice requiring the practice to be wholly discountenanc- 
 ed, as no court is equal to the examination and ascertainment of the real 
 character of the transaction in every instance. See Sug. 422, 425. 1 Mad« 
 91, &c. and the cases there cited. Also 2 John. 257, where the subject is 
 fully examined, and the abuses to which the practice would be liable are 
 strongly set forth. 
 
 The rule to which we have been adverting does not in strictness, howev- 
 er, vacate every purchase by a trustee at a sale made by himself; for if the 
 cestui que trust be sui juris, and finds the sale to his advantage, he may in- 
 sist upon it; and so if he be an infant, and it is found to be for his benefit, 
 it will not be set aside at the instance of the purchaser. 13 Vez. 603. 6 
 Vez. 631. 2 Mun. Sale vs. Roy. The rule therefore is, that however fair 
 the transaction, it must be subject to an option in the cestui que trust if he 
 comes in a reasonable time to have a resale. 5 Vez. 678. And this option 
 is not taken away without a knowledge of the facts on the part of the ces- 
 
 * As to a sheriff's purchases at his own sale ihe analogies of the law are all against their validity, 
 though we have no express decision clssing the question. 4 Ran. 204.
 
 460 SPECIFIC PERFORMANCE. [ BOOK 3. 
 
 tui que trust, vvit-h subsequent acquiescence or confirmation. lOVez.423. 
 12 Vez. 355. Sug. 435, 430. And it follows the trust-subject into the 
 hands of a subsequent purchaser with notice. Sug. 434. . 
 
 But where the cestui que trust knows of the purchase by the trustee, and 
 has received full information, and yet acquiesces for a long time in the 
 transaction, equity will not assist him to set aside the sale. Sug. 4-35. 
 Upon this principle we may perhaps reconcile the case of Anderson and 
 Starke vs. Fox, (2 H. &, M. 245,) with the British adjudications. Yet the 
 dicta in that case, and in the case 4 H. & M, 430, seem to incline against 
 the universal denial of the validity of purchases by persons in fiduciary 
 characters of the trust-subject. They are not, however, deemed sufficient 
 to shake the well settled principles I have above quoted from the decisions 
 of the British courts, and of a distinguished jurist in a sister state. In 5 
 Mun. 180, 1 H. &. M. 519, and 4 Mun. 451, are cases in which such pur- 
 chases were set aside, but they were attended, it must be confessed, with 
 suspicious circumstances, and do not, therefore, furnish any decisive autho- 
 rity on the matter in question. 
 
 In all cases, therefore, where the trustee is desirous of becoming a pur- 
 chaser, and is willing to give more than any other person for the property, 
 it would be advisable, in the present state of the adjudications, that he 
 should apply by bill to a court of equity, to be let in as a purchaser. Upon 
 such application the court will, if it appears proper, direct accordingly, and 
 a purchase made by him under a sale by a commissioner or officer of the 
 court will be unassailable. See 5 Vezey, 681. 
 
 Where the trustee has purchased the trust estate in a manner not autho- 
 rized by the rules of the court, the cestui que trust, or such person as was 
 entitled to the property before the sale, may either insist on the purchase 
 being avoided, and reclaim the estate where the trustee still holds the es- 
 tate ; or he may insist on a resale where it has been purchased by the trus- 
 tee on a sale by himself; or if the trustee has sold the estate after his pur- 
 chase to any other third person, who purchased with notice, the cestui que 
 trust may either demand the advanced price such third person may have 
 given, or may demand the estate itself. And it seems that if he require a 
 resale, the trustee is not thereby absolved as of course ; for if upon the re- 
 sale, the estate sells for less than the trustee gave, he may be compelled to 
 keep the property at the price at which he bought. Sug. 433. 5 Vez. 707. 
 Yet strict justice is in all cases administered to him : for if the cestui que 
 trust requires a re-conveyance, or there is a re-sale, the trustee is entitled to 
 have the price he gave refunded, together with all sums laid out for the 
 permanent benefit of the estate, with interest from the time they were dis- 
 bursed ; and is chargeable, on the other hand, with rentsand profits while 
 he had possession. 
 
 It would extend this sketch beyond the limits to which I find it necessa- 
 ry to confine myself, were I to insert whatever is useful or interesting to be 
 found in the books in relation to trusts. I must therefore content myself 
 with referring the student to the elementary treatises of Fonblanque, Ma- 
 doc, Sugden, and Newland, where he will find much interesting matter to 
 supply the deficiences of this imperfect essay. 
 
 VIII. OF "SPECIFIC PERFORMANCE." 
 
 It is one of the principles of equity that it looks upon things 'agreed to 
 he done, as actually performed ; and consequently as soon as a contract is 
 made for the sale of an estate, equity considers the buyer as the owner of 
 the land, and the seller as a trustee for him ; and on the other hand, it con- 
 *;dcrs the seller as the owner of the money, and the buyer as a trustee
 
 CHAP. 21.] SPECIFIC PERFORMANCE. 461 
 
 for him. 6 John. 398, 403. 1 Mad. 289. Sug. 130. The courts of law, 
 indeed, until a conveyance is made according to the forms required to pass 
 the legal estate, look upon the seller as yet continuing the owner,* and they 
 pay no respect to the contract, except to give to one party damages in case 
 the other refuses to complete his bargain. But as neither party can ever 
 rescind the contract without the assent of the other, (2 John. 534. 5 T. 
 R. 402,) a court of equity considers the change of property so entire and 
 absolute, that even before a conveyance is made, the buyer is regarded as 
 the owner of real estate, which will, as we have seen, descend and pass to 
 his heirs as such, if he should die before he gets the title : whereas, the 
 seller is, in the eyes of equity, so completely divested of the realty even be- 
 fore a conveyance, that the unpaid purchase money will pass to his execu- 
 tors instead of going to his heirs. The consequences correspond. The 
 death of neither party will affect the contract, except that where the vendor 
 binds himself only (and not his heirs) to convey, the vendee may refuse a 
 conveyance if it be not made by the vendor himself in his lifetime ; 6 Mun. 
 170 ; for according to the strict import of the terms of the contract, it can- 
 not now be fulfilled on the part of the vendor, and a title from his heirs may 
 not be as beneficial as one from the ancestor himself; for the heirs would 
 jiot be decreed to make a general warranty. 4 Mun. 140. From the same 
 notion of a complete change of property, any intermediate loss or gain 
 which may happen or accrue to the estate, will fall on or enure to the pur- 
 chaser. So, too, the interest of the purchaser is devisable, and will pass 
 even in England by a will made subsequent to the contract, though prior , 
 to the conveyance ; and it is in like manner vendible and chargeable, and 
 when it descends to the heir is considered as real and not as equithble as- 
 sets. So, too, it is subject in Virginia both to curtesy and to dower. 
 
 We may next observe that the lights in which the respective interests of 
 the buyer and seller are viewed in courts of law and equity, do not differ 
 more than the remedies afforded in these different tribunals. Though there 
 was formerly a real action given by the common law to compel the specific 
 execution of a contract to convey, (see -3 Black. Commentaries, page 157,) 
 yet the only remedy now known in a court of law for the breach of that con- 
 tract, is an action for damages. It is obvious, however, that herein the law 
 is grossly defective, and equity therefore steps in and enforces the perform- 
 ance of the contract specifically, by compelling the refractory party to ful- 
 fil his engagement according to its terms. 1 Mad. 286. Thus if the 
 vendor refuses to convey, equity will decree a conveyance, and attach 
 him until he makes it ; or if he is out of its jurisdiction, will put the ven- 
 dee in possession, and appoint a commissioner to convey the title, whose 
 deed will pass the legal estate. See 1 R. C. ch. 99, § 34, ch. 66, § 41. 2 
 Mun. 167. 
 
 It seems to be considered as a general rule, that equity will not decree a 
 specific performance where the plaintiff would not be entitled to recover 
 damages at law. 1 Mad. 288. This, however, is obviously not true iti ex- 
 tenso, since marriage articles, or a contract between husband and wife, 
 which will not be recognized at all in a court of law, may be enforced in 
 equity, and conveyances decreed according to the spirit of the agreement. 
 
 We proceed, after these preliminary remarks, to inquire in what cases a 
 court of equity will decree the specific execution of agreements. 
 
 First, as to the parties to the agreement. The party to be compelled 
 must of course be bound by the contract. A specific performance therefore 
 obviously cannot be decreed against an infant upon any contract of sale he 
 
 ' A vendor holding only an equitable title may now defend himself at law on that title if it be sus- 
 tained bv plain written evidence signed by the vendor ; and a judgment for him in ejectment brought 
 by the vendor, operates as a conveyance," and ia to be recorded and have the effect of a recorded 
 d£ed. 1830, cii. 11,§66.
 
 162 SPECIFIC PERFORMANCE. [ BOOK 3. 
 
 may have made; for such is not binding unless ratified and confirmed by 
 him at full age. So neither can there be such a decree against a feme co- 
 vert, upon any contract made by her while covert, unless it were executed 
 with the solemnities required by law in relation to deeds o^ femes covert ; or 
 unless it was for the conveyance of her separate estate, and such estate be 
 so settled as to authorize her to sell or contract respecting it ; ncr will an 
 agreement of her husband bind her. And though it has been said if a hus- 
 band agree to convey his wife's estate, he will be compelled to procure her 
 conveyance, and will be committed until he does, (see Sug. 151,) yet such 
 doctrines are so incompatible with the freedom from restraint in conveyan- 
 ces oi femes covert which our law contemplates, that I am persuaded no 
 such principle would be avowed with us. See I Mad. 311. The purcha- 
 ser would doubtless be turned around to his action for damages. 
 
 But the change of the condition of the party will not abridge the purcha- 
 ser's rights if the vendor was capable of binding himself when the con- 
 tract was made. Thus if a feme sole contracts and then marries, she may 
 be compelled to convey. So if a person contracts and then becomes lunatic, 
 the rights of the parties continue the same, for the act of God will not im- 
 pair them. See Sug. 153, but see also 1 R. C. ch. 109, § 21, ch. 66, § 41. 
 So, too, if a man seized in fee-simple ox pur autre vie, contracts for the sale 
 of his estate, and dies before the conveyance is executed, although, as we 
 have said, the vendee will not be compelled to take a deed from the heir, 
 yet if he chooses to do so, the heir at law will be decreed to perform the 
 agreement in specie, though the vendor covenanted for himself only, and 
 «ot for his heirs. For had he fulfilled the contract as he ought to have done 
 in his lifetime, the vendee would have had his title: and his omitting to do 
 •so until by the act of God he was taken off", ought not to divest the ven- 
 dee's rights. The heir is therefore bound to convey, not because of his be-- 
 ing named, but because of his holding the estate which another man is en- 
 titled to : and the case would be the same if a time had been fixed for the 
 conveyance, and he died before it arrived; his heir would be decreed to 
 convey. And here we perceive another case where specific performance is 
 decreed, though there can be no action for damages, for at law the cove- 
 nant was not broken; because its performance was prevented by the act of 
 God. In a subsequent passage we shall see what covenants the purchaser 
 may require from the heir who is directed to convey. 
 
 Secondly, we come to the consideration of the agreement which is sought 
 to be specifically executed ; and here 
 
 1. Of the subject-matter of the contract. In general a bill will not lie 
 for a specific performance of a contract /or chattels, or which relate to mer- 
 chandize ; as a bargain for corn or. stock. For the remedy of specific per- 
 formance in case of purchases of real estate, is given because the buyer 
 ■wants the thing in specie ; because he may have some particular reason for 
 desiring the estate which he has purchased, rather than any other estate ; 
 for he may always be presumed to have made his purchase from a particu- 
 lar liking to. the estate so purchased, and from its being particularly adapt- 
 ed to his views and convenience. But such a motive cannot operate gene- 
 rally in contracts for chattels ; for one quantity of stock, or of grain, must 
 be equally as beneficial as another, and there is, therefore, no reason for a 
 preference, and no necessity for a specific performance, since the damages 
 recovered at law may be laid out in the purchase of other stock or grain. 
 But notwithstanding this general distinction between real estate and chat- 
 tels in reference to the remedy in question, there are cases where persons 
 may enforce a specific performance of agreements relating to personalty, 
 though the court, it is said, will weigh with great nicety cases of this kind ; 
 nor will it be permitted unless the demand is such that nothing can answer
 
 eiiAi'. 21.] SPECIFie PERFORMANCE. 463 
 
 the justice of the case but a performance of the contract in specie. As if 
 the owner of an ore bank contracts to deliver to an iron-master 1000 tons 
 of ore per annum, for tlie purpose of carrying on his works, and there was 
 no other ore in his vicinity, it would seem that specific performance might 
 be decreed. 3 Atk. 384. 1 Mad. 296, 3-20. 
 
 Among these exceptions to the general rule that specific performance 
 will not be decreed in the case of a contract for a chattel, may perhaps be 
 placed the case of a contract for the sale of slaves. Certain it is that great 
 consideration is allowed to the partiality which a master is supposed to 
 have for his particular slaves : so that upon the principles of a bill for a 
 specific performance, an injunction will be allowed to restrain the sale of 
 my slave, if he be taken for the debt of another, though a court of equity 
 will refuse its aid in the case of a horse, or furniture, or such like, and 
 would leave me to the very inadequate remedy of an action for damages. 
 See 3 Rand. 25 and 170. Upon a reference to the last of these cases it 
 will be perceived that there is no little difference of opinion among the 
 judges even as to this matter; one appearing to extend the principle to eve- 
 ry case of a slave, and another confining it to the case of a favorite slave 
 or family negro.* If the former opinion prevail, it would seem that a bill 
 might well lie for the specific performance of a contract for the sale of 
 slaves generally. If the latter, perhaps it would be difficult to bring any 
 case within the principle, since such particular attachment is not likely tO' 
 exist as to a slave which I have never yet owned. See 1 Mad. 189, as to 
 bills for delivery of specific chattels of peculiar character and value. 
 
 2. Of the evidence of the contract. Having shewn that the remedy of 
 specific performance refers itself chiefly to contracts for real estate, it fol- 
 lows that such cases must generally fall within the influence of the statute- 
 of frauds, which declares void all contracts for land which are not reduced 
 to writing, and signed by the party sought to be charged. We have else- 
 where seen, however, that where there has been a part execution, the sta- 
 tute cannot be pleaded in bar to the performance, and we have touched up- 
 on the doctrine of what amounts to such part execution as will take a case 
 out of the statute. I shall not, therefore, recur to the subject here. But it 
 must be remarked that this part execution must be referrable to and con- 
 sistent only with the title set up ; and not to be satisfied by any other ; 1 
 H. &.M. 100. 1 Mad. 301; and that although in a given case the efl^ect 
 of the statute is removed by part execution, yet this does not dispense with 
 the necessity of adequate evidence to sustain the contract set up by the 
 paintiff. So indispensible is this, that if the contract set forth in the bill be' 
 not proved, the plaintiff cannot have a decree, although the answer admits 
 a contract, but one that is different from that alleged by the complainant. 
 
 Though parol evidence is generally inadmissible on the part of the plain- 
 tiff, to add to or vary a written contract, it is admissible on the part of the 
 defendant to a bill for specific performance, to shew mistake or omission, 
 or circumstances dehors the writing, making it inequitable to interpose. 1 
 Mad. 321. See 2 John. 598. 4 John. 148, where Chancellor Kent con- 
 siders evidence of mistake or omission admissible on the part of the plain- 
 tiff as well as of the defendant: and justly, I should think. 
 
 Since the loose dicia of some of the judges in the case of Rowton vs. 
 Rowton, (1 H. &, M. 91,) many cases have arisen in which children and 
 sons in law have set up claims to conveyances upon pretended contracts, 
 sustained by evidence of loose family conversations, and of thei^r abandon- 
 ment of some profitable enterprise in consideration of a promise of title to 
 
 'III 6 Ran. 191, published since the above was written, it is dccidod that equity will interfere in the 
 case of slaves, unless it appears that they can have no peculiar value- in the eyes of tlie applicant ; as 
 where he buys to sell again, 
 
 M.
 
 464 SPECIFIC PERFORMANCE. [book 3. 
 
 lands. On this subject Chancellor Kent very judiciously observes " that it 
 would be injurious to that freedom of intercourse, and to the operation of 
 those kind and generous affections which ought to be cherished in the cir- 
 cle of the domestic connexions, to deduce a trust" [or contract] "from 
 loose and general expressions in a confidential correspondence " [and 
 much more in loose conversation] "between one member of a family and 
 another, and to give to them the force and vigour of legal obligations." 5 
 Johnson, 13. See also 1 Leigh, 36. 
 
 An auctioneer is an agent for the purchaser either of lands or goods, and 
 if he writes the purchaser's name as the highest bidder on the memoran- 
 dum of sale, it is a sufficient signing. 4 John. C. C. 659. 2 Taun. 38. 
 
 4 Taun. 209. 3 Vez. & Beam, 57. 3 Merivale, 62. 9 Vez. 252. 7 
 East, 565, 569. 14 John. 484. 13 Vez. 456. He is thus the agent of 
 both parties. 
 
 3. Of the character of the contract. All applications to the court to 
 compel a specific performance, are addressed to its discretion ; but it is not 
 an arbitrary or capricious discretion, but a sound judicial discretion regulat- 
 ed by the established principles of the court. 1 Mad. 286, 287. 6 John. 
 Ill, 225. Thus to justify a decree for a specific performance, the contract 
 must be clearly and distinctly ascertained, or the court cannot decree ; see 
 
 5 Mun. 185; though in one case (where the defendant was guilty of con- 
 tumacy, and the court, from want of evidence which he was bound to dis- 
 close, could not decree a specific performance,) a sum of money was con- 
 ditionally decreed against the defendant for the purpose of compelling the 
 production of the evidence. 1 H. & M. 310. And indeed if the agree- 
 ment can be reduced to a certainty, it will be enforced ; and where no time 
 is fixed, performance in reasonable time will be decreed. 1 Mad. 337. So 
 an agreement to sell at a fair valuation may be enforced. 5 Vez. 846. But 
 an agreement to sell at such price as A and B should fix, without authori- 
 ty to appoint an umpire, cannot be enforced if they disagree. See 14 Vez. 
 407. 1 Wash. 290, 326. 6 Mun. 212. The contract must moreover be 
 legal as well as certain ; — it must not conflict with principles of public po- 
 licy ; it must be fair and untainted by fraud, surprise, or mistake; and the 
 plaintiff must come into court v.ith clean hands, or it will not entertain his 
 bill. It must also be mutual, (1 Mad. 334,) and if not equal, at least not 
 grossly unequal ; for though equity may not, for inequality of price, set 
 aside a contract, yet the same inequality might induce a refusal to decree 
 performance. It must, however, be upon valuable, or at least a meritorious 
 consideration, such as payment of debts, or making provision for a wife 
 or child : for equity will not interfere in behalf of a volunteer, any more 
 than it will set aside a gift because it is merely voluntary. See 1 Mad. 326. 
 It must also be reasonable ; for, as hss just been said, if the price be gross- 
 ly inadequate, equity will not interfere. 1 Mad. 336. 6 John. 225. 2 
 John. 23. 10 Vez. 292. And if a specific performance would work in- 
 justice or be unreasonable, the party will be left to his action for damages. 
 Thus where, after a considerable lapse of time, and the death of the ven- 
 dor, a specific performance was sought, and a conveyance demanded from 
 one of the children of the vendor to whom the estate in question had been 
 devised as his portion of his father's estate, the vendee was left to his action 
 for damages, which would bear equally on all the heirs and devisees ; 
 whereas, a decree for a conveyance would have disinherited one who would 
 then probably have had no redress against the others. It is, indeed, gene- 
 rally an essential, that the ])arty seeking a specific performance, should not 
 himself have been backward ; that he should not have held off until cir- 
 cumstances may have changed, or kept himself aloof so as to enforce or 
 abandon the contract, as events might prove most advantageous, 13 Vez.
 
 CHAP. 21.] SPECIFIC PERFORMANCE. 465 
 
 225. In the langunge of some of the judges, the party who seeks specific 
 performance must shew himself " ready, desirous, prompt, and eager." See 
 Sug. 279. Certain it is, that if there has been gross laches in the plain- 
 tiff — if he has unreasonably delayed to perform his part of the agreement, 
 or if he has broketi it (3 H. & M. 436,) — or if he has been in default 
 and the defendant would sustain serious loss thereby in case of specific ex- 
 ecution (4 Ran. 478,) — or if he cannot perform it, or if a performance when 
 he files his bill would not put the other party into the situation he would 
 have been in had there been a strict performance, he can have no decree 
 in his favor, unless his failure or delay has proceeded from the fault or as- 
 sent of the defendant. It is true that delay in the payment of the purchases 
 money is not usually held a ground for refusing a decree for performance ; 
 because compensation can be made in the shape of interest : but in one case 
 it has been refused on account of gross delay of payment after repeated so- 
 licitation and notice by the vendor of an intent to sell to another. 4 John. 
 559. In general, however, time of payment of the purchase money is not 
 considered as of the essence of the contract. But where time is of the es- 
 sence of the contract, then there must be a strict compliance, or the party 
 will have no title to specific performance. See Sug. ch. 8, § I, 2. 5 
 Cranch, 262. 13 Vez. 228. 
 
 Connected with the objection of a failure or inability to perform on the 
 part of the plaintiff, is the question how far any minute variance between 
 the property as sold, and that which can be conveyed, shall enable the de- 
 fendant to resist the specific performance. It is, indeed, a general rule, 
 that the plaintiff must perform on his part, and that the defendant must get 
 what he contracted for: — but a substantial performance by the plaintiff, and 
 the defendant's getting substantially what he bargained for, will suffice, 
 notwithstanding any minute variance in the description. 10 Vez. 306. G 
 John. C. R. 38. 5 John. 174. Thus a sale of a tract of land represented 
 to contain 150 acres, will be enforced, though there should turn out to be 
 less. So if there be a sale of an estate for years, and the vendor's title is 
 not for exactly the number of years represented, this will not bar the en- 
 forcement of the contract. So if there be a sale of several lots, and the 
 title to one is deficient; yet the purchaser will be compelled to take the 
 others if they are clearly separate and distinct, and in no wise complicated 
 with it. Sug. 209. See 2 Rand. 120. See also 2 Evans' Pothier, 43. 
 And so if an estate be sold, and the seller's title to part of it be deficient, 
 yet if it clearly appear that the purchaser gels what was his principal ob- 
 ject, and thus has a substantial performanee ; — or if he knew the defect 
 when he purchased and that it would take much time to remove it ; 4 Ran. 
 478; — or if it appears that what he gets is independent of that which he 
 does not get, and that the enjoyment of it will not be impaired by the want 
 of the residue, a specific performance will be decreed. Sug. 211, 212. 
 This, however, is certainly a very strong exercise of the powers of the 
 court. See 1 Mad. 311, 342, -343. 
 
 A purchaser, however, cannot be compelled to take a defective title:- — or 
 to take an estate for life, where he contracts for a fee ; or to take an undi- 
 vided part, where he contracts for the entirety ; or where he contracts for a 
 title, he cannot be compelled to take an equitable title, but has a right to 
 insist upon a clear legal title, the chain of which is unbroken from the com- 
 monwealth, or which has been accompanied by fifty years' uninterrupted 
 possession, and therefore is good against all the world. 1 Mad. 341. See 
 5 John. 263.* 
 
 * As to specific performance, and the rescission of contracts in CHse of defect of title, see 1 Leigh, 
 133,125. aRan.44. 4 Kan. 478. 4 Leigli, Garnet ijs, Macon. Sug. 2,8, 331, 345, and seq. Harg. 
 Co.Litt.3a4, a. n.l. 
 
 VOL. 2—59 
 
 ri'
 
 466 SPECIFIC PERFORMANCE. [book 3. 
 
 On the other hand, however, though the vendor cannot make the title he 
 contracts for, yet he may be compelled to convey such title as he has, and 
 to compensate for the defect; nor does it lie for him to object the want of 
 complete title. If indeed he has no title, there can of course be no specific 
 performance and the plaintiff must sue at law for damages; but where he 
 has a title, though not to the extent contracted for, he must convey it if re- 
 quired ; Sug. 155 ; and if the vendor has no title at the time of the contract, 
 but afterwards acquires it, the vendee may compel him to transfer it. 1 
 Pow. on Mortg. 2^5. Sug. 523. It is sufficient that the vendor can make 
 a title at the time of the decree, whether he is sued for a specific perform- 
 ance, or is seeking to enforce it, unless in the latter case, where the time of 
 conveying has been made the essence of the contract. See I Mad. 348. 
 
 Where a specific performance cannot be decreed, the court will not go 
 on to ascertain and decree damages, but will send the party to law. 1 
 Mad. 350. 5 John. 193. Sed qiuere. 
 
 4. Of the covenants for title which the vendee may require. If a man 
 covenants to sell a fee simple estate free from encumbrances, and says no 
 more, this covenant alone entitles the party to a deed with general warranty 
 and proper covenants for the defence of his title.* These covenants are 
 covenants of seizin of such estate as is conveyed, and of power to convey 
 the same; and that the estate is free from encumbrances; all which are 
 broken the instant they are entered into, if in fact the vendor has not the 
 seizin or power covenanted for, or there be any encumbrance on the pro- 
 perty.! The vendee is also entitled to covenants for further assurance, and 
 for quiet enjoyment, and I think he is, with us, uniformly considered as en- 
 titled to a covenant of warranty, not only against the vendor and his heirs, 
 and those claiming under him or them, but " against all and every other 
 person or persons whatever." In England, however, the rule is, that if the 
 vendor was a purchaser himself for a valuable consideration, he covenants 
 against his own acts only, and delivers over, or covenants to deliver over, 
 his title deeds, to the covenants of which the vendee may resort. But if 
 he does not claim as purchaser for valuable consideration, but as devisee, 
 or donee, or if he takes by descent, or if he retains the title deeds, he must 
 covenant not only against his own acts, but those of the last purchaser for 
 valuable consideration, and all claiming under him. See 1 Mad. 338. 
 Sug. 331, &c. In bills for specific performance against infant lieirs, how- 
 ever, the court will not order them to enter into personal covenants, though 
 the ancestor covenanted for fiill title. They are required only to release 
 and convey the title of which their ancestor died seized ; but the principal 
 of the purchase money may be directed to be retained until their maturity 
 as a security for the title till then. 5 John. 261. And indeed it seems in 
 one case to have been decided that the heirs of a vendor who covenanted 
 " to make good and lawful right in fee-simple," ought not to be decreed to 
 make a conveyance with general, but only wilh special warranty : 4 Mun. 
 144: a position that seems not reconcileable with justice, if it be extended 
 to the case of heirs receiving assets by descent. In such case it would seem 
 equitable that they should execute such a deed as would bind them to war- 
 rant against all persons so far as the assets descended would enable them. 
 
 If a purchaser takes a defective conveyance, or the deed runs out of date, 
 so that it cannot be recorded, the vendor or his heirs will be decreed to 
 make a good conveyance. See Sug. 523. 
 
 *In Riickcr rs. Lowtlier, (court of appeals, 1835,) this was nsscited and not doiicil, but received 
 as llic law of the subject. 
 
 t Tills rpndcTs llip?o covenants most important, since tliey enable tlie vendee to gel redress forili- 
 witli if he finds Iuf ritle der<!ciivc in those rcgiinlH, whereas the covenant of warranty is not broken 
 uniil eviction ; though it Bcenin a icarraiiliai cliardc also lios before actual eviction and in contem- 
 plation of loES. h-ec liook U.
 
 CHAP. 21.] INJUNCTIONS. 467 
 
 Though, as we have said, the court will not force a doubtful title upon 
 a purchaser, yet in these cases it sometimes governs itself by a moral cer- 
 tainty. Thus not only will the purchaser be compelled to take the title, 
 though the chain be not unbroken from the patentee, provided the vendor 
 and those under whom he claims, have had fifty years' uninterrupted pos- 
 session ; but even when there are terms or encumbrances to be got in, the 
 contract is enforced and indemnity secured to the purchaser, by his retain- 
 ing an adequate part of the purchase money until the encumbrance is re- 
 moved : as where there is an outstanding dower right in a/e?ne covert, which 
 she will not relinquish. Nor is it an objection to a bill for specific perfor- 
 mance brought against the vendee, that the vendor had not good title at 
 the time of the sale ; for if, upon bill filed and a reference to a commission- 
 er to inquire if he can make a good title, it appears he can at the time of 
 the report, or within a reasonable time after, the court will put him under 
 terms to procure it speedily, and upon his doiug so will give him a de- 
 cree. But such a bill by a vendor will not be entertained after a great 
 length of time, he not having had a good title at the time of the sale. I 
 Mad. 349. 
 
 If the purchaser does not pay the purchase money at the day fixed, he is 
 chargeable with interest, and on the other hand is entitled to the profits. 
 See 6 Ran. 465. How far he will be permitted to retain the purchase mo- 
 ney (while he has possession) on the ground of defect of the title, will be 
 considered under the head of injunctions. 
 
 The student will consult, on this subject, among others, Sugden, New- 
 land, Madoc, and Fonblanque. 
 
 IX. OF "INJUNCTIONS."* 
 
 An injunction is a prohibitory writ specially granted by a judge of a court 
 of chancery, either in term time or vacation, upon the exhibition of a bill 
 by any person, setting forth his case, and praying the interference and as- 
 sistance of the court in restraining his adversary from doing some act pre- 
 judicial to him, and against equity and good conscience. It is granted to 
 prohibit a party from acting, but not to undo what he has done. 4 Ran. 
 58. This is done only on the final decree. If the bill shews sufiicient 
 ground for the exercise of the powers of the court, and is supported by af- 
 fidavit of the party or other evidence, (which not only the English practice, 
 but our own statute specially requires, 1 R. C. ch. 66, § 112,) the court or 
 judge, if the application is made in vacation, (Id. § 108, 112,) proceeds to 
 award the writ by endorsement to that effect on the bill, upon the usual 
 terms of the court, upon which the bill is taken to the clerk, who issues a 
 subpoena against the defendant]]to answer the bill, and endorses the injunc- 
 tion or prohibitory order on the back of it, according to the nature of the 
 case. If the order requires a release of errors, confession of judgment, 
 and bond and security to be given in the court of law, he also endorses 
 " that the effect of the injunction is to be suspended " until the requisitions 
 be complied with. The subpoena is then taken to the clerk of the court of 
 law, and when the release and bond have been given, he certifies the fact 
 on the subpoena, and then the injunction has its effect, and not till then.t 
 > The terms on which injunctions are granted depend upon the character 
 of the case. If the injunction be to a judgment against the complainant, 
 
 * See llie act of 1830, ch. 11, § 39, 40, 41. 
 
 t A count}' court cannot inioin the judgment of a superior court of law. 4 Leigh, Gholson jjs. Ken- 
 dall & Co. 
 
 A court of law ouyht not to permit a party injoiaed to proceed ft law in contempt of (he injunction. 
 4 Leigh, Dudley vs. Eppes.
 
 468 INJUNCTIONS. [ BOOK 3. 
 
 he must execute a release of all errors at law, and (liter into bond with 
 good security to the plaintiff at law, in the office of the clerk of the court 
 of law, in a penalty equal to twice the amount of the judgment, with con- 
 dition to " pay all money, and tobacco, and costs, due or to become due to 
 the plaintiff in the action at law, and also all such costs and damages as 
 shall be awarded against him in case the injunction be dissolved." 1 R. 
 C. ch. 66, § 114. If the injunction be prayed for to a proceeding at law 
 Avhere the declaration has been filed but no judgment has yet been render- 
 ed, the order of the judge requires a confession of judgment, that the de- 
 fendant may not have a double advantage ; for regularly an injunction which 
 is awarded after declaration filed, does not stay the trial, but only execu- 
 tion. 1 Leigh, 96. If before suit brought, or before declaration, it stays 
 every thing. 10 Vez. 452. 17 Vez. 141. 19 Vez. 85, 377. But where, 
 from the nature of the case, such confession cannot be required, as where 
 the demand of the plaintiff at law is for unascertained damages, the order 
 usually permits the plaintiff to proceed so far as to ascertain them ; (unless 
 the defendant makes oath that he cannot safely try without the answer, 16 
 Vez. 220. 18 Vez. 488 ;) so that the injunction does not in fact operate 
 until the judgment is rendered. Where the defendant at law has permit- 
 ted costs to accumulate by giving a forthcoming bond before applying for 
 relief in equity, it is also proper to require the payment of these costs as a 
 condition precedent to the operation of the injunction, though this is not 
 always attended to. 
 
 Where the injunction is to enjoin proceeding to sell under a deed of trust, 
 or to stay waste, and such like, the bond and security required is usually 
 only for such sum as will cover all probable costs ; though this is entirely 
 in the discretion of the judge, who may require greater security, if from the 
 nature of the case (e. g. the possible deficiency of the trust-subject to sa- 
 tisfy the debt) it seems necessary to prevent injustice or ultimate loss to the 
 defendant. 
 
 When an application is made for an injunction, it is not necessary that 
 the defendant to the bill should have notice of it ; nor indeed if he knows 
 of the application has he any right to be lieard upon the matter in that 
 stage of the proceeding, which is fiom its very nature ex parte. But in nice 
 and difficult cases, it is said, the judge may, before he grants an injunction, 
 require notice to be given to the adverse party to appear and contest the 
 propriety of it. 2 John. 375. 18 Vez, 217. Such is not, however, the 
 usual practice with us ; except that in some — perhaps in most of the county 
 courts — where an application is made for an injunction, both parties are 
 heard at length, and the court decides upon argument; — a practice which 
 generally leads to great irregularity, as the counsel rarely confine them- 
 selves, in such discussions, to the matter contained in the bill, but travel out 
 of the record into the facts, as they may have appeared upon some previous 
 trial at law. 
 
 The effect of an injunction in restraining the defendant, is derived from 
 the power of the court to punish him for his contempt, in case he disobeys 
 its order. See 1 Rand. 206, This is done by an attachment, by which 
 his body is taken and committed to prison, to await the decision of the 
 court upon his case. Such being the serious consequences of a disobedi- 
 ence of the order, justice requires that the guilt of the party should be es- 
 tablished satisfactorily ; and the first step towards doing so, is to prove that 
 he had notice of the order. Hence the jjlaintiff who desires to have the 
 benefit of his injunction, should promptly give security, and have the sub- 
 poBua, with its proper endorsements, served upon the defondwiit : for, until 
 the terms of the order are complied with, there is no injunction. 2 H. &, 
 M. 23. Nor is it a sufficient ground for an attachment; that the party
 
 CHAP. 21.] INJUNCTIONS. ' 469 
 
 against whom it is prayed had lieard that an injunction had been awarded. 
 It would seem, indeed, that service with a copy, and shewing the original 
 order at the same time, is necessary in a court of law, to support a rule for 
 an attachment. 3 T. R. 351. But it has been decided that if the plaintiff 
 at law was present when an injunction was awarded, and proceeds notwith- 
 standing, he may be punished for the contempt. See 14 Vez. 13G. 18 
 Vez. 552. See, as to the English practice in relation to service of the 
 subpcena, 2 Mad. 156, 181. 
 
 Injunctions are sometimes granted during the pendency of a suit, but 
 more frequently, with us, the injunction is prayed for by bill offered to the 
 chancellor before any subpoena has issued. It can in general only be ob- 
 tained against a party to the suit, (4 John. 25. 7 Vez. 257,) his agents, at- 
 torneys, &c. and it is always in the sound discretion of the chancellor to re- 
 fuse or allow it. If he refuses, the refbsal is endorsed on the bill, which 
 may then be presented to the judges of the court of appeals, or any of them, 
 who may grant or refuse it at discretion. 1 R. C. ch. 66, § 44. Where 
 an injunction has been granted and dissolved, it may not only be reinstated, 
 as we shall hereafter shew, upon new evidence, but a new injunction may 
 be granted upon new facts stated in a supplemental bill. 4 John. 35. 
 See 2 Vez. 19. Amb. 104. 1 Anstr. 189. This is every day's practice 
 with us. 
 
 The cases in which injunctions may be granted are so numerous and di- 
 versified, and depend so much upon the endless variety of human transac- 
 tions, that we must rather treat here of general principles, than attempt an 
 enumeration. Thus injunctions may be granted, wherever such an inter- 
 ference of the court is necessary to prevent fraud, or injustice, or irrepara- 
 ble mischief. As in cases of waste, a mere threat to commit which is a suf- 
 ficient ground upon which to act; but here we must distinguish between 
 those cases where the wrongdoer is only a tenant for life or for years, from 
 those where he claims the inheritance : for it is said that an injunction to 
 stay waste will not be allowed where the defendant is in possession by ad- 
 verse title, claiming the inheritance, (6 Vez. 51,) or where an ejectment is 
 depending for the title. 4 John. 21 . And so if the title be doubtful or dis- 
 puted, the injunction is refused. 6 Vez. 69. 2 Dick. 599. Yet it cannot 
 be denied that with us, at least, courts of equity frequently interfere in cases 
 of waste even during the pendency of an ejectment, though the law has 
 provided the writ of^ estrepement. 1 R. C. ch. 1 17, § 8. 1 H. & M. 18. 
 See also I Fonb. 29, 30. Nor does it seem that the power of the party to 
 bring his action of waste, is an objection to the remedy; 15 Vez. 138; 
 notwithstanding a dictum which seems to the contrary. 1 H. & M. 424. 
 For the object of an injunction is to prevent an injury for which the party 
 may be unable to get adequate compensation in damages: and the owner 
 of an estate, which is wasted and ruined by a person in possession, would 
 be poorly recompensed by any damages that a jury might allow. Hence 
 even in cases of trespass, though formerly an injunction was refused unless 
 it grew to a nuisance, it may now be granted where the bill presents a case 
 of great and irremidable mischief, and further waste is apprehended. 6 
 John. 46. 7 John. 315, 332. 1 John. 318, 611. 5 John. 111. 2 John. 
 162. 6 John. 497. I Mad. 121. Thus the corporation of New York 
 were restrained by injunction from encroaching on the plaintiff's lot, which 
 he had uninterruptedly enjoyed for twenty-five years, though it was alleged 
 he had encroached on the street. 4 John. 55. We must, however, ob- 
 serve that, as injunctions are confined to ihe prohibition of an act, they will 
 not lie in cases of waste or trespass, unless further injury is apprehended. 
 Yet if such be feared, and the injunction is allowed, the court will inciden- 
 tally take jurisdiction of what has been already done, and after ascertain-
 
 470 INJUNCTIONS. [book 3. 
 
 ing the amount by a reference to a commissioner, will decree accordingly 
 such amount to the plaintiff, instead of sending him to law to ascertain it; 
 and this upon the principle of preventing multiplicity of actions. 1 Mad. 
 123. 
 
 With respect to tenants for life or years, unless they be without impeach- 
 ment of waste, a court of equity always readily interposes to enjoin the 
 commission of it: for there is no other remedy for the reversioner except 
 the action of waste, which often would prove but a poor compensation to 
 Ihe landlord whose estate is destroyed by an unprincipled tenant. But 
 where the tenant holds under a claim without impeachment of waste, he is 
 at liberty to cut timber generally, provided he treats it in a husband-like 
 manner. See 1 Mad. 117. 
 
 Where trees have been planted for ornament, (or where, I presume, they 
 form part of the ornament of the curtilage,) the destruction of them would 
 be enjoined, though the rights of the tenant to use timber from the wood- 
 land would not be restrained merely because the woods are ornamental, and 
 the prospect would be rendered less pleasing. See 1 Mad. 118, 119. 
 
 In other instances, injunctions are granted against tenants ; as against 
 -their breaking up meadow contrary to covenant, or moving from the farnt 
 manure, or straw, or such like material used as manure ; for this is destruc- 
 tive to the inheritance : and generally, when a tenant is about to commit an 
 act which is permanently injurious to the estate, and which he has no right 
 to commit, he may be restrained. 
 
 Injunctions to stay waste will also lie for the mortgagee against the mort- 
 gagor, where the security is in danger of being impaired thereby; and so 
 by a mortgagor against a mortgagee in possession, unless the mortgagee 
 cannot otherwise make his debt. And so by a vendor having a lien for his 
 purchase money. 2 H. & M. 25. They may also be obtained by persons 
 having only contingent interests in the inheritance ; and so even by a ten- 
 ant for life in remainder, who may be injured by the waste ; but in such 
 cases the owner of the inheritance must be made a party, for the waste may 
 be what is called meliorating waste, which may be to his benefit. See 2 
 Vez. jr. 50. One tenant in common, or joint-tenant, may also enjoin waste 
 committed by his companion, and particularly in cases of insolvency. Seo 
 3 Brown, G21. 2 John. 122. 7 Vez. 589. 16 Vez. 128. 
 
 Where timber has been already cut, the removal of it will not be prevent- 
 ed, unless in cases of insolvency, but the party will be left to his legal re- 
 medy. 5 John. 169. 
 
 In cases of nuisance, also, an injunction is a proper remedy where the 
 injury is likely to prove great and irremediable ; 4 H. &. M. 474. 6 Ran. 
 245; as the turning of ancient water courses, or the illegal stoppage, from 
 time to time, of water, by which the plaintiff's mill is supplied. See 1 Mad. 
 129. 2 John. 164. So where a road is about to be illegally made through 
 a garden or orchard ; or a street opened whereby the plaintiff's house will 
 be pulled down. Yet it seems that a corporation will not be restrained 
 from digging up to the plaintiffs very line, though it may occasion the earth 
 or house to fall in. See 4 John. 55. 17 John. Rep. 92. Yet see 1 
 Comyn's Digest, 315. 2 Roll. 565. Injunctions of this kind, however^ 
 are only granted in cases of private nuisance, or of public nuisances where 
 the plaintiff shews probable injury to himself individually, from their exis- 
 tence. 3 Rand. 63. See also 6 John. 430. 7 John. 315. 2 John. 272. 
 Nor will an injunction be granted except in cases of nuisances, so consi- 
 dered at law. Thus it will not be granted against tolling a bell, or keeping 
 a noisy pack of hounds, unless there be an agreement which the plaintiff 
 would have a right to enforce. See 2 P. Wms. 266.
 
 GHAP. 21.] INJUNCTIONS. 471 
 
 An injunction will also be granted to restrain the defendant from ob- 
 structing ancient lights : but it does not lie to pull down any thing, though 
 this is sometimes, but rarely, done on a decree. 1 Mad. 129. 2 John. 272. 
 3 Atk. 725. 
 
 Injunctions are also granted to restrain the infringement of patents, or 
 the sale of books of which the plaintiff has a copy right. 1 Mad. 123. 
 Lord Eldon has said, indeed, that the court will not give an account of the 
 unhallowed profits of libellous publications ; a doctrine which has been strong- 
 ly arraigned in an article of the Edinburgh Review, as amounting to little 
 else than a censorship of the press. In many of tbe cases of injunctions 
 to the sale of books, the complaint is of the defendant's " pirating," or, 
 under color of a new work, republishing the old work. It is obviously dif- 
 ficult to draw the precise line between pirating, on the one hand, and fair 
 quotation on the other. See 16 Vez. 269. 19 Vez. 424. An abstract or 
 fair abridgement of a work seems also allowable ; 2 Atk. 143 ; though a 
 colorable one is not. 5 Vez. 709. And in a late case where the author 
 appeared to have pirated from the plaintiff, aa account was directed to set- 
 tle the relative values of the original and pirated matter. A strange pro- 
 cedure, indeed, which has not yet received the complete sanction of the 
 court, as chancellor Eldon reserved his definitive opinion on the question 
 for the final hearing. I have seen a report of the case in the public prints. 
 
 The negotiation of negotiable securities which are tainted by fraud may 
 be restrained : for otherwise the maker would be liable to damage, since 
 the endorsee (if they be negotiated before they are due) will not be affect- 
 ed by the fraud. 1 Mad. 127. It is otherwise with bonds, even in Virgi- 
 nia, since (though they are assignable) the assignee takes subject to the 
 obligor's equity. They are not negotiable instruments, in the legal or mer- 
 cantile sense of the term. But transfers of bank stock — stocks in the funds,. 
 &c. may be restrained : for the title is completely changed by a transfer on 
 the books of the bank. See 6 Vez. 172. 
 
 An injunction will sometimes be granted to restrain a defendant at law 
 from putting in an unrighteous plea, or making a defence which in equity 
 and conscience he ought not to make. As where an injunction was grant- 
 ed on the complainant's releasing errors at law, which release the attorney 
 at law executed, all parties supposing it sufficient ; after the injunction was 
 dissolved, the defendant at law obtained a writ of error in order to reverse 
 the judgment at law. The plaintiff at law, now defendant in error, plead- 
 ed in nullo est erratum, and the plaintiff in error being about to assign er- 
 rors, the release proving to be insufficient, (see 2 H. & M. 268,) was re- 
 strained from doing so by injunction, so that judgment in the court of law 
 went against him. Wilson, &c. vs. Lee, Superior Court of Chancery, Win- 
 chester. So where a release of a bond, or judgment, or of errors in pro- 
 ceeding, is executed by mistake, under circumstances entitling the party 
 to the aid of equity ; that aid is afforded by restraining the defendant from 
 pleading or using the release, so that the plaintiff is relieved of this ob- 
 struction to his proceeding. So if on granting an injunction a release of 
 errors is by mistake omitted to be required by the chancellor, yet the com- 
 plainant in equity will be restrained from prosecuting his writ of error, or 
 supersedeas, or certiorari, at law. Gilmer, 15.3. 
 
 Where two courts have concurrent jurisdiction of the same thing, an in- 
 junction will sometimes be granted by that which first had possession of the 
 suit, to prevent proceeding before the other tribunal. See 1 Mad. 106. 
 Where a plaintiff in equity is proceeding in the county court on the chan- 
 cery side, and also in a superior court of chancery, for the same matter, 
 the ordinary course with us is to bring up the case' from the county court 
 by certiorari.
 
 472 INJUNCTIONS. [ BOOK '3. 
 
 The most usual injunctions with us are those which are granted to stay 
 proceedings at law. Such injunctions are sometimes used to stay a trial ; 
 as where the plaintiff in equity cannot safely defend himself at law without 
 the aid of the defendant's answer upon oath, the trial may be suspended 
 until the discovery. 16 Vez. 220. 18 Vez. 488. Sometimes it is prayed 
 for before trial, but then it is always granted on condition of confessing 
 judgment, unless the demand of the plaintiff sounds in damages, in which 
 case the judge cannot ascertain for what sum the judgment should be con- 
 fessed. The plaintiff at law is in such cases permitted to proceed to judg- 
 ment, unless the defendant rccpiires the aid of a compulsive discovery on 
 oath, as I have just said. Most usually the injunction is prayed for after 
 judgment to stay execution, or proceedings under an execution : and where 
 in such case the money has been made, and is in the hands of the sheriff, 
 it is his duty immediately to refund it to the plaintiff in equity ; or where 
 the body of the complainant, (1 Wash. 120,) orchis effects, (2 Call, 213.) 
 are in the sherifi''s hands, he must release them immediately. 1 R. C. ch. 
 134, § 29. See 6 Mun. 181. The security in the injunction is in such ca- 
 ses liable to the plaintiff at law, if the injunction be dissolved. Injunction 
 bills of this description offer a variety of grounds for equitable interference. 
 They commonly suggest that the plaintiff in equity is not able, for some 
 reason stated in the bill, to make his defence in the other court, though he 
 has a good defence in equity : or that his adversary has acquired some 
 unfair advantage of him at law, which he is about to avail himself of, rigo- 
 rously and unrighteously ; or that, from the character of the law jurisdic- 
 tion, that forum has not the power to do him justice ; or, from adhering to 
 its rigorous principles, it has not the will. In short, wherever one party by 
 fraud, accident, or otherwise, has an advantage in proceeding in a court of 
 law, which must necessarily make that court an instrument of injustice, 
 equity will interpose by restraining the party whose conscience is thus 
 bound from using his advantages unrighteously, and from proceeding at 
 all, if that be necessary for justice : and whenever a legal right will be re- 
 lieved against in equity, either for fraud, accident, mistake, or other matter, 
 an attempt to enforce that right at law will lay the foundation of an injunc- 
 tion. 
 
 It must be observed that the court of equity does not act upon the court 
 of law, but upon the party only. Gilmer, 158. See 1 Mad. 109, citing 1 
 Atk. 516, 630. IVez.sr. 284. 6 Rand. 505. It takes no step disrespect- 
 ful to the law jurisdiction, but will punish the party for his contempt if he 
 disobeys its injunction. 1 Rand. 206. 
 
 The student will perceive from what has been said, how multifarious are 
 the grounds of this proceeding. If a bond be tainted by usury, gaming, 
 fraud, or illegal contracts ; or if the consideration on which it was found- 
 ed has failed, or was originally defective through mistake or accident ; or 
 if the defendant had discounts of which ho could not avail himself at law, 
 the obligee may be enjoined from proceeding to its recovery. And so if 
 the owner of the equitable title to land has been ejected at law by the hol- 
 der of the legal title, or if a judgment be rendered by mistake, or obtained 
 by fraud or accident, such as will entitle the plaintiff to equitable aid, that 
 aid will be afforded by injunction. In short, we shall find under every 
 head of chancery jurisdiction, ground of injunction where one party is 
 about to oppress or injure another by judicial proceeding. It must be ob- 
 served, however, that injunctions against liquidated demands will not be 
 allowed on the ground that the defendant is entitled to an action against 
 the plaintifl' for unli(iuidatcd damages. 3 Call, 502. 2 H. & M. 254. Nor 
 on the ground of an unascertained and litigated demand which the defend-
 
 ciiAi'. 21.] INJUNCTIONS. 478 
 
 ant has purchased up for the purpose of an offset in equity. 3 Call, 89. 
 1 Mun. 529. 
 
 Among the many cases of injunction whicli the ordinary intercourse be- 
 tween man and man thus abundantly furnishes, there are some which re- 
 quire to be considered by us more attentively than the rest, because we have 
 designedly postponed the examination of them to this head. Of these I 
 shall speak, 
 
 1. Of injunctions on the part of the purchaser of land to restrain the re- 
 covery of the purchase money, on the ground of a defect of title. The ba- 
 sis of this injunction seems to be a combination of the principle, that mo- 
 ney ought not to be paid where the consideration has failed, with the appre- 
 hension that the party may sustain material injury if he makes such pay- 
 ment. 
 
 Cases of this description come before the courts under different aspects. 
 Thus if I have merely given my bond for the purchase money, and the title 
 fails, I pray an injunction against the judgment on the bond. But if I have 
 purchased lands for which I am to have a good title, and have given amort- 
 gage or deed of trust on the same land, I may ask the interference of equi- 
 ty to suspend or restrain the sale of the premises until all doubts of the title 
 are cleared up, and it will be granted. 1 Rand. 72. 
 
 First. In the last of these cases, (which I shall consider first,) if there be 
 really a doubt or cloud hanging over the title, a court of equity readily in- 
 terferes to suspend the sale, notwithstanding the purchaser has possession; 
 for the injury he would sustain from a sacrifice by sale of the real estate, 
 while serious doubts hang over the title, would not only be in itself a pre- 
 vailing motive for interference, (Gilmer, 130,) but a further motive would 
 spring out of the fraud in the vendor, in attempting to press the sale under 
 embarrassments which he ought himself to have removed. Hence in ca- 
 ses of this description equity always interposes. 1 Rand. 72, Gray rs. Han- 
 cock. 
 
 Second. But where a judgment has been rendered against me for the 
 purchase money, and I seek to enjoin it on the ground of the title being de- 
 fective, the case is not so free from difficulty as the former; so that in the 
 very same case a court of equity might enjoin the sale under a deed of trust, 
 but refuse to enjoin the judgment. 
 
 Thus if 1 have made my purchase without contracting for a good title or 
 protecting covenants, it is clear that I can have no title to suspend the pay- 
 ment of the money, because the vendor is not responsible for the title to 
 real estate, unless he has contracted for such responsibility. 2 John. 522, 
 523. 13 Vez. 114. 5 John. 29, 79, 84. Doug. G54. 6T. R. 606. 3 
 Bos. & Pul. 162. 2 Caines, 183. 3 Call, 558. Sug. 347. To this rule a 
 ease of fraud is an admitted exception ; as where the vendor sells knowing 
 he has no title, he is liable though there are no covenants. 3 John. 375. 
 Coop. Eq. Rep. 308. Sug. 350. Co. Litt. 384, a. note. 
 
 If I have purchased and received my title, and have had a long and un- 
 disturbed possession, (e. g. 12 years,) it is not competent to me to suspend 
 the payment of the purchase money upon the pretext or mere suggestion 
 of a defect of title, but 1 must look to my covenants. 2 John. 519. 1 
 John. 213, 218. 4 H. &,M. 390, Yancey vs. Lewis. In the last case here 
 cited it was said that an actual eviction or superior title in a third person 
 must be proved. For where the purchaser has taken possession and is in 
 the full enjoyment of the estate, and yet asks relief in equity on the ground 
 of title, the onus lies on him to prove it bad, and not on the vendor to prove 
 it good. 5 Mun. 295. He must place himself in the situation of the per- 
 son alleged to have the outstanding title. In strictness his demands against 
 VOL. 2--60
 
 474 INJUNCTIONS. [ BOOK 3. 
 
 the vendor can only arise from eviction, and there could be no eviction with- 
 out the proof by another of his better title. Where, therefore, even before 
 eviction equity indulges him, it ought at least to require that he should shew 
 that, which, if there had been an eviction, must have been shewn by a third 
 claimant. 
 
 It must be confessed, however, that in practice our courts fall far short of 
 the rigorous principles laid down in some of the cases above cited. It is 
 admitted by a distinguished judge that relief is more liberally given to the 
 purchaser by our tribunals than by those of Great Britain. Thus it has been 
 decided that if a suit be threatened by a third person under claim of title, 
 that threat may be a sufficient ground of interference, until the matter is in- 
 quired into. 3 Rand. 44. An actual suit pending, seems by Chancellor 
 Kent to have been deemed sufficient. 2 John. 547. 
 
 If I purchase land for which I am to pay by instalments, and there be a 
 defect of title to part of the land, a court of equity will only enjoin for so 
 much as will be sufficient to indemnify the vendee. And if one of my bonds 
 be assigned by the vendor, the assignee will not be enjoined in his recove- 
 ry, if the bonds not assigned are sufficient for my indemnification. 3Mun. 
 275. 
 
 In those cases, however, in which there is a covenant of seizin that is 
 broken, or where the party never has been put into possession under his 
 contract, relief against the payment of the purchase is freely allowed : for 
 as on the one hand it is unjust that he should retain both the possession and 
 the purchase money, so on the other it would be equally unfair that the sel- 
 ler should get the purchase money where he has never been able to put his 
 vendee in possession. So where before a conveyance an outstanding en- 
 cumbrance has been discovered, the purchaser may retain so much of the 
 purchase money as will indemnify him, until it is removed, though there be 
 no covenants against encumbrances. Sug. 345. And the like principle 
 prevails, I conceive, even after a conveyance, where there is a covenant 
 against encumbrances, even though the vendee knew of their existence ; 3 
 Mun. 68 ; 3 Ran. 44, 507 ; or even where there is no such covenant, pro- 
 vided the vendee did not know of them, and the vendor did ; for the con- 
 cealment brings the case within the principle of relief against fraud. 3 
 John. 375. 
 
 It must be confessed that there is great embarrassment in the application 
 of the principle of relieving a purchaser on the ground of defect of title in 
 many cases, unless there has been an actual eviction, or there is an action 
 depending at law to try the title. Where, indeed, the defect of the title 
 appears on the face of the title papers, as where the vendor is a junior pa- 
 tentee, this matter jnay be shewn by the purchaser without difficulty. But 
 where the dispute arises out of matter dehors, as where the boundary or 
 identity is doubtful, it is not readily perceived what course is to be pursued 
 in order to ascertain who has the better title, where the vendee is in posses- 
 sion, and the third party claims the legal title, and has not brought his suit 
 for the part in question. It seems certain that he cannot be brought into equi- 
 ty to contest there the right to the property, (2 John. 522. 4 Ran. 256,) both 
 because a court of equity is not the proper tribunal for such an inquiry, and 
 because, as his title, if any, is a legal title, he can demur to any bill which 
 in a court of equity calls upon him to dissever or try that title. There seems, 
 then, no means of settling definitively whether the adversary title be or be 
 not good ; and though the purchaser may fail in proving it bad, yet the bet- 
 ter information of the claimant may at any future time prove it good. In 
 such case, therefore, he will at last be driven to look to his covenants ; for 
 unless in the case supposed he does succeed in proving the title of the third 
 person to be the better title, his injunction must be dissolved.
 
 CHAr. 21. J INJUNCTIONS. 475 
 
 It must be observed, too, in conclusion of this part of our subject, that 
 the insolvency of the vendor is often a material ingredient in bills of this 
 description. For in such cases the strongest motives exist for sifting the 
 title before payment of the purchase money is enforced. Nor does it seem 
 unreasonable to suppose that even where there has been no eviction, or ac- 
 tion, or even a threatening of suit, and though the defect of title cannot 
 clearly be made out, yet if doubts hang around it, and insolvency is proved, 
 a court of equity would either require from the vendor a bond of indemni- 
 ty, with security, or if that could not be given, would take the funds into 
 its own hands, or leave them in the purchaser's, compelling him, however, 
 to pay the interest in lieu of the profits, of which he is in the receipt if he 
 has the possession. 
 
 Chancellor Kent says, the plaintiff has always the means of bringing the 
 legal litle to the test by an action on the covenant of seizin. 2 John. 525. 
 To this I cannot accede. For though a disseizor in possession conveys 
 with covenant of seizin, that covenant is not broken ; for every disseizor 
 has seizin ; but he has not good title. 
 
 2. The next class of cases to which I shall advert, are injunctions to 
 judgments at law, on the ground of surprise on the trial. 
 
 There is perhaps no subject of equitable jurisdiction on which the deci- 
 sions of the courts have been more variant than the question of interference 
 by injunction after a judgment at law, upon an application to a court of 
 equity for a new trial, on the ground of mistake, accident, surprise, or the 
 discovery of new matter, or new evidence. Without pretending to a mi- 
 nute examination of all the cases, therefore, I shall content myself with 
 stating, as far as I am able, the principles which govern the practice of the 
 courts, leaving to the student to examine for himself our various adjudica- 
 tions. 
 
 First; as to errors committed by the court of law in the conduct of the 
 cause, it is a general rule that a court of equity does not sit to correct errors 
 of the court of law, and will not place itself in an appellate character over 
 that tribunal. When, therefore, a party thinks himself aggrieved by the de- 
 cision of the court of law, he ought to appeal to a superior tribunal instead 
 of seeking a relief from one that is co-ordinate. 1 Call. 149, 150, 224, 
 516. 2H. &M. 139. 2 Mun. 1. 1 John. 320. 4 Ran. 553. There 
 certainly can be no general principle more reasonable than this. And it ap- 
 plies not only to errors which appear in the pleadings, or which arise in in- 
 structions to the jury, or in the admission of improper testimony, but to 
 errors of the court of^ law in refusing a new trial upon a motion of the par- 
 ty grieved. If such motion be made and overruled, the motion should be 
 spread on the record by bill of exceptions, and an appeal taken ; and a 
 court of equity will not undertake to say (upon an application to that ju- 
 risdictioji founded on the same grounds for a new trial which were presented 
 to the court of law) that that court erred. 
 
 Yet in some cases this general rule has been departed from ; as in Branch 
 vs. Burnley, (1 Call, 147,) where relief was given against an error at law, 
 which the party might have corrected by appeal ; and the cases in 2 Wash. 
 .36, 41, — 3 Call, 44, 441, appear to me to be instances of the same kind. 
 In none of these cases, however, is the general rule contested, though the 
 circumstances of each were deemed sufficient to take it out of its ope- 
 ration. 
 
 Secondly ; it is generally true, that where the party fails to apply to the 
 court of law for a new trial, on the ground of excessive damages, mistake 
 of counsel or of the jury, surprise upon the trial, or misdirection of the 
 court, he cannot be relieved in equity ; 4 Ran. 19 ; for thus, matter pecu- 
 liarly belonging to the court of law, might be transferred from that jurisdic-
 
 476 liNJUiNCTIONS. [book;3. 
 
 tion to the court of equity, at the arbitrary will or by the culpable negli- 
 gence of the party in the cause. 1 Mad. G4. 1 Sch. & Lef. 201. 4 H. &, 
 M. 180. Yet to this rule there may be an exception ; as in the case of Lee 
 vs. Foushee, cited 1 Call, 553, where the verdict was given late in the even- 
 ing, and a motion for a new trial was made the next morning, which could 
 not be heard because the members of the court were changed (it being a 
 county court.) So where a witness was sick and absent, or where misbeha- 
 vior in the jury was not discovered until after the court was over. See 1 
 Wash. 79. For in these cases accident was combined with other ingre- 
 dients, and the parties were relieved because by such accident they were 
 deprived of their legal remedy. 
 
 Thirdly; it is a general rule that where the party may defend himself at 
 law, equity will not interfere ; and where he might have done so, but has 
 failed to do it, he shall not have relief by bill in equity, unless he was pre- 
 vented by fraud or accident, or the act of the opposite party, unmixed with 
 negligence on his own part. See G John. C. R. 90. 2 John. 228, 553. 1 
 John. 49, 91, 320, 432, 465. 6 Ran. J, 125, 580. Yet if it be doubtful 
 whether his defence would avail him in a court of law, equity has jurisdic- 
 tion. 6 JMun. 313. 1 Vez. jr. 417. See, also. King vs. Baldwin, in 17 
 John. Reports; The case of Branch r.s. Burnley, (1 Call,) rested in part on 
 this doubt. See Judge Pendleton's opinion, page l57. 
 
 Fourthly ; it is a general rule that mistakes of the party or bis counsel in 
 the management of his cause, are not sufficient ground for injunction and 
 new trial. 1 Mad. 64. 4 Ran. 113, 498. See 3 Mun. 112, 114, Hay's 
 argument. Yet in 4 Mun. 68, the mistaken advice of counsel appears to 
 have been one ground of relief; and so where under a general delusion as 
 to the law, the counsel of a party did not defend him as it afteruards ap- 
 peared he might have done, relief was given on the ground of this general 
 delusion. 6 Mun. 557. There are, however, few matters for interference 
 more delicate than this ; as on the one hand it is hard that the client should 
 suffer by the error of his counsel, and on the other, it would open a wide 
 door, indeed, if wherever a cause has been in any degree mismanaged, ."i 
 court of equity should grant a new trial. 
 
 Fifthly ; a court of equity will not relieve a party who has been inatten- 
 tive and negligent of his defence at law. 1 Mad. 64. 1 John. 49, 320,465. 
 4 John. 566. 2 John. 228, 553. 1 Call, 224, 540. 2 H. & M. 575. 1 H. 
 &M.342. 2H.&M. 14. 2Mun.31,244. 6Ran. 1, 125, 580. 4Ran.ll3, 
 490. See Judge Green's opinion, 1 Rand. 413. 2 Leigh, 334. If, says 
 he, a party has a complete defence at law, and does not lose it by fraud, 
 accident, or mistake, a court of equity cannot assist him ; for otherwise, 
 every case would be tried twice, once at law and. once in equity. Yet in 
 some cases this principle appears to have been relaxed. Thus where after 
 the trial a receipt has been found, it is grousul of relief and new trial, (3 
 Call, 536. 1 Mad. 64. 4 Mun. 69. 2 P. VVms. 426,) though at one time 
 it was considered otherwise. See 1 John. 321. 2 John. 553. 7 T. R. 
 269. So relief has been granted on the allegation that the party was absent 
 from the commonwealth, and his counsel sick wheii the cause was tried : 
 2 H. &. M. 10 : but costs were decreed against him though he prevailed ; 
 which seems, indeed, reasonable ; though the general principle is, that if 
 the plaintiff" in injunction succeeds, he shall recover costs. 2 Mun. 289. 
 So where a defendant mistook the court to which he was sued, though his 
 doing so could scarcely have occurred except from culpable inattention ; 4 
 H. & M. 427; or where he mistook the time of trial ; 4 Mun. 110 ; but in 
 this last case there were other circumstances of hardship. So where exe- 
 cutors suffered or confessed judgments amounting to an acknowledgment 
 of assatB, relief has in several cases been allowed, on the ground of mistake,
 
 CHAP. 21.] INJUNCTIONS. 477 
 
 or embarrassed state of the assets, thoiigli they failed to defend themselves 
 at law. G Mun. .377. 1 Rand. 421, 438. So, too, in. gambling' cases, 
 whether the party has defended himself at law or not, equity takes juris- 
 diction from motives of policy; 3 Ran. 214. 1 Wash. 391 ; and in cases 
 of trust and confidence, from its j)eculiar powers over llie subject. 4 Mun. 
 130. See also 1 Call, 147. 3 Call, 531. 4 Mun. 4G9, as to relief in equi- 
 ty against judgments at law. 
 
 Sixthly ; a broader principle than those before stated, has been laid down 
 in some of the adjudicated cases. Thus in Fenwick vs. McMurdo, it is 
 said (2 Mun. 253,) that the principle settled on solemn argument and due 
 consideration of the cases of Terrel vs. Dick, 1 Call, 54G ; Turpin I's. Tho- 
 mas, 2 H. & M. 139; Morris & Overton vs. Ross, 2 H. £c M. 408 ; Syme 
 vs. Montague, 4 H. & M. 180 ; and Delima vs. Glassei's administrators, 4 
 H. &,M. 3G9, ought not now to be disturbed ; which is, " that ichere a cause 
 has once been fully heard and decided in a court of common law having 
 competent jurisdiction of the case, a court of equity ought not to interfere 
 unless fraud or surprise be suggested and proved, or some material adven- 
 titious circumstance has arisen which could not liave been foreseen or 
 guarded against." See 1 John. 97. If this be the rule, it must be confes- 
 sed to leave most of the principles it involves entirely undefined and in the 
 discretion of the tribunal which is to apply it. The converse of it, howev- 
 er, seems to have been adopted, " that if the cause has not been fully and 
 fairly tried and determined at law, equity will give relief; 4 Mun. 469. 6 
 Mun. 291 ; as in the case of Ambler vs. Wyld, (2 Wash. 41,) where it is 
 said the trial was not fair and equal, and evidence was improperly rejected ; 
 and in the case of Picket vs. Morris, (2 Wash. 255,) where the party was 
 fraudulently induced to waive a prosecution of his appeal ; and in that of 
 Lee vs. Foushee, where the rising of the court prevented his moving for a 
 new trial. See also Armstrong rs. Hickman, G Mun. 287. Ross vs. Pine, 
 3 Call, 568. Cochran vs. Street, 1 Wash. 79 ; all of which are cited by 
 Judge Carr, (6 Mun. 291,) as instances of this principle. So, too, where 
 there was fraud, (4 H. & M. 453. C Mun. 418, where the plaintiff at law 
 assured the plaintiff in equity, who was one of the defendants at law, that 
 he should not look to him for his money;) or surprise, (4 Mun. 58, where 
 an executor was misled by his counsel in the management of his cause ;) 
 or where some adventitious circumstance had arisen which could not have 
 been foreseen or guarded against: such as a juror's giving evidence to his 
 fellows after their retirement, or a witness being discovered to be a partner, 
 of which the plaintiff had no information in time to move for a new trial : 
 see 4 H. & M. 479 : or the party's discovering facts after the trial and ris- 
 ing of the court, which would have changed the character of the decision. 
 New trials are granted on the ground of surprise with more readiness, in 
 pauper suits of negroes asserting their freedom, than in other cases. And 
 ihis both infavorem libertatis, and because they labor under unusual diffi- 
 culties in conducting their suits. 5 Mun. 95. 
 
 Seventhly ; where since the trial the party has discovered new matter, of 
 which he could not by ordinary diligence have availed himself on the trial 
 at law, he will be entitled to relief; but where, by the exercise of ordinary 
 diligence, the party might have availed himself of the matter relied on, he 
 will have no relief: 1 John. 465. 4 H. & M. 369 : for it is the settled doc- 
 trine of the court that a party is not entitled to relief after verdict, upon 
 testimony that he might with ordinary, diligence have availed himself of on 
 the trial at law. 6 John. 479. See also 1 Wash. 185. 4 H. & M. 368. 
 6 Ran. 142. Yet where a witness was discovered after trial to be a part- 
 ner of the plaintiff, the defendant had relief. So where a material fact was 
 unknown to th« defendant, and is afterwards discovered, as the payment
 
 478 INJUNCTIONS. [ BOOK 3. 
 
 of a bond, or mortgage, for which a receipt is found ; or the bankruptcy 
 and discharge of the maker of a note at the time of the negotiation of it, (6 
 Mun. '2S7 ;) or the want of a title to a slave sold to the defendant, of which 
 defect he is not informed when in an action of assumpsit a verdict and 
 judgment are rendered against him for the price. 6 Mun. 692. So if the 
 defendant's answer admits facts that would have produced a different result, 
 if they had appeared upon the trial at law, relief will be granted. 4 Ran. 
 537. In all these cases an injunction would clearly be allowed. 
 
 Whether a judgment at law will be enjoined on the ground of new evi- 
 dence discovered since the trial, which merely goes to establish the facts 
 which were in issue between the parties, and which the applicant for an in- 
 junction failed to prove to the satifaction of the jury, is a question of much 
 delicacy. See G Ran. 142. The line is very difficult to be defined between 
 the cases where relief should be granted, and those in wiiich it should be 
 refused. To say that where an executor pleads payment to a bond, but 
 failing to sustain his plea, a judgment goes against him, and he afterwards 
 finds a receipt for the money, he shall have no relief, because the receipt is 
 only new evidence in support of a fact which was in issue, would be harsh 
 and unrighteous ; and accordingly in such cases relief will be granted, as 
 we have already seen. But on the other hand, where in an action of slan- 
 der a verdict has been rendered against a defendant, to allow a new trial on 
 the ground that he has discovered new evidence to establish the general bad 
 character of the plaintiff, would lead to the worst consequences ; since from 
 the nature of the case such pretexts might always be raised for the purpose 
 of obtaining another trial. Accordingly we do not find the line distinctly 
 laid down by the courts. Thus a receipt found after the judgment, of which 
 the party had before no knowledge, is admitted to suffice as a ground of 
 injunction and new trial ; and though in Delima vs. Glassel, (4 H. & M. 
 369,) the counsel pressed the position that new matter only (as contradis- 
 tinguished from new evidence) would do, yet the language of the court 
 clearly implies that if there be new evidence, the existence of which the 
 party did not know at the trial, and which he could not by ordinary dili- 
 gence have known and obtained in time, he would be entitled to relief. 4 
 H. &. M. 369. On the other hand, even a discovery since the trial, that a 
 witness has been suborned, or was perjured, or interested, does not seem 
 to have been regarded as new matter, or ground for new trial. 1 John. 322, 
 321, citing Prec. in Ch. 193. It has been also decided that a new trial is 
 not to be granted to give the party an opportunity to impeach the credit of 
 a witness : 5 John. Rep. 248, cited Ibid ; and in the case above cited 
 Chancellor Kent seems clearly to incline to the opinion that a new trial is 
 not to be granted on the ground of new evidence to what was tried before, 
 though discovered since the trial. See 2 Atk. -319. 
 
 The student will have observed from the cases heretofore cited, that the 
 interference of a court of equity in granting a new trial, arises only from 
 the inability of the party to make his application to a court of law : for if he 
 has made it, and it has been refused, it cannot be successfully renewed in 
 equity on the same ground ; and if he has failed to make it when he might 
 have done so, he is entitled to no relief. Thus it is obvious the court of 
 equity substitutes itself for the court of law ; and though I shall not pre- 
 tend to impugn the cases which have been cited, I may venture to suggest 
 that in all such applications the court of chancery ought to adopt the prin- 
 ciples and rules of the court for which it is substituted. If so, the true 
 criterion in all questions of new trial on the ground of new evidence, is 
 to be afforded by the rules adopted by courts of law in such cases. Of 
 these we have already spoken. The student will also consult Tidd's Prac. 
 818. Se Hon, 488, 489. 1 Wilson, 98. 2T. 11. 113. 2 Black. Rep. 802, 
 9o5. 1 Bos. & Pul. 427.
 
 ciiAi'. 21.] INJUNCTIONS. 47J) 
 
 Analagous to this subject is the question whether a bill to review and re- 
 verse a decree will lie upon the discovery ol' new evidence to the facts which 
 were in issue in the cause, or is confined to the discovery 0(7100 matter only. 
 The rule laid down by Lord Bacon requires " that the bill of review should 
 be either for supposed error appearing in the decree itself, or on new matter, 
 which must arise after the decree or upon new proof , which could not have 
 been used at the time when the decree passed." 3 Atk. 35. And Lord 
 Bacon's rules, it is said by Lord Hardwicke, have never been departed from. 
 Ibid. From this rule, then, it appears that new matter or new proofs, are 
 grounds for a bill of review where they have come to the party's knowledge 
 since the decree ; and this seems to be admitted bv Lord Hardwicke. 
 Ibid. Yet in the case of Randolph vs. Randolph, (1 H. & M. 161,) the 
 court is supposed to have decided that additional circumstances merely 
 confirming facts in issue in the original cause, do not furnish sufficient 
 grounds for bill of review. See also Bolt's argument, 4 H. & M. 373. And 
 in the elementary works, (Hinde, 56, GO. 2 Mad. 409,) and a late adjudi- 
 cation, (1 John. 322, 324,) cases are cited to shew that new evidence to 
 facts before in issue, is neither sufficient ground for new trial or bill of re- 
 view. 3 P. Wms. 371. 2 Free. 31. The case of Randolph I's. Randolph 
 does not, I think, go as far as has been supposed, for the bill was dismissed 
 " because it did not shew any new matter, or disclose or refer to any new 
 evidence, sufficient to ground a bill of review, nor does the evidence taken 
 prove or warrant the same : " language which does not seem irreconcileable 
 with Lord Bacon's rule. Be this as it may, there seems no reason to doubt 
 that by other tribunals both grounds are recognised, even where the appli- 
 cant has failed, because he could bring himself within neither. Thus in 
 Young vs. Keighly, Lord Eldon clearly admits the ground of new evidence 
 in relation to matter before in issue, saying, " as far as I can ascertain what 
 the court permits with regard to bills of review upon facts newly discovered, 
 the decisions appear to have been upon new evidence, which if produced in 
 time would have supported the original case ; and are not applicable where 
 the original cause does not admit the introduction of the evidence, as not 
 being put in issue originally." Nor do I consider him as denying that a 
 bill of review may be granted to let the party into an entirely new matter 
 of defence, where that was unknown to him before the decree. See IG 
 Vez. 348. In 2 John. 488, and 3 John. 124, I understand both grounds of 
 the bill of review to be admitted. See on this subject, 1 H. & M. 13. 4 
 H. & M.242. 2 Mun. 305. 3 Mun. 112. 6 Mun. 425. 
 
 It seems, however, to be correctly ramarked, that a bill of review is not 
 to be admitted merely to accumulate testimony to a litigated fact which has 
 been already attempted to be supported. 3 John. 126, 127. See also 6 
 Mun. 435. In 3 P. Wms. 371, the lord chancellor spoke of such new ev- 
 idence as a receipt, release, &c., and chancellor Kent seems to think that 
 the instances thus given furnish the general character of such admissible 
 new evidence. 3 John. 127. From this cursory review I think it is ob- 
 viously impossible to lay down any distinct rule. Suffice it to say, that by 
 new matter we are to understand, I presume, a new and distinct fact set up as 
 a defence ; and by new evidence is meant new proof to matters before in issue. 
 In both, however, the same principle prevails, that the new matter or new 
 evidence was not only unknown to the party at or before the decree, but 
 could not have been known to him by the exercise of due diligence. The 
 question is not what he did know — but what he might have known. 
 For it is incumbent on the court to take care that the same subject shall 
 not be put in a course of repeated litigation ; to prevent which the neces- 
 sity of using reasonably active diligence, in the first instance, should be im- 
 posed on the parties. 16 Vez. 350, and the cases cited above from John-
 
 480 INJUNCTIONS. [book 3. 
 
 son's Reports. See also 1 Mun. 112, and G Mun. 425, where bills of re- 
 view were refused. 
 
 In ail cases of aj)])lication for new trial on the gronnd of innjrnialion ac- 
 quired since the trial, tiie bill must he attended with an afiidavit of the par- 
 ty, and where in the nature of the thing it is practicable, (see 4 Mun. 17G,) 
 it must be supported at the hearing by disinterested testimony. See 1 Mun. 
 293. 6 Ran. 134. And even in the case of a lost receipt, it is said that 
 the plaiutilT should furnish very satisfactory proof of efforts made before the 
 trial to recover the receij)t or to supply its loss, and of the fact of its dis- 
 covery since. He ought not to rest upon his own assertion, without proof 
 of loss, search, or discovery. 2 John. 553. 6 Rand. 1-33. See as to what 
 is evidence of the l.)ss of a deed, at law, so as to let in secondary evidence. 
 Philips, 54, in note, 58, in note, and 16 John. 193. In such cases the gist 
 of the action is the discovery of the new evidence and its materiality, and 
 of course it ought to be proved ; for it is not the province of the court to 
 enter into the merits of the dispute at law, but merely to examine the ground 
 for a new trial. As the maieriality of the evidence depends, however, up- 
 on the character of the defence, it should always be stated what that de- 
 fence is. 3 John. 45. 
 
 A bill of injunction and new trial are sometimes sought on the ground of 
 the necessity of a discovery, by appeal to the conscience of the defendant. 
 It is said, however, to be too late to do this after a verdict. 1 Vern. 176. 
 1 John. 466. 3 John. 351. 6 Ran. 129, per Carr, J. The majority of the 
 court did not concur entirely in this opinion. Yet it often happens that the 
 inability to sustain his case is not discovered by the plaintiff until the trial. 
 Where that is the case, doubtless relief would be afforded. Where the 
 case depends on discovery, and the party is aware of it, the usual course 
 is to apply for an injunction before the trial, in the case of the defendant, 
 or to sue originally in equity, in the case of the plaintiff. 
 
 Injunctions and new trials, on the ground of excessive damages, have 
 sometimes been granted; 3 Call, 568. 2 H. & M. 263; but it is a juris- 
 diction that ought to be very cautiously exercised, as the jury who tried the 
 cause, and the court who presided over the trial, are much better judges of 
 the matter than a chancellor can be. 
 
 3. Another class of injunction cases to which it is proper to advert par- 
 ticularly, are those in which the property of one person being taken on an 
 execution against another, he applies to a court of equity to enjoin the sale 
 until the title is tried. Instances of this kind may be found in 3 Mun. 99, 
 559. In these cases relief is granted by analogy to the doctrines of spe- 
 cific performance. For if equity will compel a specific execution of a con- 
 tract where the party wants the thing in specie, it ought, a fortiori, to pro- 
 tect him in the enjoyment of his property already in possession, and which 
 may have a peculiar value that damages cannot compensate. 10 Vez. 139. 
 1 Mad. 130. Since the decision of the above cases, however, this principle 
 of relief having been not a little abused, the doctrine has passe4 under the 
 revision of the court, and it has been decided, 1. That such relief will not 
 be given on the mere ground of a prior incumbrance, since the motive 
 which loads a court of equity to protect the owner cannot apply to a mere 
 incumbrancer. 3 Rand. 25. 2. That even in the case of the owner, it 
 must appear, either from the peculiar nature of the property, or the cir- 
 cumstances of the case, that the remedy at law would be incomplete. 3 
 Rand. 25, 170. Thus where the property taken has peculiar value from 
 its being a family rolic, or is some curious or ancient piece of furniture, 
 which from peculiar circumstances bears a fanciful value, (the pretium af- 
 fectionis,) which cannot be compensated in damages: 3 Rand. 28: as, 
 for instance, the key of the Bastilo held by some of General Washington's
 
 CHAP. 21.] INJUNCTIONS. 481 
 
 heirs, or the svvoid or watch of a parent, or a piece of family plate which 
 has descended from generation to generation. On like principles, old fami- 
 ly servants would clearly be protected. As to slaves generally, however, 
 three of the judges in the case of Allen vs. Freeland, (3 Rand. 170,) seem- 
 ed to differ. Judge Carr seemed to think that it must appear the slaves had 
 some peculiar value; Judge Greene thought that slaves ought ^rma/acia 
 to be protected, as of peculiar value to the owner, unless the presumption 
 is repelled ; (6 Rand. 506, 194, accord.) and Judge Brooke is of opinion, 
 that in cases of slaves there ought to be greater latitude given to the re- 
 straining powers, and that they ought in all cases to be prohibited from sale 
 under the execution of a third person, unless it appears that they are to be 
 sold at any rate. 
 
 To the decisions above cited we are compelled to bow in submission, and 
 doubtless the principle of them is in the general correct. Yet if injunc- 
 tions are granted on the ground of irremediable mischief to the party, the 
 justice of refusing it is not perceived in many cases which would be exclud- 
 ed by these adjudications ; and particularly since the abolition of replevins, 
 (except in cases of rent,) which remedy was given by the common law to 
 him whose property was illegally taken out of his possession. Thus if on 
 an execution against A, the only horse of B, a poor man, is taken from his 
 plough, it is a mockery of justice to say to him, "you may sue for dama- 
 ges," when a lawsuit may be beyond his means, and even those means are 
 diminished by the wrong :-^and this although he has the possession (which 
 it is the principle of the law to respect) and must give ample security for 
 the value of the property if he fails to prove his title to it. / 
 
 4. Bills quia timet may be arranged under this head of injunction, for / 
 they generally pray a restraining order. These lie for the preservation of 
 contested property pending a litigation ; 1 Mad. 163 ; or for the reversion- 
 er against the tenant for life of personal property ; 1 Mad. 182 ; or for le- 
 gatees or others interested in an estate against an executor, (1 Mad. 179. 
 2 John. 614,) where there is reason to apprehend the defendants will waste 
 or eloign the property ; — ^and where danger appears, the court will place 
 the property in the hands of a receiver, unless security be given. These 
 subjects have been spoken of elsewhere. 
 
 Another class of cases in which this remedy was formerly very commoili', 
 was that of securities who feared the declining circumstances of their prin- 
 cipal. For as soon as a debt is due, if the security has a counter-bond, he 
 may by his bill compel the principal to pay the debt though he is not sued. 
 1 Vern. 190. But not before it is due. 4 John. 538. A bill quia timet in 
 such case lay at the suit of the security against the creditor, to compel him 
 to proceed at once to the recovery of his demand, and if he failed, and the 
 principal became insolvent, the security was absolved. But our law has 
 superseded this kind of bill, by affording the security a summary remedy by 
 notice to the creditor in writing, calling on him to sue. See 1 R. C. ch. 
 116, § 6, 7. Such notice, however, unless in writing, is not compulsory on 
 the creditor: and until this act was passed, even a notice in writing had 
 not the effect of compelling the creditor to proceed. The bill quia timet 
 was the only remedy. 3 Call, 69. 2 John. 559. Nor does this law o/?io- 
 ticc apply before the debt becomes due, or extend to any case but those of 
 parties who are bound as security "by bond, bill, or note, for the payment 
 of money or tobacco:" — for bonds with collateral conditions, as also "guar- 
 dians', executors', and officers' bonds, are expressly excepted. 1 R. C. ch. 
 116, § 8. Much less, therefore, does it reach the ordinary case of cove- 
 nants. Nor does this principle of relief to the security by bill quia timet 
 apply until the debt is due ; nor does it appear to extend to the case of se- 
 curities for executors or administrators, (though relief is afforded them by 
 VOL. 2 — 61
 
 482 INJUNCTIONS. [book 3. 
 
 1 R. C. ch. 104, § 38, &.C.) nor of securities for the due execution of a 
 trust or office, which from its nature must continue some time. For these 
 cannot absolve themselves from their securityships, at least before the right 
 of action has accrued. See as to this, what is said 4 John. 541. 2 Ran. 
 838. 1 Carr& Payne, 151. 
 
 Intimately connected with this subject is the question how far a security 
 is absolved by indulgence given to, or new arrangements made with, the 
 debtor by the creditor, without the security's assent. The leading cases on 
 this subject are collated and commented on by Judge Green, (2 Ran. 335,) 
 and the essential principles on which relief in such cases depends, are stat- 
 ed by him with his accustomed clearness and accuracy. The doctrine rests 
 upon a variety of obvious considerations. With respect to indulgence it 
 has been justly said, that "extension of time would change the liability of 
 the security, if he was still considered bound. It would make him guaran-^ 
 tee the solvency of the principal up to a future and a distant day. A pru- 
 dent man may well undertake that another shall pay a debt by a short day, 
 who might yet hesitate as to a distant one on account of the risk of insol- 
 vency to which all men are liable." Gilmer, .327. And though thne is not 
 always of the essence of a contract, yet in reference to a security it is per- 
 haps the most essential ingredient. A change of the time is therefore an es- 
 sential change of the contract. But a change of the contract, whether as 
 to time or as to any other matter, must of necessity, and in the nature of 
 the thing, absolve the security, if he is no party to the new arrangement or 
 contract.* For by the new contract or arrangement he cannot be bound, 
 as he is no party ; nor by the old, because it is superseded and abrogated 
 by the new. Moreover, when a surety signs a bond to the creditor, each 
 party is immediately vested with certain rights: the creditor with the right 
 to subject the security, and the security with the right to file his bill quia 
 timet, requiring the creditor to commence in reasonable time his suit against 
 the principal, and proceed with due diligence to recover his money. And 
 the right of the creditor is not more complete and perfect than this right of 
 the security. It rests upon the most ordinary notions of justice and equi- 
 ty, as well as upon express statutory provisions, (sec 1 R. C. ch. 116, § 6, 
 which substitutes the written notice for the bill quia timet, though the latter 
 remedy is not taken away.) And this right of the security is attended by 
 others ; that is to say, the right to sue the principal and compel him to pay 
 the money as soon as it is due, (1 Vern. 190,) or to pay the money himself 
 when due, and demand to be substituted to the creditor, and permitted to 
 proceed against the principal himself. If, however, the creditor has put 
 it out of his poxvar to do this, then the law, instead of requiring the se- 
 curity to do a vain thing, (i. e. to file his bill quia timet, or to give written 
 notice under tlie statute, requiring the creditor to do what he has disabled 
 himself to do,) considers him as ipso facto absolved ; for the creditor has 
 inflicted an injury on the security by taking away his rights, and therefore 
 he ought to run the risk of loss himself: — he has undertaken to trust the 
 principal, and therefore if he is not trust-worthy he should suffer ; — he has 
 entered into a new contract by uliich the security is not bound because he 
 is not a party, and has, by substituting the new for the old, abrogated the 
 latter by which alone the security was bound ; — he has made arrangements 
 with the debtor without the consent of tlie security, who had a deep inte- 
 rest in all such arrangements, and a riglit to be consulted, and not having 
 been consulted, the creditor is ])resumed to have acted without a view to 
 his liability :t (sec 3 Barn. &. Cres. 005. 4 Barn. &, Cres. 50G :) and the 
 
 * If the security assents to tlic new arianscinenl lin continues bound. 4 llan. 101. 
 t So il he reserves his roinodics .againpt the surety, for the law will, thereupon, save the surety's 
 remedy against the principal. 13 Vez. 26. Tor out of the reserve of right to proceed against the sure-
 
 cxiAP. 21.] INJUNCTIONS. 488 
 
 security is discharged whether the new arrangement be beneficial to him or 
 not, for he alone is the proper judge of that. 3 Merivale, 27'2. See 2 Bro. 
 C. C. 579. Rees vs. Barrington, 2 Vez. jr. 540. Skip vs. Huey, 3 Atk. 
 91. Hill vs. Bull, Gilmer, 149. Bennet vs. Maule, Gilmer, 328. Crough- 
 ton vs. Duval, 3 Call, 69. Ward vs. Johnson, 6 Mun. 6. Also 3 Merivale, 
 372. 1 Bos. & Pul. 422. 6 Vez. 809. 18 Vez. 20. 4 Taun. 456. 5 
 Taun. 319, 614. 1 Marsh. 59. 5 T. R. 277. Bail in reference to this 
 subject have the rights of securities. 7 Taun. 53, 126. 6 Taun. 379. 10 
 John. Rep. 587. Sed vide the dictum of Chancellor Kent, (5 John. 315,) 
 that after the bail ^xe fixed by judgment against them, they lose this privi- 
 lege of securities :-^a position utterly irreconcileable, I think, with the 
 whole doctrine. 
 
 In these cases, however, the basis of the security's right to be absolved, 
 is the creditor's having deprived him by this act, of his legal or equitable 
 remedy for relieving himself, or having by his act impaired such remedy. 
 2 Rand. 334, 338. Therefore, "if a creditor by" [valid and binding] 
 " agreement, or any other act, precludes himself from proceeding at law 
 against the principal after the debt is due, even for a moment ; or if the agree- 
 ment be such as would induce a court of equity to prohibit the creditor's 
 proceeding at law, the surety is discharged ;" because if he calls upon the 
 creditor to proceed, he cannot do so, or if the party pays the debt he can- 
 not, by being substituted to the creditor's rights, proceed himself; for the 
 creditor has taken away his own right to proceed. " But if the act or agree- 
 ment of the creditor is such that he might, notwithstanding, proceed against 
 the principal if required, according to the act of assembly; or might, upon 
 payment of the debt by the surety, substitute him to the right of proceed- 
 ing immediately against the principal ; or the security might, notwithstand- 
 ing such act or agreement, proceed without impediment or delay, by his 
 bill quia timet ; then no injury has been done to the surety, and there is no 
 reason for absolving liim." Thus the hands of the creditor must be tied, al- 
 though only for a moment. 4 Ran. 104. "As if judgment be entered, 
 with stay of execution entered of record, this prevents the plaintiff from 
 proceeding immediately," since he cannot revoke the stay, it being entered 
 of record. " The security is therefore absolved. So an agreement to give 
 time, founded on valuable consideration, such as the giving new security, 
 would be obligatory. It might be enforced in equity, and would therefore 
 discharge the security. But an agreement, without consideration, to give 
 time to the principal, would be a nude pact, and would not be enforced at 
 law or in equity, and the creditor might proceed notwithstanding ; so that 
 none of the remedies of the surety would be impaired, and consequently 
 he would not be discharged." See 1 Leigh, 434. So an agreement to 
 stay execution without consideration, or for the consideration of legal in- 
 terest, (12 Wheat. 554,) is a nude pact, and. does not tie the hands of the 
 creditor or absolve the security; 1 Esp. Rep. 430; though, as we have 
 seen, if the stay be entered of record it is valid at law, and does bind the 
 creditor, and of course absolve the security. " So if the creditor gives 
 time even upon valuable consideration, but it is agreed that if required by 
 the security he may proceed, notwithstanding the agreement, the rights and 
 remedies of the security would not be impaired, nor would he be absolved. 
 2 Rand. 334, -335. ISVez. 20. See also 9 Wheat. 720. 12 Wheat. 505. 
 
 Bills to perpetuate testimony, though they do not partake of the character 
 of injunctions, yet being founded on the party's fear that he will lose his 
 testimony, may be mentioned here. These are of use where a party de- 
 
 ty is implied a contract on the part of flie principal that if the creditor goes ngainst the suret)'. the 
 lutter may proceed asiainst the principal. See also 6 Vez. jr. 309, citing Burke's case, and 10 C. L. 
 R. 398. riov.Sup.220.
 
 484 INJUNCTIONS. [book 3. 
 
 sires to perpetuate the testimony of witnesses where no suit is depending, 
 lest in some subsequent litigation he may, by death or otherwise, lose the 
 benefit of such testimony. He therefore files his bill to perpetuate his tes- 
 timony, which is taken under a commission from the court, and may be 
 read in any future litigation, if the witness dies or cannot be had. It should 
 appear that the facts cannot be immediately investigated in a court of law^ 
 or there will be no ground for the bill. And the matter to which the testi- 
 mony is taken should be particularly stated. After bill filed supported by 
 affidavit, and before answer, the depositions may be taken upon notice de 
 bene esse, that is to be read as depositions in case the witnesses die or can- 
 not be had before the examination in chief. After the answer is filed, if it 
 shews no cause against the perpetuation, the witnesses are examined over 
 again in chief. The only order made in the cause, is an order directing 
 the testimony to be perpetuated, and that the depositions shall avail in any 
 future litigation of the matter, in case the witnesses be dead or not to be 
 had, as if they were examined in the cause. The suit being brought for 
 the plaintiff's benefit, he pays all costs ; unless the defendant also takes a 
 commission and examines witnesses, which he may do, in which case, as 
 he partakes the benefit, he must pay his own costs. See 1 Mad. 152 to 
 159. In Virginia, the act of assembly, by its provisions for taking the tes- 
 timony of aged and infirm witnesses, and those who are about to depart 
 the country, has rendered unnecessary the bill to perpetuate where a suit is 
 depending. 1 R. C. ch. 131, § 15. 
 
 5. To the head of injunctions may be referred bills of peace. These aro 
 made use of either where a person has a right which may be controverted 
 by a variety of persons, at different times or by different actions, and where 
 the parties are so numerous as to render such measure proper for prevent- 
 ing multiplicity of suits ; — or where there have been repeated attempts to 
 litigate the same question, and repeated and satisfactory trials, eventuating 
 all the same way. 2 John. 282. In the former case, however, the bill will 
 not lie where a right is disputed between two persons only. It only ap- 
 plies where there are various persons interested, who sue altogether, or 
 some in the name of the rest, whereupon an issue is directed to determine 
 the right : and ultimately an injunction is granted. The latter case is where 
 there have been various trials in ejectment, all of which have terminated in 
 the same way ; here the court of chancery will quiet the successful party, 
 since, as one ejectment is no bar to another for the same matter, he might 
 be perpetually vexed. See 1 Mad. 134, 141. In Lord Bath vs. Sherwin, 
 where five trials all determined the same way, the successful party was qui- 
 eted by bill of peace and injunction. Two trials, however, where they have 
 been full and fair, and have terminated the same way, have been generally 
 deemed sufficient to determine the right. See 2 Vez. jr. 293. 1 P. Wms. 
 671. 1 Vern. 292. But where A sues B for a trespass or a nuisance, and 
 the same being repeated or continued he sues again and again, equity will 
 not interfere though he has commenced twenty suits and continues to sue 
 weekly. 2 John.°282. See 7 John. 336. 
 
 6. Bills of interpleader. These lie where the party filing them claims 
 no right to the money or property in disjjute, but apprehends, from a claim 
 being set up by two or more in separate intetests, that he may be injured 
 by paying to either. The plaintiff must bring the money into court, to be 
 paid into the receiver's hands, and the bill must be accompanied by an af- 
 fidavit that ho colludes with neither party. An injunction is then granted 
 (if, as is usual, it be asked,) to restrain the litigant parties from suing the 
 plaintiff at law or in equity. A mere claim is ground of interpleader; and 
 this whether the pariv be sued bv both, or onlv one, or neither. 1 Mad. 
 1-12. G John. 117.
 
 CHAP. 21. ] INJUNCTIONS. 485 
 
 It seems that upon a bill of interpleader when the defendants answer, 
 the court may direct an issue at law between them, and then the cause is 
 ended as to the plaintiff: 1 Mad. 148 : or it may proceed with the cause it- 
 self, the defendants sustaining their claims respectively, by such evidence 
 as is in their power, without a bill filed by one against the other ; and if 
 one in this way establishes his title, and the other fails to do so, or makes 
 default, (by not answering, and the plaintiff's bill being taken for confessed 
 against him,) the court decrees payment to the former, and a perpetual in- 
 junction to the latter. 6 John. 447, citing 3 Brown, C. C. 297. 16 Vez. 
 203. This, however, is an awkward proceeding, as there is no issue made 
 up between them. Depositions taken in such cases ought to be upon no- 
 tice by the defendant taking them, not only to the plaintiff, but to the other 
 defendant, who is to be principally affected by them. 
 
 The plaintiff, if he acts fairly and proceeds properly, is entitled to his 
 costs out of the fund, and if there be none in court, they will be given 
 against the party who occasioned the bill. And costs will also be given as 
 between the defendants to the interpleading bill, in favor of him who pre- 
 vails. 6 John. 445. 6 Vez. 418. 9 Vez. 107. 
 
 7. Bills for the preservation of contested property , already alluded to un- 
 der the head of bills qxda timet, lie where pending a litigation the property 
 is in danger of being lost or injured. See 1 Mad. 183.* Our statute law, 
 we have seen, provides for cases of this description during a contest about 
 a will: but equity interferes in various other cases, either as ancillary to 
 other courts, or to effect the ends of justice in a cause depending before it- 
 self. This is sometimes done by mere injunction restraining the party from 
 eloigning, wasting, or enjoining the property during the contest ; or where 
 there appears sufficient ground a receiver is appointed, or the marshal of 
 the court is directed to take the property into his possession, unless the de- 
 fendant will give such security as the court by its order may require, to have 
 the property forthcoming, or to account for its amount. This order, how- 
 ever, is never granted except upon the plaintiffs giving bond and security 
 in an adequate penalty, to answer (in case the restraining order is revoked) 
 any damages it might occasion. 
 
 S. Similar to this is the application for a ne exeat. This writ issues to 
 restrain the defendant from going out of the state until he gives security for 
 the plaintiff's demand, where the plaintiff has not a legal remedy, and can- 
 not therefore hold him to bail. And so, though he has sued at law and held 
 him to bail, yet if the principal and bail are both about to move off, and the 
 matter in dispute is an account of which equity has jurisdiction, a ne exeat 
 will be granted. 2 John. 169. 
 
 The ne exeat is only allowed upon a certain, equitable, money demand ac- 
 tually due, 14 Vez. 261. 6 Vez. 284. 1 Hoven. 352. 6 Ran. 188, and 
 is allowed at the instance of a plaintiff who shows title to sue. It will not 
 lie on a legal demand, except in cases of concurrent jurisdiction, 6 Ran. 
 188, (6 John. 138,) for bail may in such cases be required as of right, or 
 upon affidavit. And it must be for a demand for which the defendant is 
 personally liable. And therefore in a ne exeat against an executor, the bill 
 must state that he has assets. To obtain the writ the plaintiff must swear 
 positively as to the equitable debt, except where he is executor, or it is mat- 
 ter of account ; and then he must state the amount which he believes to be 
 due. See 2 Mad. 183. 7 John. 189. He must shew from what the debt 
 arises, and that it will be endangered by the defendant's going abroad, and 
 
 * As to appointment of a receiver in cases of partnership, see2Vez.&B. 299. 1 Jacobs & Walker, 
 ^aO. In Darnel vs. Latliatn, and in Weaver us. Smllli, the court of Appeals considered the exercise 
 of the power as demanding the greatest caution and circumspection. The cases are not reported.
 
 486 INJUNCTIONS. [ BOOK 3. 
 
 he should charge positively that the defendant is going out of the state, or 
 that he has said so. (i Ran. 168. Another person's saying so, unless by 
 affidavit, will not do: The bill must be sworn to, and before the writ issues 
 the party praying it must give bond and security in the sum required by the 
 judge, with condition to answer costs and damages. The writ is directed 
 to the sheriff, commanding him to make the defendant find the security re- 
 quired that he will not leave the state, and on his failing or refusing to give 
 it, to commit him to prison. The writ will be discharged if the party pays 
 into court the amount of the demand, or if at any time he gives the requi- 
 site security, or can shew it ought not to have been granted. 
 
 Writs of ne exeat sometimes operate harshly, and Lord Eldon said he 
 never granted one without apprehension. 1 Vez. &Beam. 373. They are 
 grantable by a judge of the court of chancery, (1 R. C. ch. G6, § 38,) or 
 two justices of the peace, in vacation as well as in term time. 1 R. C. ch. 
 71, §68. 
 
 As attachments for legal demands are now allowable even before a debt 
 has become due, (1 R. C. ch. 123, § 14,) I presume a ne exeat would lie in 
 the case of an equitable demand not yet due. We find the doctrine laid 
 down in England, that it only lies where the plaintiff shews a title to sue. 
 2 Mad. 183.° 
 
 Thus much have I thought it necessary to lay before the student on the 
 subject of the jurisdiction in cases of injunction. It may not be improper 
 to add a few remarks respecting their dissolution. 
 
 The injunction being an ex parte interlocutory order made upon the filing 
 of a bill or petition, the defendant may, on putting in his answer, move to 
 discharge or rescind it. This is called a motion to dissolve, or for dissolu- 
 tion ; and it may be made at the term next after the answer is filed, although 
 it was filed only the day before the session of the court. Nor can the plain- 
 tiff complain, for as soon as his bill is filed he is at liberty, by the practice 
 of the court, to proceed at once to take affidavits in support of his bill. 
 These are taken upon notice, before a single magistrate or one of the com- 
 missioners of the court, and without the necessity of a commission. The 
 motion to dissolve is heard upon the bill, answer, and affidavits and argu* 
 ments of counsel, and a continuance is exceedingly difficult to be obtained, 
 because the plaintiff may always, upon giving notice, move to reinstate the 
 injunction even after the term is over, whereas the defendant can never 
 move to dissolve except during the term. 1 H. & M. 8. The reason of 
 this is, that the act of assembly provides that for the purposes of grant- 
 inor injunctions the court shall be always deemed to be in session ; 1 R.C. 
 ch. 66, § 108 ; and the reinstating an injunction is considered in the nature 
 of an original application for an injunction. 1 Rand. 414. 
 
 It is a rule in all cases in equity, that where the a.ns\vcr positivehj, plain- 
 ly, and precisely denies the matter of equity stated in the bill, and to use 
 the language of the books, " where the answer is responsive to the bill," it 
 is to be taken as true, unless it be contradicted by two witnesses, or by one 
 witness and corroborating circumstances. I Mad. 338. See 1 Call, 2*24. 
 1 Wash. 389. 3 Call, 44. 1 H. & M. 537. 6 Wheat. 453, 468. And 
 yet the bill, though on oath, is no evidence for the plaintiff. The reason of 
 the rule which attributes such weight to the answer is, that the plaintiff by 
 appealing to the defendant's conscience, makes him a witness in the cause ; 
 and by his very appeal to his conscience attributes to him credibility when he 
 is on oath. If, therefore, he contradicts his testimony by only one witness, 
 there is one good witness against another, so that the scales of justice hang 
 evenly ; and when that is the case the plaintiff fails ; for he never can suc- 
 ceed unless the scale preponderates in his favor. 9 Cranch, 160. But if
 
 d«AP. 21.] INJUNCTIONS. 487 
 
 a second witness or corroborating circumstances turn the scale, the weight- 
 of the answer being overbalanced, the plaintiff shows himself entitled to 
 recover. Id. 
 
 The weight is attributed, however, to the answer of the defendant, only 
 where he denies what is affirmatively charged in the bill. For where the 
 answer asserts a right affirmatively in opposition to the plaintiff's demand, 
 the defendant is as much bound to establish it by indifferent testimony, as 
 the plaintiff to sustain his bill : 1 Wash. 225. 1 Mun. 373, 395. 2 John. 
 C2, 89: for the plaintiff cannot prove a negative,~r]nd if the affirmation be 
 true, the defendant inmj prove it. Thus where distributees filed their bill 
 against an executor, praying for a distribution of the decedent's estate, and 
 the executor swore his testator had given him certain property, his claim 
 was disallowed for want of proof: for otherwise he would swear himself 
 into a title to part of his testator's estate. 1 Wash. 224. As to the weight 
 of the answer when it states matter in accordance, see 2 John. C. 91. 
 
 So, too, the answer of a defendant, if it be evasive, will not prevail where 
 contradicted even by one witness. 5 Mun. 183. Or if it be not positive 
 and upon the knowledge of the defendant, the evidence of one positive 
 and credible witness will overthrow it, though, unless contradicted, the 
 court usually believes what the defendant swears he believes, if the matter 
 be responsive. 1 Mad. 325. But if the answer be a positive denial of a 
 fact charged in the bill, it ought not to be outweighed by testimony not 
 equally positive. 1 H. & M. 537. 
 
 Where the answer is contradicted in any one or more important particu- 
 lars by adequate evidence, (i. e. two witnesses, or one witness and corro- 
 borating circumstances,) it is deprived, in all other respects, of that weight 
 which is allowed to answers by the rules of a court of equity : for being 
 falsified in one thing, no confidence can be placed in it as to others ; ac- 
 cording to the maxim "falsum in uno falsum in omnibus." And the answer 
 may in itself contain the circumstances giving greater credit to the testimo- 
 ny of the single witness ; 9 Vez. 275.- 2 John. 94 ; or destroying its own 
 credibility; as where it is plainly contradictory in itself. 
 
 Where the plaintiff goes into equity only on the ground that he cannot 
 support his claim without a discovery obtained from the defendant, the an- 
 swer of the defendant is clearly entitled to credit, (1 Call, 280,) and would 
 seem, indeed, to be conclusive; for if the plaintiff should disprove it, he 
 '•' would prove himself out of court," that is, he would by his own evidence 
 falsify his own allegation which served as the ground of jurisdiction. See 
 1 Call, -382. See also what is said arguendo, 6 Mun. 545. 
 
 If the plaintiff does not reply to the answer, but the cause is set down 
 for hearing upon bill and answer without replication, (even by consent, 5 
 Ran. 577,) the answer is to be taken in all things as true, whether the mat- 
 ter be responsive or not, and whether it be negative or affirmative, 3 Br. 
 310. 1 Wash. U)2. 5 Mun. 467, 483. 6 Mun. 142. And the reason is, 
 not only that the plaintiff thereby intimates his admission of the facts, but 
 that he takes avv^ay fron^ the defendant the opportunity of proving them : 
 for until replication neither party can take out commissions to examine wit- 
 nesses, (except in the case of aged and infirm witnesses, who may be ex- 
 amined de bene esse, though even these must be examined over again in 
 chief, if they can be' procured after commissions are awarded.) 
 
 If the defendant sets down the cause upon bill and answer before a re- 
 plication has been filed, it is erroneous: he ought to give a rule to reply. 
 1 R. C. cli. i!tQ, § 88. In such case the cause is sent back to the rules. 
 
 In injunction cases, as we have said, the defendant may file his answer 
 the day before the commencement of the term, and move even the next day
 
 488 I]NJUNCTIONS. [book 3. 
 
 for a dissolution. Here the motion may come on without replication ; but 
 the answer is on such motion to be taken and considered as if there was a 
 replication; that is, the responsive matter is regarded as true if not dispro- 
 ved, and the affirmative matter disregarded unless proved. See 4 Ran. 1. 
 
 If the answer neither denies nor admits the allegations of the bill, the 
 defendant cannot dissolve ; 3 Ran. 220. 6 Ran. 194; for upon a question 
 of dissolution they are to be taken as true : yet when the cause comes to 
 be finally heard, the plaintiff" must prove them or he will fail. 6 Cranch, 
 51. See 2 John. 204. 4 Ran. 454. If the defendant admits the equity 
 in the bill, but sets up new matter of defence on which he relies, the in- 
 junction will be continued till the hearing. 4 John. 697. 
 
 A motion to dissolve may be made upon the defendant's filing a demur- 
 rer ; and even without, (it would seem,) where it is considered the injunc- 
 tion was improvidently awarded. 4 John. 173. 
 
 Where the charges in the bill implicate all the defendants, the answer of 
 all will in general be required before an injunction be dissolved ; but if the 
 gravamen of the charge rests on one only, and he has fully answered, that 
 is usually sufficient to justify a motion. And even when the answer of all 
 ought to be had, yet if the plaintiff" fails to take the proper steps for procu- 
 ring them, and to use due diligence to expedite his cause, his injunction 
 may be dissolved. 2 Johnv 148. And so, I conceive, if one defendant 
 claims under another, (as where the plaintiff" at law, whose judgment is en- 
 joined, is assignee of a gambling debt,) the injunction will not be dissolved 
 until the answer of the obligee comes in, unless the plaintiff" fails to use due 
 diligence to obtain it. And yet if the bill be taken pro confesso against the 
 obligee, or there be an order of publication against him, that is no evidence 
 on which to ground a decree against the assignee. 2 John. 43. For 
 there might be collusion. Indeed even if the assignor answers and con- 
 fesses the gambling, it is made a question whether his answer is evidence 
 against the assignee. 3 Ran. 214. Yet see what is said 3 Rand. 390, and 
 qucBre : for as the assignee claims under the assignor, and- the assignor is a 
 party interested because liable to refund, ought there to be any question as 
 to his answer's being evidence against his assignee? His mere confessions, 
 indeed, after assignment, are not, it would seem. See 3 Mun. 136.* Yet 
 in the present state of uncertainty on this point, where the assignor admits 
 the fact charged, it would be advisable for the plaintiff" to take his deposi- 
 tion, and then his statements would be unquestionable evidence. 
 
 To prevent an incorrect inference from what has been said as to the an- 
 swer being evidence in so far as it is responsive, and not evidence in so far 
 as it is affirmative, I will remark that this principle refers itself only to the 
 trial of the suit in equity in which the answer is filed. For if in another 
 matter (e. g. in an action at law) the answer of a party in a suit in equity 
 is introduced as evidence, the whole, (both negative and affirmative,) so far 
 as it relates to the matter in issue, must be read in evidence. 2 John. 90, 
 91. For evidence must not be garbled, but all that the party says, at the 
 same time, must be admitted if any thing is introduced. But observe, that 
 though no part can be excluded if any thing is read, the jury or court are 
 not bound to give equal credit to the whole. Id. Douglas, 788. 2 Bosr 
 & Pul. 548. 
 
 The motion to dissolve never determines the cause finally, except that 
 the suit will stand dismissed at the next term after dissolution, unless the 
 
 * The confessions of llio payee of a promissory note, tlioueh made when the note was his property, 
 have been held inaclmissilile af^ainst the iiidorBce. If liviiijj he must bo called and sworn. 4 Barn. & 
 Crea. 329. 2 Binp;. L'69. In ilim last case, which was at nisi priu?, the evidence seema to have been 
 countenanced, but herein it was considered extrajudicial.
 
 caiAP. 2i.] AVOIDING ILLEGAL CONTRACTS. 489 
 
 injunction be reinstated, or cause be shewn for carrying on the suit as an 
 original bill: 1 R. C. ch. 66, §60: though this provision only applies 
 to mere bills of injunction, and not to such as have upon their face a further 
 object. 4 Mun. 490. 6 Mun. 397. In the county courts the dismission 
 cannot be until two terms have passed. 1 R. C. ubi supra. 3 Mun. 88. 
 
 If the plaintiff dies the defendant may have a rule on his representative, 
 to shew cause why the suit should not be revived or the injunction be dis- 
 solved, and on failure to revive or shew cause it will stand dissolved. 4 
 Ran. 195. 
 
 After an injunction has been dissolved, no motion to reinstate can be 
 made except upon new evidence, unless by the special permission of the 
 court ; and in like manner if the motion to dissolve be refused, no new mo- 
 tion to dissolve can be made, unless upon new evidence. Moreover if up- 
 on the final hearing the aspect of the case has not been changed by new 
 evidence, the court does not again look into the papers, but perpetuates the 
 injunction if a dissolution was refused, or dismisses the bill if the injunc- 
 tion had been dissolved. On a motion to dissolve no costs can be given, 
 (2 H. &M. 7,) for the decree for costs must always await the final hearing. 
 See as to damages in cases of dissolved injunctions, 1 R. C. ch. 66, § 61, 
 and 6 Mun. 36, 176. 
 
 If an application for an injunction be refused, the chancellor endorses 
 his refusal on the bill, and then it may be presented to the judges of the 
 court of appeals, or any one of them, who may at discretion direct it to be 
 awarded. And so where an injunction is dissolved, the judges of the court 
 of appeals, or any one of them, may allow an appeal from the order of dis- 
 solution. 1 R. C. ch. 66, § 44. But the chancellor cannot allow an ap- 
 peal from his own order of dissolution. Yet he may from his refusal to 
 dissolve, and if he refuses an appeal, the court of appeals may allow one. 
 1 R. C. ch. 06, § 57. This was done in Norris vs. Crummey, in 2 Rand., 
 though it does not appear in the report of the case. 
 
 An appeal from the dissolution of an injunction revives it. 5 Ran. 332. 
 On such appeals security, it is said, is only required for costs and damages. 
 4 Ran. 564. Sed qucere since the act which makes the security in the ap- 
 peal bond responsible to the security in the injunction bond. 
 
 An application to reinstate an injunction is considered in the same light 
 as an original application, for one and the same right of appeal exists. 1 
 Rand. 414. I now proceed to the remaining heads of jurisdiction, which 
 must be very cursorily treated. 
 
 X. "OF AVOIDING ILLEGAL CONTRACTS." 
 
 Tho"Th it is a principle of equity that no person shall receive its aid who 
 does not come before it with clean hands, and that he who hath committed 
 iniquity shall not have equity, and though no court of justice will assist a 
 party to enforce an illegal contract, yet even a court of equity will interfere 
 to set aside contracts which have been entered into against law. In these 
 cases the relief is not given from any tenderness to the party who has been 
 particeps criminis, but is said to be afforded to the public through him. 
 Thus the law having prohibited the establishment of unchartered banks, all 
 notes discounted by such banks were relieved against; in chancery. 1 
 Rand. 76. So, too, relief is given against a gaming bond, (3 Rand. 214,) 
 though both parties are engaged equally in the illegal transaction, an ob- 
 jection which was formerly considered a barrier to the interference of equi- 
 ty. Talbot's Cases, 38. The student will find this subject largely discus- 
 sed in Snyder vs. Dailey, 1 Rand. 76. 
 VOL. 2 — 62
 
 490 CONTRIBUTION. [ book 3. 
 
 XI. OF " CONTRIBUTION." 
 
 /> Tlie doctrine of contribution is well known to the common law,* which 
 -provided the remedy by contribution, where several parties were liable for 
 a debt or duty which was about to fall on one. See 3 Co. 11. The most 
 usual course, however, is by bill in equity to enforce contribution : for it is 
 a principle of tliat court that equality is equity, and that one man ought not 
 to bear a burden in ease of another. 4 John. 338. And this bill lies in a 
 variety of cases. See 4 Kan. 553. 2 Ev. Poth. 67, 68, in note. 1 Hov. 
 512. 2 Bos. & Pul. 208, 270. 14Vez. 164. Starkie, p. 4, 1385. Thus 
 one surety may in equity compel another to contribute towards payment of 
 a debt for which they are jointly bound, (6 Vez. 808. 1 Mad. 190.) though 
 this may be effected by a shorter and less expensive procedure by our law. 
 1 R. C. ch. 110, § 2. But in such cases it has been adjudged that contri- 
 bution will not be enforced against co-securities unless it be shewn that due 
 diligence has been used to obtain the sum claimed from the principal, or 
 that he is insolvent. 3 Mun. 484. A distinction, however, appears to 
 have been taken by others between tlrose cases in which the security files 
 his bill against the principal and surety both, to recover what he has actual- 
 ly paid, and those in v/hich the principal is not made a party. In the lat- 
 ter case insolvency must be proved ; in the former it need not. 1 Cox's 
 Ca. Eq. 275. For in the former case the principal being a party, the co- 
 security defendant can have a decree over against him for the amount de- 
 creed against himself. In the latter case he cannot ; and as the plaintiff- 
 security has failed to make him a party whereby the co-security might liave 
 his remedy uno flatu with the decree against himself, he ought to shew that 
 it would have been futile. By our act, however, the insolvency of the prin- 
 cipal is made the basis of the summary remedy. See 1 R. C. ch. 116, § 2.t 
 
 An agreement of the creditor to collect his debt raleably of the several 
 parties to a note will be enforced. 4 John. 22. t 
 
 Nor is the remedy by contribution to be considered as confined to those 
 cases where each party is bound for a proportion ; for if both parties are 
 bound for the whole debt to tlie creditor (but one of them ought in justice 
 to pay the whole and exonerate the other) this bill will still lie.§ As in the 
 case of a bill or motion of the security against his principal. So in the 
 case of a supplemental security. 1 Mad. 190. x\s where,, in England, 
 tiie principal being taken on a writ, gave bail, the bail bond was in equity 
 directed to be assigned over to the security ifi the bond, and thus the bail, 
 though but a security himself, was made to indemnify the security in the 
 bond by discharging the whole claim. See 2 Vern. 608, approved 11 Vez. 
 22. 1 Eq. Ca. 'J3. 1 Wils. 40, cited Chitty on Bills, 441. And this I 
 
 •'lam not aware, Ijowever, tliat conlrihiuion was enforrod at common law lietween co-sernrilies 
 ill an ohiigalion until riiodpin times. In 14 Vpz. KA, Lord KIdori say?, lliat "in viodem times courts 
 of law liave assuined jurisdiction upon lliis suliject by way of assumpsit; a jiirisdiclion convenient 
 enougli ill a cascsiuifile and uucoinplicaled, but aliended wiili great ddliculty where the sureties are 
 iiuiiicrous." 
 
 Where two pcrson.s are jointly bound for a third, and pay the debt jointly, lliey may sue jolndy, 1 
 Cair &, Payne, 44, ai nisi prius. There was a rule torn new trial. I do not lind how it waa disponed 
 of. See 5 E. iiJ5. 3 lio.s. &. Pul. 235. 
 
 For the doctrines of general averiige, see 2 IJarn. &. Crcs. 805. 
 
 t A surely is entitled to recover the amount paid hv him on an tisuriou.j bond, provided the payment 
 waa made without collusion. 1 JViass. Rep. l'3D. 1 Bac. Abr. yjij. 
 
 tSo an agrccmeni between three securities, to be responsible in Ihirdd, takes the case out of the 
 principle. 11 Vez. 161', ciiing 1 liep. ch.tiO. 
 
 ^See 14 Vez. 159. I IIuv. Sup. 51L'. G Vez. un.5. 4 Ran. 503. Il seems fliat where a surety Ls in 
 relcrence to another surely, a principal, he can have no conlribiition asaiiift hiin. 14 Vez. 159, 16l). 
 A person may lalsc himsell out of llu- principle of contribution by his coiKiact. Id. KM. And where 
 the intention o( (he transaction is '.hat the party is to be bound as sJ/re^V ron llie surety, and not as 
 co-surety with him, he cannot be liable lo him for contribution-. Thi.sal least seems fairly infcrri 
 ble from wliat is sai'l in tWe same ra.se, IGO, 170. Sec Baxter is. Moore, to be reported.
 
 CHAP. 21.] CONTRIBUTION. 491 
 
 conceive on good reason, for when the writ was served on the principal, if 
 he had been unable to give bail he might have paid the debt or surrendered 
 property, and thus the surety in the bond would have been saved. As, 
 however, by the intrusion of the bail this may have been prevented, he was 
 justly charged : — for he trusted last, and having by his act relieved the prin- 
 cipal from a pressure which might have been the salvation of the security, 
 he ought to be the sufferer. In like manner, it seems to me, that if judg- 
 ment be rendered against A and B his security, and A's property alone is 
 taken in execution, and C goes security in a delivery bond, B not joining 
 in it, he can never charge B with any part of the debt, though he has to 
 pay it. So if there be judgment against A alone on a bond given by A and 
 B his security, and A appeals or enjoins the judgment, and C becomes his 
 security in an injunction or appeal bond, and the injunction is dissolved or 
 the judgment is affirmed, B, though still liable to the creditor, may compel 
 these supplemental securiiies to pay the debt: for but for them it might 
 have been recovered from the principal. On this point there is no adjudg- 
 ed case within my knowledge. But now see Sess. Acts. 
 
 Bills filed by heirs, or legatees, or distributees, against their co-heirs, &c. 
 fall under this head. Thus where there are several heirs, and the creditor 
 collects his debt from part of the inheritance which is allotted to one of 
 them, he is entitled to contribution from the rest. 5 John. 2-35. Enough 
 has been said of the case of legatees and heirs in a former part of these 
 commentaries. 
 
 So in cases of rents-charge granted out of lands which afterwards come 
 to the hands of several tenants, the grantee of the rent may be restrained, 
 it is said, from levying the whole rent upon one of them. 1 Mad. 192. Be 
 this as it may, if one pays the rent the others may be compelled to contri- 
 bute. So where a doweress recovers mesne profits from the heirs, if one 
 pays more than his share the rest shall contribute. 4 John. 604. So a te- 
 nant for life may be compelled to contribute, to keep down interest on a 
 mortgage ; or if the mortgagor sell to two or more jointly, they must contri- 
 bute pro raid to paying oft the mortgage. So if there be a mill held in com- 
 mon between two persons, which falls into decay, and one refuses to per- 
 mit it to be repaired, yet the other may repair and compel him to contri- 
 bute. And this might even have been done by writ of contribution at com- 
 mon law. F. N. B. 1(52, b. And so if there be a party wall between two 
 persons, and one refuses to repair, the other may repair, or if necessary 
 even pull it down and re-build it of the same, but not of greater dimensions, 
 or more expensive materials, and charge the other for contribution. 4 John. 
 338. 1 Rand.. 332. The civil law considers that as a party wall which was 
 built at common expense, or which, though built by one party only, the 
 other has acquired a common right to. 4 John. 339. 
 
 To this doctrine of contribution there is one single exception ; that 
 there never will be contribution decreed atriong wrongdoers. For if one 
 pays the whole damage he cannot force the others to contribute their pro- 
 portion (2 John. 13G,f either at law (S T. R. 180. 1 Camp. 313. 2 Cam. 
 452,) or in equity: 1 Vez. & Beam. 117; 1 Rand. 328; where the court 
 was equally divided as to the case at bar, but agreed as to the general prin- 
 ciple. 
 
 From what has been said, we may perceive that the doctrine of contri- 
 bution is founded not on contract, express or implied, but on the principle 
 that equality of burden, as to a common riofht or dutv, is equity. 4 John. 
 338. 1 Cox's cases, 318. 1 Rand. -332,^334. 2 Rand. 530. But the 
 parties must be in cqnalijure. Thus if a conuzor (so of a mortgagor) dies, 
 having sold a j)art of the lands bound, to several purchasers, and leaves a 
 part to descend to his heirs, they cannot demand contribution of the pur-
 
 492 SUBSTITUTION. [ BOOK -S 
 
 chasers, because they are not in ecpinli jure ; but tlie purchasers may of 
 each other, (3 Coke, t2, 14,) without rei^ard, it is said, to the lime or order 
 of their purchases. 1 Rand. 332. Sed qucere as to this, and see the rea- 
 soning 5 John. 241. See also 1 John. 447.* 
 
 XII. OF "SUBSTITUTION." 
 
 This is one of the most pervading principles of courts of equity. See 4 
 Ran. 444. t It is that by which a party who has paid a debt or borne a bur- 
 den for another, is substituted or subrogated (as it is called in the civil law) 
 to the rights of the creditor. The instances of this are without number. 
 Thus we have seen that if a person has paid for necessaries for an infant, 
 he is substituted or subrogated to the rights of the tradesman, and may 
 compel payment ; and upon a like principle the whole doctrine of mar- 
 shalling assets depends. And so also with respect to marshalling securi- 
 ties. If one creditor has a mortgage on white acre, and another has a pri- 
 or lien both on black and white acre, if the last is paid out of white acre, 
 the first will be substituted to his rights in black acre. See 1 Mad. 302. 
 So if a security pays off a bond which is secured by mortgage, he will be 
 entitled to stand in the shoes of the mortgagee, in order to indemnify him- 
 self: 1 Eq. Ca. 93. 5 Bac. 168. II Vez. 12. See 1 Wash. 1 : and so if 
 a security pays off the bond, he will stand in the bond-creditor's shoes, as 
 against the heir. 5 Mun. 419. In order to present this subject as clearly 
 as I can to the student, we will proceed to state very succinctly the princi- 
 ple under distinct heads. 
 
 1. As between the creditor and the security. These parties are consi- 
 dered as always standing in such intimate relation to each other, that any 
 act done by the one for his own security, enures to the benefit of the other. 
 Thus if either the creditor or security, at the time at which the security be- 
 comes bound, or at any time before or after, takes a lien on real or person- 
 al property, the olher party is entitled to the benefit of it: so that if the se- 
 curity fails, the creditor may enforce the lien the surety may have taken, or 
 if the creditor compels him to pay the money, he is entitled to stand in the 
 creditor's shoes as to the lien he has obtained. In short, either is entitled 
 to the benefit of any counter-bond or counter-security which the other has, 
 and is entitled to stand in his shoes as to all his remedies. See 1 Wash. 1. 
 2 Call, 188. 3 Call, 333. 9 Cranch, 500. 2 Vern. 008. 2 Vez. 622. 2 
 Merivale, 437. 10 Vez. 412. 11 Vez. 22. 14 Vez. 162. 1 John 412. 
 2 John. 554. 4 John. 130, 370, 530, 545. 1 Rand. 53. 2 Rand. 429. 
 And the principle applies as well where the creditor's lien is only a vendor's 
 implied lien, as where it is an express mortgage. 2 Rand. 430. 
 
 So far, indeed, is the doctrine carried, that if a creditor has taken a mort- 
 gage or other lien from the principal debtor to secure himself, and invali- 
 dates or discharges that lien, to the prejudice of the rights of the surety, and 
 disables himself from transferring them to him, he will (unless he acted with- 
 out knowledge of the other's rights, and with good faith and just intention,) 
 be precluded from so much of his demand as the security might have saved 
 if the transfer could have been made. 2 Rand. 530. 3 Rand. 511. In- 
 deed Chancellor Kent seems to have been of opinion that if the mortgage 
 taken by the creditor was void because of usury, the creditor would lose 
 his recourse by reason of his having "poisoned the lien in its very incep- 
 tion ;" 4 John 130 ; a doctrine which seems to me not very reasonable. It 
 
 * See 2 Carr &l Payno, 417, r> case orjoint coach owners. Daniagea having been recovered against 
 one only for an injury by negligence of their servant, ho liad contribution against the other, it ap- 
 pearing that he was ncitlier personally present nor personally in fault. 
 
 1 2 Leigh, 111. See 6 Bac. abr. scire facias, C. 5. GMun.520,528. lJohn.409.
 
 CHAP. 21.] SUBSTITUTION. 493 
 
 might, indeed, upon the principles above avowed, be contended U'ith much 
 more reason, that if a creditor failed to have his mortgage recorded in due 
 time, by which means a second mortgage obtained a preference, the secu- 
 rity should be absolved pro tanto : but for this we have no authority, and it 
 would be pushing these doctrines, I think, to extremity. 
 
 Chancellor Kent, however, seems disposed to carry the principle to its 
 utmost limit, by inclining to the doctrine of the civil law, which requires the 
 creditor who has a mortgage or other lien, to pursue that before he can re- 
 sort to the security. 4 John. 131, 133. He admits, however, that there is 
 no such general rule of equity : and it would seem, indeed, in conflict with 
 its principles if it took away the remedies of the creditor, or delayed him in 
 his recovery for the benefit of the security. The case of Wright against 
 Nutt, (3 Br. C. C. 326,) appears to me to be the only case which has deci- 
 ded that the security can compel the creditor to resort to and exhaust a cir- 
 cuitous and difficult remedy before he can charge the security himself: and 
 this case is more than questioned by Lord Eldon, 6 Vez. 714. It was the 
 case of an American creditor of a Georgia refugee, whose security was sued 
 in England. The state of Georgia, by its acts of confiscation, confiscated 
 the estates of refugees, subject nevertheless to debts of America?* creditors. 
 It was contended that the American creditor could get paid out of that 
 fund, but the security being an Englishman was not within the reservation, 
 and could not get his money refunded if the debt was paid by him. The 
 ibill was dismissed on the ground that it did not appear that the creditor had 
 the clear means of making his demand effectual out of the Georgia fund, 
 the chancellor expressing an opinion, however, in favor of the right to sue 
 personally even in that case, against the authority of 3 Br. C. C. 326 ; and 
 only admitting that the surety might deposite the money in court, and in- 
 demnify the creditor against all expenses of pursuing the. claim, and there- 
 upon compel the creditor to prosecute for his benefit. 
 
 It must be observed, however, that this principle of compelling a creditor 
 who has two funds to resort to, to look to that which will leave another cre- 
 ditor the benefit of his fund, is not universal. For if I have a judgment 
 against A and B, and another person has judgment against B, he cannot 
 compel me to look only to A, that he may resort with more success to B. 
 For unless B has some equity to demand that A shall pay the debt, they are 
 jointly bound, for (e. g. because he, B, is only security,) no such arrange- 
 ment will be made ; 4 John. 17. 17 Vez. 520, 527 ; since it would in ef- 
 fect make A security for B's debt. 
 
 2. As it respects the security's claim to be subrogated to the creditor's 
 rights, so far as such subrogation will affect others. Here I conceive that 
 if in the lifetime of the obligor the security pays off the bond, he at once 
 becomes a simple contract creditor of the obligor, and he shall not after his 
 death rank as a specialty creditor, or charge the heir by any substitution. 
 For first, as to ranking as a specialty creditor ; the bond creditor in the ob- 
 ligor's lifetime has no preferable right to payment ; and the bond having 
 been discharged before his death, no preferable right to payment passed to 
 the security in right of the creditor ; and the debt never having been a good 
 subsisting bond debt at any time after his death, it would, in the distribu- 
 tion of assets in a court of law, be only regarded as a simple contract de- 
 mand ; nor would equity interfere, since in the distribution of assets it fol- 
 lows the law. But where the bond is not discharged until after the dece- 
 dent's death, then it was once a good subsisting specialty, the payment of 
 which the creditor might have enforced against the estate ; it had a prefer- 
 able right to payment out of the assets beyond simple contract debts ; to 
 which preferable right the security was substituted when he discharged the
 
 494 WANT OF REMEDY AT LAW. [book 3. 
 
 bond.* Second ; as to the ri^rht of the security to charfre the heir by sub- 
 stitution, the same reasons prevail. For iji the ancestor's lifetime the cre- 
 ditor has no lien or claim against his land, unless he has a judgment. When, 
 therefore, he pays the bond debt in the life of the obligor, he is subrogated 
 to no right to charge the Jand. But if the obligor dies, the bond being un- 
 paid, a right instantly attaches in the creditor to charge the heir in respect 
 of the assets descended, and to this right the security is subrogated on pay- 
 ing the debt. See on this subject, 2 Cull, 188. 3 Call, 333. This last was 
 the case, however, of the distribution of an insolvent's effects. In the first 
 of these cases it was decided that the security should rank, indeed, as a spe- 
 cialty creditor, (the debt having subsisted after the obligor's death,) but not 
 so as to charge the executors with a devastavit en account of payments or 
 judgments to simple contract creditors. 
 
 3. As between sureties themselves ; where there are several sureties in a 
 bond, and the principal conveys property in trust to indemnify some of 
 them, and the rest are not provided for in the deed, it has been decided that 
 the sureties who are so omitted shall have the protection and benefit of the 
 deed of trust. 2 Ran. 514, 530, 532, citing and relying on 5 Mun. 187, to 
 the same point. 
 
 4. As to assignees. The assignee of a bond is entitled to the benefit of 
 all mortgages, trusts, or other liens, for the security of the original debt. 
 And where the debtor executed a deed of trust to secure payment of three 
 notes by instalments; the first was paid; the second was assigned to B 
 (without the deed of trust being assigned ;) the third was assigned, together 
 with the deed of trust, to C. Yet the second note had preference, for it 
 was first assigned and its payment first provided for ; and though the deed 
 was not assigned, the right to avail himself of it passed to the first assignee ; 
 a«d though this was but an equitable right, yet the deed itself was notice 
 to the last assignee of its existence, since it ought to have put him on in- 
 f]uiry where the second note was whose payment was provided for. 1 Ran. 
 466. Sed quarc, — if the third bond were first assigned, the assignee would 
 not have preference of the subsequent assignee of the second. See the 
 reasoning, 5 John. 241. 
 
 The next head of jurisdiction is 
 
 XIII. "THE V/ANT OF REMEDY AT LAW." 
 
 And here it is only necessary to remark, that where there is a clear right 
 but no remedy at law, a court of equity will always lend its aid. This is 
 a sweeping clause in the definition of its jurisdiction. But if it appears 
 that the case made by the bill is solely cognizable at law, a demurrer will 
 lie; though not so if the matter is one of concurrent jurisdiction. See 1 
 Mad. 229, 230. We pass on, therefore, to the next head. 
 
 XIV. " OF THE JURISDICTION CONFERRED BY STATUTE." 
 
 And here it will be only necessary to particularize such subjects as occur 
 to recollection, and to refer to the statutory provisions in relation to them. 
 
 1. The jurisdiction for the sale of inflints' estates. 1 R. C. ch. 108. See 
 also ch. 96, § 20, as to the sale of estates where the share of each heir will 
 not exceed $300. Repealed in 1827 and re-enacted in 1828. 
 
 'See 4 Ran. 438. Sed vide 3 Condei), C. Rrp. C6"), wlieie it is =;ii(l tlie creditor must have n sul)- 
 sisting right of action; that without siirh right tlie surety c:«iiiiot Ijp giil)ronated to it, and that there- 
 fore where the surely payaofi" liio liund, the riijht ot artioii is gone and he stands in the situation ot 
 a simple contract creditor only. Sec also 1 Tolhier, 324. fc'ee, however, 2 Leigh, 283, 21), 70, 444. 
 3 Leigh, 272. 
 
 I
 
 CHAP. 21.] JURISDICTION IN ECCLESIASTICAL CAUSES. 495 
 
 2. The jurisdiction over all matters between guardians and theif wards. 
 1 11. C. ch. 108, § 4. 
 
 3. The jurisdiction in all cases, where a person interested, who has not 
 appeared and contested the probat of a will, files his bill in equity contest- 
 ing its validity. 1 R. C. ch. 101, § 13. 
 
 4. The jurisdiction in cases of attachments against non-resrdents. See 
 I R. C. ch. 3-2. 
 
 6. There is a special jurisdiction given to the superior court of chancery 
 at Richmond, in cases in which the commonwealth is iateresled. 1 R. G. 
 chapter 66, sections 45, 46, 47. 
 
 G. From decisions of the auditor, a party who thinks himself aggrieved 
 is authorized to petition for redress to the chancery court at Richmond, or 
 the superior court of law at that place. 2 R. C. ch. 174, § 6. 
 
 XV. OF " JURISDICTION IN ECCLESIASTICAL CAUSES." 
 
 I am not aware of any other case but that of divorce, in which the pow- 
 ers of an ecclesiastical court have been adjudged to be vested in the court 
 of chancery. It will be unnecessary to add any thing here upon that sub- 
 ject, to what has been already said in the first book of the commentaries. 
 
 (J(3r> This jurisdiction, which was long a subject of much difficulty, as we 
 have seen, rests at present not upon inference only, but upon the express 
 j)rovisions of an act of assembly enacted in 1826. It " gives to the superior 
 courts of chancery jurisdiction to dissolve and declare marriages null and 
 void, for natural or incurable impotency of body at the time of the contract ; 
 idiocy and bigamy ; and to grant divorces a mensa el thoro on account of 
 adultery, cruelty, and just cause of bodily fear : to decree perpetual sepa- 
 ration and protection to the person and property of the parties, and allow 
 maintenance to either ; to restore to the injured the rights of property con- 
 ferred on the other, and to dispose of the issue as may seem right ; but in a 
 divorce from bed and board, neither shall marry during the life of the other. 
 Where a person is desirous of petitioning the legislature for a divorce, a 
 statement of the causes therefor shall be filed in the clerk's office of the su- 
 perior court of law for their county, of which notice is to be given to the 
 adverse party, upon which a jury is to be empannelled to ascertain the facts, 
 and their verdict shall be recorded. A certified copy of which proceedings' 
 shall accompany every such petition. The costs in such suits to be at the 
 discretion of the chancellor. Appeals to the court of appeals, as in other 
 suits. Session Acts, 1826. 
 
 I have now finished what I purposed to deliver to the student on the 
 principles and jurisdiction of courts of equity. The sketch with which he 
 is presented is, I am conscious, exceedingly superficial and imperfect, and 
 will leave great room for his own researches. To have attempted, how- 
 ever, a complete essay upon this comprehensive subject, would have been 
 as inconsistent with any just estimate of my own powers and acquirements, 
 as with the elementary plan of these lectures. I conclude, therefore, with 
 an earnest recommendation of the works I have so often quoted, which will 
 be found to contain a valuable summary of the doctrines of equity, and to 
 serve as excellent indexes to the late reporters. Besides these, there are 
 numerous cases in our own reports which I have not deemed it necessary 
 to cite, that bear upon the principles which have been advanced, and pre- 
 sent new views of equity that the student will often find exceedingly inter- 
 esting, and always very instructive.
 
 496 EQUITY PRACTICE. [ BOOK 3.' 
 
 CHAPTER XXII. 
 OF THE MODE OF PROCEEDING IN COURTS OF EQUITY.' 
 
 " It is now time to proceed to the practice of our courts of equity. 
 
 " The first commencement of a suit in chancery is by preferring a bill to 
 the chancellor in the style of a petition ; ' humbly complaining sheweth to 
 your honor your orator A. B. that, &,c.' This is in the nature of a declaration 
 at common law, or a libel and allegation in the spiritual courts: setting 
 forth the circumstances of the case at length, as some fraud, trust, or hard- 
 ship ; ' in tender consideration whereof, (which is the usual language of 
 the bill,) and for that your orator is wholly without remedy at the common 
 law,' relief is therefore prayed at the chancellor's hand, and also process of 
 subpczna against the defendant, to compel him to answer upon oath to all 
 the matter charged in the bill. And, if it be to quiet the possession of lands, 
 to stay waste, or to stop proceedings at law, an injunction is also prayed, 
 in the nature of an inlerdiclum by the civil law, commanding the defendant 
 to cease." 
 
 It is a general principle, laid down in all the elementary works, that the 
 bill must call all necessary parties, however remotely concerned in interest, 
 before the court ; t otherwise no decree can be made to bind them ; and it 
 is the great object of this jurisdiction to make an end of the matter of con- 
 test, which object would be defeated if parlies concerned in interest were 
 not bound by the decree. See Mitford, 144. 2 Mad. 142. 3 Mun. 376. 
 To this rule, however, there are many exceptions introduced, partly for con- 
 venience, and partly from necessity, as will be discovered upon a reference 
 to the authors just cited, and the cases referred to by them. Thus when a 
 bill is only for a discovery, he only need be a party from whom it is sought ; 
 2 Eq. Ca. 70 ; where the parties plaintiff are very numerous, as in the case 
 of some companies, some are permitted to sue on behalf of themselves 
 and the company; 2 Mad. 145; or if they have a trustee, it is sufficient in 
 such case that he only should be made a party. 2 John. C. C. 197. In 
 like manner, creditors of a decedent may sue on behalf of themselves and 
 all other creditors of the estate ; 2 Vez. 313. 6 John. C. C. 1.39. 2 John, 
 C. C. 283 ; and the decree is then for the benefit of all creditors ; who are 
 called upon by notice in the gazette to come in and prove their debts be- 
 fore the master (or commissioner as we call him.) 4 John. 619. Mere 
 nominal trustees, however, cannot maintain a bill in equity, unless the cestui 
 que trust is also made a party plaintiff or defendant; 5 John. 242 ; I and 
 moreover, all trustees, executors, &c. must be parties to any suit respecting 
 the subject-matter of the trust. 4 John. 116. If, indeed, one party thinks 
 it necessary to sue, and another who is linked with him in interest refuses 
 to join, it is usual to make him a party defendant, so that the great objects 
 of the court are effected, viz : the doing complete justice by deciding upon 
 and settling the rights of all persons interested in the subject of the suit, so 
 as to prevent future litigation and to make the performance of the orders 
 of the court perfectly safe to those who are compelled to obey them. 
 
 " It has been decided that if it appears from the face of the bill that tlic matter thereof is not pro- 
 per for a court of equity it should be dismissed, even after answer tiled and no plea in abatement to 
 tiie jurisdiction of the court. I'ollard vs. Paiurson's ad. 3 H &. M. 67. Yet where no objection is 
 made, and the answer developes facts which show that llie case is proper for the jurisdiction of a 
 court of equity, the bill will be sustained. 4 Ran. 537. 1 Leigh, 195, 211. 
 
 Wiicrc thcplaintifT has complete remedy at law, equity will not take jurisdiction of his case. 2 
 Leigh, 370. 
 
 tCreditors and legatees are exceptions to this rule; for one olten sues for the benefit of himself 
 and otliers, and then they come in and prove their cases before a master. 3 John. 553. Residuary 
 legatees, however, must bring all entitled to the residuum before the court. 4 John. 199. 
 
 }2John.23S. 1 Vciii. 110. Prcc. ch. 275. IBall &. Beatiy, 13J. 4 Ran. 451. 3 Mun. 353, 376, 377.
 
 CHAP. 220 EQUITY PRACTICE. 497 
 
 With all the advantages which are attributed to the rule of which we 
 have just been speaking, it must be confessed, however, to have the effect 
 very often of encumbering a cause so much as to render its prosecution 
 exceedingly difficult, embarrassing, and expensive. Hence, perhaps, it may 
 be that the courts' seem so readily to have acquiesced in the waiver of the 
 objection, by him who is entitled to insist on an adherence to the rule which 
 requires even formal parties to be made. 1 H. &. M. 49. 3 Mun. 29, 359, 
 397. 
 
 "The bill of the plaintiff ought in strictness to be signed by counsel, as 
 a certificate of its decency and propriety. For it must not contain matter 
 either scandalous or impertinent : if it does, the defendant may refuse to 
 answer it, till such scandal or impertinence is expunged, which is done up- 
 on an order to refer it to one of the officers of the court, [called commis- 
 sioners in chancery ; of whom there are several in the different parts of each 
 chancery district.] He is to examine the propriety of the bill : and if he 
 reports it scandalous or impertinent, such matter must be struck out, and 
 the defendant shall have his costs ; which ought of right to be paid by the 
 counsel who signed the bill." The bill may be amended, if it be necessary, 
 upon payment of costs occasioned by the amendment. 
 
 When the bill prays an injunction in the commencementof the proceed- 
 ings, it is presented to the chancellor (as has already been said) before any 
 process issues, who, thereupon, either allows or refuses the prayer for an 
 injunction ; if it be allowed, he endorses the bill to that effect; and upon 
 its being handed to the clerk, he then issues the subpoena, with an endorse- 
 ment thereon of the order of injunction; all of which has been already ex-- 
 plained. If the injunction be refused, the plaintiff may itevertheless pro- 
 ceed with his bill as an original bill, and a subpcena will accordingly issue, 
 though without the endorsement of a restraining order. 
 
 Except, however, in cases of injunction and ne exeat, in which the party 
 in commencing his suit finds it necessary to apply to the chancellor for his 
 order, the bill neednot be filed, and is rarely filed before the subpcsna issues 5 
 an anomaly which will strike the student, because every bill concludes with 
 a prayer that a subpoena may issue, when in truth and in fact it has already 
 issued. The subpcena " is a writ commanding the defendant to appear and 
 answer the bill on pain of iElOO ;" which penalty, however, is mere matter 
 of form. If the defendant be an infant or idiot, or deaf and dumb, or im- 
 becile from old age, a guardian ad litem must be appointed for him, and it 
 is the plaintiffs duty to have this done. The guardian is usually an officer 
 of the court unless an actual defence is intended, in which case some rela- 
 tion or friend is appointed. The answer put in by the guardian ad litem 
 generally puts the plaintiff upon the proof of his whole case, and asks the 
 protection of the court for the rights of the infant. 
 
 According to the English practice, which was common with us formerly, 
 " if the defendant, on service of the subpoena, does not appear within the 
 time limited by the rules of the court, and plead, demur, or answer to the 
 bill, he is then said to be in contempt ; and the respective processes of con- 
 tempt are in successive order awarded against him. The first of which is 
 an attachment, which is a writ in the nature of a capias, directed to the 
 sheriff, and commanding him to attach, or take up, the defendant, and 
 bring him into court. If the sheriff returns that the defendant is non est 
 inventus, then an attachment with proclamation issues ; which, besides the 
 ordinary form of attachment, directs the sheriff, that he cause public pro- 
 clamations to be made, throughout the county, to summon the defendant^ 
 upon his allegiance, personally to appear and answer. If this be also re- 
 turned with a non est inventus, and he still stands out in contempt, a com- 
 mission of rebellion is awarded against him, and if this be returned non est 
 VOL. 2—63
 
 498 EQUITY PRACTICE. [ book 3. 
 
 inventus, a sergeant at arms is sent in search of him. If he still eludes the 
 officer, a sequestration issues, to seize all his personal property and the pro- 
 fits of his real estate, and to detain them subject to the order of the court.- 
 The same course may be pursued with us according to the provisions of our 
 statute, 1 R. C. ch.GG, § 81. But it is very unusual since the late regula- 
 tions, which have been introduced into the practice of the courts by the 
 legislature. By these it is now provided, that in every subpoena, there shalt 
 be inserted a clause or notification that unless the defendant shall answer 
 the bill within four months thereafter, the court will take it /or confessed, and 
 decree accordingly.* A copy of this subpoena is directed to be left by the 
 marshal, (the officer of the court,) and if the bill be filed at or before the 
 return day, and the defendant does not within four months appear and plead, 
 ansv/er, or demur, the plaintiff may either set the cause for hearing, and 
 take a decree upon the bill as confessed ; or, if he finds an appeal to the 
 conscience of the defendant necessary, he may in that case have him brought 
 into court to answer. On the other hand, if the phaintiff's bill is not filed 
 at or before the return of the subpoena, the suit stands dismissed for want of 
 bill. Sess. Acts, 18'25, ch. 15. Before this act the English mode of pro- 
 ceeding had been much abbreviated by former statutes. 
 
 The process against a corporation is in England a distringas. With us 
 a subpoena returned executed on the proper officer of the corporation has 
 the effect of a subpcena returned executed in other cases, and the subse- 
 quent proceedings thereupon are the same. 1 R. C. ch. 122. 
 
 Where the defendant is absent from the Gommonwealth, the court or the 
 clerk in the office, upon affidavit of that fact, makes on order commanding 
 him to appear on some day in the succeeding term and give security for 
 performing the decree, which order is published in some newspaper and 
 also posted at the court-house door. If the absent defendant then appears 
 and gives security to perform the decree, he is permitted to file his answer, 
 plea, or demurrer, and contest the plaintiff's claim. If he does not this, the 
 court may proceed to take such proof as the plaintiff shall offer, (though not 
 amounting to strict legal proof, 2 Ran. 200,) and if thereby satisfied of the 
 justice of the demand, they may order the bill to be taken for confessed, 
 and make such decree as may appear just; which decree, however, maybe 
 reheard upon petition at any time within seven years, upon the defendant, 
 or his heir, executor, or administrator appearing openly in the common- 
 wealth ; and upon giving security for costs, he or they may answer the bill, 
 and the cause then proceeds as in other cases to a decree. t 
 
 " But. if the defeiidnnt aj)])ears regularly, and takes a copy of the bill, he 
 is next to demur, plead, or answer. 
 
 " A demurrer in equity is nearly of the same nature as a demurrer in law ; 
 being an appeal to the judgment of the court, whether the defendant shall' 
 be bound to answer the plaintiff's bill ; jis for want of sufficient matter of 
 equity therein containr^d ; or wh'^re the plaintiff, upon his own shewing, 
 appears to have no right ; or Avhere the bill seeks a discovery of a thing 
 which may cause a forfeiture of any kind, or may convict a man of any 
 criminal misbehaviour.! For any of these causes a defendant may demur 
 to the bill. And if, on demurrer, the defendant prevails, the plaintiff's bill 
 
 Where a bill is filed against two derendants jointly interested, and is t«ken for confessed against 
 one of them, and the other appear? and disproves the plainiift's rase, tlie bill must be dismissed as to 
 both defendants. 10 John. Hep. 5:H. Canligree i-s. Raymond, 4 Leigh. 
 
 4w„ ^ ^* '° "''^'"8 '•'lis pro confesso, post. 603. 1 .John. Ch. C. 8, i39, 630. U Jolm. Ch. Ca. 43, 152, 
 ii^- 4John. Ch. Ca.547. 3 John. Ch. Ca. 415, 434. 2 Mad. 199. 4 Ran. 456. 4 Ve7..619. Hinde, 
 433. 3Mun.83. 4 Hen. «St :\). 476. 
 
 >The iict of 5 Geo. II. ch. 2.5, lakes the bill pro confesso wiihout proof: ours does not. 
 
 |Or where live bill has juined geveral and distinct matters or rvirliet not proper to be joined in the 
 samasuit. lMa(l.'J33. i i i j
 
 «IIAP. 22.] EQUITY PRACTICE. 499 
 
 shall be dismissed ; if the demurrer be over-ruled, the defendant is ordered 
 to answer, and if he fails to do so, the bill is taken for confessed. 
 
 " A plea may be either to the jurisdiction ; showing that the court has no 
 cognizance of the cause : or to the person ; shewiagsome disability in the 
 plaintiff, as by outlawry, excommunication, and the like: or it is in bar; 
 shewing some matter wherefore the plaintiff can demand no relief, as an 
 act of parliament, a fine, a release, or a former decree. And the truth of 
 this plea the defendant is bound to prove, if put upon it by the plaintiff. 
 But as bills are often of a complicated nature, and contain various matter, a 
 man may plead as to part, demur as to part, and answer to the residue. But 
 no exceptions to formal minMh'ae in the pleadings will be here allowed; for 
 the parties are at Liberty on the discovery of any errors in fornr. to amend them. 
 
 "An answer is the most usual defence that is made to a plaintiff's bill. 
 It is given in upon oath : but where there are amicable defendants, their 
 answer is usually taken without oath by consent of the plaintiff. This me- 
 thod of proceeding is taken from the ecclesiastical courts, like the rest of 
 the practice in chancery : for there, in almost every case, the plaintiff may 
 demand the oath of his adversary in supply of proof. 
 
 " Yet if in the bill any question be put that tends to the discovery of 
 any crime, the defendant may thereupon demur, as was before observed, 
 and may refuse to answer. 
 
 " An answer must be signed by counsel, and must either deny or confess 
 all the material parts of the bill; or it may confess and avoid, that is, justi- 
 fy or palliate the facts. If one of these is not done, the answer may be 
 excepted to for insufficiency, and the defendant be compelled to put in a 
 more sufficient answer. A defendant cannot pray any thing in this his an- 
 swer, but to be dismissed the court ; if he has any relief to pray against the 
 ])laintiff, he must do it by an original bill of his own, which is called a crosS" 
 bill. 
 
 " After answer put in, the plaintiff upon payment of costs may amend 
 his bill, either by adding new parties, or new matter, or both, upon the new 
 lights given him by the defendant ; and the defendant is obliged to answer 
 afresh to such amended bill. But this must be before the plaintiff has replied 
 to the defendant's answer, whereby the cause is at issue ; for afterwards, if 
 new matter arises which did not exist before, he must set it forth by a sup- 
 plemental-bill. There may be also a bill of revivor when the suit is abated 
 by the death of any of the parties, in order to set the proceedings again in 
 motion, without which they remain at a stand. And there is likewise a bill 
 of interpleader ; where a person who owes a debt or rent to one of the 
 parties in suit, but till the determination of it he knows not to which, de- 
 sires that they may interplead, that he may be safe in the payment. In this 
 last case it is usual to order the money to be paid into court for the benefit of 
 such of the parties to whom, upon hearing, the court shall decree it to be 
 due. But this depends upon circumstances ; and the plaintiff must also 
 annex an affidavit to his bill, swearing that he does not collude with either 
 of the parties. 
 
 " If the plaintiff finds sufficient matter confessed in the defendant's an- 
 swer to ground a decree upon, he may proceed to the hearing of the cause 
 upon bill and answer only. But in that case he must take the defendant's 
 answer to be true in every point. Otherwise, the course is for the plaintiff 
 to reply generally to the answer, averring his bill to be true, certain, and 
 sufficient, and the defendant's answer to be directly the reverse ;* which ha 
 
 *If the plaiiuiffdeems the answer insufficient he may except to It (before he enters a replication,) 
 and upon poiniinj; out the supposed delecl, tiie court examines whether it be or be not defective. If 
 adjudged insufficieiit, the defendant Is ordered to put in a belter answer, which if he docs not withia 
 the time required, the bill is as to that matter taken pro con/isso.
 
 500 EQUITY PRACTICE, [ book 3. 
 
 is ready to prove as the court shall award : upon which the defendant re- 
 joins, averring the like on his side ; which is joining issue upon the fact* 
 in dispute. To prove which facts is the next concern." 
 
 This is done by examination of witnesses, and taking their depositions 
 in writing, according to the manner of the civil law. And for that purpose 
 a commission formerly issued, but even that is dispensed with by a recent 
 act where the deposition is taken within the state. Sess. Acts, 1827, ch. 
 26. It may be taken either before one of the commissioners of the court, 
 (1 R. C. ch. 66, § 39, 40,) or a notary public, (Sess. Acts, 1822, ch. 39,) 
 or before two justices of the peace. The witness is brought before them 
 by subpoena. The questions are propounded to the witness, and with his 
 answers are reduced to writing by the commissioner or other person taking 
 the deposition ; and this duty ought not to be performed by any counsel 
 in the cause, or the depositions will be suppressed. 2 Mad. 314. 2 Dic- 
 kens, 563. The interrogatories must be short and pertinent ; not leading 
 ones; (as "did not you see this, or, did not you hear that?") for if they 
 be such, the depositions taken thereon will be suppressed and not suffered 
 to be read ; or if only one question is leading, that will be suppressed and 
 the rest of the deposition read. 2 Mad. 313. In like manner, if the de- 
 position is prepared beforehand, it is generally a fatal objection, though 
 where the witness cannot again be examined, the court may have recourse 
 to that which has been thus irregularly taken. Where a witness resides 
 out of the commonwealth, commissions issue according to the special pro- 
 visions of 1 R. C. ch. 66, § 104, to which the student will turn. 
 
 The depositions thus taken by the commissioner (or other person autho- 
 rized) are enclosed by him, sealed up. to the clerk of the court of chance- 
 ry, by whom they are immediately broken open, and are subject to the free 
 inspection of the parties and their counsel, instead of awaiting an order or 
 rule to pass publication as in England. Four months are allowed for tak- 
 ing depositions in those cases where the plaintiff replies to the answer ; af- 
 ter the lapse of which time either party may set the cause for hearing ; but 
 any depositions taken before the hearing, though after that time has elaps- 
 ed, may be read. Sess. Acts, 1822, ch. 36. 1825, ch. 15. When the 
 cause is set for hearing, it is placed upon a court docket and is regularly 
 called in its turn and heard by the court, which decides both matters of 
 law and fact upon hearing the bill, answer, and proofs, and the arguments 
 of counsel, without the intervention of a jury, except where an issue devi- 
 savit vel non is required, or an issue is directed to satisfy the conscience of 
 the court. 
 
 ■'If witnesses to a disputable fact are old and infirm, it is very usual to 
 file a bill to perpetuate the testimony of those witnesses, although no suit 
 is depending ; for, it may be a man's antagonist only waits for the death of 
 some of them to begin his suit. This is most frequent when lands are de- 
 vised by will away from the heir at law ; and the devisee, in order to per- 
 petuate the testimony of the witness to such will, exhibits a bill in chance- 
 ry against the heir, and sets forth the will verbatim therein, suggesting that 
 the heir is inclined to dispute its validity : and then, the defendant having 
 answered, they proceed to issue as in other cases, and examine the witnes- 
 ses to the will ; after which the cause is at an end without proceeding to 
 any decree, no relief being prayed by the bill ; but the heir is entitled to his 
 costs, even though he contests the will. This is what is usually meant by 
 proving a will in chancery. 
 
 " When there are cross causes, on a cross bill filed by the defendant against 
 the plaintiff in the original cause, they are generally contrived to be br.ought 
 01) together, that the same hearing and the same decree may serve for both 
 of them. The method of hearing causes in court is usually this. The
 
 CHAP. 
 
 22.] EQUITY PRACTICE. 501 
 
 parties on both sides appearing by their counsel, the plaintiffs counsel 
 opens his case by briefly stating it, with the contents of the bill, answer, 
 and depositions; pointing out distinctly the matter in issue, and the proofs 
 relied on upon his side, and sustaining his cause by such arguments as he 
 deems pertinent. After him, the defendant's counsel presents his case in 
 like manner, and the plaintiffs counsel is heard in reply. When all are 
 heard the chancellor takes the papers to his chambers, and when he has 
 sufficiently deliberated, he pronounces his decree. Of its principles he 
 makes a short note on the papers, and the counsel of the party prevailing 
 draws up the decree in the proper form, according to the principles indi- 
 cated by the chancellor's opinion. 
 
 "The chancellor's decree is either inlerloculory ox final. It very seldom 
 happens that the first decree can be final, or conclude the cause ; for if any 
 matter of fact is strongly controverted, this court is so sensible of the defi- 
 ciency of trial by written depositions, that it will not bind the parties there- 
 by, but usually directs the matter to be tried by jury ; especially such im- 
 portant facts as the validity of a will, or whether A is the heir at law to B," 
 or whether a fraud has been committed as alleged by the plaintiff. In such 
 cases, therefore, an issue is directed by the court, to be made up and tried 
 by a jury, either at its own bar or at the bar of any court of law in the com- 
 monwealth. This is what is called a feigned issue. The mode of pro- 
 ceeding herein, in England, is thus described by Mr. Blackstone. "An 
 action is brought, wherein the plaintiff by a fiction declares that he laid a 
 wager of £b with the defendant, that A was heir at law to B; and then 
 avers that he is so ; and, therefore, demands the £6. The defendant admits 
 the feigned wager, but avers that A is not the heir to B ; and thereupon 
 that issue is joined, which is directed out of chancery to be tried ; and thus 
 the verdict of the jurors at law determines the fact for the information of 
 the conscience of the court of equity." With us the proceeding is usually 
 more simple. Most generally, the order of the chancellor is produced, and 
 the jury is sworn to try the questions submitted by it without the formality 
 of any action brought, and without declaration, plea, or formal issue, and 
 the verdict rendered is certified from the court of law to the court of chan- 
 cery. 
 
 "So likewise, if a question of mere law arises in the course of a cause, 
 as whether by the words of a will an estate for life or in tail is created, or 
 whether a future interest devised by a testator shall operate as a remainder or 
 an executory devise," the chancellor is authorized by law, 1 R. C. ch. 66, 
 § 31, to refer it to the opinion of the general court, upon a case stated for 
 that purpose ; wherein all the material facts are admitted, and the point of 
 law is submitted to their decision : who thereupon hear it solemnly argued 
 by counsel on both sides, and certify their opinion to the chancellor. And 
 upon such certificate the decree is usually founded. But this power is rare- 
 ly exercised by the court. 
 
 " Another thing also retards the completion of decrees. Frequently long 
 accounts are to be settled, incumbrances and debts to be inquired into, and 
 a hundred little facts to be cleared up, before a decree can do full and suf- 
 ficient justice. These matters are always by the decree on the first hear- 
 ing referred to a master in chancery to examine; which examinations fre- 
 quently last for years: and then he is to report the fact, as it appears to 
 him, to the court. This report may be excepted to, disproved, and over- 
 ruled ; or otherwise is confirmed, and made absolute, by order of the court." 
 
 " Where issues, or an account, or other reference has been directed, and 
 the certificate of trial or report of the master or other commissioners is re- 
 turned, the cause again comes on for a final hearing as to any other matters 
 that remain to be settled, or upon any matters of equity reserved." And
 
 502 EQUITY PRACTICE. [ book 3. 
 
 here it may not be improper very succinctly to introduce again, for the con- 
 venience of the student, a few general principles which govern courts of 
 equity in deciding upon the facts of the case. 
 
 1. As to the effect of the answer. It is one of the most striking pecu- 
 liarities of a court ol' equity, that the statement of the defendant upon oath, 
 in so far as it is responsive to the bill, is taken as evidence in his own be- 
 half. The common law has adopted with the utmost strictness, the maxim 
 that "nemo debet esse testis in sua propria causa;" but it is a rule in all 
 cases in equity, that where the answer positively, plainly, and precisely de- 
 nies the matter of equity stated in the bill, and to use the language of the 
 books, " where the answer is responsive to the bill," it is to be taken as true, 
 unless it be contradicted by two witnesses, or by one witness and corrobo- 
 rating circumstances. 1 Mad. 338. See ] Call, 224. 1 Wash. 389. 3 
 Call, 44. 1 H. & M. 537. 6 Wheat. 453, 468. And yet the bill, though 
 on oath, is no evidence for the plaintiff. The reason of the rule which at- 
 tributes such weight to the answer is, that the plaintiff, by appealing to the 
 defendant's conscience, makes him a witness in the cause ; and by his very 
 appeal to his conscience attributes to him credibility when he is on oath. 
 If", therefore, he contradicts his testimony by only one witness, there is one 
 good witness against another, so that the scales of justice hang evenly ; and 
 when that is the case the plaintiff fails ; for he never can succeed unless 
 the scale preponderates in his favor. 9 Cranch, IGO. But if a second 
 witness or corroborating circumstances turn the scale, the weight of the 
 answer being overbalanced, the plaiutifi' shows himself entitled to recover. 
 Id. 
 
 This weight is attributed, however, to the answer of the defendant, only 
 where he denies what is affirmatively charged in the bill. For where tho 
 answer asserts a right affirmatively in opposition to the plaintiff's demand, 
 the defendant is as much bound to establish it by indifferent testimony, as 
 the plaintiff to sustain his bill : 1 Wash. 225. 1 Mun. 373, 395. 2 John. 
 <32, 89: for the plaintiff cannot prove a negative, and if the affirmation be 
 true, the defendant may prove it. Thus where distributees filed their bill 
 against an executor, praying for a distribution of the decedent's estate, and 
 the executor swore his testator had given hi;H certain property, his claim 
 was disallowed for want of proof: for otherwise he would swear himself 
 into a title to part of his testator's estate. 1 Wash. 224. 
 
 It has been found, indeed, a matter of some difficulty, to lay down the 
 rule on this subject very precisely and distinctly ; for on the one hand it is 
 admitted, that if the matter alleged by the defendant in his discharge is dis- 
 tinct matter of avoidance, it must be established by evidence aliunde or it 
 will not be taken as true; while on the other it is said, that if the matter of 
 discharge and the matter admitted which would go to charge the defendant 
 constitute but one substantive statement or allegation, the whole must be 
 taken together; — a nicety utterly unworthy of a court of justice. The stu- 
 'dent will find the subject examined at length in the case of Hart vs. Ten 
 Eyck, 2 John. C. C. 91. 
 
 There are cases, however, in which the answer of the defendant is in a 
 court of equity disarmed of all its force, ot yields to the superior weight of 
 even a single witness. Thus, the answer, if it be evasive, will not prevail 
 where contradicted even by one witness. 5 Mun. 183. Or if it be not 
 positive and upon the knowledge of the defendant, the evidence of one 
 positive and credible witness will overthrow it ; though, unless contradict- 
 ed, the court usually believes what the defendant swears he believes, if the 
 matter be responsive. 1 Mad. 325. But if the answer be a positive denial 
 of a fact charged in the bill, it ought not to be outweighed by testimony not 
 equally positive. 1 H. & M. 537.
 
 CHAP. 22.] EQUITY PRACTICE. 503 
 
 Where the answer is contradicted in anyone or more important particu- 
 lars by adequate evidence, (i. e. two witnesses, or one witness and corrobo- 
 rating circumstances,) it is deprived, in all other respects, of that weight 
 which is allowed to answers by the rules of a court of equity : for being 
 falsified in one thing, no confidence can be placed in it as to others ; ac- 
 cording to the maxim "falsum in uno falsum in omnibus.'' And the answer 
 may in itself contain the circumstances giving greater credit to the testimo- 
 ny of the single witness ; 9 Vez. 275. 2 John. 94 ; or destroying its own 
 credibility ; as where it is plainly contradictory in itself. 
 
 Where the plaintiff goes into equity only on the ground that he cannot 
 support his claim without a discovery obtained from the defendant, the an- 
 swer of the defendant is clearly entitled to credit, (1 Call, 280,) and would 
 seem, indeed, to be conclusive ; for if the plaintiff should disprove it, he 
 " would prove himself out of court," that is, he would by his own evidence 
 falsify his allegation which served as the ground of jurisdiction. See 1 Call, 
 382. See also what is said arguendo, 6 Mun. 545. 
 
 If the plaintiff does not reply to the answer, but the cause is set down 
 for hearing upon bill and answer without replication, (even by consent, 5 
 Ran. 577,) the answer is to be taken in all things as true, whether the mat- 
 ter be responsive or not, and whether it be negative or affirmative.* 3 Br. 
 340. 1 Wash. 162. 5 Mun. 467, 483. 6 Mun. 142. And the reason is 
 not only that the plaintiff thereby intimates his admission of the facts, but 
 that he takes away from the defendant the opportunity of proving them t^ 
 for until replication neither party can take out commissions to examine wit- 
 nesses, (except in the case of aged and infirm witnesses, who may be ex- 
 amined de bene esse, though even these must be examined over again in 
 chief, if they can be procured after commissions are awarded.) 
 
 If the defendant sets down the cause upon bill and answer before a re- 
 plication has been filed, it is erroneous : he ought to give a rule to reply. 1 
 R. C. ch. 66, § 88. In such case the cause is sent back to the rules. 
 
 We have already seen w'hat weight is attributed to the answers upon a 
 motion (before the final hearing) to dissolve an injunction awarded in the 
 cause. 
 
 2. It may next be observed, with respect to answers, that the answer of 
 one defendant is no evidence against another defendant in the cause, since 
 it is against natural justice that the statement of a party should be evi- 
 dence against one who has had no opportunity for cross examination. 12 
 Vez. 355. And this doctrine is so firmly established, that it would seem" 
 that the answer of an assignor confessing the equity charged in the bill, 
 would not be received as evidence against the assignee, who claims under 
 him ; though his bare confessions, anterior to the assignment, would doubt- 
 less be admissible. See 3 Rand. 214. 3 Mun. 136. For a like reason, if 
 the bill be taken pro confesso against a fraudulent grantor, yet no inference 
 can be drawn (from that implied admission of the fraud) against the gran- 
 tee. 2 John. C. C. 43. In all such cases, the plaintiff may lake the evi- 
 dence of one defendant upon due notice to the others. But the defendant, 
 if examined to matters in which he is interested, may demur. See Amb. 
 583. Gilmer, 149. 2 Atk. 228. In like manner, where one defendant 
 would avail himself of the evidence of another, he may do so by having an 
 order to take his deposition, saving all just exceptions ; though if he is lia- 
 ble to costs, that would exclude him. 3 Atk. 401. The depositions in 
 these cases could formerly only be taken regularly, after an order for that 
 purpose ; 2 Mad. 316 ; they may now be taken without such order, but 
 subject to all just exceptions. Sess. Acts, 1825, ch. 15, §> 9. 
 
 * U'ant of rcplicalion is no longer rrror, if the defendant lias proceeded to exsiiiinc ultnc?se«. Siif. 
 !o llic Uev. Code, V2b. Dcposilions nwy lie taken by botli partiee as aeon a« the bill ii« filed. Idem, 132.
 
 504 EQUITY PRACfriCE. [ book ^. 
 
 3. A defendant may likewise take the deposition of a plaintiff: if he con- 
 sents to be examined ; 2 Mad. '316 ; and a plaintiff may without the de- 
 fendant's consent strike out a co-plaintiff, or make him a defendant and ex- 
 amine liim upon giving security for costs. Idem. 
 
 When the court has made up its opinion upon the case, if no further 
 steps seem necessary, a final decree is rendered in the cause. And then, 
 and not till then, the question of costs is decided ; for it is error to decree 
 the costs of the suit before a final decree, since as long as the case is in fieri, 
 it is possible its aspect may be varied, so as to change the opinion of the 
 court on the question of costs. 
 
 Costs in general follow the event of the cause ; for though it is altogether 
 in the discretion of the court, whether to give or refuse costs, yet they arc 
 usually awarded to the party substantially prevailing, unless he has acted 
 oppressively, or fraudulently, or forfeited the favor of the court by improper 
 conduct. It may not be amiss, however, to add the following principles, 
 which have been established principally by our own tribunals. 
 
 Where a demurrer to the jurisdiction, because the jjarty has a remedy at 
 law, is sustained, the defendant is entitled to costs. 5 John. 232, Gregory 
 vs. Reeve. 7 John. 290. 
 
 Costs are usually paid out of the fund in question. See 7 John. 274. 9 
 Vez. 180. 4 John. 608. 
 
 In cases of injunction, if the injunction be perpetuated in part, the com- 
 plainant should not be decreed to pay costs; 2 Mun, 289; for though he 
 may owe something, yet if he obtain any relief he is the party substantially 
 prevailing ; he shows there was a necessity for his suit, and should not 
 therefore be the sufferer; in like manner, as a party who recovers at law 
 gets his costs though he recovers only part of his demand. Hence, it is 
 the general rule upon perpetuating an injunction for part, to give costs to 
 the complainant as he prevails; though in some cases, where he has omit- 
 ted to defend himself at law, and has be,en guilty of laches, the court of 
 equity, while it has given him relief, has refused him costs,, or decreed them 
 against him. See 2 H. & M. 10. 4 H. &. M. 427. The discretion thus 
 exercised, however, by courts of equity, is under the con'trol of the appel- 
 late court, which will reverse its decree if it deems the discretion improperly 
 exerted for or against the appellant. 2 Mun. 289. And this is of itself 
 sufficient ground of reversal, though the decree be otherwise right. Id. 
 But in the case here cited, the party appealed from the other parts of the 
 decree : which it is material to observe ; for it is not of itself sufficient 
 ground of appeal that costs have been erroneously decreed. 3 Rand. 165. 
 
 The law of costs on bills to foreclose and redeem is stated under the 
 head of mortgages. See I W. 125. 3 Mun. 66. 
 
 The heirs of a vendor who are sued for a conveyance by bill in equity, 
 ought not to be compelled to pay costs. 4 Mun. 140. Nor ought costs to 
 be given against a complainant to parties erroneously made so by the court's 
 direction. 5 Mun. 87. Interest is not allowed upon costs. 2 Mun. 46. 
 
 When the final decree has been rendered in the cause, the party prevail- 
 ing may enforce it either by the remedies known to the English practice; 
 or by ordinary execution where money is decreed ; our statute law having 
 authorized executions to issue upon decrees in chancery, in the same man- 
 ner as upon judgments at law. But where money is not decreed, but an 
 act is required to be done by the party against whom the decree is render- 
 ed, it is necessary to resort to the original remedy by attachment for not 
 performing the decree. To effect this, a copy of the decree must be duly 
 served upon the party, and a transcript under the hand of the clerk of the 
 court, ought to be shewn or offered to be shewn him, and a compliance 
 with the decree should be demanded. Upon refusal and affidavit of that
 
 ciiAP. 22.] EQUITY PRACTICE. 505 
 
 fact a rule is awarded upon the party, to shew cause why he should not b6 
 attached for disobedience of the order. If upon the return of the rule he 
 shews no cause, an attachment issues, and he is committed to prison until 
 he performs the decree. 
 
 If either party thinks himself aggrieved by the decree he may petition the 
 chancellor for a rehearing, at any time before the end of tlie term at which 
 the final decree is rendered. 
 
 " Every petition for a rehearing must be signed by counsel of character, 
 usually such as have been concerned in the cause, certifying that they ap- 
 prehend the cause is proper to be reheard. And upon the rehearing, all 
 the evidence taken in the cause, whether read before or not, is now admit- 
 ted to be read ; because it is the decree" of the chancellor himself, who only 
 now sits to hear reasons why it should not be enrolled and perfected ; " at 
 which time all omissions of either evidence or argument may be supplied. 
 But after a final decree has been rendered and the term is past, (which an- 
 swers to signing and enrolling in the English practice,) the decree cannot 
 be reheard or rectified but by bill of review in the court of chancery, or ap- 
 peal to the court of appeals. 
 
 " A bill of review may be had upon apparent error in judgment, appear- 
 ing on the face of the decree ; or, by special leave of the court, upon oath 
 made of the discovery of new matter or evidence, which could not possibly 
 be had or used at the time when the decree passed. But no new evidence 
 or matter then in the knowledge of the parties, and which might have been 
 used before, shall be a sufficient ground for a bill of review." 
 
 An appeal to the court of appeals is the last resort of the party for the 
 correction of the errors of the inferior tribunal. This is allowed under va- 
 rious regulations to be found in 1 R. C. ch. 66, § 51, 54, 57.* 
 
 On the trial of appeals no new evidence is admitted ; for it is a practice 
 unknown to our law, (though constantly followed in the spiritual courts,) 
 when a superior court is reviewing the sentence of an inferior, to examine 
 the justice of the former decree by evidence that was never produced be- 
 low. And thus much for the general method of proceeding in the courts 
 o( equity."! 
 
 "As to appeals, see the provisions of the act of 1030, cli. II, passed since the first edition of this 
 work. 
 
 By a rule of court, Oct. 1811, where there is no error as to the appellant, but tliere is error as to' 
 the appellee, that error will be correcled though he did not appeal. And he recovers his COslS as the 
 party substantially prevailing. 1 Wash. 381. i! H. &. fll. 689. Gilmer, 230. 
 
 Where a general appeal is entered from a decree in equity, one party may come in and move to 
 dismiss as to liiniself. 4 Kan. 611. 
 
 It is a common practice for one of several defendants in eq<iit3' to pray an appeal, and the practice 
 would seem to be sanctioned by the cases, tsee 2 Leigh,- 108. C Mun.87, 97. This practice, howev- 
 er, is very loose and seems to lead to mischief; since thus the rights of a defendant, not before the 
 appellate court, become the subject of adjudication, and sometimes greatly to his prejudice. In the 
 Bank of Virginia ^s. Craig, the LSaiik appealed from a decree in favor Of Craig, alleging that Hooe, 
 (a co-defendant.) and not the Bank, was responsible to Craig's demand. Hooe had not appealed and 
 was not before the appellate court by any process, yet the decree as to the Bank was reversed ami 
 entered against him. April, 1835. Legislative regulation ot this nature seems desirable. 
 
 t It may be proper to refer tlie student generally (o 1 R. Cell. C6, for the proceedings in caus(^3 iit 
 the superior conrtsofchancery; lothe works of Mitford, Cooper, and ftladoc; to IlairsIndex,625,foir 
 the rules of the chancery courts; and to the same work, page 631, for the rules of court for the di- 
 rection of its commissioners in making up their accounts and reports. 
 
 The ordinary commencement of a bill in chancery is to this effect: "To the honorable William 
 Browne, chancellor of the Williamsburg District, respectfully complaining, shcwelh unto your honor 
 your orator A. B." 
 
 " That, &c." 
 
 The ordinary commencement of an answer is to this effect: 
 
 " The ans\ver of C. D. to a bill of complaint exhibited against him by A. B. in the superior court 
 of chancery holden at Williamsburg — ■ 
 
 " This defendant, saving and reserving to himself all exceptions to the said bill, for answer thereto' 
 or to so mucli thereof as he is advised it is material for him to answer unto, he answereih and saith. 
 That, &c." 
 
 The answer terminates with a traverse, though this is not in all cases necessary or indeed proper. 
 Its form is thus, " And the said defendant denies alt fraud, combination, and confederacy charged iti 
 the bill, vAihout that, that there is any other matter or thifig, in the complaii'ant's bill contained (ma-. 
 
 VOL. 2—64
 
 506 EQUITY PRACTICE. [ book 3. 
 
 terial to be answered to bj' this defendant, not herein and hereby well and sufficiently answered, 
 avoided, traversed, or denied,) that is true, to the knowledge and belief of thib defendant; all which 
 matters and things he is ready to aver, maintain, and prove, as this honorable court shall direct, and 
 humbly prays to be hence dismissed with his costs in tliis behalf most wrongfully sustained." The whole 
 of the above is however usually omitted, except the words in italics, and what is left out is supplied 
 by an " et cetera." 
 
 The affidavit which must always accompany the answer, and is usually written on, or at the foot 
 of it, is in this form : 
 
 " Frederick County, so. 
 
 "A. B. made oath before me, a Justice of the Peace in and for the said county, that the matter* 
 contained in the foregoing answer, so far as they are stated to be of his own knowledge, are true, and 
 so far as he has heard them from others and declares his belief of them, he does believe them to be 
 true. Given under my hand this — day of l&d. JOHN WHITE PAGE." 
 
 The formal part of a decree is to this effect : 
 A. B.') This cause came on this day of 1829, to be heard on the bill, answer, exhi- 
 
 vs. > bits, depositions of witnesses, and report of the commissioner, to which there is no exception, 
 C. D.J on consideration whereof the court is of opinion [here insert succinctly and clearly the opin- 
 ion indicated by the notes of the court.] Whereupon the court doth adjudge, order, and decree, 
 and it is accordingly hereby adjudged, ordered, and decreed [here insert the decree;] And it i» 
 further adjudged, ordered, and decreed, that the complainant recover against the defendanl hi&cosls 
 by him about hia suit in tliis behalf expended.
 
 ANALYSIS 
 
 OF THE 
 
 COIttHEXTARIES ON THE I.A1VS OF TIRGI]\IA, 
 
 IN A 
 
 SERIES OF QUESTIONS FOR THE USE OF THE STUDENT. 
 
 BOOK III. 
 
 OF PRIVATE WRONGS. 
 
 Chapter I. — Of redress by the mere act of the party. 
 
 1. Of redress by the act of the injured party only? Right of defence, 
 how far admitted ? How as to defence of wife, child, master, or servant? 
 
 2. Recaption or reprisal, what and when allowed ? How to be exercis- 
 ed ? How far may wrongdoer complain of force used in recaption ? Re- 
 entry ? Right of, when allowed ? How to be exercised ? How far can 
 the wrongdoer complain of the force ? 
 
 3. Nuisances what ? What allowed as to them ? How to be abated ? 
 
 4. Distress what ? What the principal case known to our law ? For 
 what sort of rents may there be a distress ? Distress clamage-feasant what ? 
 What things are not distrainable ? How as to things fer(B natures; — or in 
 personal use or occupation ; — or in the way of trade ; — or tools and uten- 
 sils ; — or straw, hay, &c. ; — or things fixed to the freehold ? How as to stran- 
 ger's goods on — or off the premises — by English law — by our law f How 
 as to tenant's goods removed from the premises — before expiration of the 
 lease— or after ? 
 
 5. Distresses ; — who may levy a distress ? How was the property dis- 
 posed of by common law ? How by our statute ? What indulgence (and 
 on what terms) is allowed to the tenant by our law ? [1 R. C. ch. 113, 
 § 1.] Proceeding on three months' replevy bond ? 
 
 6. May a distress be made in the night ? Rule as to distressing for an 
 entire duty ? Suppose distress by mistake for too little ? Law as to exces- 
 sive distresses ? Rescue, when lawful ? Wlicn not ? Penalty ? Proper- 
 ty how to be disposed of? In what county to be empounded ? Pounds 
 of two kinds ? Rules as to them ? Duty of feeding animals distrained ? 
 
 7. Suppose the tenant fraudulently removes his property from the pre- 
 mises ? [1 R. C. ch. 113. Sess. Acts, 1822, ch. 29, § 2.] Law as to dis- 
 tresses where lease is determined ? [1 R. C. ch. 119, § 20, 21. Sess. Acts, 
 1822, ch. 23, § 6.] Limitation to distresses ? 
 
 8. Dainage-feasant — objections to the use of this remedy ? Three months' 
 replevy bond — from what time is interest to run ? How is the property to 
 be sold if no bond given ? Effect of the bond ? When to be returned ? 
 What should it recite ? Remedy on it? What remedy, though the bond 
 be not good as a statutory bond ? Commissions ?
 
 2 ANALYSIS OF [book 3, 
 
 9. Replevin what? Effect of it? Suppose the lonrait fails, what was 
 the course of the common law? What by ours ? Suppose a distress is 
 proceeded in irregularly, how is the distrainor considered ab initio ? 
 
 10. Interest upon rent— former doctrines ? How is the doctrine now ? 
 Suppose there was always sufficient distress on the premises? What is 
 now the law as to interest in case of replevin ? 
 
 11. Distresses how barred by time ? Is there any saving? How as to 
 debt for rent? Or Covenant? Apportionment, by whom and how made? 
 Grantee of part of a rent, how may he distrain ? Why cannot the tenant 
 complain ? 
 
 12. Suppose the distress is for two little, what are the landlord's remedies ? 
 How if he demand too much in debt, or covenant, or by distress ? How 
 liable if distress is excessive ? 
 
 13. As to remedies of different parties ; — Lessor's when he has parted 
 with the reversion ; — Executor's and administrator's ? How as to them af- 
 ter lease determined? How as to covenant, or re-entry — or assumpsit? 
 How as to rent accrued after testator's death, if the reversion be a chattel—- 
 or a freehold ? How as to attachment ? 
 
 14. Heirs' remedy ; — where they are parceners how must they avow ? 
 Husband in right of his wife ; as to rents due-=-or not due at wife's death ? 
 How should he avow if he distrains during the coverture for rent due be- 
 fore—or after marriage ? 
 
 15. Assignees, their remedies at common law ; — by statute ? Effect of 
 assignment on assignor's rights ? Or remedies ? Joint-tenants and tenants 
 in common how to avow ? 
 
 16. Parties against whom there is a remedy ; — Heirs ;■ — Executors and 
 administrators? Effect of assignment in absolving the lessee^ — where the 
 lessor accepts— or refuses to accept the assignee as tenant ? What amounts 
 to an assignment ? Lessor's remedy against the lessee on the express co- 
 venants notwithstanding assignment ? Diflfcrence herein between cove- 
 nants express and covenants in law ? Law as to these matters if the as- 
 signee assigijs ? Necessity for clauses both against underletting and as- 
 signment ? 
 
 17. Kinds of remedies ; — Covenant — when does it lie and its advanta- 
 ges ; — Debt, when did it lie or not lie at common law — and how by. statute ? 
 Assumpsit, where there is an express — or only an implied contract ? 
 
 18. Attachment, ])rovisions as to this remedy ? 1 R. C. ch. 113, § 9, and 
 act 1, Jan. 1820. Remarks as to this remedy — 1. As to strictly pursuing 
 it. 2. As to the remedy on the sale bonds or defendant's recognizance. 
 3. As to interpleading. 
 
 19. Right of entry ; what essential previous to entry ? Difffcrcnce here- 
 in between condition and limitation ? Suppose demand is disi)cnsed with ? 
 DiflTercnce between freehold and leasehold as to avoiding lease without en- 
 try ? Demand ivhcn to be made ; — for how much — and where ? Is entrij 
 necessary to ejectment ? Waiver of forfeiture, what amounts to ? E(|uity — 
 its interference in case of forfeiture ; — and rules on which it acts ? 
 
 20. Goods of third person — how far and when liable to distress ? Exe- 
 cution, what i»rovidcd where there is rent due, or not due ? 
 
 21. Replevin, action of; what are the provisions of the act of 1822, as to 
 tlie recovery of the landlord against the tenant or third person, or of the te- 
 nant or tliird porson replevying against the landlord ? Actions for rents, 
 where to be i>r(jught ? AV'hen to be tried ? Docs the motion on a tiirce 
 months' replevy bf)nd lie against executors? What is the remedy ? Plea 
 of nil habuit in tcncmenlis, is it admissible for a tenant who has enjoyed the 
 properly ? 
 
 ?^2. Remedies in cfpiity foj- rent-seek ?
 
 CHAF. 4.] THE COMMENTARIES. 8 
 
 Chapter II. — Remedies by the joint act of the parties. 
 
 1. Accord what? Wliat essential to make it a bar to an action ? Pay- 
 ment of a lesser sum, when a good satisfaction ? Difference between an 
 executed and executory agreement as to compositions with creditors ? 
 
 2. Satisfaction received from one of several persons liable — its effect as 
 to the others ? How far can one cause of action be discharged by exchang- 
 ing it for another ? Diflerence between bonds and promissory notes herein, 
 and causes of that difference ? 
 
 3. Diversity where the satisfaction is a thing different from the debt or 
 duty and where not? Where of the same nature but the circumstances 
 different? Assignments of notes, &c., on a third person; — Bills of ex- 
 change or drafts, given or accepted ; — Effect of these as satisfaction ? 
 
 4. Diversity between assignment in satisfaction and a transfer as collatc- 
 lal security ? 
 
 5. Accord and satisfaction how to be pleaded ? 
 
 6. Arbitration what? Who may submit ? Husband? Executor? At- 
 torney in fact — or at law ? Who bound by submission ? Who has advan- 
 tage cf ? 
 
 7. What may be submitted ? How as to real property ? Award that a 
 deed shall be made, — how enforced ? 
 
 8. Submission how to be made ? Will equity enforce an agreement to 
 submit ? How at law ? Is the agreement to refer a bar to an action, with- 
 out an award? Submissions how made under the act of assembly ? To 
 what submission does the act apply ? Effect of death or marriage, or re- 
 vocation of submission ? Liability of party revoking ? 
 
 9. Arbitration how not to consider himself? Suppose the arbitrator be 
 akin to either? Umpire what? How appointed? If no provision for, 
 can equity supply defect ? What furnishes the rule as to the appointment 
 of an umpire ? Rule as to the time within which the award must be made ? 
 What number of the arbitrators must agree ? How should they proceed ? 
 When are they fundi official When is the award void because of a re- 
 ference to the opinion of a third person ? 
 
 10. Award ; rule as to its being without the submission as to persons or 
 subject? When good as to part though void as to the residue ? How as 
 to its being of part only of the matter submitted ? How if it award what 
 is unlawful— impossible-r-unrcasonable — of no profit, or be uncertain or not 
 final or not mutual ? Modern doctrine as to mutuality ; — and as to constru- 
 ing awards ? Form of the award? Performance what good ? How en- 
 forced at law or in equity ? 
 
 11. Objections to awards — on account of the arbitrators or their conduct? 
 On account of the award itself? Rules as to this ? Objections on account 
 of the conduct of the parties ? Relief how obtained against an erroneous 
 award ? In cases of alleged mistake of arbitrators what is the course of 
 decision ? 
 
 Chapter III. — Redress by mere operation of law. 
 
 1. Retainer what ? Law of this subject ? Remitter what? Law of this 
 subject ? 
 
 Chapter IV. — Of Courts. 
 
 1. Does the extra-judicial remedy of a party exclude his remedy by suit? 
 
 2. Court how defined ? How divided? What is the maxim as to the 
 verity of records ? Existence of record how tried ? Mistakes how amend- 
 ed ? What in England constitutes a court of record ?
 
 4 ANALYSIS OF [ BOOK 3. 
 
 3. Constituent parts of a court? Define them ? Attorney at law ; what 
 comprehended in Virginia liereby ? License how obtained ? Who may 
 have the benefit of counsel in Virginia ? How retained in England ; — 
 how here ? Attorney's authority over his client's cause — extent — duration ? 
 How liable for neglect of duty ? Misbehaviour in office how punishable ? 
 Malpractice what? Bargains with their clients how viewed in equity? 
 Duties of? May he as a witness disclose his client's secrets or produce 
 his papers ? Rights of counsel ? Lien for fees ? How far affected by 
 equitable right of set-off ? 
 
 Chapter V. — Wrongs and their remedies respecting the rights of persons. 
 
 1. Actions — personal — real — mixed; define them. Injuries how prima- 
 rily divided ? Injuries affecting personal security what ? Threats when ac- 
 tionable? Assault what? Battery? When justifiable, in self-defence — in 
 exercise of office ? How to be pleaded ? Mayhem what by common law 
 — and by statute ? Civil remedy for ? 
 
 2. Suppose the act lawful, is the assault or battery actionable and when ? 
 Suppose the act unlawful or without due care but the injury not wilful? 
 Suppose a fight by consent ? AV'hen is case or trespass the proper remedy ? 
 Suppose assault and battery both charged and the assault only proved ? 
 
 3. Rules as to the defence of wife, child, &c. ? Rules as to defence of 
 goods and possession ? Request when and when not necessary ? What 
 force may be used ? How to be pleaded ? Suppose an arrest by an officer 
 under the order of a competent authority? What violence may he use? 
 Case of seamen ? Of a father or schoolmaster ? 
 
 4. Is public prosecution a bar to private suit ? EflTect of it nevertheless, 
 as to the damages ? Declaration ; how if there are several assaults charg- 
 ed in the same court ? Suppose one of them justified by plea, what ought 
 the plaintiff to do ? Is the day laid material ? When may the place be 
 material ? Declaring with a quodcum ; what ? Is it good — or cured by ver- 
 dict ? 
 
 5. Battery by several, — suit how brought? If jointly how may they 
 plead? When it is advisable to plead separately? Can one be acquitted 
 and the other found guilty ? Can he who is acquitted then be a witness ? 
 Damages should they be joint or several ? How as to a fine in a criminal 
 prosecution ? Where there are several defendants how does the trial pro- 
 ceed in England — with us ? Suppose the several juries give damages of 
 different amounts ? Suppose judgment taken against one or release to one 
 — its effect as to the others ? 
 
 6. Husband and wife when to be joined as plaintiffs or defendants in this 
 action ? 
 
 7. What may be laid as an aggravation ? General issue what ? What 
 special pleas ? Son assault de mesne what ? Can justification be given in 
 evidence under the general issue ? How as to provocation ? Replication 
 de injuria sua, &c." to son assault de mesne what? 
 
 8. Can defendant plead more than one plea ; or plead and demur to the 
 same count or plead inconsistent pleas? Is conviction or confession on 
 indictment, evidence in the civil action ? If the damages recovered do not 
 exceed what sum — in the superior court — in the county court — how as to 
 costs? Suppose one acquitted — how as to his costs ? 
 
 9. Injuries affecting health ? — case of physician ? Difference between 
 trespass and case ? The latter why so called ? When is trespass and when 
 is case the proper remedy ? 
 
 10. Injuries to reputation how divided? What words at common law 
 were in themselves actionable? What imputation of crime — or disease or
 
 ciiAr. 5.] THE COMMENTARIES. 5 
 
 dishonesty and unfitness for office or want of professional integrity or abili- 
 ty ? How are words not actionable in tlienisclvcs, if there be special da- 
 mage ? How to be laid in such case ? "What is the law of Virginia as to 
 actionable words ? 
 
 11. In what sense are defamatory words now understood ? How former- 
 ly ? Can a joint action lie against two for speaking the same words ? How 
 in case of slander by a. feme covert! Suppose the declaration be entirely 
 by way of recital? How would it now be after a verdict? How before 
 1819 ? Inuendo, its use, object, and extent ? Colloquhan when and why ne- 
 cessary ? 
 
 12. What is the general issue? Can matter of justification be offered 
 under it? Justification how to be pleaded ? What arc justifications ? How 
 when the party gives up his author? Sup])0se the defendant was insane 
 when he spoke the words ? What other special pleas are there in this ac- 
 tion ? 
 
 13. Suppose the substance of the words only proved ; — or only part of 
 them ; — or that they were spoken to the face instead of behind the back — 
 or interrogatively instead of affirmatively ? Suppose plaintiff lays special 
 damage and fails in proof of it ? 
 
 14. Is evidence proper to be introduced by plaintiffof other expressions 
 of ill will by defendant ; — or of his own good character ? Can defendant 
 give evidence of plaintiff's having first slandered him ; — or of his general 
 bad character — and in what regard ; — or of particular acts not specially 
 pleaded ? Or circumstances of suspicion not amounting to actual proof? 
 What course is best in this last case ? 
 
 15. How is the verdict in slander ? When will the plaintiff recover no 
 costs though he recovers a verdict ? 
 
 16. Written libels. May words not actionable be libellous if reduced 
 to writing ? Reason of the difference ? What is libellous ? What amounts 
 to publication ? [Chitty.] Can the defendant plead the truth in justifica- 
 tion? How is it in a criminal prosecution ? Suppose the person libelled 
 be a public officer or a candidate for office? 
 
 17. Malicious prosecution ; in what does this injury consist? What the 
 remedies ? Difference between indictment for a conspiracy ; an action for 
 a conspiracy; — and action on the case in the nature of a conspiracy and 
 action on the case for malicious prosecution ? Which the usual remedy ? 
 In what cases does case for malicious prosecution lie ? What must appear? 
 
 18. What inferred from want of propable cause? Is the question of pro- 
 bable cause matter for the court or jury ? Or is it a mixed question ? How 
 may it be brought before the court ? What essential to be stated in the de- 
 claration ? How as to the words " without probable cause " ? 
 
 19. What proof must plaintiff offer? On whom is the onus probanda 
 Is a copy of the record of prosecution in all cases granted ? Distinction 
 herein ? Suppose it be obtained without leave ? How is this matter prac- 
 tically in Virginia ? 
 
 20. What evidence may defendant produce? How is the verdict if the 
 jury find for the plaintifi"? 
 
 21. Homine replegiando : does it exist with us ? Habeas corpus, what? 
 Habeas corpus ad respondendum ; — ad testificandum — ad faciendum et re- 
 cipiendum ? The great writ of habeas corpus 1 
 
 22. What is the name of the great writ of habeas corpus 1 Who is en- 
 titled to it? Was the habeas corpus act always as comprehensive ? Who 
 may apply for the writ and how ? What did the statute, ch. 2, provide as 
 to this? What does ours? Will the party's own affidavit suffice; and to 
 what purpose ? What must the petition shew ? Is our law herein like the 
 English statute? How ia this clause to be interpreted, where the par-
 
 6 ANALYSIS OF [ book 3-. 
 
 ty is bailable ? To whom must the publication be directed ? In England ; — 
 in Virginia ? Is there a penalty for refusing by any former or present Vir- 
 ginia statute or by the English statute ? Obedience to the writ how enfor- 
 ced? How in vacation? How is it issued ; by whom signed ; to whom 
 directed ; when returnable ; — what bond may be required ? Duty of per- 
 son on whom the writ is served? Time allowed? Penalty for failure? 
 Cause of detainer, how ought it to be certified ? Is it conclusive ? Evi- 
 dence how obtained ? When to be made part of the record ? Power of 
 appeal, &.c. ? Are these privileged cases ? To what only will the appel- 
 late court look? Suppose the court of appeals not in session? Is the 
 judgment final unless reversed ? What is to be done with ihe record ? To 
 what cases are these writs usually applied ? Are they proper to try a ne- 
 gro's right to freedom ? What is provided as to removal of persons from 
 the custody of one officer to another? 
 
 23. When the court has heard the cause what may be done ? What pro*- 
 vided as to costs? Suppose the party insolvent? ^See as to this subject, 
 1 R. C. chap. 120.] 
 
 24, In what action can a party recover satisfaction for a false imprison- 
 ment? What satisfaction does he recover? What is an imprisonment? 
 Whence do these complaints usually arise ? Suppose from the nature of 
 the case the party is not liable to arrest at all ? (e. g. an executor who is 
 not sued for a devastavit.) Suppose the party is only privileged ; is the 
 officer liable at all; — and how is the plaintiff in the writ liable? Can tres- 
 pass vi et amis lie for arrest under process that is not void ? Suppose it is 
 irregular and quashed afterwards — how is it as to the officer ; how as to 
 the plaintiff? Suppose the court issuing the process has no jurisdiction ? 
 Suppose a rightful imprisonment is wrongfully continued ? Are judicial 
 oflicers liable for mistakes of judgment? Suit against the plaintiff in the 
 process and the officer jointly, how ought they to plead ? How as to dama- 
 ges and costs ? 
 
 Chapter VI. — Of injuries to Personal Property. 
 
 1. What statement of demand and refusal generally suffices in detinue? 
 When required to be special ? How may executor, &.c. declare in detinue? 
 What is the general issue in detinue ? How should the jury find the values 
 and why? How as to the damages ? Suppose the verdict omits to find as 
 to part of the articles ? Or as to the value ? Or where there are several 
 issues ? To what time are damages estimated ? Can hires accruing pen- 
 dente an appeal be recovered ? 
 
 2. Suppose defendant aliens pendente lite ? Suppose judgment against 
 A, who before suit has sold to B, will detinue be against B? What is the 
 remedy ? After one judgment against A, will another action against him 
 for the sante thing lie? Suppose in case of a slave he dies pending the 
 suit, whose loss is it? How ought defendant to avail himself of the fact? 
 Difference herein between detinue and trover? 
 
 3. Form of the verdict in detinue? How is the judgment? What the 
 execution ? What the effect of the distringas ? Does it take the proper- 
 ty itself? What becomes of the issues and profits ? Suppose distringas 
 is returned executed without satisfaction? Suppose then the plaintiff can 
 not get the property? Is any motion necessary? How is the bail bound? 
 What is he empowered to do after judgment ? What remedy in equity for 
 the specific property ? What may a court of chancery do before? 
 
 4 Suppose the property is worth less than $20? 
 
 5. Trover and conversion. How different from detinue in Its object? 
 How from trespass de bonis asportatis ? Or trespass on the case for negli"
 
 CHAP. 6.] THE COMMENTARIES. T 
 
 gence ? In whom is the properly supposed to be by this action 1 Suppose 
 it sold pendente lite? Or that it dies? Effect of recovery in trover on the 
 right of property ? 
 
 6. To what cases is this action applicable? What is the gist of it? Is 
 the finding traversable? Or the defendants having come lawfully into pos- 
 session? Will special property maintain it ? Or a title in reversion? May 
 bailor and bailee both have the action? Rule as to this ? Joint-tenants 
 and tenants in common how to sue? When a plea in abatement good? 
 Distinction between actions ex contractu and ex delicto ? 
 
 7. Husband how to sue in trover for his wife's property ? Damage how 
 laid? How when she is executrix, &c.? How to be sued ? Joint-tenants, 
 &c. when can they sue each other in trover? Will trover lie by or against 
 executors and administrators? 
 
 8. Must time and place and value be laid ? — and proved ? General issue 
 what? What evidence under? What should be specially pleaded ? Sta- 
 tute of limitations, when does it begin to run ? Evidence for the plaintiff;— 
 and defendant ? Demand and refusal, what evidence of? Is it conclusive ? 
 Why not? Damages, what the measure of? Suppose defendant conceals 
 the goods ? Suppose he brings them into court or delivers them to plaintiff? 
 
 9. What remedies are given for abduction of a wife, or in cases o{ crim, 
 con.? How must the marriage be proved? What is proper evidence to 
 enhance damages? What may be given in mitigation or even as a bar to 
 the action ? How if the husband and wife live separate ? 
 
 10. What actions may a father bring for abduction of his child, or for 
 seducing his daughter? What is necessary to be proved in the action for 
 seduction? Suppose the daughter be more than 21 years of age and does 
 not live with him ? How as to the right to the action of the person with 
 whom she does live? Is the daughter a good witness? Will new trials 
 be granted for excessive damages? 
 
 11. What are the proper actions for beating or retaining a man's servant? 
 What in such case must appear? Is the scienter material in the case of a 
 slave ? 
 
 12. Replevin what? Describe the proceedings in this suit as at com- 
 mon law ? What was necessary to be done to entitle the tenant to the 
 writ ? When it issues what is done with the property distrained ? If the 
 tenant succeeds what does he recover? If the landlord succeeds what is 
 the judgment ? 
 
 13. Nature of the action 1 Declaration, what it should set out ? Pleas 
 to 1 Avowry what? Form of? Pleas to avowry ? Who may and ought 
 to join in? This remedy when only advisable? Landlord how otherwise 
 liable ? 
 
 14. Detinue — nature, object, and requisites of this action ? Possession in 
 defendant, what sufficient "? Does it lie where possession is tortious 1 How 
 far and what kind of property in the goods is essential? Is possession at 
 some time necessary to be proved in plaintiff? How as to value and iden- 
 tity of the goods? Declaration, precision in, why required? Form ofl 
 How to declare as to value of several articles ? And why 1 
 
 15. May the jury exceed the value laid 7 And why ? Request, when 
 necessary to be specially slated ? Executor or administrator, how he must 
 declare? How be declared against? 
 
 16. Pleas in this action? How may defendant protect himself by the 
 statute of limitations 7 Verdict, how it should find when there are several 
 articles of several values 7 And why ? How as to joint damages ? Hires 
 pending appeal, whether recoverable ? How as to hires between verdict 
 and judgment? Verdict, proper form of? 
 
 VOL. 2 — 65
 
 S ANALYSIS OF [ book 3. 
 
 17. Judgment, its effect against a pendente lite purchaser ? How to 
 proceed where the purchase was before action brought? Suppose a slave 
 sued for dies pending the suit, whose loss is it ? How should the defend- 
 ant avail himself of the fact? 
 
 18. Execution in detinue ? What is the command and effect of the dis- 
 tringas ? Where do the rents and profits go ? When and how is the dis- 
 tringas superseded 1 What other executions may the plaintiff havel How 
 to be obtained ? Imperfection of the execution in detinue? 
 
 19. Proceedings against the bail in detinue 1 Detinue where the pro- 
 perty is worth not more than $20. Wager of law, whether available now 
 in this action ? 
 
 20. Trover and conversion ; nature, objects, and requisites of this action 1 
 How it differs from detinue ? How from trespass de bonis asportatis 1 How 
 from case for negligence? Effect of the character of this action as to the 
 property in the thing ? Effect of a verdict for the plaintiff for the value up^- 
 on the right of property? 
 
 21. Various cases to which this action is applicable? Stoppage in tran-r 
 situ, and right of lien, how tried by it? Lien, right of, to what principally 
 confined? Kinds of? What express? Implied? General or special? 
 Is the doctrine of general lien favored? Cases of attorney, innkeeper, me- 
 chanic ? 
 
 22. Nature of property this action lies for ? Plaintiff's title ? Who may 
 and must join in ? Distinction herein, between actions of tort and con- 
 tract ? Trover in the case of baron and feme? Or wife executrix ? Case 
 of joint-tenant or tenant in common ? Trover by or against executors, &c.? 
 
 23. Declaration, its requisites ? In case of baron and feme? Pleas to? 
 General issue ? Stat. lim. — when does it begin to run? 
 
 24. Evidence in ? Conversion how to be supported ? Demand and re- 
 fusal how coifsidered? Evidence for defendant? Verdict for what? Da- 
 mages how mjeasured ? Modern rule as to bringing in the goods 7 
 
 25. Suppose the goods prove to be under $20 value ? 
 
 26. Trespass vi et armis and on the case, distinction between them ? 
 
 27. Trespass de bonis asportatis, when it lies? Effect of a verdict for 
 the full value on the right of property? 
 
 28. Trespass vi et armis, for injuries to personal property ; essentials to 
 this action? Special properly, whether sufficient to sustain the action? 
 How as to possession? Can bailee maintain it? For what species of pro- 
 perty does it lie? Does it lie in any case where defendant comes lawfully 
 into possession ? Effect of a release to or satisfaction by one of several 
 joint trespassers ? 
 
 29. Declaration, how should it set forth the cause of action? Suppose 
 the charge is only by way of recital ? What is the general issue in this ac- 
 tion ? Other pleas? What is remarked as to the evidence in suits against 
 joint trespassers? As to justification under execution ? 
 
 30. Verdict how found? May the jury sever in damages? Or acquit 
 one and find others guilty ? Can a new trial be granted in this case ? When 
 shall the plaintiff have no more costs than damages ? 
 
 31. Trespass on the case ? Whence arose the phrase " action on the 
 case" ? Varieties of this action? In what cases has the law provided 
 specific remedies ? Case for consequential injury, when it lies ? For inju- 
 ries to the person ? Or to the property ? By the defendant or his servant ? 
 Or vicious animals ? Or the plaintiff in the relation of husband, father, or 
 master? Against public officers ? For irregular distresses ? 
 
 32. Declaration, how should it set forth the cause of action ? Pleas in 
 ihia action? Verdict, how found?
 
 «HAP. ?.] THE COMMENTARIES. 9 
 
 Chapter Vll.— Debt. 
 
 1. Express contracts, what included in "? Debt what ? Action of, when 
 it lies ? Ditficulties in respect to indeterminate contracts, which render thia 
 action unadvisable in such cases ? Wager of law, qu. if it etill exists ? 
 Suppose the plaintiff proves a different contract, or for less than his de- 
 mand ? Suppose the contract proved, but part paid ? Why is assumpsit 
 to be preferred on simple contracts ? When debt will not lie against an 
 Executor ? Will it lie against acceptor of a bill of exchange V How as to 
 bail bonds with us 1 When does this action lie against a sheriff? Sum- 
 mary remedy against him ? 
 
 2. Declaration, how it should set forth the cause of action ? And the 
 consideration of the contract? When consideration presumed? Form of 
 declaration ? Venue, object of 1 How and when to be laid under a vide- 
 licet ? Jurisdiction, when to be specially set forth ? Names of parties, 
 effect of erroneously setting them forth? Relator, how to be set forth? 
 Consequence where the sum or date is misrecited ? How taken advantage 
 of? How to declare on a tobacco bond ? On a bond with a penalty? On 
 a single bill? How and when to demand interest? When allowed with- 
 out demand? How to declare where action is oil several bonds together 1 
 Debet and detinet, when to declare in, and when not ? As against execu- 
 tors ? Or heirs? How to declare whei'e defendant's name is misspelt? 
 Where there are several defendants? Profertwhat? When and how to 
 be made ? When dispensed with, and how in such cases to declare ? Da- 
 mages, object of laying? How in action for sterling money? 
 
 3. Debt upon assigned bond, form of declaring? In whose name? Oil 
 bond for payment by instalments what demanded ? How is the judgment 
 thereon? 
 
 4. Pleas in this action? Nil debet, when proper ? General issue what? 
 Special non est facluinl How to plead matter extrinsic in avoidance of a 
 bond? When in such case should you crave oyer and demur? Payment 
 how pleaded? Effect of defence as to the whole and a plea going only to 
 part ? What course should plaintiff lake in such case ? How where de- 
 fence is only as to part ? What must be filed with plea of payment ? What 
 other pleas in this action ? 
 
 5. Presumption of payment from length of time ? What sufficient with- 
 out evidence in aid ? What facts sustain presumption ? Difference be- 
 tween presumption of payment and the bar of the statute of limitations'? 
 What facts rebut presumption ? 
 
 6. Application of payments, rules as to ? How particularly as to prin- 
 cipal and interest ? 
 
 7. Plea of foreign attachment, when it should be in bar and when in 
 abatement? What amounts to a restraining order in cases of foreign at- 
 tachment? Can there be such attachment before the debt is due ? Whefi 
 and how far is defendant protected, in attachment cases, from interest? 
 
 8. What is the plea to debt on bond of indemnity ? Or to debt for rent ? 
 
 9. How far is plea of discharge under insolvent laws valid ? 
 
 10. Plea of set off, what ? Object of allowing set off? Set off how con- 
 sidered ? Plea of, how considered? Certainty necessary in ? Discounts 
 Up to what time allowed ? With what restrictions ? What set offs not ad- 
 mitted? How as to unliquidated damages? Is the rule the same in equi- 
 ty ? How as to demands barred by statute of limitations ? How as to 
 discounts against executors suing for a debt due to their testators / Are 
 set offs allowed where the debts are not in the same right ? How as to 
 partnership and individual demands ? How as to debts to or from surviving 
 partners? How as to demands due to defendant's wife? Judgments ho\^
 
 10 ANALYSIS OF [bookS. 
 
 set off? Form of plea of set off? Where the sum is equal to, or less, or 
 greater tlian plaintiff's demand'? Liability for assigned bond, how set off 
 by assignee against assignor'? Will courts of equity permit discounts in 
 any case which would be refused at law ? Did set offs exist in equity be- 
 fore the statute ? Retainer when permitted, on the principle of bills quia 
 timet 1 
 
 11. Plea by the heir, what proper? How is he charged'? In respect 
 of what? Heir of heir how to be declared against? Must all the heirs be 
 parties? And why? Principles of the action against the heir? Is he' 
 bound without assets descended ? Was he personally responsible at law 
 before the statute? How is it by the statute? Plea since the statute"? 
 Judgment, effect of? Land descended, from what time bound ? 
 
 12. Effect of false plea or omission to plead by heir? Creditor's mode 
 of proceeding at common law under different circumstances? Alteration 
 effected by the statute"? Best course for the heir? What he ought to con- 
 fess? How one should plead where his co-heirs have wasted their portions ? 
 How the judgment should be? 
 
 13. How may the devisee be made Kable under the statute ? How he 
 should plead ? 
 
 14. How is judgment to be rendered against the heir? What execution; 
 goes where the judgment is against the land? Or where it is personal, 
 against the heir? Is the heir liable for rents and profits? What does equi- 
 ty require before it decrees a sale ? How far are the lands liable in the 
 hands of the heir? 
 
 15. Plea by executors and administrators what? iVe Mn^rwes executor, 
 when a proper plea ? What may executor plead ? How he should plead ? 
 How far chargeable ? Phne administravit, how to be pleaded"? What may 
 be replied to plene ad. prater ? 
 
 16. Pleas to an action on assigned Bond, what ? 
 
 17. What evidence must be produced on the plea of won esf factum f 
 Wiiat exceptions to the rule requiring the subscribing witness? 
 
 18. What evidence on the plea of fully administered on the part of the 
 plaintiff? On the part of the defendant? Inventory and appraisement 
 how far and for whom evidence ? Exparte settlement, how far evidence ? 
 
 19. Verdict how to be found ? On simple contract, or single bill, or note ? 
 How on bond in a penalty or on bill penal ? How in all these cases where 
 part has been paid ? Judgment how to be rendered ? How in case of debt 
 payable by instalments ? Verdict on plene administravit, where partially and 
 where fully supported ? Costs when verdict is for the executor, where there 
 is but one plea ? Or more pleas than one ? To what time does the judgment 
 when assets refer? What judgment where the demand is proved, but there 
 are no assets? What remedy if assets afterwards accrue? 
 
 20. When can costs be given against executor plaintiff? Can they be 
 levied of the goods of executor defendant? What is done where one of 
 two defendant executors has fully administered and the other has not ? 
 How should the verdict be on plea of " payment to assignor" ? 
 
 Chapter VIII. — Covenant. 
 
 1. Covenant what? Action of, for what it lies? Covenant real what? 
 Action upon, how used formerly ? What recovered in covenant? Upon 
 what instruments it lies ? Against, and for whom ? 
 
 2. Covenants how divided? Express what? Implied what? Real what? 
 What words constitute a covenant ? Express covenant to what extended ? 
 How they effect covenants in law ? Party how bound to perform ? What 
 eovenanta usual in deeds for land ^ To pay rent whether excused by fire.
 
 ciiAP. 9.] THE COMMENTARIES. 11 
 
 &c. ? To save harmless what a breach of? Against assignment or under- 
 letting how broken ? Whether broken by levy of execution on the lease ? 
 For repairs to what it extends ? Of seizin or against incumbrances, how 
 and when broken ? For further assurance, duties of the parties under this- 
 covenant ? 
 
 3. Will covenant lie on bond with collateral condition ? How do you 
 declare in such case ? How is the verdict and judgment ? Can you in co- 
 venant exceed the penalty of the bond? What is the difference between a 
 penalty and liquidated damages? 
 
 4. How are covenants divided in reference to the time of their perform- 
 ance ? What are dependent and what independent ? General rules for 
 determining this ? What is the modern rule for construing covenants iii 
 this regard ? 
 
 5. Covenants how further divided ? Affirmative how broken ? Negative 
 how broken ? Manner of pleading to affirmative and negative covenants ? 
 
 6. Covenants how further divided? In joint covenants who must join in 
 action ? W^hen parties to covenant may sever? Objection in either case 
 how made ? 
 
 7. Covenants real, who entitled to benefit of? If broken in ancestor's 
 lifetime who must sue ? By what covenants is the heir bound ? How as 
 to the executor? Is a devisee chargeable in covenant? How is it best tOi^ 
 proceed against him on a bond for performance of covenants ? 
 
 8. How far are assignees bound by, or entitled to, benefit of covenants ? 
 
 9. Declaration in this action, rules respecting ? Causes of action how 
 to be stated ? Breach how to be assigned ? Damages what amount should- 
 be laid ? 
 
 10. Plea ; general issue what ? Other pleas ? 
 
 11. Evidence ; can the covenant be introduced if misrecited ? 
 
 12. Verdict how found ? Measure of damages in cases of covenant to? 
 repair ? For sale and delivery of stock, &c. ? For replacing stock ? How 
 does the rule differ from that as to the measure of damages in trover, &c. ? 
 
 Chapter IX. — Assumpsit. 
 
 1. Assumpsit what? For what does the action of assumpsit lie? Va- 
 rious implied assumpsits ? Quantum meruit— quantum valebat, and insimul 
 computassent ; explain these severally. For money had and received, or 
 laid out and expended ; explain these implied assumpsits. 
 
 2. Will a consideration be implied from a promise ? 
 
 3. Assumpsit how divided ? General indebitatus, nature of? SpeciaF 
 assumpsit, nature of? 
 
 4. On what contracts is assumpsit maintainable ? General principles of 
 the action ? Cases in which it lies ? Mistake, failure of consideration, 
 void authority, extortion and fraud, reversal of judgment, illegal contract;- 
 when and where not sufficient grounds of this action? Can particeps cri- 
 minis recover in this action ? When does the action lie for fees, or reward 
 for labor ? Or for a duty imposed ? Or for money paid in invitum, or at 
 the defendant's request ? 
 
 5. Implied assumpsits — can they exist when there is an open subsisting 
 agreement ? And why not ? What three classes of implied assumpsit are 
 there ? 
 
 6. On what express contracts will assumpsit lie ? Suppose a contract 
 be sealed ? What contract implied on sales of goods ? Remedy, if title 
 be defective ? Auction sales, rules respecting printed conditions of? Re- 
 medy where there is fraud in sale ? What must be done by vendee ? In 
 sales, on whom is the risque of delivery ? Sale when complete ? When
 
 12 ' ANALYSIS OF [bookJJ; 
 
 void, because of employment of puffers ? Is an agreement by two not to 
 Lid against each other vahd or void ? Rules as to sale on credit, and re- 
 moval of property before security given ? Re-sale, when lawful ? 
 
 7. Use and occupation, on what undertaking does it lie ? Is " nil ha-' 
 buil " a good defence. 
 
 8. What contracts will not support assumpsit? Suppose payment for 
 defendant against his will ? What not so considered ? Suppose service 
 done as a voluntary curtesy or in expectation of a legacy ? What not con- 
 sidered as a mere curtesy ? When plaintiff may support the action though 
 the transaction was illegal? When not? 
 
 9. Can the action be sustained where the consideration arises out of a 
 fraudulent transaction? Or is frivolous, or groundless, or the demand is 
 unconscientious ? Will it lie on express promise, sustained by moral obli- 
 gation ? Can implied promise be raised from such obligation? Will this 
 action lie where there is a specially ? Distinctions upon this point? 
 
 10. Can a party recover back what he has voluntarily paid ? Will the 
 action for money had and received lie for stock? Or where the right can- 
 not be fairly tried in that form of action ? 
 
 11. When will it lie against an executor so as to charge him out of his 
 own estate ? What promise is and what is not within the statute ? 
 
 12. AVhether a consideration be necessary where his promise is in writ- 
 ing ? And whether he is not liable even without writing, where he pro- 
 mises in consideration of forbearance ? 
 
 13. What cases are or are not within the clause, which respects a pro- 
 mise to pay the debt of another? Distinctions on this point ? What con- 
 sideration necessary ? Must it be inserted in the memorandum ? 
 
 14. Cases within the clause respecting agreements in consideration of 
 marriage ? Are promises to marry within it? 
 
 15. What a sufficient signing within the statute ? 
 
 16. In what case can one not a party to the agreemen-t maintain this ac-* 
 tion ? General rule as to this matter ? Will the action lie on mere gene- 
 ral declarations ? 
 
 - 17. Factors — when may they maintain this action ? Exception ? What 
 lien has the factor ? For what answerable ? How he ought to sell ? 
 
 IS. Masters and owners of ships, how liable for general charges, repairs, 
 and wages ? Seamen's wages when due ? When not recoverable ? Wherr 
 forfeited ? What is provided by the laws of the U. S. ? Law as to wages 
 in letters of marque or privateers ? 
 
 19. By what act or agreement a man may be made liable as a partner? 
 Who must join in suit for partnership demands ? How where one partner 
 dies ? 
 
 20. Executors; how they may sue or be sued in this action? When 
 liable for costs ? 
 
 21. Declaration in assumpsit. Why is it usual to join several counts ? 
 If the contract be express, will the general counts suffice ? Will indeb. as- 
 sumpsit lie for indorsee of bill of exchange against indorser ? 
 
 22. What averments necessary where there is a previous act to be done 
 by the plaintiff ? Or a simultaneous act ? Notice and request, when and 
 when not necessary ? When averment of readiness is not necessary ? 
 
 23. What is the gist of this action ? Suppose no promise is laid ? Or 
 no consideration ? What step should defendant always take, to prevent 
 the defects in the declaration being cured by a verdict? 
 
 24. What are the general counts? For what they lie ? Their object? 
 And the difference between them? General rules as to these common 
 counts ? What mupt be filed with the dec. ? What a sufficient compliance 
 with the statute ? The breach of promise how to be laid ? Day of the
 
 CHAP. 9.] THE COMMENTARIES. 13 
 
 promise, when material ? When necessary to set forth (under the statute) 
 a note in writing ? 
 
 25. Suppose one count faulty, and a general verdict ? How executor 
 ought to sue on his own contract, respecting the estate ? What can he 
 join in the same action ? What demands against him may be joined ? 
 What may he join in the same action ? 
 
 26. Contract laid, how to be proved ? Dec. setting forth oral contract, 
 how it may be sustained ? Is there any other distinction between agree- 
 raents than specialty and parol ? How to declare when the promise is al- 
 ternative ? 
 
 27. When plaintiff may resort to the general counts ? When not ? Prin- 
 ciple of the rule ? When contract is entire can it be apportioned ? Rule 
 as to the allegata and probata ? 
 
 28. Action by or against partners, how should it be brought? Omission 
 of one how to be objected ? Difference herein between tort and contract? 
 
 29. What will sustain a count of insimul computassent ? What evidence 
 necessary though the plea admits a debt but not the quantum ? 
 
 30. What essential in the plea? Suppose it answers only part? Sup- 
 pose defendant pleads only as to part? Can defendant plead a counter- 
 mand of his promise ? How must he avail himself of matter of law in his 
 defence ? 
 
 31. Is accord and satisfaction a good plea ? How as to payment ? What 
 must appear in a plea of accord ? 
 
 32. Limitations, how used as a defence? What law of limitations go- 
 verns ? Against what demands does it run ? Does it ever stop ? Does it 
 apply to bills or notes ? Or for an attorney sued for money collected ? 
 
 33. Statute how avoided ? What exceptions to ? Law as to merchants' 
 accounts ? Or current accounts ? What is an account stated ? Does the 
 exception only embrace actions of account ? Does it embrace store accounts 
 of retailers? Limitation as to them? What saving does the statute con- 
 tain ? Beyond sea what it means ? Who cannot plead the statute? 
 
 34. What are the provisions of the act of limitations as to executors? 
 When does the statute begin to run ? What avoids it? How as to a new 
 promise ? What acknowledgment will suffice ? Does the acknowledgment 
 constitute a new substantive cause of action, or draw down the original ? 
 
 35. What is the effect of new promise by a partner ? Or by executor as 
 k respects the heir or administrator de bonis non ? Will a bill in equity lie 
 to compel discovery of new promise ? 
 
 36. How may the statute be avoided by suing out process ? What is 
 meant by "journey's accounts" ? What is the effect of a pending bill in 
 equity ? 
 
 37. How is the statute to be pleaded ? When should the plea be actio 
 non accrevitt How fraud may be replied ? 
 
 38. Is the plea of bankruptcy sustained by a discharge as an insolvent? 
 
 39. What is a plea of tender? When proper ? How is it to be pleaded ? 
 What the effects and consequences of the plea ? What a good tender ? 
 How to be made ? 
 
 40. Is infancy to be pleaded, or is it evidence under the general issue ? 
 Plea of, how avoided ? What considered as necessaries ? Contract of in- 
 fant how ratified at full age ? How then to be declared on ? Contract of, 
 when binding on the other party ? 
 
 41. How is the bar of a former judgment to be used ? What kind of 
 judgment is a bar? How is pendency of a former action to be pleaded? 
 How the plea of former attachment ? Or former recovery ? When only is 
 this a bar ? When matter of abatement only ? How do you plead a rc^f
 
 14 ANALYSIS OF [book 3. 
 
 lease or arbitrament? Or alienage ? Or set off? What is the general is- 
 sue ? What may be proved under it ? 
 
 42. Verdict how to be found ? Where there are several pleas ? Where 
 there is judgment by default, what evidence necessary on writ of inquiry? 
 Plaintiff when and when not non-suited for want of jurisdiction ? 
 
 43. When are costs to be given against executors or administrators? 
 
 44. What is the special action on the case, and out of what did it arise ? 
 Give instances of it — in cases of sheriffs, attorneys, innkeepers, mechanics, 
 and others? What warranty is implied on the sale of goods? What im- 
 plied from representation though no scienter? 
 
 Chapter X. — Of injuries to Real Property. 
 
 1. What are the injuries affecting real rights? What is ouster? By 
 what five methods is ouster of the freehold effected ? What is abatement? 
 Intrusion? Disseizen ? Disseizen of incorporeal heraditaments ? Of rents? 
 What constitutes disseizin of the freehold ? What is discontinuance ? De- 
 forcement ? Several kinds of ? The remedy for injury by ouster? How 
 enforced? By entry when ? And how ? What is continual claim? En- 
 try when tolled ? Exception when claimant is under disability ? Reason 
 for doctrine of tolling ? What necessary to complete title ? Forcible en- 
 try or detainer how redressed ? 
 
 2. Ejectment, remedy by, what and when proper? Explain the princi- 
 ples of this fictitious contrivance ? What is the casual ejector ? What 
 must the defendant confess ? What must plaintiff make out? Judgment 
 how rendered ? And what the writ of possession ? 
 
 3. Action how commenced ? Declaration and notice how drawn ? How 
 served ? How to proceed on the day to which notice is given ? Common 
 order how entered ? What particulars are to be observed as to the decla- 
 ration ? How where several sue having joint title ? How where several 
 sue having several interests ? Who may bring ejectment and against whom 
 and how many ? 
 
 4. What is the plea in ejectment ? How is the act of limitations a de- 
 fence ? What is that limitation at this time ? Does it ever stop ? Can 
 disabilities be tacked together? How is it, where there are two parceners 
 and only one under disability ? How as between trustee and c. q. t. ? How 
 as to tort feasors ? May defendant succeed by merely proving title out of 
 the plaintiff? 
 
 5. May plaintiff recover on his own length of possession ? Can he re- 
 cover by the weakness of defendant's title ? Can he be barred by outstand- 
 ing satisfied term ? Can he be called on to prove defendant's possession? 
 Is defendant now bound in England to confess possession on the common 
 rule ? Does ejectment abate by death ? 
 
 6. What is the verdict? How it should find the land? Can plaintiff 
 recover less than he claimed? What is the form of the judgment ? And 
 its effect ? Is it a bar to another ejectment ? What is a bill of peace ? 
 What are the damages in ejectment? 
 
 7. Trespass for mesne jjrofits how brought? What proof required in ? 
 When proof of title necessary? Pleas in ? How may defendant protect 
 himself by the stat. of limitations ? 
 
 Chapter XI. — Remedies for injuries to Real Property — continued. 
 
 1. Writ of right what ? When appropriate? What at common law was 
 demandant bound to allege ? Proceedings in this action in Virginia how 
 regulated ? Who may sue out writ of right ? Against whom ? Pleas for
 
 CHAP. 12.] TrtK COMMENtARIES. 15 
 
 defendant, who disclaims? Judgment in such caec? How may tenant for 
 life have aid? What provided as to cssoigns, views, and vouchers ? 
 
 2. Where to be brought ? Form of the writ ? How returnable and pro- 
 ceeded on ? Count, form of? Wliat observable as to it? lioundarieshow 
 ascertained and to be set forth ? Whether demandant must prove scizen ? 
 Different grades of seizin or possession ? 
 
 3. Plea or joinder of the mise ? Form of? What is the replication? 
 Other pleas ? Is matter of abatement proper evidence on the trial of the 
 mise ? ' Plea in abatement, how put on ? What farther regulations adopted 
 to prevent delay ? Can the pleadings be oral ? What caution to be ob- 
 served by demandant's counsel. 
 
 4. May special matter be given in evidence ? Who commences and 
 concludes ? What title must demandant make out, and how ? How may 
 defendant protect himself? What is the limitation now to writs of right ? 
 Are mere squatters protected by the statute ? 
 
 5. Verdict, form of? May there be a special verdict? Or new trial? 
 What is the form of the judgment for demandant ? For tenant ? In case 
 of non-suit ? Is it a bar? What is the proper execution ? 
 
 6. Caveat, when ? Where it lies ? Omission to caveat, when relieved 
 against in equity? What provision recently enacted ? Is it retro-active ? 
 Who only may maintain a caveat? What is the effect of dismission of? 
 What the usual question tried on caveats ? What entries are good and 
 sufficiently specific ? What is meant by a general and particular descrip- 
 tion ? Mode of proceeding in caveats ? 
 
 7. What provisions have been enacted as to repeal of patents ? Object 
 of the law ? What must petitioner show ? And how must he proceed ? 
 Decree in such case ? Limitation to such proceedings ? 
 
 Chapter XII. — Of Trespass, Nuisance, Waste, 6)C. 
 
 1. What means trespass in its enlarged sense? What in reference to lands? 
 What amounts to? When may j.ury exceed the actual dam.age? What 
 essential to maintain the action ? What possession ? How far is defend- 
 ant liable for damage by his cattle ? 
 
 2. Suit where to be brought? Trespass how to be charged? When 
 with a continuando? Whether defendant may justify for distress, hunting, 
 or gleaning? What justifications he may plead ? Or bars to the action ? 
 Who considered trcspnsser ab initio? Plea of freehold in himself; what 
 does this bring in question ? Is it evidence under general issue ? What is 
 the general issue ? What damages carry costs ? How if trespass was 
 wilful ? 
 
 3. What is nuisance ? Kinds of, effecting corporeal hereditaments ? To 
 houses ? To lands ? As to water courses ? What length of enjoyment of 
 exclusive privileges affords evidence of right ? Is the presumption conclu- 
 sive ? May party injured abate the nuisance ? 
 
 4. As to incorporeal hereditaments, instances of nuisance? What not 
 considered a nuisance ? What are the remedies for a nuisance ? The pub- 
 lic and private remedies ? When private action lies for public nuisance ? 
 Remedies by suit, effect of? How should a party show forth, or plead his 
 twenty years' enjoyment ? 
 
 5. Waste what? Estrepement what? Who entitled to bring a writ of 
 waste ? What action may remainderman for life bring where there has been 
 waste ? Who may maintain the action on the case for? What is recover- 
 ed in that action ? What by the writ of waste ? Judgment in this last, 
 how given ? 
 
 VOL. 2 — 6G
 
 16 ANALYSIS OF [ BOOTt 3. 
 
 6. Disturbance, what cases of exist with us ? Declaration in, what should 
 it set forth ? Where right of way is by agreement, how is it to be set forth ? 
 
 7. Quo loarranto ; nature of tliis remedy ? To what cases applicable ? 
 How judgment is, if rendered for defendant? Or for the crown? Infor- 
 mation in the nature of quo warranto, why substituted for the old remedy ? 
 
 8. Mandamus what? When is it peremptory? When it does not lie? 
 How is it brought and proceeded in ? Does it lie to compel the allowance 
 of a supersedeas ? 
 
 9. Prohibition, writ of, what? What is its character and object? And the 
 mode of proceeding in? What is the writ of consultation, and wheiv 
 awarded ? How party may defend himself in prohibition ? What is the 
 j^udgment for the plaintiff? 
 
 Chapter XHI. — 0/ Joinder of Actio7is. 
 
 1. Upon what does the joinder in action depend ? What the test of pro- 
 per joining ? What counts in form ex contractu may be joined ? What in 
 
 -ibrm ex delicto ? Can those in form ex contractu be joined with those ex de- 
 licto? How far can counts in one species of action be joined with counts 
 in another? When may several rights of actions and liabilities be joined ? 
 
 2. How should cause of action be stated against several, whether in tort 
 or contract? When is the wife properly a co-plaintiff? Can a plaintiff 
 join a demand as executor to a demand in his own right f Why not ? How 
 where he is defendant? What are the consequences of misjoinder? 
 
 3. Who are proper parties to the action — in actions on contract ? First, 
 as between the original parties ; who are properly })laiHtiffs ? Who must 
 join ? Who may join ? Secondly, how is it where the contract has been 
 assigned ? Or part of obligees dead ? How as to representatives of one of 
 several obligees, &c. who is dead ? How as to executor of executor ? How 
 in case of feme covert ? What are the consequences of mistake ? Who 
 are proper parties defendant, as between the original parties? Who must 
 be joined? Who may be joined ? Can separate judgment be rendered on 
 a joint action? Consequences of misjoinder what? AVhat precaution is 
 advised ? 
 
 4. Who are proper defendants where there has been a change of parties ? 
 As in covenants running with the land ; under lessee ; survivor of several 
 persons bound ; representatives of deceased obligor, 8tc. ; heir and devi- 
 see, and baron and feme ? 
 
 5. Who are proper parties in actions ex delicto in reference to the inter- 
 est of the plaintiff and liability of defendants? In respect to the number 
 of parties, and who must, or 7nay be joined ? Where there has been an as- 
 signment of interest? In the case of survivorship ? Where either party is 
 dead ? In case of bankruptcy, insolvency, or marriage ? What are the 
 consequences of error ? 
 
 6. Who proper defendants as between the original parties, and with re- 
 spect to tlicir liability ? With reference to the number of the parties, the 
 charge of interest, death of the wrongdoer, and the case of baron and feme ? 
 What is the rule as to the effect of the death of the wrongdoer on the action 
 ex delicto ? 
 
 CuAPTER XIV. — OJ the original Wril. 
 
 1. What recent changes have been made as to the law of appearance 
 bail? 
 
 2. How is the writ of riglit commenced? What is the process called ? 
 By what process are mixed actions commenced? How is ejectment com- 
 menced? And how the prosecution of personal actions ? What the first
 
 •CHAP. 15.] THE COMMENTARIES. IT 
 
 process in personal actions witli us ? Rule us to the issue of the capias? 
 Where it may be sued out though the defendant docs not reside in the coun- 
 ty ? Effect of our statute on the doctrines of local and transitory actions ? 
 
 3. Mode of suing out process? What endorsement necessary ? When 
 may bail be demanded ? When not? Effect of improper demand ? Can 
 it be demanded of heirs or executors? How may bail be required by ma- 
 gistrate on affidavit ? Where bail may be required by rule ? Duty of sheriff 
 where bail is required ? What is his power in entering the house of de- 
 fendant to execute process ? 
 
 4. Who are privileged from arrest ? On what day is it unlawful to exe- 
 cute process ? How is bail now taken ? Before whom is the recognizance 
 entered into ? Duty of sherifl' when no bail is given ? How is recogni- 
 zance to be returned ? Capias when returnable ? When to be executed? 
 What is the appearance day ? How is party to appear? What is the cha- 
 racter of bail in detinue ? 
 
 5. What steps are taken if the first process is not executed ? What are 
 the ulterior proceedings to enforce appearance, or to obtain judgment? 
 What is the effect of the return " kept off by force" ? Liability of she- 
 riff for omitting to take good bail ? How is he proceeded against with us ? 
 
 6. Proceeding where defendant fails to appear ? What is the common 
 order? And writ of inquiry ? In what cases is it necessary? What is 
 the consequence if the office judgment is not set aside ? When may it be 
 set aside ? And how? And on pleading, what sort of plea ? How and 
 when set aside when there is a writ of inquiry ? 
 
 7. What is an issuable plea ? When may plea in abatement be receiv- 
 ed to set aside office judgment ? In what light is general demurrer look- 
 ed on ? 
 
 8. What is a bail piece? Its use to the bail? How he may use it? 
 How may he surrender his principal ? How may he obtain exoneration ? 
 
 9. What are creditor's proceedings against the bail ? How is the bail to 
 be fixed ? How is judgment rendered on the scire facias ? To what time 
 should the sci. fa. be returnable ? 
 
 10. Proceedings in suits against privileged persons, how commenced ? 
 Summons, how long to be served before return day ? 
 
 11. What is the course of proceeding by attachment? On what terms 
 is it issued ? How may claimants of the effects interplead ? 
 
 12. What summary proceeding is allowed to securities and others ? To 
 whom is the remedy extended ? How proceeded in ? What previous no- 
 tice of motion is required ? 
 
 Chapter XV. — Of Pleading. 
 
 1. Pleadings what ? Object and end of them ? How effected ? Issue 
 v/hat? Its advantages? What should be its qualities? What is meant 
 by its being material ? What is duplicity in pleading? What is required 
 as to certainty ? 
 
 2. What is the declaration ? How called in real actions ? Where seve- 
 ral distinct demands are set forth, or the same demand in several ways, what 
 arc these distinct statements called ? Give an instance of this mode of 
 declaring? 
 
 3. What are the constituent parts of the declaration ? What is observed 
 as to designating the court and laying the venue? Whence originated the 
 necessity of laying the venue ? What in Virginia gives jurisdiction to the 
 court ? In real actions ? In personal actions ? In what cases may defen- 
 dant be sued out of the county of his residence ?
 
 18 ANALYSIS OF [ BOOK 3. 
 
 4. In what actions must damages be laid ? In what not? What pro- 
 fert is necessary where executor or administrator sues ? 
 
 5. What is the consequence of a variance between the writ and decla- 
 tion ? How to be taken advantage of ? Oyer, when granted and when 
 refused ? 
 
 6. What is a nonsuit ? And its effect ? How does it differ from a re- 
 traxit ? What is a discontinuance ? And its effect? Can the plaintiff be 
 forced in Virginia to suffer a nonsuit ? When must he suffer it if he elects 
 to be nonsuited ? 
 
 7. Defence, what is the legal meaning of the term ? How should it be 
 made? What is an imparlance? Are they usual with us? What are 
 views, vouchers, and demurring of the parol for infancy ? What our law as 
 to them ? 
 
 8. What two sorts of pleas are there ? What are dilatory pleas ? When 
 must they be pleaded ? Are they considered issuable within the meaning 
 of I R. C. ch. 128, § 77 ? How do they conclude ? 
 
 9. What are the several kinds of dilatory pleas, and the order in which 
 they should be pleaded ? Effect of death upon a pending action ? Its ef- 
 fect upon actions arising ex delicto ? What is abatement ? Suit abated by 
 death, how revived ? How must a plea in abatement be verified ? What 
 is the rule as to pleas of abatement ? JExemplify the difference between 
 matter in bar and matter in abatement ? What is the judgment where plea 
 in abatement is overruled on demurrer ? Or found false by verdict ? How 
 if found true ? How as to costs if plaintiff acknowledges error? 
 
 10. How must the defendant defend himself on the merits ? What is a 
 demurrer ? What a plea to the action ? How may party rely on a tender ? 
 Or confess for part and defend for the residue ? How in such case should 
 he make defence ? Effect of not making full defence ? Or of making full 
 defence, and shewing discharge only as to part ? 
 
 11. What is a plea in bar ? What is " the general issue" ? What is a 
 special plea? What maybe given in evidence under the general issue ? 
 What not? 
 
 12. Mention some of the most usual special pleas in various actions ? 
 What is an estoppel ? How many kinds of? What does not operate as? 
 Effect of estoppel ? How to be pleaded ? How to be replied to ? 
 
 13. How are special pleas to be verified ? When they are in the nega- 
 tive ? Hov/ does the general issue conclude ? 
 
 14. Rules as to pleas ? First, as to being single ? Meaning of the rule ? 
 Does it apply to the declaration ? What does or does not amount to du- 
 plicity ? Modifications of the rule on this subject? When there are seve- 
 ral pleas how does the plaintiff reply ? May defendant demur and plead 
 to the same count? May plaintift' demur and reply to same plea? 
 
 15. Second rule, that the plea must be direct, not argumentative ; illus- 
 trate it. Can two afhrmatives or two negatives make an issue ? 
 
 16. Rule a*s to certainty, its object? What certainty required as to time 
 — place — quantity or value ? What as to persons — title, justification under 
 authority, or other matter alleged in pleading? In what case is the party 
 relieved from the necessity of setting forth his allegations with certainty ? 
 
 17. Fourth rule ; that the plea must answer the whole allegation ; give 
 an example of the consequence of defect herein. 
 
 18. What is a plea taken to confess ? What is the object and effect of 
 a protestation ? What are the other enumerated rules as to pleading ? 
 What is a departure in pleading ? When must a party make pro/ert 1 How 
 are affirmative pleadings to conclude ? 
 
 19. What is the rule as to pleading what amounts to the general issue ? 
 Modification of the rule? What is a replication? What a rejoinder?
 
 CHAP. 17.] THE COMMENTARIES. 19 
 
 Sur-rejoinder ? Rebutter ? Sur-rebutter ? "What is a novel assignment, 
 and when is it necessary and proper ? What is tendering an issue ? How 
 is it made up ? What is the similiter ? 
 
 20. What is an immaterial issue? Effect of trial of? Distinction be- 
 tween informal and immaterial issue? Between immaterial and defective 
 defence ? When may judgment be entered non obstante veredicto ? Give 
 an instance of an immaterial issue ? 
 
 21. What is a demurrer? Kinds of ? When should defendant demur 
 to declaration in whole, or in part only ? How do you proceed in a demur- 
 rer for variance from a deed described? For whom judgment is given 
 when there are faults on both sides ? In what case by our law may a party 
 take issue both in law and in fact? Where defendant both demurs and 
 pleads which is first tried ? 
 
 22. When may defendant move that a faulty count be disregarded ? 
 When may demurrant have leave to withdraw demurrer and plead or reply ? 
 When may party have leave to amend ? How is the judgment on demur- 
 rer? What is the usual course as to amendments? What is considered 
 as admitted by the demurrer ? What by taking issue upon the facts ? Af- 
 ter trial, how may defects be objected ? 
 
 23. By what considerations should we determine whether to demur or 
 plead ? What is our law as to costs, or writs of error, or motions to arrest 
 judgment ? 
 
 24. What is a discontinuance ? What is a plea puis darrein continu- 
 ance ? What constitutes the record ? How are issues in law tried ? How 
 are issues in fact tried ? 
 
 25. Give an abstract of the mode of proceeding in the commencement 
 and prosecution of suits. On the part of the plaintiff? On the part of the 
 defendant ? Proceedings against several joint defendants when the process 
 has not been executed on part of them ? Can several judgments be enter- 
 ed on a joint contract, or in a joint action on contract? Office judgment, 
 what and how and at what time to be set aside ? 
 
 26. Rules — rule days — rule book what ? Rules, when held ? 
 
 Chapter XVI.— 0/ Trial. 
 
 1. Trial ; what is the legal acceptation of the word ? Kinds of? Trial 
 by record when it takes place? What verity does the law attribute to the 
 record ? What is the plea to scire facias or debt upon a judgment? Of 
 what is a judgment conclusive ? How of the judgment of foreign courts? 
 When are they conclusive ? When examinable and how? What is the 
 effect of a judgment against the plaintiff in a foreign court ? In what light 
 are the States of the Union to be regarded in relation to this matter? And 
 the federal courts? 
 
 2. Records how authenticated ? Plea oi nul tiel record, how does it con- 
 clude ? What provision has been made as to records injured or destroyed ? 
 
 3. Trial by inspection, when is it used ? 
 
 4. Trial by certificate, when allowed ? How is the question " what the 
 law of a foreign state is " to be tried ? What proper evidence of what the 
 foreign law is ? How as to the printed statutes ? 
 
 6. What is wager of law ? Is it in force with us? 
 
 Chapter XVII. — Trial by Jury. 
 
 1. How many kinds of trial by jury are there ? What ia the ordinary 
 trial by jury ? How is the jury summoned? Of whom composed ? Who 
 inay not be jurors 1 Jury de medietate lingua what ?
 
 20 ANALYSIS OF [ book 3. 
 
 2. Challenges what — of how many kinds and for what causes? Either 
 to the array 1 Or to the polls ? What are challenges propter affectum, 
 2)ropter defectum, and propter delictum 1 
 
 3. Tales what and when summoned 1 
 
 4. On whom is the onus probandi on the trial of an issue? Who has 
 the right to open the pleadings and to reply ? 
 
 5. Evidence, of what it consists 1 What are the several kinds of written 
 proofs? What general rule is laid down as to evidence? When is se- 
 condary evidence admissible? Or hearsay ? Or books of account? 
 
 6. Parol evidence, how procured? What witnesses are competent or 
 otherwise? Who not permitted to disclose the secrets of another? How 
 many witnesses suffice ? State the distinction between positive, circum- 
 stantial, and presumptive evidence ? 
 
 7. What is the oath administered to a witness? 
 
 8. What is a bill of exceptions? Object of it? What are the rules and 
 principles laid down for fi-aming it ? Can it have the effect of a demurrer 
 to evidence ? Is such demurrer a waiver of it ? How is the sealing a bill 
 of exceptions to be enforced? 
 
 9. Demurrer to evidence what? Its object? Instructions to the jury 
 how to be obtained ? What does the party demurring admit ? How should 
 the demurrer be drawn? When is it proper and judicious to demur? 
 When will not the other party be compelled to join ? When may a new 
 trial be granted after demurrer to evidence ? Can objections be taken to 
 the pleadings on trial of the demurrer? 
 
 10. In what manner is examination and cross-examination conducted ? 
 What course is pursued with the jury after the evidence is gone through ? 
 
 ■ What is a verdict? What misconduct of jury or parties will vacate it? 
 How many kinds of verdict are there? What is a privy verdict? A spe- 
 cial verdict? What do you understand by a "special case stated," or a 
 case agreed ? 
 
 11. What provisions are made by our law for production of papers ? 
 And for taking depositions of witnesses ? 
 
 Chapter XVIII. — Of Judgment and its Incidents. 
 
 1. What is the postea? How may judgment be suspended? And for 
 what causes? New trials for what causes granted? What advantages 
 arise from the judicious practice of new trials? How is the ground laid 
 for a new trial ? When is it refused ? What terms are sometimes im- 
 posed ? What misconduct of the jury or parties is ground for new trial ? 
 When is a new trial granted or refused on the ground of surprise, or new 
 evidence, or that the verdict is contrary to evidence ? 
 
 2. What difference is made as to granting new trial between the plain- 
 tifF and defendant in ejectment? 
 
 3. What is the first leading rule as to granting new trials? W^hat is the 
 second? When granted for excessive or inadequate damages? When 
 not? What is the third rule ? What is the difference between awarding 
 a venire de novo, and granting a new trial? When is the former allowed ? 
 What is the law of costs in the two cases ? 
 
 4. What is meant by changing the venue ? How and for what cause is 
 it changed ? 
 
 5. How and for what causes may judgment be arrested ? When for va- 
 riance? Or for defect in declaration ? What errors cured by verdict even 
 before the statutes of Jeofail? What is the distinction between stating a 
 defective case, and stating a good case defectively ?
 
 aiAP. 19J THE COMMENTARIES. 21 
 
 6. What are the provisions of the act of Jeofails as to arrests of judg- 
 ment? For variance 1 For mispleading or insufficient pleading? For 
 discontinuance or misjoining of issue ? For mistakes of name or sum "? For 
 omitting averments ? Or setting forth matter by way of recital ? Or for 
 not alleging the matter to be within the jurisdiction or property to be in 
 the plaintiff? Or for mistaking the form of action ? Or for defects in form 
 or substance in the declaration ? 
 
 7. What provision is made as to judgments by default? What distinc- 
 tion prevails as to this matter ? What provision is made where there is a 
 faulty count ? Or for certain omissions in detinue ? 
 
 8. What is the effect of a confession of judgment, upon errors in the 
 proceeding? How mistakes, &c. in judgments may be amended upon mo- 
 tion in the court where rendered? Or even in appellate court? How par- 
 ty may release excess even after judgment? 
 
 9. What is a repleader, and when is it rendered necessary ? At whose 
 instance it cannot be granted ? When it will not be awarded ? Is it ever 
 awarded so far back as to include the declaration ? 
 
 10. What are the several sorts of judgment ? What is an interlocutory 
 and what a final judgment ? When a writ of inquiry is necessary "? What 
 is it? What practice has recently prevailed, in England, for ascertaining 
 the amount due where it depends on mere calculation ? 
 
 11. How is judgment entered upon a bond in a penalty with conditiorsi 
 to pay money ? Or to perform covenants, &c.? What is the general rule 
 as to costs with us? As to executors and administrators? What provided 
 as to security for costs to be given by absent plaintiffs? On whom does 
 the onus as to residence lie ? What points have been ruled as to this se- 
 curity for costs? Officers' fees how recovered from the security? 
 
 12. What provision is enacted as to paupers' suits? 
 
 13. What is the rule as to costs with us where there are various pleas ? 
 How in the case of executors ? 
 
 14. When shall the party recover no more costs than damages ? 
 
 Chapter XIX. — Of Proceeding's in the Nature of Appeals. 
 
 1. What is an audita querela ? What is the substitute for it now used in 
 courts of law ? What remedy in equity is resorted to and has superseded 
 the audita querela in many cases ? 
 
 2. What is a writ of error? How many kinds of it ? What amend- 
 ments of the record are permitted and at what time ? What is the writ of 
 error coram nobis'] When and for what does it lie ? Is the allowance of 
 it matter of discretion or ex debito justitioi ? What are deemed clerical 
 errors? What remedy has superseded in practice the writ of error coram 
 nobis? 
 
 3. How are writs of error for matter of law obtained? On what terms? 
 What is the remedy where it is refused by a superior court of law? Who 
 must sue out the writ? Who only entitled to do so ? Summons and se- 
 verance when necessary ? What is the effect of a writ of error ? When 
 is it a supersedeas? To what does its effect herein extend? How is it to 
 be proceeded in ? How are errors assigned ? What is a certiorari, and 
 its purpose ? What is the plea to a writ of error? What in error coram 
 nobis ? How in the latter case the defendant should plead if he denies the 
 truth of the allegation ? What is the judgment in error in law ? What in 
 error coram nobis ? 
 
 4. What is provided as to sending up the record to the appellate court 1 
 How far is a judgment considered an entire thing ? When may it be re- 
 versed in part "? What judgment must the appellate court give 1 What
 
 22 ANALYSIS OF [ BOOK 3. 
 
 damages and costs are allowed 7 How is money paid under a judgment 
 recovered back upon reversal ? 
 
 5. What is a supersedeas at common law? How is it used with us? 
 When does it lie ? Is the party confined to errors upon the face of the 
 proceedings'? 
 
 6. What is an appeal 1 Who is entitled to appeal ? From the judg- 
 ment of what sort of court? In what kind of contest"? When and in 
 what courts is the cause heard de novo upon the facts? What are the dif- 
 ferences between writs of error, appeals, and supersedeas 1 What appeals 
 are now demandablc as of right ? 
 
 Chapter XX. — Of Execution. 
 
 1. What is an execution? Can it issue before final judgment? At 
 law, or in equity? Within what time it must issue? How kept alive? 
 How revived ? Within what time? How where the plaintiff has been de- 
 layed by injuncton ? Or stay of execution ? 
 
 2. What is the effect of a variance between judgment and execution ? 
 How and on whose motion may execution be quashed? From what court 
 does it emanate ? In case of appeals, &c.? To what county may it issue ? 
 In whose name or names ? What is the effect of the death of party after 
 judgment? Judgment how and in whose name revived ? How where one 
 of two defendants dies'? What is the effect of death upon an execution 
 in the officer's hands? When may a party change his execution? Can 
 there be different executions against several defendants? 
 
 3. What is the execution in a writ of right? In ejectment? In nui- 
 sance ? In detinue ? What is taken by the distringas ? How it may be 
 superseded ? When and for what a^/a or casa also goes ? Can the she- 
 riff take the property itself? What remedy may perhaps be had in equity ? 
 How may the bail in detinue protect himself? 
 
 4. How many kinds of executions are there where money only is reeo- 
 vered ? What is the capias ad satisfaciendum? Against whom may it be 
 sued ? What is its object? Does it lie against an infant or feme covert ? 
 Who privileged from this execution? When are executors liable to it? 
 Can any other execution issue while the defendant is in execution? Sup- 
 pose he dies in custody ? To whom is the execution directed, and what 
 does it command? How to be executed? How may defendant relieve 
 himself? How is the property tendered to be disposed of? Suppose a 
 forthcoming bond is then tendered ? 
 
 5. How is the casa to be levied ■? What constitutes an arrest? Suppose 
 the party is afterwards at large, what is the consequence ? How is it when 
 taken on mesne process and he is seen at large? 
 
 6. What amounts to an arrest? Within what jurisdiction only can the 
 officer arrest ? 
 
 7. What is an escape? What is a constructive escape ? Give the seve- 
 ral instances mentioned. When may the prisoner be confined on his way 
 to jail ? What is said of jails? How is the sherifi'to be taken on a casa 
 and how confined? 
 
 8. What is the privilege of a member of assembly ? "What must he do 
 when his privilege ceases ? 
 
 9. Actual escapes how divided? What considered a voluntary escape 7 
 What merely negligent ? What justifies enlarging the prisoner? When 
 only is the officer chargeable by our law? What is the effect of a retaking 
 upon fresh pursuit ? Or of a voluntary return ? 
 
 10. What are the provisions of our statute as to escapes? Does it ex- 
 tend to mesne process ? To whom may the escape warrant be granted ?
 
 CHAP. 20.] THE COMMENTARIES. 23 
 
 To whom directed ? What must it recite ? Where must the party be confin- 
 ed if retaken 1 What is the course where the escape was on mesne process t 
 
 11. What are the statutory provisions as to prison rules? To whom ia 
 the bounds bond taken and how is it to be disposed oH What are the pro- 
 visions where the debtor breaks the bounds and escapes ? If the prisoner 
 escapes by the jailer's consent, what remedy has the creditor — against the 
 sheriff? Against the debtor ? For what and to what extent is the sheriff 
 liable ? 
 
 12. Can the sheriff relieve himself by retaking the prisoner, where the est 
 cape was with his consent ? How if the escape was merely a negligent es- 
 cape ? What relief is given by law to insolvent debtors ? 
 
 13. How far is a casa executed a satisfaction of the judgment ? What 
 is the effect of a release of the body"? Or of the release of one of two 
 joint obligors in execution ? 
 
 14. What is the effect of a forthcoming bond ? Is it a satisfaction and 
 discharge ? How may it be quashed ? Effect of quashing? Suppose the 
 defendant dies in execution what is plaintiff's remedy ? 
 
 15. How far does a casa bind the lands or goods under our recent sta- 
 tutes ? How do you proceed against the bail when the casa is returned 
 non est inventusl 
 
 16. What is a fieri facias 1 What may the sheriff do in executing it? 
 Where property is to be taken under a fifa, which does not belong to de- 
 fendant, what consequences follow, — as to sheriff's liability, — as to the par- 
 ty's title ? 
 
 17. What kind of property may be taken ? How as to trust estates ? Or 
 mere equitable interest, such as an equity of redemption ? 
 
 18. In what manner may the sheriff take the property? When may the 
 execution be levied ? What is the privilege herein of members of assembly ? 
 
 19. What is the lien of the fifa? What its extent? How may it bo 
 lost ? What is the effect of a forthcoming bond on the lien ? 
 
 20. When property has been taken and released, can there be a new ex- 
 ecution? 
 
 21. What are forthcoming bonds? What their effect on the lien, before 
 and after forfeiture ? 
 
 22. What amounts to a levy ? What are the proceedings subsequent to 
 it? Suppose the sheriff permits the debtor to eloign the goods ? 
 
 23. What are the proceedings after the levy? What principles are men- 
 tioned as to forthcoming bonds? The effect of mis-recitals? How erro- 
 neous bond may be quashed ? At whose risk the property is, after it is re- 
 stored to the debtor? What is the effect of failing to deliver any part? 
 When is the condition saved by injunction ? When is the execution con- 
 sidered part of the record of the motion for a judgment on forthcoming 
 bond, without a bill of exceptions ? How as to the notice ? 
 
 24. Where and when must the bond be filed ? What has it the force of, 
 when filed ? How may defendant deny its execution ? Plea of non est 
 factum, how directed? Can appeal be allowed from a superior court, from 
 a judgment on a forthcoming bond ? 
 
 25. What is the further duty of the sheriff? How must he proceed to sell ? 
 How should he proceed when the property is claimed by a third person? 
 What bond may he demand ? 
 
 26. What is a venditioni exponas ? When is it necessary or proper ? 
 What is a distringas nuper vice comitein ? When is it necessary ? 
 
 27. What is the sheriff's duty as to paying over the money ? What are 
 replevy bonds ? 
 
 28. What is a levari facias 1 What its effect ? How does it differ from 
 the elegit ? From what time does it bind the goods ? 
 
 VOL. 2—67
 
 24 ANALYSIS OF [ book 3. 
 
 29. What is an elegit? What may be taken by it? Is a trust estate 
 subject to this execution ? How as to equities of redemption ? Can it 
 reach mere equities ? From what time are the debtor's lands bound ? What 
 chattels cannot be reached by elegit? In what manner are the chattels to 
 to be disposed of? Can the land be reached if there be chattels sufficient 
 to satisfy? What part of the lands may be taken? How may the whole 
 be reached ? 
 
 30. What is the effect on the lien of letting the judgment run out of date ? 
 How far is the lien revived by the scire facias to revive the judgment ; — 
 first as respects the debtor, and secondly as it respects purchasers from him ? 
 What is the effect upon the elegit, of the casa-lien now given by law ? 
 
 31. How is relief afforded either party in the case of irregular execu- 
 tions ? When will equity aid the plaintiff in his execution ? How will it 
 relieve against the heir? 
 
 32. What sort of relief is afforded in equity in case of executions ? 
 What is necessary to entitle the creditor to ask relief in equity? What is 
 the nature of the execution against the heir when judgment has been ren- 
 dered against him, on the bond of his ancestor? 
 
 Chapter XXL — 0/ Equity. 
 
 1. What is the origin and nature of courts of equity ? Does Blackstone 
 eonsider the usual contrasting of law and equity as free from error? 
 
 2. What are his remarks as to the power of equity in what are called 
 hard cases ? And what as to the spirit of equity in construing statutes ? 
 What as to its supposed exclusive jurisdiction in cases of fraud, accident, 
 and trust ? What as to its following precedents ? What as to construc- 
 tion of will or agreements ? What as to the rules of decision ? 
 
 3. In what then does Mr. B. consider the difference to consist between 
 law and equity? What difference as to the mode of proof? What juris- 
 diction grows out of the compulsory discovery on oath ? What difference 
 is there as to the mode of trial ? And relief? What is the maxim of equi- 
 ty as to things which ought to be done ? Various exercise of jurisdiction 
 resting on the nature of the relief afforded ? Or on the true construction 
 of securities for money lent ? Or on the existence of trusts and second 
 uses ? 
 
 4. What is the first great maxim mentioned in the commentaries, as pre- 
 vailing in courts of equity ? Give some instances in which equity seems 
 not to follow the law ; — 1st, as to statutes ? 2d, as to executory trusts ? 
 
 5. Are the legal and equituble estnte governed by the same rules in gen- 
 eral ? How is c. q. t. considered ? How will his estate pass ? How as to 
 dower in England ? How where the equitable and legal estate meet in the 
 same person ? What rule then prevails ? 
 
 6. What correspondence and what difference is there between equity 
 and law, as to administration of assets, legal and equitable? 
 
 7. What is the second maxim mentioned ? Give instances of this in re- 
 ference to creditors and securities, and to buying in incumbrances. 
 
 8. What is the third maxim ? Will equity relieve one who does not 
 come with clean hands ? How when the parties are not pari deliclo ? On 
 what terms is equity extended to him who asks it? Give instances of this 
 in the case of tacking. 
 
 9. Under what fifteen general heads are the subjects of equitable juris- 
 diction arranged in this work ?
 
 €HAP. 21.] THE COMMENTARIES. 25 
 
 1. Of Accident. 
 
 1. Give examples of accidents, against which equity gives relief. Is the 
 jurisdiction in cases of lost bonds affected by the recent jurisdiction of courts 
 of law ? Is it exercised in cases where no profert is required at law ? What 
 is the provision of our law as to a lost bill ? What decreed as to lost bank 
 notes ? 
 
 2. Is the jurisdiction exercised against a surety ? Why ? What is es- 
 sential to a bill in equity to set up a lost bond ? Difference herein when re- 
 lief is or is not sought? What other accidents will equity relieve against? 
 What not? 
 
 3. What remedy has been afforded in case of quit-rents — or confusion of 
 boundaries ? Or of vested estates defeated by accident ? Difference here- 
 in between such cases and conditional limitations, or precedent conditions? 
 How is it where compensation cannot be made in damages ? 
 
 4. What will be presumed in favor of uninterrupted possession, from 
 length of time, grounded on possible loss of evidence ? 
 
 5. What instances are given of relief to executors in cases of accidental 
 •depreciation of assets, &c. ? When may party have relief in equity though 
 he has failed to caveat ? Is relief afforded in cases of lachesl 
 
 6. Is the suspension of specie circulation such an accident as will afford 
 ground of relief? 
 
 2. Of Mistakes. 
 
 1. Do mistakes in matters of law furnish ground of relief? Case of re- 
 lease to one of several obligors ? Cases of compromise ? Are there appa- 
 rent deviations from the general rule ? Distinction between mistakes in 
 matters of remedy and as to matters of contract? 
 
 2. Is mistake in fact a ground of relief? How as to defective conveyan- 
 ces ? Or defective executions of a power ? When will relief be refused ? 
 
 3. Marriage settlements when reformed? When not? Marriage arHc/es 
 how looked upon ? 
 
 4. Mistakes of quantity in tract of land sold, when relieved ? What in- 
 fluence was once attributed to the words " more or less " ? What the true 
 principle ? What are the general principles set forth as to this matter ? How 
 far is parol evidence admissible to explain the intent ? What is the measure 
 of compensation, where an allowance is made ? 
 
 5. When are mistakes in contracts relieved ? When either party is mis- 
 taken? When both are mistaken? What sort of mistake alone will be 
 ground of relief? What is the obligation of a buyer to discover to the sel- 
 ler secret valuable qualities in the article he buys ? How if the knowledge 
 is acquired as agent, trustee, orserjant? Can a bargain be rescinded only 
 in part ? 
 
 6. Mistaken delivery of deed — or acknowledgment of boundary — or 
 omission to record deed, hov relieved against ? Mistakes in wills — how 
 established, and when relieved against ? ]\Iistake in cancelling a will, when 
 •relieved ? What omissions of formalities in deeds, &c. are not the subjects 
 of relief? 
 
 3. Of Penalties and Forfeitures. 
 
 1. Give instances in which this relief is afforded. Show how it is applied 
 to the cases of bonds — mortgages — forfeited leases. Sec. ? 
 
 2. On what principle does this relief rest ? When is an issue quantum dam- 
 nificatus directed? When is strict performance of covenants relieved against? 
 Is relief usually extended where the brea-ch consists in a failure to pay money?
 
 20 ANALYSIS OF [dookS. 
 
 When not ? When time is of the essence of the contract, is the failure re- 
 lieved against? 
 
 3. When is reservation of interest considered a penalty ? When does 
 interest properly begin to run ? 
 
 4. Will relief be given when compensation cannot be made? Or in fa- 
 vor of a tenant guilty of gross misconduct or breach of contract? Parti- 
 cularly a tenant for lives ? Or in case of liquidated damages ? Or of legis- 
 lative penalties ? 
 
 4. Of Accounts. 
 
 1. What matters of account give equity jurisdiction ? How as between 
 landlord and tenant? Rents and profits in dower? Accounts of a stew- 
 ard, factor, executor, and the like ? How as to partnerships, concerns of 
 public companies, &c., mines and elegits? 
 
 2. What analogy to the statute of limitations is followed in these matters 
 of account ? How where the bill is upon a mere equitable title, against a 
 third person not affected with the trust? How as to trusts — and infant es- 
 tates ? When rents and profits are allowed only from the time of filing the 
 bill ? 
 
 3. How far is a claim for {>ermancnt improvements allowed ? Is it ex- 
 tended farther than as a mere offset against rents and profits ? What was 
 the common law doctrine ? When allowed by reason of the laches of the 
 owner? When refused ? 
 
 4. What are stated accounts ? When corrected ? What disadvantages 
 is the complainant placed under? What specification is required? On 
 whom is the onus probandi 1 What do you mean by surcharging and falsi- 
 fying ? How is the plaintiff to surcharge and falsify, where the defendant 
 relies on a stated account ? 
 
 5. How is the statute of limitations considered in equity ? How as re- 
 spects mere equitable demands ? Does it run against trusts and frauds ? 
 First, as to trusts ; what kind of trusts are unaffected by it? Does it appljy 
 as against trusts recognized by common law ? And even to mere construc- 
 tive trusts in equity ? 
 
 6. When there is no longer a subsisting and continuing trust, does the 
 act apply ? How is it between tenants in common ? Or as to a party en- 
 tering upon an infant's estate r Or as between trustee and c. q. t. on one 
 hand, and third persons on the other ? 
 
 7. What is the effect as to the statute, of a devise for payment of debts ? 
 From what considerations does this doctrine arise ? What is sufficient to 
 revive a debt ? Is a charge on the realty necessary to keep it alive ? And 
 why ? What is the effect of such a devise on debts already barred ? On 
 debts not barred ? 
 
 8. What is the extent of the principle that the statute will not run 
 against a fraud ? What ought the bill to allege ? What is a good plea ? 
 
 9. How far does equity adopt the statute by analogy ? What is the rule 
 laid down by the British courts, and followed in Elmensdorf vs. Taylor, 
 and that class of cases? 
 
 10. What is the duty of stewards, agents, &c, as to accounts? What 
 rule adopted in reference to it? What course is pursued in case of " con- 
 fusio bonorum " by agent ? 
 
 11. Will decree be rendered for defendant in any case? 
 
 5. Of Frauds. 
 
 1. Fraud, how defined? How far a subject of equitable jurisdiction? 
 Does it interfere in a criminal point of view ? What modification is there
 
 CHAP. 21.] THE COMMENTARIES. 27 
 
 of the doctrine herein ? How far are the two jurisdictions concurrent as 
 to fraud ? In cases of bonds ? Of notes or simple contracts ? 
 
 2. Frauds in relation to the execution and validity of wills, how to be 
 tried ? Frauds in procuring or suppressing a will, whether wiiliin the pro- 
 vince of equity ? Mode of relief in case of suppression ? Difficulties en- 
 countered in a bill to set up a destroyed will ? Why is the exercise of this 
 jurisdiction one of great delicacy ? 
 
 3. Frauds in relation to the execution of deeds, liow remedied ? How 
 in relation to their suppression? Will equity aid a volunteer in recovering 
 a fraudulently suppressed bond ? Will equity relieve against fraud in pre- 
 venting the execution of deeds? Will it aid the omission of a ceremony 
 required by law to give validity to an instrument, though it be occasioned 
 by fraud ? 
 
 4. Give instances of frauds arising out of the suggestio falsi, or sup- 
 pressio veri I As to the first is the scienter material ? Is it material that 
 the suggestor be a contracting party ? As to the second, is a right to a fair 
 and full disclosure necessary in order to affect the other party with fraud ? 
 Suppose he be agent or trustee ? What more is necessary to affect the par- 
 ty standing by and not disclosing his rights ? 
 
 5. Give instances of frauds growing out of oppression or undue in- 
 fluence ? Cases of parent and child, guardian and ward, sheriffs, clergy- 
 men ? 
 
 6. Give instances of fraudulent practices on the imbecility of others ? 
 First, natural imbecility, what extent of, avoids a contract ? Though par- 
 tial, is it considered an important ingredient with other circumstances ? 
 Secondly, old age, what influence has it on the question of validity of con- 
 tracts ? Thirdly, drunkenness — doctrines in relation to it? Fourthly, in- 
 adequate consideration ? What the general principle as to this ? Differ- 
 ence herein between contracts executed and executory? 
 
 7. What is the course of the court as to judicial sales ? As to sales of 
 reversions or expectancies by young heirs? 
 
 8. Is inadequacy always considered an important ingredient ? How is it 
 with respect to contracts of hazard which eventually become greatly profit- 
 able ? When a contract is rescinded, is the property bound for money 
 paid or for improvements made ? 
 
 9. Give an instance of underhand agreements ? How are they treated 
 in equity ? 
 
 10. What is the doctrine as to purchasing with notice of an unrecorded 
 deed ? What sort of notice must the purchaser have ? Is the record no- 
 tice, where the deed has been recorded out of time ? Is there any differ- 
 ence between actual and constructive notice ? [See French vs. Loyal 
 Company, 4 Leigh, published since this work went to the press.] What 
 is the effect of a lis pendens as notice? What is a lis pendens? W^hat 
 essential to it ? 
 
 11. Frauds in actions, what and when relieved against ? Is a sale upon 
 a single bid a good sale ? 
 
 12. Are infancy and coverture deemed any excuses for fraud? How 
 where the wife acts sub potestate viri ? Are interests sustained which have 
 been obtained through the fraud of third persons ? 
 
 6. Of Discovery. 
 
 1. Bills of discovery, what? Distinction between them? Mere hiW of 
 discovery, its object ? Who may not bring such a bill ? Against whom ? 
 Of what and for what ? How brought against a corporation ? What es- 
 sentials to it — 1st. As to the materiality of tlie discovery sought? 2d. As
 
 28 ANALYSIS OF [ BOOK 3. 
 
 to the iaability to prove the facts otherwise ? 3d. As to discovery of as- 
 sets ? 4th. Against whom it does not lie ? Whether it lies for discovery 
 of title? In case of devisee or doweress ? 5th. Discovery of deeds in pos- 
 session of another, in what cases compelled ? 6th. Whether allowed in 
 cases of tort — or criminal offence .'' When and on what terms in cases of 
 penalties and forfeitures ? 
 
 2. Must the bill be accompanied with affidavit when it is filed to set up 
 a lost bond, &c. ? What is the effect if the bill also prays relief? What 
 parties are necessary to this bill ? 
 
 3. At what time must it be brought to be effectual ? How is it finally 
 disposed oH What is the law as to costs of these bills .? When may 
 plaintiif be exempt from costs ? 
 
 4. What is said of bills for relief as well as discovery } Is the necessity 
 of discovery itself a sufficient ground of jurisdiction ? Suppose on the 
 hearing it appears there was no necessity for it and there be no other ground 
 of jurisdiction ? When is the plaintiff said to prove himself out of court? 
 
 r. Of Trusts. 
 
 1. Trusts — by what rules in general governed, as to descents, &c. ? Ef- 
 fect of union of legal and trust estate ? When will the equitable estate be 
 still considered as subsisting? 
 
 2. Who is considered the real owner of a trust estate? How will the 
 estate pass ? What is the power of the trustee, or the effect of his acts or 
 negligence'? Remedies against him, of the c. q. t.1 
 
 3. What constitutes a trust? Equitable trusts distinguished from legal? 
 From what source did trusts spring originally? What are express trusts? 
 What implied ? Or resulting '/ 
 
 4. Express trusts, what essential to their creation 7 1st. As to the words 
 used to create them? Difference between creation of trust, and a mere 
 naked power i^ Consequence of that difference? Will acts or omissions 
 of trustee prejudice the c. q. t. ? Will equity interfere in cases of mere 
 power where there is no appointment? How where there is a trust? Rea- 
 sons for the distinctions as to this matter ? When equity interferes in ca- 
 ses of failure to appoint, by what rule is it governed? When will a be- 
 quest be considered as direct and not as creating a mere power to give to 
 the beneficiary? When the duty is imperalivc to appoint, will equity en- 
 force it though there be no trust? 
 
 5. What is the object of most marriage settlements ? Children, how 
 considered in ? Articles, how considered? When and how moulded to 
 suit the intent? When not? How do the issue take in these cases? In 
 what does the case of Tabb vs. Archer seem erroneous ? 
 
 6. Trusts for payment of debts, how looked upon in equity? When 
 deemed fraudulent and void? How where there is a power of revocation, 
 or of mortgaging? How in deeds of composition, where pari only of debt- 
 or's property is conveyed / What is done where all tJie creditors do not 
 come in ? When may subsequent acceptance of the deed of trust for 
 payment of debts operate to give it effect from its date ? 
 
 7. May a failing debtor prefer one creditor to others ? What is the ef- 
 fect on the deed if it be obtained by fraud of the trustee ? Can a deed 
 fraudulent in fact be good as to any part? How if it be only constructive- 
 ly fraudulent? How when the good consideration can be separated from 
 the bad ? When a security in part for gaming will be held good so far as 
 it is for money bona fide lent, the creditor being defendant? When a deed 
 to secure several may be good as to some though void for the residue ? 
 
 8. How far is a trust for security of future loans or renewed negotiable 
 notes valid 1 What caution on this subject is suggested ?
 
 CHAP. 21.] THE COMMENTARIES. 29 
 
 9. In trusts enacted by will, wlio is considered trustee if no special trus- 
 tee is named ? 
 
 10. Implied trusts. What is a resulting trust, and how does it arise? 
 Give instances of several kinds of. What essential to raise resulting trust 
 where purchase is made by one with another's money'? How are such 
 trusts rebutted? Does Virginia statute require such trusts to be in writing.? 
 
 11. How are purchases, by trustees and others, of encumbrances treated 
 in equity 1 To wlrat cases is this principle extended'? 
 
 12. In what cases will a purchase in the name of another, with my own 
 money, create a resulting trust'? When might it be considered an advance- 
 ment? 
 
 1-3. How is it wliere two purchase jointly with equal or unequal funds? 
 How is a surviving partner looked on in England where the partners held 
 real estate ? How in Virginia? 
 
 14. What other implied trusts are there ? How is it with the purchaser 
 from a trustee with notice of the trust? How if he purchased without no- 
 tice? What then amounts to notice ? On what does the doctrine rest? 
 Suppose the notice sufficient to put the party on inquiry ? Give an instance ? 
 
 15. How many kinds of notice are there? What is actual notice? 
 How are vague rumors held ? What is constructive notice ? [See 4 Leigh, 
 French vs. Loyal Company.] Through agent or attorney, or person through 
 whom the purchaser promises a title ? Are private acts of assembly notice ? 
 Is the recording of a deed notice ? How as to recorded equitable title with us? 
 
 16. If a party knows of the existence of a deed, is he held to know its 
 contents? What is the doctrine as to a lis pendens being notice? What 
 amounts to a lis pendens 1 What is the foundation of the rule respecting- 
 it 1 What decrees in equity affect the purchaser under this doctrine ? 
 
 17. When is a witness to a deed nftected with notice? Must the notice 
 of an unrecorded deed be actual or constructive to affect the purchaser's 
 conscience ? Is possession considered as sufficient to put the purchaser 
 on inquiry ? 
 
 18. What necessary to make a purchaser without notice ? Why must 
 he have got his legal title before notice? Reason of these principles? Is 
 a purchaser with notice from a purchaser without notice protected ? How 
 far would a purchaser with notice become personally liable by selling the 
 subject to a purchaser without? 
 
 19. How far is the purchaser from a trustee bound to see to the applica- 
 tion of the purchase money? Give an instance ? When will he not be 
 bound ? Give an instance ? How% if it be to pay debts o^enerally? How 
 where bonds are charged with payment of annuities ? How, where there 
 is a hand appointed to receive the purchase money ? Where the purchaser 
 is bound, how should he proceed? 
 
 20. In what manner should the defence of "purchase without notice" 
 be made ? On what does the defendant then put himself? How should 
 the plea set forth the defence? 
 
 21. What implied lien has the vendor for the purchase money ? Does 
 the principle apply to personalty ? Does it exist where the vendor has ta- 
 ken security ? Suppose, however, he retains the legal title, though he has 
 taken security also ? Does it prevail against a purchaser from the vendee ? 
 When is he protected? What is deemed a security which excludes the 
 lien? What is a waiver of the lien? How is it if the vendor has taken 
 an unrecorded mortgage ? Is the lien as to purchasers in rem, only, or in 
 personam also ? When may the purchaser make himself personally respon- 
 sible ? May sureties in a bond have the benefit of the lien ? 
 
 22. What is the doctrine of equity as to land directed to be converted 
 into money or money into land ? On what maxim is this founded? How
 
 so ANALYSIS OF [ book S. 
 
 where the conversion of land into money is directed for a specific purpose, and 
 the purpose fails or is otherwise accomplished V What then is the privilege of 
 the heir herein ? Suppose the character of personalty is imperatively fixed 
 by the will, but the whole proceeds are given to one person, what is liis 
 privilege 1 Will the right of election be cast on him to his prejudice 1 How 
 is this right of election in the case of feme coverts, or infants'? Or where 
 there are several beneficiaries "? 
 
 23. How does money pass, which is directed to be laid out in land? 
 When and how may it receive a different character? How will it be if 
 the party entitled dies without expressing an intent to change the character 
 which the property then has ? 
 
 24. Who is regarded as the real owner of a trust estate? What are c. 
 q. t's. powers and rights in regard to it? Can trustee's acts prejudice him? 
 In what single case can he be prejudiced by trustee's conveyance ? Has he 
 then recourse to the trustee ? Is his demand in that case of the nature of 
 simple contract or specialty? 
 
 25. Can trustee change the nature of trust estate in case of persons not 
 sui juris? What he is compellable to do, may he do without suit? 
 
 26. What is the effect at law of trustee's conveyance contrary to the terms 
 of the trust? What in equity? Suppose he refuses the trust, what is the 
 remedy? Suppose he abuses it, what is the remedy? 
 
 27. Can a purchase by a trustee from the c. q. t. of the trust-subject be 
 sustained under any circumstances? If any, what? 
 
 28. Can such a purchase of trust property sold by themselves be sustain- 
 ed ? Does the rule as to this vacate the sale or merely give election to c. 
 q. t. ? Suppose such sale long acquiesced in ? What is the prudent course 
 for a trustee who wishes to become a purchaser ? 
 
 8. Of Specific Peuformance. 
 
 1. After a sale and before the legal title passes, how does equity look 
 upon the parties? How do courts of law ? What is the effect of the 
 death of either party on the contract of sale ? What are the remedies at 
 law and in equity on a contract to convey lands? 
 
 2. When will specific execution be decreed? First, in reference to the 
 parties whether sui juris, or infants, or femes covert? How is it where the 
 condition of the parties is changed ? Secondly, in reference to the agree- 
 ment ? Will specific performance be decreed in any case of a contract for 
 chattels ? Give an instance of such decree ? How may it be as to slaves ? 
 Thirdly, in reference to the evidence of the contract ? What part per- 
 formance will take a case out of the statute of frauds? What amounts to 
 part execution ? Is the entry of sale and of the name of the purchaser by 
 an auctioneer a sufficient signing within the statute ? 
 
 3. How is the question of specific performance viewed in reference to 
 the character of the contract ? Are such applications addressed to the 
 court's discretion ? Will it be favourably exercised if the agreement and 
 the evidence of it be not certain? Or the contract illegal — or unfair — or 
 even a hard one? Or where the applicant is a volunteer? Or if the ap- 
 plication be unreasonable ? Or if the party has been backward ? Or bro- 
 ken the contract on his part ? Is failure to pay purchase money punc- 
 tually a bar to relief? When time is of the essence of the contract, will 
 the defaulter have aid ? 
 
 4. As to the capacity to perform ; will a substantial performance suffice? 
 Give instances as to this matter? Will a purchaser be compelled to take 
 a defective title ? Can the vendor make the objection that his title is in- 
 complete ? Is it enough that he can make a complete title at the time of
 
 CHAP. 21.] THE COMMENTARIES. 81 
 
 the decree ? Does the court in this matter govern itself by a moral cer- 
 tainty ? What is the course pursued to ascertain whether a good title can 
 be made 1 
 
 5. What covenants may vendee require ? When are covenants of seizin 
 and for good title broken if vendor has them not? What covenants will 
 be decreed against heirs ? When may vendor be decreed to make a fur- 
 ther assurance 1 
 
 6. Is the purchaser chargeable with interest and entitled to profits when 
 the bargain is consummated 1 
 
 9. Of Injunctions. 
 
 1. What is an injunction? Upon what evidence and terms awarded? 
 What is its effect ? Is notice of the application to the adverse party ne- 
 cessary ? How is obedience enforced ? What terms are imposed generally 
 v/here it is granted during pendency of a suit to a proceeding at law? Re- 
 medy if injunction be refused by the Chancellor? 
 
 2. Under what circumstances are injunctions granted to stay waste ? For 
 what persons and against whom ? When granted to prevent a nuisance ? 
 Does it lie to undo what has been already done ? When granted in protec- 
 tion of patent rights or copy rights? Is a distinction recognized between 
 "pirating" and fair quotation or abridgment? When granted to restrain 
 negotiation of negotiable instruments ? Or pleading an unrighteous plea? 
 Or proceeding in another equitable forum ? 
 
 3. When granted to judgments at law ? When before and when after 
 trial ? Terms in such cases ? Effect of injunction where execution has 
 been levied or money made ? Grounds for injunction to judgments at law ? 
 Does the order operate on the court or party only ? Will it be allowed for 
 the purpose of ascertaining and settling off unliquidated damages? 
 
 4. Will injunction be allowed to restrain recovery of purchase money on 
 the ground of defective title ? Under what circumstances? When will relief 
 be refused ? How where covenant of seizin is broken, or before a conveyance 
 an outstanding incumbrance is discovered? Or even after a conveyance, 
 uader particular circumstances ? What difficulties are there as to relief 
 where the question of title depends on matter dehors ? Is the insolvency 
 of the vendor an important ingredient in these cases ? 
 
 5. Will injunction be allowed to correct errors committed by a court of 
 law ? Has there been no departure from the general rule ? Will it be al- 
 lowed on the ground of surprise on the trial at law, where the party 
 has failed to ask a new trial in the court of law ? What exception is found 
 in our books ? Will it be allowed to one who has failed to defend himself 
 at law, or been negligent and inattentive ? What exceptions to the gene- 
 ral rule ? 
 
 6. Will it be allowed where the cause has been fully heard and decided 
 in the court of law? Suppose it has not? What liberality is manifested 
 as to pauper suits for freedom ? 
 
 7. When will it be allowed for new matter? Or new evidence disco- 
 vered since the trial ? By the rules of what court should it be governed 
 in these cases ? Will a bill of review be allowed on discovery of new evi- 
 dence only ? What is the true ground of a bill of review upon facts ? 
 
 8. How is an injunction bill praying new trial on the ground of new 
 matter or evidence to be supported ? When is injunction allowed on tlie 
 ground of appeal to defendant's conscience ? When allowed for excessive 
 damages ? 
 
 9. In what cases will injunction be granted to protect property taken 
 by execution against a third person ? What are bills quia timet, and 
 
 VOL. 2— C8
 
 32 ANALYSIS OF [ BOOK 3. 
 
 when are they proper? Arc they applicable to bonds with collateral con- 
 dition ? 
 
 10. VV^hat remedy has a surety, where the creditor enters into new ar- 
 rangement with the ])rincipal ? What must be the nature and effect of 
 the act so as to discharge the surety ? Reasons of this doctrine of equity ? 
 
 11. What are bills to perpetuate testimony — and their object ? What 
 are bills of peace, and when are they entertained? What are bills of in- 
 terpleader? And the rules respecting them, and mode of proceeding un- 
 der them ? What is the rule as to costs in these cases? 
 
 12. Bills for protection of property in litigation ; when do they lie and 
 what is their object? Bills praying ??e exeat, their object? When and on 
 what terms is a ne exeat allowed ? 
 
 13. When may defendant move to disprove ? What weight is attributed 
 to the answer when responsive to the bill ? Suppose the matter of the an- 
 swer is affirmative? Or evasive 1 Or contradicted by two credible witnes- 
 ses, or by one witness and strong circumstances.? Suppose the case set 
 down by the plaintiff upon bill and answer without replication ? How is 
 the answer regarded on the motion to dissolve before replication? What 
 other rules are laid down as to these matters ? 
 
 14. When, if there be several defendants, may dissolution be moved on 
 the answer of one ? Is the answer of one on decree pro confesso against 
 one, evidence against others ? Is the answer of obligee acknowledging 
 gaming consideration, evidence against assignee 1 
 
 15. How far is an answer to be read when it is introduced as evidence on a 
 trial at law ? What is its weight there ? 
 
 16. What provision is made as to dismission of dissolved injunctions? 
 How is an abated injunction to be revived ? How is a motion to reinstate 
 to be made ? Are costs given on dissolution before final hearing ? What 
 is the course where plaintiff desires to appeal from dissolution ? What is 
 the effect of such appeal ? 
 
 10. Of Avoiding Illegal Contracts. 
 
 Will equity interfere to set aside contracts against law, though both 
 parties are criminal ? On what principle ? 
 
 11. Of Contribution. 
 
 1. Is the doctrine of contribution known to the common law? What is the 
 usual remedy now? What necessary to be shewn in a bill for contribution.? 
 
 2. Will a creditor's agreement to charge the parties rateably be enforced? 
 Is the principle inapplicable where sureties agree to pay in certain propor- 
 tions? Does it apply where one injustice ought to pay all? As in case 
 of a supplemental surety ? Or where the second surety enables the prin- 
 cipal to suspend the recovery from himself? 
 
 3. How is this remedy applicable between legatees, co-heirs, and the 
 like ? Or in charges upon lands ? Or to repairs of a joint property, or party 
 wall? Does it apply as between wrongdoers'? On what does the princi- 
 ple of contribution rest? How is it where the parties are not in equali 
 jure? In what light are successive purchasers looked on, at law and in 
 equity? 
 
 12. Of Substitution or Subrogation. 
 
 1. Give instances of the equitable doctrine of substitution ? As between 
 creditors and securities 7 Is the right reciprocal ? Is a creditor bound to 
 pursue his mortgage lien before lie can resort to the surety?
 
 CHAP. 22.] THE COMMENTARIES. 33 
 
 2. Is a surety who pays off a bond in the obligor's lifetime entitled to be 
 subrogated, as a specialty creditor? How if after his death 7 Or during 
 his life and after judgment ? Has the right of subrogation been denied 
 where by payment the creditor has no longer a subsisting right of action ? 
 See 3 Con. Ch. Rep. 665. 
 
 3. When is the surety entitled to charge the heir by substitution ? Give 
 an instance of subrogation between the sureties themselves. How is it be- 
 tween assignors and assignees ? In case of assignments to several of se- 
 veral bonds secured by the same deed of trust, which has preferable right to 
 payment ? 
 
 13. Want of Remedy at Law. 
 
 What is the principle of this ground of jurisdiction ? Suppose the mat- 
 ter disclosed by the bill be solely cognizable at law, how is the objection 
 made ? 
 
 14. Of Statutory Jurisdiction. 
 
 What six instances of statutory jurisdiction are enumerated here ? 
 
 15. Of Jurisdiction in Ecclesiastical Causes. 
 
 To what subject is this jurisdiction confined? What are the present 
 provisions of our law as to divorces? 
 
 Chapter XXII. — Of the mode of proceeding in Equity. 
 
 1. How is a suit in equity commenced? What is the general frame of 
 the bill? What is the general rule as to parties? What exceptions are 
 mentioned ? How to proceed where some interested parties refuse to join 
 as plaintiffs ? May the objection for want of formal parties be waived ? 
 When is a bill referred for scandal or impertinence ? What is the subpoe- 
 na ? Does it issue in fact before or after bill filed? 
 
 2. When is a party said to be in contempt ? How do you proceed against 
 him ? When may the bill be taken pro confesso ? If taken pro confesso 
 against one and defended successfully by another jointly concerned in inter- 
 est, what decree will be entered as to both ? 
 
 3. What is the process against a corporation ? Effect of service on the 
 proper officer? What is the proceeding against absentees? 
 
 4. How does the defendant make defence? What is the nature of a de- 
 murrer? Of a plea? Of an answer? When may discovery be demurred 
 to ? How should the defendant answer ? What are exceptions to answer ? 
 Can defendant have a decree for relief? What is the object of a cross 
 bill I 
 
 ■ 5. How may bill be amended or revived if abated ? Or new matter brought 
 forward? What is a bill of interpleader? V/hat affidavit must be annex- 
 ed to it? 
 
 6. When may the cause be properly tried on bill and answer? Weight 
 of the answer in that case ? And why ? When is it advisable to reply > 
 How are depositions taken ? And returned ? How is the cause set for hear- 
 ing? And tried ? How is the testimony of old witnesses perpetuated ? 
 W^ho pays costs in such cases 1 How is a cross cause brought on ? 
 
 7. Of what two kinds are the chancellor's decrees ? W^hat is interlocu- 
 tory? What final? What is a feigned issue? Has the court power to 
 refer a question of law to the general court for its decision ? How are ac- 
 counts taken ?
 
 34 ANALYSIS [ BOOK 3. 
 
 8. What is the effect of the answer? Reason of the weight attributed 
 to it? Howif its statements be affirmative? Or matter of avoidance? Or 
 evasive? Or doubtful? Or contradictory? Or contradicted in any one 
 point by adequate testimony? 
 
 9. If discovery is the sole ground of jurisdiction and the facts are denied 
 by answer, what is the consequence ? Can the plaintiff prove his bill ? 
 
 10. Is the answer of one evidence against another 1 How may evidence 
 of one defendant betaken against another? How may defendant take the 
 deposition of a plaintiff? How may plaintiff proceed to get deposition of 
 co-plaintiff? 
 
 IJ. What is the law as to costs ? On demurrer to jurisdiction sustained ? 
 Where a " fund" is the subject of suit? In cases of injunction and per- 
 petuation in part ? In bills to foreclose and redeem? In specific perform- 
 ance against heirs? In case of parlies erroneously made so by order ? 
 
 12. How is the decree enforced? How may the cause be reheard or de- 
 cree be renewed? How may the party grieved obtain an appeal i Is new 
 evidence admitted on an appeal ? 
 
 [The word " Blackstone's " in the head lines to the Analysis of the 
 Commentaries in the first volume, should not have been placed there : the 
 Analysis being for the work of which it forms a part.]
 
 APPElVDIi: TO BOOK il« 
 
 THE OPINION 
 
 CHANCELLOR TUCKER, 
 
 Case of selden and others against the overseers of the 
 poor of loudoun and another. 
 
 The case which is presented by the bill appears to nie to involve, unavoida- 
 bly, the discussion of the great question of the constitutionality of the law for 
 the sale ofthe Glebe lands, in the commonwealth of Virginia. It has, indeed, 
 been distinctly announced in the argument of the case, that this suit has 
 been instituted with the express view of having an adjudication upon that 
 litigated question ; and though it is more than probable, that, under no as- 
 pect, can the present bill be sustained, yet I have no disposition to shrink 
 from the expression of my own opinions upon the subject. I could have 
 wished, indeed, that the task had devolved upon abler hands than mine, 
 and the rather, as I have long had some pre-conceived notions in relation 
 to it. I am consoled, however, by the reflection, that, as this cause is not 
 to end here, any errors of my own will be corrected by that tribunal to 
 whose opinions we must all bow with submission. 
 
 In the examination of this subject. I propose to institute, in the first 
 place, some inquiry into the ecclesiastical establishment, and its component 
 parts, according to the principles of the common law, and, secondly, ac- 
 cording to the acts of the colonial legislature. 
 
 Preparatory to this inquiry, it may be remarked, that, in England, the 
 erection of all corporations is by the king's assent either expressly or im- 
 pliedly given. That assent is expressly given, either by royal charter, or 
 by act of parliament, which receives the royal assent. It is considered as 
 impliedly given, in the case of those corporations whose existence is im- 
 memorial, and become part of the common law. See I Black. Com. 472. 
 We may, therefore, assume, in this discussion, that corporations could only 
 exist in Virginia, before the revolution, by the king's charter, by statute, or 
 by common law. Since the revolution, ail powers of incorporation belong 
 exclusively to the legislature. But as in the case of Terret vs. Taylor, 9 
 Cranch, it is laid down that even in Virginia a parson is a sole corporation, 
 and as that matter appears to be very material to the present discussion, I 
 shall proceed to inquire how far the ecclesiastical establishment is a corpo- 
 ration, even according to the principles of the common law. 
 
 And here, in the first place, it is to be observed, that the Church of 
 England, (and, a fortiori, the Episcopal church in Virginia,) is not, and 
 never was, a common law corporation. The Church of England is not de- 
 graded to the rank of a corporation — it is one of the estates of the realm* 
 A bishop, or a parson, is a corporation, says Mr. Blackstone, but tho
 
 2 APPENDIX. 
 
 church is not. 1 Bla. Com. 472. And to the same effect we have the 
 opinion of the supreme court. 9 Cranch, 3'25-6. Still less could the 
 church, in Virginia, constitute a corporation, by common law. If we are 
 to look upon it in any other light than as the creature of the legislature, 
 we must regard it as a scion of the Church of England, which withered on 
 the stem when the parent stock was uprooted by the revolution. In that 
 aspect, it may, perhaps, have been considered as forming a part of the dio- 
 cess of the bishop of London, since all lands in Virginia were held of the 
 crown, as of the manor of East Greenwich. Be this as it may, even that 
 connection was severed by the revolution ; and neither before nor since 
 was the Episcopal church, in Virginia, a common law corporation. 
 
 Nor were the Vestries of the paris^hes corporations by the common 
 law. The vestries of parishes were, originally, only meetings of the minis- 
 ters, church wardens, and chief men, and every parishoner who was asses- 
 sed to, and paid church rates, was entitled to sit in the vestry. See 2 Ld. 
 Ray. 1388. 2Stra. 6-24. 8 Mod. 52, 351. 
 
 Church Wardens were, for some purposes, a kind of corporation at 
 common law ; to have property in goods and chattels, but as to lands, and 
 other real property, they had no sort of interest therein. 1 B. C. 394. 
 
 But though neither the church itself, nor its vestry and wardens, were 
 corporations, yet bishops and parsons were such by the common law. As 
 such, we are told, they never die. But whether they die or not, in their 
 corporate character, still, upon the natural death of one parson, his place 
 could only be supplied by the presentation, institution, and induction of 
 another. And in like manner, the creation of a bishop, who is to supply 
 a vacancy in the bishoprick, requires election, confirmation, consecration, 
 and installation. 3 Salk. 72. See also 2 Wils. 181. 
 
 Admitting, then, that bishops and parsons were sole corporations in Vir- 
 ginia, as well as in England, the question recurs — " How was the vacancy 
 to be supplied, in Virginia, upon the death of the incumbent." 
 
 First: As to the Bishop. Before the revolution there was no bishop in 
 Virginia ; and there never was an arch-bishop among us. At the date of 
 the Declaration of Independence we were without either of these high 
 dignitaries of the church. Nor was the colony of Virginia ever a bishop- 
 rick. Bishopricks were by the creation of the crown, and all " the bishop- 
 ricks in England are of the king's foundation, and he is the />a//"o?t of them 
 all." Co. Litt. 94. Every new bishop was thus, in fact, a nevr corporation 
 sole, who could only be created by the crown, or by act of parliament. 
 Nor is it matter of wonder, that this power was retained by the civil au- 
 thority, instead of being left to the exercise of the church. For this cor- 
 poration, a bishop becomes upon his installation not only invested with 
 high ecclesiastical powers, but he is endowed with extensive revenues and 
 temporalities, as well as spiritualities. He is, by force of his office of 
 bishop, the ordinary, with jurisdiction over wills and testaments ; and, as 
 judge of the ecclesiastical court, lias cognizance of matrimonial and other 
 causes pertaining to ecclesiastical law. He has, moreover, the power of 
 ordaining ministers, destined themselves to constitute an inferior corpora- 
 tion, with like immortality to that of the bishop himself, and with the right 
 to hold, for life, the Glebe attached to their parish church, as and for their 
 ireehold, with the privilege of exacting tithes, and other ecclesiastical 
 dues. 
 
 With this view of the powers of a bishop when created, and the mode 
 of his creation, we may venture to ask — " How comes Virginia by a bish- 
 op?" The answer is, "She has none." By courtesy, indeed, certain 
 eminent divines, selected, and so styled by their brethren, are denominated 
 bishops; but legally speaking wn linve none. Before the revolution, as I
 
 APPENDIX. 
 
 3 
 
 have already said, it is not pretended that Virginia had a bishop, or was a 
 bishoprick. After the Declaration ot Independence, if the power existed any 
 where to erect this commonwealth into a bishoprick, and to create this new 
 corporation, (a bishop,) with all his common law powers and attributes, 
 that power must have been vested in the legislature alone. Could it have 
 been in the archbishop of Canterbury, by whom, I presume, the late most 
 estimable Mr. Madison was consecrated ? Or can it now be in the bishops 
 of adjoining states, who have consecrated the present venerable Bishop 
 Moore, and his most highly respected suffragan ? 
 
 To suppose such a power in the dignitaries of the Church of England, 
 is at war with the whole principles of the revolution. That revolution 
 broke the power of the British king: It dissolved forever his authority 
 over this commonwealth. The political union of the two countries was at 
 an end. Neither parliament nor king had any longer power here. And 
 if the sceptre of the monarch cannot reach across the Atlantic, can the 
 crozier of the archbishop ? If its powers are wrested from the state, do 
 they still remain vested in the church, which in England clings to it like a 
 parasitical plant, thus forming in effect a part of that very government 
 whose yoke has been thrown off? Such pretensions are too monstrous to 
 find an advocate ; and, accordingly, I do not understand it to be contended, 
 even by the most zealous votary of the church, that those whose virtues 
 and acquirements have elevated them to the dignity of bishops, in the 
 Episcopal church here, are recognised as such by law. They are entitled, 
 indeed, to our highest respect as holy men ; and to our veneration as pious 
 ministers of the gospel ; but like the bishops of the Methodist church, they 
 are only bishops by courtesy. Their only power is in the voluntary submis- 
 sion of the members of their society ; their only authority is derived from 
 the regulation of conventions; (bodies equally unknown to the law with 
 themselves ;) their only influence is the powerful influence of religion, sus- 
 tained and enforced by their virtues and their piety ; by their learning, their 
 eloquence, and their zeal. To the law they are unknown, except that, 
 like the humblest of the ministers of the most humble dissenting congre- 
 gation, they are protected from insult and contumely when engaged in 
 religious service. They are invested with the power of solemnizing mar- 
 riages, and they are excluded from a participation in the legislative power. 
 In every other aspect they are, legally speaking, non entities, (or I would 
 rather say, non existences,) without rights, without privileges, without du- 
 ties, capacities, or incapacities. 
 
 We come next to the case of the Parson. The first requisites to con- 
 stitute a parson are, by common law, a parish and a church. VVithout these, 
 there can be no parson; for a parson is "one who is in holy orders, who 
 hath full possession of all the rights of a parochial church, and he is so 
 called because he is persona ecclesiee." Co. Litt. 300. 1 Bla. Com. 381. 
 Now it is obvious, that, at the first settlement of Virginia, there were no 
 parishes. Those which have been laid off derived their existence from 
 legislative provision alone. Consequently, there could not have been any 
 such thing as a parson in Virginia, until parishes were established by the 
 legislature; and hence, it is obvious, that the ministers recognised by law, 
 before the revolution, derived their existence, not from the common law, 
 but mediately from the statute law. 
 
 Parishes, however, having been at length established, and the ecclesias- 
 tical system of England forming part of the common law, it is probable 
 that the appointment of ministers to particular parishes, might have consti- 
 tuted that sole corporation denominated " a parson," if all the other requi- 
 sites of the common law could have united in him. Moreover, Glebes 
 having been purchased, the possession of them, I presume, would have
 
 4 APPENDIX. 
 
 vested in the incumbent parson, and his successors ; for, according to the 
 common law, the corporation could never die. But in order to all this, it 
 was necessary that there should be a common law parson. A legislative 
 minister would not constitute the sole corporation known to the common 
 law as the parson of the parish. Let us then see what were the requisites 
 to the creation of a common law parson. 
 
 I. The first was holy orders; and, by the ecclesiastical law, a priest, (so 
 the parson was called before induction,) could only be ordained by a bishop. 
 For this doctrine, it is believed, the clergy of the Protestant Episcopal 
 church, at this day, very strenuously contend, though it is as strenuously 
 opposed by the members of other congregations. It is not my purpose to 
 enter upon the consideration of this litigated question, in any other than 
 a legal point of view. In that aspect, there can be no doubt that ordina- 
 tion, by a bishop, was, at common law, required to constitute a priest, and 
 a priest so ordained was necessary to constitute a parson. 
 
 From this position it may not be improper, at once, to deduce these co- 
 rallaries : 
 
 1. That, since the revolution, there cannot have been any priest ordained 
 in Virginia, according to the common law. For as there is no bishop in 
 Virginia — as English bishops cannot now ordain Virginia priests — and, as 
 even legally speaking, there can be no priest except through Episcopal 
 ordination, it is impossible there should have been a legally ordained priest 
 in Virginia since the revolution. 
 
 2. This consequence will equally follow, whether the act of 1661, ch. 3, 
 be considered as repealed or not. That act provided that " no minister 
 should be admitted to the church, except such as could produce a testimo- 
 nial of ordination by a bishop in England!" For my own part, I do not 
 hesitate to affirm that this act was repealed ipso facto by the revolution. 
 It lashed us to the ecclesiastical polity of Great Britain. It made us, 
 in so far a ramification of the church of England ; of that church the mem- 
 bers of which were all united in one common head — the king; who has 
 been recognised, ever since the reformation, as the supreme head of the 
 church. And when the lashings were cut away, which bound us to the 
 state, we were also cut loose forever from the church. When the head was 
 cut off, I cannot conceive that this member, (the Episcopal church in Vir- 
 ginia,) thus lopped from the parent stock, continued in existence, and still 
 less that its union with the Church of England so far remained as to require 
 or to justify ordination of their bishops. But be this as it may, the conse- 
 quence is the same. If the law be repealed then there can be no legal ordi- 
 nation under it; and I have shewn that there can be no common law ordi- 
 nation in Virginia, at this time, for want of a bishop. If the law be not 
 repealed, then it may be safely affirmed that there is not, at this time, a le- 
 gally ordained minister under it, in the state of Virginia ; as I presume 
 there is not now living a single minister who received his ordination from 
 the hands of an English bishop. In any aspect then, it is obvious that 
 there is, at this time, no minister in the Episcopal church in Virginia, or- 
 dained according to the law of the land, whether common or statutory : 
 and hence it would seem that the very first requisite, in the creation of a 
 parson, is utterly unattainable. 
 
 II. The second requisite to the creation of a parson is presentation. 
 This belonged to a patron in England, but was given by (he act of 1748, 
 ch. 28, to the vestries, whose appointment was first directed in 1661. And 
 as the vestries were elected by the parishoners, the parson, instead of being 
 presented by a patron, (as at common law,) was in effect mediately 
 elected by the people, in direct hostility with common law principles.
 
 APPENDIX. O 
 
 III. The third requisite to the creation of a parson, is institution ; and 
 this is, when the bishop invests the minister with tlie spiritual part of the 
 benefice ; 1 Burns Ecc. L. 148; saying to him, " Jnstituo te rectorum talis 
 ecclesice cum cura animarum accipe curain ttiam et meani." Co. Lilt. 344. 
 This ceremony of institution might also have been performed by the bishop 
 under the Episcopal seal. 
 
 IV. The last requisite to the creation of a parson was induction. It 
 was this which made the parson complete incumhQnt, and fixed the freehold 
 in him, 4 Rep. 79. Plow. 529, and this was performed by a mandate /row 
 the bishop to the archdeacon, who usually commissioned some clergyman 
 to do it for him. 1 Bl. Com. 391. From this it is obvious that no power, 
 foreign to this commonwealth, could have the power of creating them sole 
 corporati(>ns, since such power could give them, indirectly, a power over 
 landed estates of the country. 
 
 It will not be assuming too much to affirm, that the bishop, who, by the 
 common law, was thus the instrument of institution and induction, was of 
 necessity the bishop of that diocese within which the cure was ; for it 
 would have introduced confusion, and been at war with the organization 
 of the ecclesiastical establishment, if the bishop of one diocese could have 
 instituted, and inducted, a parson into the benefice of another. Hence, 
 unless Virginia can be shewn to be a bishoprick, it would seem impossible 
 that there could be such a thing as institution, and induction, on common 
 law principles. 
 
 This short recurrence to the antiquated law of this subject, will serve to 
 shew that there never could have been, in Virginia, such a corporation sole, 
 as a common law parson ; and certainly there never can be now, without 
 the aid of some legislative act. For 
 
 1. First, as I have already endeavoured to shew, holy orders can no lon- 
 ger be conferred, in Virginia, in the manner required by common law. 
 
 2. Presentation never could have been made, on common law principles ; 
 because the presentation was by statute, to be made by the vestry to the 
 governor, (a civil officer,) instead of by a patron to the bishop, an ecclesi* 
 astical dignitary; there being, indeed, no bishop to whom presentation 
 could be made. 
 
 3. Institution being the act of a bishop, and there being no bishop in 
 Virginia, there could be no common law institution ; nor, indeed, do I per- 
 ceive any substitute provided by statute, for this essential and spiritual part 
 of the ceremony of creating a parson. 
 
 4. Induction being the act of the archdeacon, or his committee, under 
 authority from the bishop, there could be no common law induction, as 
 there was no bishop, and no archdeacon. The substitute provided by law 
 was induction by the governor. But though this statutory induction created 
 a statutory minister, it did not constitute a common law parson. 
 
 With due submission, therefore, to the high authority which pronounced 
 the decision of Terret us. Taylor, there never was, in Virginia, either before 
 or since the revolution, such a corporation sole as a common law parson. 
 
 The truth is, the whole ecclesiastical system, in Virginia, though con- 
 nected before the rovolution with the establishment of the Church of Eng- 
 land, was evidently built up by the early practices of the settlers, or by 
 legislative regulation. It is a statutory system, in contradistinction to a 
 common law system. It was a public civil institution, ordained by the 
 government for public purposes, instead of being a private ecclesiastical 
 establishment; or, like the Church of England, a co-ordinate and co-equal 
 estate of the realm. 
 
 This view of the subject will enable us to form proper conceptions of 
 the legal characters of preachers of the gospel. They were, before the
 
 6 APPENDIX. 
 
 revolution, statutory ministers, not common law parsons. By an early act, 
 places of worship were ordered to be set apart, in each plantation, and 
 ministers were directed to perform divine service to the people. This was 
 among the first steps in the establishment of this public institution, /or 
 the purpose of inculcatins; the principles of genuine piety and morality 
 among the people of each division of the colony. Then it was provided that 
 ministers should be ordained by a bishop in England, and be presented by 
 the vestry, and inducted by the governor. The vestry were to be elected 
 by the parishoners, and were empowered to purchase Glebes with public 
 funds, to be raised by levy on all persons, of whatever denomination, in the 
 parishes ; and in like manner to erect houses, &c. for the comfortable ac- 
 commodation of the minister of the parish. For his support a certain 
 •compensation, ^xerf by laio, was to be raised by levy on all the parishoners ; 
 but no tithes were provided for him, for these seem to have been regarded 
 as alien to the system. 
 
 These positions, then, I consider as established. 
 
 1. That the common law ecclesiastical system was, in effect, abolished; 
 and a statutory system substituted by the colonial legislature. 
 
 2. That the system, such as it was, was a public institution, established 
 for great public purposes, and sustained by public funds. 
 
 Having shewn, I think, that there never has been, in Virginia, such a 
 corporation sole as at common law, it follows undeniably, that there could 
 be no vested right in the Glebes, unless such right can be traced to some 
 statutory provision. We proceed, therefore, to examine, in the first 
 place — 
 
 The laws anterior to the revolution. These merely authorised the lay- 
 ing out, and purchase by the vestries, of Glebes for the accommodation of 
 ministers. In the case of Terret vs. Taylor, it is truly said, that a deed for 
 Jand so purchased could not be taken by the church wardens, who are only 
 empowered, by common law, to take personal estate. But the law having di- 
 rected the appointment of twelve vestrymen, and provided for keeping their 
 numbers full, and having also directed them to purchase, they were capable 
 to take to them, and their successors, for the purposes declared by the law. 
 But this power did not constitute them a corporation any more than the 
 power vested in the justices of a county court to purchase a site for the 
 public buildings. Vestrymen were, in fact, public officers, appointed 
 by law, with various public duties, most of which have been transferred to 
 the overseers of the poor. As public officers, they were invested with 
 power to purchase and hold, for special purposes, and they were no more 
 created corporations thereby, than the governor, because he can take an 
 official bond : or the justices, because they can purchase for public build- 
 ings ; or overseers of the poor, who are sometimes empowered to buy land 
 for the use of the poor, or to erect poor houses instead of renting them. 
 They were trustees, indeed, because they were empowered to take a title, 
 not for their own benefit, but for other purposes; and those purposes were 
 public purposes; as, indeed, they ought to have been, as the property was 
 purchased out of public funds. 
 
 I will here remark, that in all cases of purchase by the vestries, the legal 
 title ought to have been conveyed to them, for they were the persons au- 
 thorised to purchase; and, of consequence, to take. And here, again,' we 
 plainly discover the difference between the rights of the common law par- 
 son, and the statutory minister. The common law parson takes the legal 
 title himself, to him and his successors. The statutory minister had but an 
 equitable title for his own life, the vestry holding, as trustees, for his benefit. 
 Upon his death the vestry continued to hold tvs trustees, until a new minister 
 was inducted. There was no abeyance of the freehold, as in the case of
 
 APPENDIX. 7 
 
 the Glebe, at common law ; and, moreover, as the fee was in these trustees, 
 for whose perpetual continuance the law had provided, there was no ne- 
 cessity that the minister should be a corporation sole, to keep alive the 
 rights of the church. To pursue the distinction somewhat farther: The 
 common law parson formed a component part of ecclesiastical polity — the 
 statutory minister, [for he is no where called a parson,) was a public servant^ 
 the creature of the legislature. Both were, indeed, connected with the 
 state. But the parson, as part of that establishment, which is said to be 
 one of the estates of the realm, was connected with the head of the church, 
 (the crown,) while the minister was dependent on the colonial legislature, 
 and fed by their hands. He did not receive the cure of souls, and the pos- 
 session of the church, from the hands of a spiritual pastor, upon the pre- 
 sentation of a patron ; but he was an officer of the public, appointed for 
 public instruction, elected by the people, (through the vestry,) recommend- 
 ed by the vestry to the governor, (the highest civil officer in the state.) 
 He received from his unholy hands, authourity to preach in the parish, to 
 receive the salary raised from the public by a general levy, and to occupy 
 the Glebe purchased with the public funds, extorted from dissenters as weU- 
 as levied from the members of the church. In such a minister we recog- 
 nise not a single feature of the common law parson, save the performance 
 of the ministerial function. But we do recognise in him every characteris- 
 tic of ^public officer. He was appointed by the public, for the discharge 
 oi public duties, with an obligation to perform them, and a right to receive 
 the emoluments arising therefrom. 
 
 But though the statutory ministers were not corporations sole, and had 
 no legal estate vested in them, yet upon their appointment as officiating 
 ministers of any particular parish, they became invested with the right to 
 receive, during life, the profits of the Glebes which were held by the vestry 
 for their benefit. This right was a vested right. But here we must advert 
 to the distinction between ministers who were incumbent at the date of the 
 revolution, and those who have become officiating ministers since. The 
 former were regularly ordained according to law by a bishop of England. 
 They, therefore, were capable of being ministers in the parishes ur^d^er the 
 act of 1661. The latter never were legally ordained by a bishop in Eng- 
 land, and under that act were expressly excluded from the ministry, and 
 even if that act be repealed, (as I presume it is,) then, there being no legal 
 mode of ordination prescribed, and, indeed, no bishop to perform the 
 ordinances, they never could have been legally ordained. The ante- 
 revolutionary ministers were moreover regularly presented by the ves- 
 tries to the governor, and inducted by him, according to law, into the 
 possession ot the church, together with the Glebe and the mansion ; and 
 it is this induction which makes the parson incumbent, and fixes the freehold 
 in him. 4 Rep. 79. Without this induction his right is not vested. And 
 when was the last instance of presentation to the governor, and induction 
 of the minister by him into the rights of the church ? A post-revolution- 
 ary instance if this ceremony cannot, I think, be produced. Those who 
 have been put into possession of the Glebes since the revolution, would be 
 intruders with no right at all, instead of having vested rights which even the 
 sovereign power cannot touch : unless, indeed, some post-revolutionary 
 statute shall have authorised the induction of ministers, (ordained without 
 law, or against law,) by the officers of the church, instead of the authority 
 of the governor. 
 
 From this difference between the ante-revolutionary and post-revolu- 
 tionary ministers, results an obvious distinction as to the measures that 
 might fairly and legitimately be adopted in relation to them. The ante-re- 
 volutionary minister having, upon the faith of the law, qualified himself by
 
 8 APPENDIX. 
 
 ordination by an English bishop, and having acquired vested rights by his 
 induction, good faith required that these vested rights should be respected : 
 and so they have been ; for the act of 1802 not only saves the rights of in- 
 cumbents of this description, but of all incumbents anterior to the passage 
 of that act ; whereas it is obvious, from what has been said, that no post- 
 revolutionary minister could have acquired a vested right in the Glebe of a 
 parish, which the legislature was bound to regard. They have thus shewn 
 not only a spirit of justice, but of moderation and forbearance, which is 
 deserving of the highest praise, instead of meriting the reproach of having 
 trampled upon the rights of a respected portion of the community. 
 
 Nor must we omit to advert to another consequence of the changes pro- 
 duced by the revolution. The vestry, we have seen, was a public body, 
 invested, as trustees, with certain real estates for public purposes, which 
 estates were purchased with public funds. Now, upon the death of the 
 ante-revolutionary minister, as there could be no legally ordained minister 
 since the revolution, for whose benefit, or for what use, did these trustees 
 continue to hold the estates ? Not for their own, for they were never de- 
 signed to be the beneficiaries. Not for the church as such, for the church 
 is incapable of taking in that character. See 9 Cranch, 29-2. Not for the 
 " society of the Episcopal church in each parish," nor for " the parishion- 
 ers of each parish;" for the law will not permit "societies/' or "parish- 
 ioners," to take real estate in any such character, unless incorporated. 
 There was not, and could not be, any legally recognised cestui que trust — 
 and, as the trust was declared for public purposes, and the estates were 
 raised out of public funds; as no individual had, in them, a vested right, 
 nor any recognised association of individuals an interest; the trust was 
 revocable by the legislature, see 9 Cranch, 52. And they had, therefore, a 
 moral right, as well as the sovereign power, to declare other trusts of the 
 property. See what is said, 9 Cranch, 335, as to the legislative power, 
 where the trust fails by reason of the omission to establish a church. See 
 also Middleton vs. Spicer. Brown's C. R. overruling Burgess vs. Wheat, 
 as to the escheat of a trust to the crown. 
 
 In the further prosecution of this subject, I shall assume, that the ante- 
 revolutionary statutes which compelled persons of every religious sect, or 
 denomination, to contribute to the purchase of Glebes for the Episcopal 
 ministers, were tyrannical and oppressive, and invasions of the rights of 
 religious liberty, and freedom of opinion in matters of conscience : that if 
 so, they ought to have been repealed out and out as soon as our shackles 
 were broken by the revolution, and we were left free to act upon the liberal 
 principles avowed by the then sovereign state of Virginia, in her constitu- 
 tion and bill of rights. 
 
 I have said I shall assume these positions, because I presume there is no 
 one at the present day who will be bold enough to contend that the citizen 
 can rightfully be compelled to support a minister of the gospel of a persua- 
 sion different from his own. If such there be, I shall content myself with 
 referring him to his own bosom to determine, whether in his own case, he 
 would not deem such an attempt an invasion of the dearest privilege that 
 belongs to a reflecting being. And when he has examined himself truly, 
 I would then ask, in the strong language of the act for establishing religious 
 freedom, whether " to compel him to furnish contributions for ihe propa- 
 gation of opinions which he disbelieves, is not sinful and tyrannical?" If 
 it be, then was it sinful and tyrannical to compel contributions to the church, 
 according to the provisions of the ante-revolutionary acts. By these pro- 
 visions the Papist was forced to contribute to the maintenance of an Epis- 
 copalian, whom he deemed an heretic ; the Covenanter was called upon 
 to support a hierarchy which ho considered in the gall of bitterness and"
 
 APPENDIX. 9 
 
 bond of iniquity ; and Methodists, and Baptists, and Quakers, and every 
 other dissenting congregation, were taxed to support the minister of an 
 establishment which they regarded as their persecutor. No minister was 
 permitted to enjoy a living in any parish, unless he had been ordained by a 
 British bishop, even though the parishioners were dissenters to a 
 MAN ; and yet all denominations were, for an hundred years, taxed to sup- 
 port ministers of that description, and the levies for the purchase of Glebes, 
 for the ttse exclusively of one denomination of Christians, icere raised un- 
 sparingly from all. It is said, indeed, that the portion thus levied on 
 dissenters was small. Of this, I am not, perhaps, a competent judge. 
 But it is certain that there were, in Virginia, long anterior to the purchase 
 of the Glebe, in 1773, large congregations of dissenters, with pious and 
 learned pastors at their head. While, therefore, I do not pretend to esti- 
 mate the proportion, I am inclined to believe that it was not inconsiderable. 
 Be this as it may, I am clearly of opinion that the character of the law does 
 not depend upon the number of the oppressed, but upon the nature of the 
 oppression. And let it be remarked, that if we are to declare the ante-re- 
 volutionary acts tolerant and forbearing, and the act of 1802 unconstitution- 
 al and void, because it may have happened that there were but few dissenters 
 in Loudoun, the precedent might be brought to bear in districts where they 
 were far more numerous. Thus we all know that the Presbyterians were a 
 flourishing sect in another part of the colony, under the powerful ministry 
 of Samuel Davis, and others, who constituted what was called the Presby- 
 tery of Hanover. Yet however numerous they might have been, they were 
 forced by the ante-revolutionary laws, in addition to their voluntary contri- 
 butions to their own minister, to contribute to the salary of the Episcopal 
 minister. They were also compelled to pay for the purchase of a Glebe of 
 200 acres at least, and for the erection of buildings upon it for his accom- 
 modation, although between the ministers of the church of England and 
 themselves there existed at that time inveterate antipathies, which nothing 
 has been so successful in reconciling as the annihilation of all distinctions, 
 in point of privileges, between the various denominations of Christians in 
 Virginia. For such acts there is no appellation more fit than that employ- 
 ed in the act of 1785. They were sinful and tyrannical. 
 
 Such, then, being the character of these acts, let us next inquire what 
 was the effect of the revolution upon them ? Its spirit was in direct colli- 
 sion with them all ; its operation was, in effect, a silent repeal of some of 
 them. Thus the same stroke which severed us from the monarchy anni- 
 hilated forever all connection between the ecclesiastical establishment here 
 and the church of England ; for that church is intimately connected with 
 the state, and has the king for its head, whose authority we had thrown off. 
 It required then, I conceive, no specific act of legislation to repeal the act 
 of 1661, ch. 3, which required all ministers to be ordained by an English 
 bishop. 
 
 There were other laws, however, relating to the establishment, which 
 may not, perhaps, have been repealed ipso facto by the revolution ; such, 
 perhaps, were the laws authorizing the vestries to purchase and hold the 
 Glebes for the use of the ministers, and directing the purchase money to be 
 levied indiscriminately on dissenters and churchmen. Yet what was the 
 duty of the first revolutionary legislature in relation to these tyrannical laws ? 
 That which is the imperious duty of every legislature in relation to every 
 oppressive and tyrannical law. Their duty was to repeal them. The 
 rights of religious liberty had been outraged for a century. Large sums 
 had been raised for the support of one denomination of Christians, by 
 an indiscriminate levy on all, and annual contributions still continued to 
 be enforced. What ought the legislature to have done 7 They ought to 
 2
 
 10 APPENDIX. 
 
 have done, at the earliest date of our national e:^istence, what was cnlpa- 
 bly postponed until the act of 1802. They ought not only to have exempt- 
 ed dissenters from a\\ future contributions to the church, but to make amends 
 for the past, as far as that was practicable, by selling the Glebes and ap- 
 propriating the money to the use of the parishes. Even this would have 
 fallen far short of retribution ; for there could be no restoration of the ex- 
 torted annual contributions of the century preceding. 
 
 Conscious of the tyranny of the existing system, the legislature did, by 
 the act of 1776, exem.pt dissenters from future contributions. Was this 
 law the subject of animadversion because it thus interfered with the vested 
 rights of the minister and the Episcopal parishioners ? It is believed not. 
 I apprehend it was universally and cheerfully acquiesced in, because it was 
 obviously not the divesting of a right, but the removal of a wrong. It is a 
 perversion of terras to speak of a vested right, where the act out of which 
 the supposed right has grown was, in itself, an original outrage upon the 
 religious liberties of the people. 
 
 But the legislature of 177(3 stopped here. If they had carried out their 
 principles, they would have gone on to direct a sale of the Glebes for the 
 common benefit of all. For if it was a wrong to levy an annual contribu- 
 tion on dissenters, it was equally a wrong to levy the purchase money 
 of the Glebes upon them. If it was right to exempt them from the an- 
 nual contributions, it would have been right to restore, as far as they could, 
 what had been extorted to pay for .the Glebes. But instead of redressing 
 this gross injustice, the act of 177G reserved the Glebe lands to the church, 
 though they exempted dissenters from further contributions. This can be 
 accounted for, when we recollect that that act was passed amidst the throes 
 of the revolution ; and that policy might have prevented a measure calcu- 
 lated to excite disaffection among the most numerous denomination of 
 Christians in the infant state. 
 
 When the revolution was over, the legislature of 17S4, under the influ- 
 ence of causes I am not old enough to explain, passed the act for the in- 
 corporation of the vestries and ministers of the respective parishes ; there- 
 by rivetting the injury which had been done by the ante-revohjtionary acts, 
 and extending the evil, by erecting these numerous corporations. Of this 
 act it is sufficient to say, that it was contrary to the spirit of our new insti- 
 tutions ; it was calculated to perpetuate the wrong which had been done 
 by the ante-revolutionary acts ; and, if they ought to have been repealed, 
 "as sinful and tyrannical," it ought to have shared the same fate. 
 
 I should imagine this act must have occasioned much excitement in Vir- 
 ginia, since it was in the following year that the legislature passed, in a 
 very different spirit, the act for establishing religious freedom. The rays 
 of religious liberty seemed to have daWned upon the people, and this act 
 was the morning star which ushered in the meridian light which has fol- 
 lowed. The first of the succeeding acts, was the act of 1786. It made 
 haste to repeal so much of the act of 1784 as had established an invidious 
 distinction between sects of religion, by the incorporation of the Episco- 
 pal church. It was enacted at a time when Virginia was a free and inde- 
 ])endent state, possessed of every attribute of sovereignty ; and, among 
 these, of the sovereign authority to dissolve corporations. See 1 Bl. Com. 
 485. It was passed by this ancient commonwealth at a time when she 
 was untrammelled by any engagement which placed limitations upon her 
 authority, and when she recognized the right of no power upon earth to 
 say unto her " what dost thou ?" Hence, even though the act in question 
 had been an invasion of the rights of one portion of the people, instead of 
 being, as it was, a mere act of justice to another, it was, nevertheless, an 
 act of sovereign authority, which none could call in question. It was bind-
 
 APPENDIX. 
 
 11 
 
 ing on every citizen of the state, and was at least as valid, to take away 
 the rights of the church, as the acts of 1696, and 1727, had been to take 
 away the property of the dissenters ! The legislature of 1786 did not, 
 however, carry out the principles of religious liberty to their just conse- 
 quences. Thus, instead of reclaiming for the benefit of all the property 
 which had been bought by the contributions of all, they "saved to all reli- 
 gious societies the property to them belonging," authorizing them to ap- 
 point trustees, who are declared capable of managing and applying such 
 property to (he religious use of such societies. What was the effect of 
 this reservation ? 
 
 Here it must be observed, that the act of 1784, by its express incorpora- 
 tion of the vestries and ministers, superseded the powers of the vestries un- 
 der former laws, and substituted this incorporation for those former laws. 
 Hence, when this incorporation was repealed, there was no longer any 
 ground for the pretence that the vestries were corporations under the ante- 
 revolutionary provisions. Their powers had been swallowed by the incor- 
 porating act of 1784, and had been destroyed when it was repealed. 
 
 But it is contended that the saving in the act preserved the rights of the 
 church. To this I answer, that the saving was void; as was also the 
 saving in the act of 1776, ch. 2, Oct. session, to which allusion has already 
 been made ; and this 1 take to be equally clear, whether we consider the 
 proviso to be of the nature of a saving or of a grant. 
 
 Now there is no principle in the law more clear than that, in every grant, 
 there must not only be a grantor and thing granted, but a grantee capable 
 to take. And if there be such uncertainty as to the grantee that it cannot 
 be known distinctly who is to take under the grant, it is, ipso facto, void, 
 for uncertainty. This is equally the case with the grant of the crown, or 
 of the parliament, as with that of a private man ; for it results from the 
 utter impossibility of effectuating the grant by reason of the undefined 
 character of the grantee. Hence we find it laid down by the earliest wri- 
 ters, that a grant to the parishioners of Dale is void, for it is impossible to 
 say who are to have the benefit of it. Nay, more, as the parishioners of 
 Dale arc not corporate, and enabled to take in a corporate character, the 
 grant, (if it enured at all,) must enure to each parishioner in his natural 
 character, since he has none other in which to take. The absurdity of such 
 a grant may be sufficiently exposed, by a slight attention to its operation 
 in the case of the reservation of the Glebes to^the religious society denomi- 
 nated the Protestant Episcopal church. In ihe first place, that society be- 
 ing no longer incorporated, a grant to the society would operate, (if at all,) 
 as a grant to them not in their character of a society, but to each indivi- 
 dual in his natural character, liable to partition, subject to debts and charges, 
 and transmissible to heirs, or assigns, for their own use, and not for the 
 use of the church. In the second place, the persons in whom the right 
 would thus vest, would continue under all circumstances owners, unless 
 they voluntarily aliened. The title being once in them could not pass out 
 of them without their deed. So that, although a parishioner removed to 
 another parish, or although he should become the convert to another sect, 
 his title would, in effect, remain in him, in spite of his having ceased to be 
 a member of the religious society of the Episcopal church. 
 
 If, indeed, we could suppose it otherwise, the consequences would be 
 yet more absurd. The title would be in a perpetual state of flux. What 
 belonged to A to-day, would, by his removal from the parish, or apostacy 
 from the church, cease to be his to-morrow ; whereas B, by removal to the 
 parish, or apostacy to the church, might, by the converse of the principle, 
 acquire to-morrow a right which he has not to-day. Moreover, who would 
 be the legally constituted triers of the facts of apostacy, or conversion,
 
 12 APPENDIX, 
 
 whereby one rnan is to gain, or another is to lose, the estate. Who, in- 
 deed, constitutes the society ? Are all who have been baptised into that 
 church, within the meaning of the statute, or those only who are received 
 as members, by an union in its most solemn ordinances ? These, and a 
 multitude of like difficulties, present themselves to the notion of any grant, 
 or conveyance, to a religious society, or to trustees for their use. For in 
 the eye of the law the intervention of a trustee does not remove a single 
 difficulty. There is not more necessity for a properly defined grantee in a 
 deed, than for a cestui que trust, who is capable of taking, and who is so 
 defined and pointed out that the trust will not be void for uncertainty. The 
 trustee takes no beneficial interest whatever. The nomination of him is 
 little more than matter of form. But if the cestui que trust is uncertain, 
 or incapable, the declaration of trust is void, and if void, then the trust re- 
 sults, and the trustee himself has no manner or pretence of title. 
 
 Considerations such as these have produced an uniform determination 
 in the courts, (except so far as' in England, or in the Eastern states, chari- 
 table gifts are provided for,) that grants, devises, and conveyances, of this 
 indefinite character, are void. See 1 Hen. & Mun. 470. 4 Wheat., Bap- 
 tist asso. vs. Harts, &,c. 4 Mun. 1. There is not a religious society in Vir- 
 ginia which has not felt the difficulty, nay the impossibility, of any valid and 
 binding arrangement of their property for the uses of their sects. All are 
 compelled at last to depend upon the good faith and solvency of those to 
 whom conveyances are made, or who may be considered as legally entitled ; 
 since their breach of faith, or insolvency, would inevitably defeat the objects 
 of the association by whom they have been intrusted. 
 
 It is material to observe, in connection with this part of the subject, that 
 no vested right ever can arise under such indefinite grants. The uncertain- 
 ty of the person to whose benefit the grant is to enure, is as fatal to the no- 
 tion of the vesting of a right, as it is to the idea of the validity of the grant. 
 And this is equally true, whether the grantee is to take immediately, or 
 through a trustee ; for though, in the latter case, the title indeed may vest 
 in the trustee, yet it is a mere naked title, without an interest — a trust re- 
 sulting to the grantor. To whom it resulted in the present instance will 
 be hereafter explained. 
 
 From the foregoing investigation I deduce, that, independent of the acts 
 of 1798 and 1801, the rights of the society known in common parlance 
 as the Protestant Episcopal church, were completely annihilated by the 
 act of 1786 — an act passed in the plentitude of the power of our venerat- 
 ed commonwealth, when her sovereignty was untrammelled, and her will 
 alone determined the validity of her laws; yet passed in conformity with 
 the dictates of justice and of duty, under the influence of a spirit of mo- 
 deration for which she has always been distinguished, and at the sugges- 
 tions of a wise and prudent policy, to extinguish those sparks of religious 
 discord which were in danger of being blown into a flame by the act of 
 1784. If I am right in these deductions, it is clear that the question in 
 this case is not touched by the constitution of the United States, which was 
 not adopted until two years afterwards ; and hence, it will be equally clear, 
 that this is a subject over which the supreme court of the United States have 
 no manner of jurisdiction. 
 
 I shall proceed, however, more particularly to consider the acts of 1798 
 and 1802, and the question of their constitutionality. And here I shall 
 advert, first, to the meritorious objects of those acts; and, secondly, to the 
 moderation and propriety of their provisions. 
 
 1. The object of the acts in question is very forcibly pointed out by their 
 respective preambles. The preamble of the act of 1799 is in these words: 
 
 " Whereas, the constitution of the state of Virginia hath pronounced the 
 government of the king of England to have been totally dissolved by the
 
 APPENDIX. IS 
 
 revolution ; hath substituted, in place of the civil government so dissolved, 
 a new civil government ; and hath, in the bill of rights, excepted from the 
 powers given to the substituted government, the power of reviving any spe- 
 cies of ecclesiastical or church government, in lieu of that so dissolved, by 
 referring the subject of religion to conscience; and whereas, the several 
 acts presently recited, do admit the church established under the regal go- 
 vernment to have continued so subsequently to the constitution ; and be- 
 stowed property upon the church ; have asserted a legislative right to esta- 
 blish any religious act ; and have incorporated religious sects ; all of which 
 is inconsistent with the principles of the constitution, and of religious free- 
 dom, and manifestly tends to the re-establishment of a national church: — 
 For prevention whereof," &c. 
 
 It then proceeds to repeal the whole of the laws upon the subject, sub- 
 sequent to the revolution. 
 
 The preamble of the act of 1802, (which passed and took effect on the 
 12th of January in that year,) is in these words : 
 
 " Whereas, the general assembly, on the twenty-fourth day of January, 
 one thousand seven hundred and ninety-nine, by their act of that date, re- 
 pealed all the laws relative to the late Protestant Episcopal church, and de- 
 clared a true exposition of the principles of the bill of rights and constitu- 
 tion, respecting the same, to be contained in the act entitled, ' An act for 
 establishing religious freedom,' thereby recognizing the principle, that all 
 property formerly belonging to the said church of every description, devolv- 
 ed on the good people of this commonwealth, on the dissolution of the 
 British government here, in the same degree in which the right and inte- 
 rest of the said church was derived therein from them ; and, although the 
 general assembly possesses the right of authorizing a sale of all such pro- 
 perty indiscriminately, yet, being desirous to reconcile all the good people 
 of this commonwealth, it is deemed inexpedient at this time to disturb the 
 possession of the present incumbents." 
 
 It would be superfluous to add any thing to the forcible exposition con- 
 tained in these two preambles, of the reasons which influenced the legis- 
 lative body to pass these acts. I have already attempted to show that the 
 ante-revolutionary acts, in so far as they compelled dissenters to pay for 
 Glebes for ministers of the church, were, in the language of the act of 
 1785, "sinful and tyrannical;" and that it was and always has been the 
 duty of the legislative body to repeal these "sinful anc tyrannical acts," 
 and to redress so far as may be, the wrongs which they had inflicted ; that 
 this imperious duty had been imperfectly performed by the legislatures an- 
 terior to 1786, and that even the legislation of that year had contained 
 provisions, which, whether effectual or not, were evidently incompatible 
 with the very principles of the act itself. To restore things as near as 
 might be to their proper state ; to redress the wrong done to the sense of 
 religious liberty of every dissenter, even though it were impossible to re- 
 store their property to those identically from whom it had been arbitrarily 
 wrung ; to extinguish the embers of religious discord, and the jealousies of 
 contending sects, by placing all upon an equal footing, and to cherish among 
 them the practice of Christian forbearance and charity — these were among 
 the considerations which demanded of the general assembly the enaction 
 of the laws of 1798 and 1802. 
 
 2. The provision of the last of these acts for the sale of the Glebe lands, 
 is distinguished by a moderation, propriety, and sagacity, corresponding 
 with the just sentiments which had given rise to its passage. It provided 
 for the sale of the Glebe lands — 
 
 1. Only in case of vacancy, thus duly respecting the rights of the per- 
 sons then incumbent.
 
 14 APPENDIX. 
 
 2. Subject to. the debts of the parish, and leases made by the trustees. 
 
 3. And it directed the money to be appropriated for the benefit of the 
 poor of the parish, " or to any other objects which a majority of the free- 
 holders and housekeepers in the parish might direct, excepting religious 
 objects ;" an exception which justice to the Episcopalians required, since 
 in most parishes they would have probably been out-voted on the question 
 of the disposition of the funds, if the act had permitted an appropriation 
 to religious purposes. 
 
 4. The churches and church yards were respected. 
 
 5. Private donations, prior to 1777, (where there is any person in being 
 entitled to take the same under, that is, as heir to any private donor,) are 
 excepted. 
 
 6. Property acquired by donations, or subscriptions, since that date, are 
 respected and excluded. 
 
 This law, I contend, was constitutional as well as politic and wise. For 
 it does not touch the right of the incumbent, with whom a contract for life 
 was made by the public agents, (the vestries,) under public authority, be- 
 fore the revolution, or since the revolution, (whether regularly or not,) by 
 the vestries or trustees of the church. It cannot break in upon rights of 
 any future parson, because no such right is vested. It was no infraction of 
 the rights of parishioners, both because being a public establishment, it was 
 under public regulation and controul, and because the proceeds were ap- 
 propriated to their use, under their direction, with a single restriction cal- 
 culated to prevent feuds, and preserve harmony and peace, among the 
 several religious denominations. 
 
 To examine this question, however, more narrowly, let us consider the 
 validity of this act. 
 
 1. In regard to the principle that corporations, or other institutions, es- 
 tablished for public j)urposes, and appropriating the funds of the people for 
 public benefit, are always under the controul of the legislature, and subject 
 to be moulded by them according to the suggestions of their wisdom and 
 discretion. Such was the establishment of the Episcopal church, both be- 
 fore and since the revolution. Though a scion, indeed, of the church of 
 England, it became the creature of the legislature by its acts. Its organi- 
 zation and structure ; the mode of supporting it, (by a general tax, in lieu 
 of tithes ;) the appointment of its ministers, and their induction into office, 
 were all new modelled, and the establishment was the offspring of the le- 
 gislative will. Was it not a public establishment ? Was it not an esta- 
 blishment ior public purposes, in each parish? Were not the funds raised 
 by the levies upon the people at large within the parish, and were they not, 
 thus, public funds.'' These questions must all, I apprehend, be answered 
 in the affirmative ; and, if so, then was the whole establishment complete- 
 ly under legislative control, according to the decisions in the cases of the 
 town of Pavvlet rs. Clarke, in 9 Cranch, and the Dartmouth College vs. 
 Woodward, 4 Wheat. 518, 661. 
 
 2. Consider the question in relation to the supposed inroad upon vested 
 rights. I have already shown that there were no vested rights in the pro- . 
 perty, subsequent to the act of 1786, since after that act there was no de- 
 finite individual, or set of individuals, who were entitled to the beneficial 
 interest. The trustees held but a mere naked legal title for the use of the 
 "religious society ;" but under this indefinite phrase, there was no one to 
 take by reason of its uncertainty. The failure of the declaration of trust 
 would thus leave the property in the hands of the trustees, subject to a re- 
 sulting trust. For whom ? Unquestionably for the public, from whom the 
 funds had moved. And how should that public have disposed of them? 
 Precisely, I think, as the legislature has done, by appropriating the pro-
 
 APPENDIX. 15 
 
 ceeds of sale to the benefit of the parish from whom the funds had been 
 raised. And this seems in accordance with the doctrines' of the supremo 
 court, in 9 Cranch, 334, 335. 
 
 Such is the general view I have taken of the constitutionality of the acts 
 for the abolition of the corporation of the vestries and ministers, and for 
 the sale of the Glebe lands. I shall say but little as to the adjudications on 
 the subject. 
 
 It is well known that the venerable Chancellor Wythe was of opinion 
 tliat the laws in question were constitutional. In the case of the vestry of 
 Manchester vs. Overseers of the Poor of Chesterfield, he is rejiorted to 
 have examined into the rights of the church — the efl'oct of the revolution 
 upon them : he inquired how far the principles of civil and religious free- 
 dom, as declared by our bill of rights, and secured by our constitution, 
 were inconsistent with the pretensions of the church, and their enjoyment 
 of property, which was originally given for the support of an English hie- 
 rarchy ; lie refuted the argument which attempted to show any injustice in 
 the act of the legislature : and demonstrated that, by restoring it to be dis- 
 posed of by the majority of the parishioners, it effectuated the purposes of 
 justice, without contravening the rights of property, or violating the approved 
 maxims and rules of law ; and, finally, decided that the law of the last session, 
 (1801, C. 51,) was valid, and refused to award an injunction to stay the sale 
 of the Glebe of the Manchester parish, which was confessedly vacant. 
 
 This decision, it is understood, was affirmed by the court of appeals. 
 
 In the case of Claughton vs. McNaughton, 2 Mun.513, Chancellor Ty- 
 ler granted an injunction to Mr. McNaughton, (the incumbent of St. Ste- 
 phen's parish, at the time of the passage of the acts of 1798 and 1801,) on 
 the ground, that, according to the spirit of the act, no Glebe could be sold 
 if there was an incumbent in possession, who had been in possession at 
 the time those laws were passed. The chancellor decreed that the defen- 
 dants be restrained from selling so long as the plaintiff should continue 
 the incumbent of the Glebe ; and this decision, pregnant with the affirma- 
 tive that they might sell when a vacancy happened, was affirmed by the 
 court of appeals. 
 
 On the other hand, the case of Terret vs. Taylor has been cited from 
 9 Cranch. But to whatever deference the decisions of the supreme court 
 are entitled, as the opinions of wise and great men, they are of no bind- 
 ing authority, where they relate to a subject over which they have no juris- 
 diction. That decision was pronounced in reference to a Glebe in the 
 District of Columbia, which district having been ceded anterior to the act 
 of January, 1802, the decision of the court, on the unconstitutionality of 
 that law, was extrajudicial, as it had no effect in the District of Columbia: 
 and if they went out of their way to decide upon the constitutionality of 
 a state law, which could have no influence on the title in question, this 
 court is certainly not bound by its decision. 
 
 Nor does this court perceive, or admit, that that court can ever have 
 rightful jurisdiction of this case. It turns, in my apprehension, on the act 
 of 1786, which had the effect of annihilating all the rights of the church ; 
 and, therefore, the case does not arise under the constitution of the United 
 States. This court is aware, indeed, that a pretension has been sot up by 
 the supreme court, to examine, by way of appeal, the decisions of the court 
 of appeals, in cases in which the defeated party sets up ihc pretence of de- 
 manding the protection of the constitution or treaties ; and that that court, 
 when thus possessed of the cause, will proceed to reverse the judgment of 
 the court of appeals, upon points totally unconnected with such pretence. 
 7 Cranch, Fairfax vs. Hunter. But the court of appeals are understood to 
 have repelled this pretension, and to have refused to register the reversal ;
 
 16 APPENDIX. 
 
 an opinion perfectly consonant, as it appears to this court, to the princi- 
 ples of the constitution. 
 
 Having thus disposed of the question of the constitutionality of the acts 
 of 1798 and ISQ'2, this opinion might, perhaps, most properly terminate 
 here. I trust, however, it will not be deemed impertinent to remark, that, 
 in my conception, those acts were not only constitutional and just, but po- 
 litic and wise. An apprehension of the dangers of ecclesiastical establish- 
 ments, did not spring up for the first time with our republican institutions. 
 The history of ages had attested the proneness of such establishments to 
 vast accumulations of property, and the statute book of Great Britain is 
 loaded with mortmain acts, which were rendered necessary by the rapacity 
 of the clergy, at least in the early periods of the church. So long as there 
 has been a church establishment, with power to receive and to accumulate 
 property, so long has the tendency to such accumulation been manifested 
 distinctly. The history of the Papal see, and of the religious houses un- 
 der its dominion, is but a history of the cupidity of monks and devotees, 
 veiled under the sacred garb of our holy religion. The vast domains of 
 the clergy, acquired in the lapse of centuries, by the Catholic establish- 
 ment of JFrance, are known to us all. There seems to be little reason to 
 doubt that from this fatal source, among others, a revolution sprung, which 
 deluged the loveliest country of Europe in blood ; and, in its horrible pro- 
 gress, spread desolation over adjoining states, and shook the civilized world 
 to its very centre. But it may be said " that this was anti-christ ;" and that 
 it is not fair to attribute to the Protestant religion, the errors which they 
 had been forward to denounce in the practices of Popery. Look, then, 
 across the channel to Protestant England, and there we shall see, notwith- 
 standing every legislative precaution, a church establishment possessed of 
 overgrown wealth, less devoted to the cause of genuine religion than to 
 pamper the luxury and indolence of the high dignitaries of the church. 
 Or come nearer home, and even observe the great accumulation of wealth 
 which already prevails in the Episcopal church of New York. With these 
 reiterated examples before their eyes, our statesmen have been wise in their 
 caution. The evil has not sprung from the particular creeds, or the pecu- 
 liarities of confession of faith ; it grows out of the very nature of the thing. 
 The church, while it is continually acquiring from the liberality of the pious, 
 or the fears of the timid, or the credulity of the ignorant, never can part 
 with any thing ; and thus, like those sustaining powers in mechanics, which 
 retain whatever they once have gained, it advances with a step that never 
 tires, and that never retrogrades. The natural cupidity of the human heart 
 is watched by the devotee himself, with the less jealousy in his pursuit af- 
 ter acquisitions for the church, since he flatters himself that it is purified 
 from the dross of selfishness, and is sanctified by the holy objects of his 
 ambition. Thus it is, that, however humble in its beginnings, a church es- 
 tablishment must gather strength in its progress. 
 
 Parva nietii prlmo ; mnx sese attoUit in auraa 
 Ingrediturque 30I0, el caput enter niibila coiidit. 
 
 T, therefore, for my own part, most heartily concur in the wisdom and 
 policy of the legislative provisions we have been considering, and in the 
 spirit of caution which has inspired them. The property acquired, indeed, 
 by the church in Virginia, was inconsiderable ; but we have read the his- 
 tory of centuries past to little purpose, if that consideration can lull our 
 apprehensions, or put our just jealousy to sleep. The same influence 
 which enables an ecclesiastical establishment to gain from the state its first 
 insignificant privileges, will secure to them, from time to time, new, though 
 apparently inconsiderable accessions, until at last our worst apprehensions 
 may be realized. When has a state yet said with success to the church —
 
 APPENDIX. 17 
 
 " Thus far shalt thou go and no farther ?" May we not rather lay, in the 
 language of Archimedes, give them put a point to stand upon, and they 
 can move the whole earth. 
 
 In conclusion, I cannot forbear to observe that the consequences of a 
 decree against the validity of the Glebe laws, furnish a suilicicnt motive for 
 the utmost circumspection in the examination of the question. Though 
 we may accede to the justice of the motto — " Fiat juslitia ruat cailum," yet 
 it must be conceded, on the other Inind, that if the fall of the heavens, or 
 the scarcely less lamentable evil of civil dissention, is to be the consequence, 
 we should be very cautious before we adopt a course which must bring 
 them upon ourselves. In this aspect, it becomes interesting to consider, 
 that, if the Glebe laws are unconstitutional, sales heretofore made must be 
 set aside. Those sales having been made without warranty indeed, but 
 upon the hiifh of the legislative acts, to whom shall the purchaser look for 
 indemnity? Does not good faith require a legislative provision should be 
 made for levying upon the parishes the purchase money which has been 
 appropriated for their relief? And if such levy be made on all denomina- 
 tions of Christians, with a view to the reclamation of the Glebes, for the 
 benefit of only one, to what heart-burnings and dissentions will it not in- 
 evitably lead ? For my own part, I do most sincerely deprecate these con- 
 sequences, and earnestly hope that the wisdom of our highest court of ju- 
 dicature, in Virginia, may not find itself compelled to adopt the embarras- 
 sing and mischievous opinion, that the two solemn and deliberate acts of 
 the legislature, which we have been considering, are unconstitutional and 
 Void. 
 
 I have not thought it necessary to touch upon the particular character of 
 this case. The frame and structure of the bill evidences conscious difficul- 
 ty. The vestry and church wardens are first named as plaintifl's. If they 
 be trustees of the church, and entitled, notwithstanding the law directing 
 the sale of the Glebes, then is their title a legal title. If so, this is not the 
 proper tribunal to try the legal title. Let them go to a court of law, and a 
 jury of Loudoun. If they have no legal title, neither can they have an 
 equity, since they, at least, are not cestui's que trust. Nor is their claim, 
 as individuals, any better. They claim to be descendants of some, and as 
 representing others, descendants of other parishioners, suing upon the 
 ground that the property was purchased with private subscriptions. In this 
 aspect the claim is wholly unsustainable. In the first place, private sub- 
 scriptions to a public institution are considered in the light of a dedication 
 to the public. They merge in it, and are not susceptible of reclamation. 
 In the second place, in this aspect, it is necessary that eac/i claimant should 
 be a party and distinctly trace his title, by inheritance, from the first sub- 
 scriber down to himself, if, indeed, after such a length of time, a resulting 
 trust could be raised in favor of those from whom the purchase money 
 moved. 
 
 The very statement of the case affords its refutation, and the very frame 
 of the bill carries with it decisive evidence, that the draftsman found him- 
 self environed with difficulties which no human ability could overcome. 
 Dismissed with costs. 
 
 A copy. DANIEL LER
 
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